All of us at times become dispirited.  

As I've viewed immigration over the last 40 years, passionate advocates have come and gone, fortunate foreign citizens have been granted green cards and then naturalized; but the harshness and hard-heartedness of immigration law as a reflection of American cultural norms hasn't really diminished.

For example, back in the 1980s I set a personal goal (to help end consular absolutism and introduce a measure of fairness into the visa process). In this, I have utterly failed, and have at times trended toward despondency.

Although some of the State Department's power has shifted to Homeland Security, State's Bureau of Consular Affairs has defended the prerogatives of consular officers like a hyper-vigilant Tiger Mom. Despite many articles, blog posts, ABA and AILA resolutions, and open-mike challenges at State Department public forums, visa refusals based on the decisions of consular officers on questions of fact remain virtually unassailable, as a March 28, 2013 decision of the Ninth Circuit Court of Appeals painfully affirmed.

But occasional discouragement is not  surrender.  As Martin Luther King, Jr., reminds and emboldens us, “the arc of the moral universe is long, but it bends toward justice.”

Developments this past week in American immigration have proved him right.

On Friday, U.S. Immigration and Customs Enforcement (ICE) agreed to pay $1 million in settlement to a group of plaintiffs for early-morning home raids that terrorized their children. Adriana Aguilar, a U.S. citizen and the lead plaintiff, described the pain that jack-booted action by federal officers caused:

My son, who was just four years old, was crying in fear of gunmen in his home at four in the morning . . . We asked them to show a warrant or any other authority they had for being inside our home. They ignored us.

Earlier in the week, the Associated Press announced that it would no longer include the term, "illegal immigrant," in its authoritative Stylebook -- the journalist's bible. According to its Senior Vice President and Executive Editor Kathleen Carroll, the move is part of an ongoing effort by the AP to rid the Stylebook of labels (thus, schizophrenic is replaced by person afflicted with schizophrenia).   As she explained:

It’s kind of a lazy device that those of us who type for a living can become overly reliant on as a shortcut . . . It ends up pigeonholing people or creating long descriptive titles where you use some main event in someone’s life to become the modifier before their name.

Unpacking the AP move, MSNBC's Melissa Harris-Perry and a panel of thoughtful analysts offered a "MUST-WATCH" in-depth assessment of just how profound this arc-bending action in dropping the "illegal" slur is.  The panel likened the groundswell of opposition pressuring the AP on its use of the shortcuts, "illegals" and "illegal immigrant," to the lunchroom sit-ins of the Civil Rights Movement, when "colored" people were charged with illegality by virtue of geography, punished for where they sat on the planet or in the diner (or in the case of aspiring Americans, on the wrong side of a border):

Within hours of the AP change -- even faster than the two days after the Republican debacle at the polls it took Sean Hannity to flip on legalization -- the New York Times responded in kind.  Through its Public Editor, Margaret Sullivan (who last October declined to recommend any such change because readers wouldn't benefit), the Grey Lady announced that "for the past couple of months, [theTimes] has also been considering changes to its stylebook entry on this term and will probably announce them to staff members this week."

The last big thing came to view yesterday. The New York Times posted an obituary announcing the death on March 17 of Lawrence H. Fuchs. I didn't know or remember Mr. Fuchs, but the headline describing him as "Expert on Immigration," caught my eye. The obit alerted me to the seminal role he played leading up to the Reagan-era legalization program, describing him as "a federal government adviser [who in 1986] helped lay the groundwork for the last major overhaul of American immigration law."

Embarrassed about my unfamiliarity with Mr. Fuchs, and curious too, I Googled his name and found the preface to one of his books on Amazon. What he wrote there made me realize that immigration reform has already begun, that the great cultural integration of which he speaks began again -- like unseen swirls in the tide of change, cresting into huge waves bigger than Sandy -- on November 8:

Since the Second World War the national unity of Americans has been tied increasingly to a strong civic culture that permits and protects expressions of ethnic and religious diversity based on individual rights and that also inhibits and ameliorates conflict among religious, ethnic, and racial groups. It is the civic culture that unites Americans and protects their freedom—including their right to be ethnic. . . .

The system would not be severely tested as long as most immigrants were English or Scots. The new republic, as George Washington said in his farewell address, was united by “the same religion, manners, habits and political principles." But differences in religion, habit, and manners proliferated after the immigration of large numbers of Germans (many of whom were Catholic), Scandinavians and Irish Catholics throughout the last sixty years of the nineteenth century, and of eastern old southern Europeans, a majority of whom were Catholic or Jewish, in the decade before and after the turn of the twentieth. Political principles remained the core of national community. The new immigrants entered a process of ethnic-Americanization through participation in the political system, and, in so doing, established even more dearly the American civic culture as a basis of American unity.

The difference between 1990 (when Mr. Fuchs wrote, The American Kaleidoscope: Race, Ethnicity, and the Civic Culture) and now is that this time the acculturation occurred in reverse. Americans except on paper -- the DREAMers -- "established even more dearly the American civic culture as a basis of American unity" in a way that forced our language to adapt and their parents and themselves to be relieved of the smear "illegal." The revolution was not just televised, it was also publicized . . . by the Associated Press.

So watch out State.  I've got my metaphorical bow and quiver, and I'm still shooting arcing arrows of justice at consular absolutism!

"[A] riddle, wrapped in a mystery, inside an enigma"  ~ Winston Churchill

The most quotable of British Prime Ministers could well have been talking about the American immigration system rather than describing Russia in 1939.  U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts.  Not surprisingly, Thomas Stanley in The Millionaire Next Door recommended immigration law as a career, predicting that many foreign citizens, whether affluent or less so, would find America an attractive destination and need a chaperone to guide them through the maze of red tape.

If Congress ever grows enough of a spine to tackle comprehensive immigration reform, it must do more than merely resolve the big items -- border and interior enforcement; legalization of unauthorized migrants already here; and a plan for future flows of sojourners and permanent residents.  It must also strive to simplify the law.  

Consider what should be a straightforward concept -- following the rules.  How does a noncitizen comply with the immigration laws?  What does it take to maintain legal immigration status?  Sadly, the answer is as clear as fracking fluid runoff.  

For example, without any malevolent intent or affirmative act of misconduct, a temporary entrant (a "nonimmigrant") through the action of a third party, say a parent or spouse, a spouse's employer, a university official, or a lawyer, can "fail to maintain nonimmigrant status," be in a condition known as "unlawful presence" and "not [be] in a lawful nonimmigrant status" -- three phrases in law or regulation that often don't mean the same thing. Thus, a hapless individual may be seen by the authorities as having violated legal status but not be unlawfully present. This could occur, as one example among many, where the person is the spouse of a J-1 exchange visitor who is working under a form of employment permission known as curricular practical training, and the J-1 worker is fired. (This outcome would arise because unlawful presence only occurs if one overstays the period of status authorized, and an exchange visitor, like an academic or vocational student, is admitted for "duration of status," a condition that carries no date-certain expiration. Go figure.) 

Or, a foreign citizen can depart the U.S. holding a government certificate allowing permission to return (known as "advance parole") and then reenter in order to await the grant of a green card under the adjustment of status process.  Such a person would not have maintained nonimmigrant status -- indeed would not have any legal status (because parole is not a status) -- and yet would not have violated the immigration law. In essence, he or she would be in a non-status as an applicant under color of law awaiting the grant of a pending benefit.

Or, consider a foreign person with a U.S. work permit.  As I've noted in an earlier post about human levitation, you may have the right to work here but not to be here.

Or, you might have successfully changed or extended your work-visa status for one, two or three years and received from the immigration authorities an official approval notice with a clip-out status permit (the Form I-94) bearing a validity period, leave the country for a trip to see Grandma, and be readmitted with a new I-94 for a significantly shorter period. This occurs because one component of the Homeland Security Department, U.S. Customs and Border Protection (CBP), limits the I-94 to the expiration date of one's passport, while another DHS component, U.S. Citizenship and Immigration Services (USCIS), ignores the validity period of the passport, and holds that as a condition of maintaining nonimmigrant status you must always make sure your passport is unexpired.  

Often, the CBP inspector at the port of entry says nothing about having short-changed the expiration date on the I-94; hence, the entrant may not realize his/her status document has been unduly shortened.  The too-frequent result: An unwitting overstay occurs, thereby triggering unlawful presence. And even if the shortening of the status period is noted, the individual could reasonably believe that the longer of the two I-94s (in this case, the clip-out version) prevails over the shorter expiration period.  Or s/he may be misled by the DMV which issues a driver's license with a validity period extending to the later end date on the clip-out I-94.  

Whether or not the person is confused or misled, a USCIS adjudicator, a consular official abroad, a CBP inspector, an Immigration and Customs Enforcement officer or an immigration judge, when examining the person's immigration compliance history on some future date, may well deny an immigration benefit, refuse a visa, prevent entry or order removal -- all because of confusion over the simple concept of maintaining legal immigration status.

If that's not complicated enough, the legacy agency, the Immigration and Naturalization Service, repeatedly floated a notion (not a published regulation) known misleadingly as the "last action rule" in order to reconcile discrepancies in ending dates on two or more I-94 status documents. The "rule" sounds simple enough: Whichever status was the last one granted ("the last action") controls the person's nonimmigrant status.  Except, however, where the last action granted was based on a change rather than an extension of status, then the last action rule is inapplicable. For the stew that is the last action rule, see these confusing links: Bednarz letter, Cook Memo (and referenced Simmons letter), Hernandez letter, and unapproved AILA/INS October 17, 2001 liaison meeting minutes (Item II). 

Still worse, if the immigration laws make it virtually impossible to know who's in legal status, they make it harder than a Rubik's Cube to figure out who's here illegally, as DREAM activist Prerna Lal explains in "It's More Complicated than Legal vs. Illegal," her open letter to Ruben Navarette -- which challenges his defense of the slur, "illegal immigrant."

If my effort to explain the mumbo-jumbo of immigration violations and last actions remains confusing, I ask your pardon. Be heartened, however, that errors of these types can be fixed -- assuming that the immigration agency exercises its heart (which it occasionally does).  Still, it's a shame USCIS doesn't heed its stakeholders by expanding the areas of forgivable infractions and Congress does not write intelligible immigration laws for law-abiding individuals to follow, a code unlike the current immigration statutes that "yield up meaning only grudgingly" to reveal "morsels of comprehension [which] must be pried from mollusks of jargon." 

[Blogger's note:  Whether by dint of nature or nurture, lawyers love to argue; immigration lawyers perhaps more so. Unlike our colleagues (outside of immigration practice) for whom sources of law are better defined, immigration attorneys can access a wider array of law and non-law sources with which to fashion our pro and con arguments.  

As a change of pace from this blog's usual fare of criticizing immigration agencies and Congress, today we'll offer a PG-rated point/counterpoint with guest blogger, Karin Wolman, and me (Disclosure: Neither of us is depicted in the photo).  

We debate the oft-posed question whether a foreign citizen while living in the United States and holding one of any number of categories of U.S. nonimmigrant status who are not expressly authorized to work can nonetheless be employed by and serve a foreign employer.  This might, for example, include:

• a spouse on a dependent visa whose other half is lawfully employed on a work visa;
• a B-2 or WT (visa waiver) visitor for pleasure vacationing in the U.S. who must attend to emails sent by a customer of the visitor's foreign employer;
• a B-1 or WB (visa waiver) visitor for business who must assign or supervise work to be performed abroad;
• an F-1 student who is sent by her employer abroad to study for an MBA; or
• an H-1B work visa holder who (although authorized to work for a specific U.S. employer) is not expressly permitted to moonlight for an employer abroad.

The controversy arises because Congress has never bothered to define "employment" under the immigration laws, and the definitions of the term in immigration regulations, case law and non-binding policy guidance are incomplete or imprecise.  

So you be the judge.]

Can I Work from Home for a Foreign Employer? 

[Karin Wolman's answer] 

 May a foreign national without work-authorized visa status to work remotely from a home located in the United States for an employer located abroad?  This question lies squarely at the intersection of immigration & tax law, and the short answer is no, except for nonimmigrants in the F-1 (Academic Students), J-1 (Exchange Visitors) & Q (Cultural Exchange Participants) visa categories. 

For the individual, the foremost reason why not is spelled out in Chapter 3 of IRS Publication 519, US Tax Guide for Aliens.  Any income from services performed for a foreign employer by someone present in the United States is deemed “US source income” unless that income meets ALL THREE of the following conditions:

1. total annual earnings from such services is less than $3,000; 
2.  the nonresident alien is physically present in the United States for not more than 90 days in the year; 
3. the services are performed under contract with a nonresident alien individual, foreign partnership or foreign corporation.

This tax rule interacts with the visa rules in the following way: Many nonimmigrants, such as B-1/B-2 visitors, and certain dependent spouses of temporary workers, such as those in H-4 or O-3 status, are ineligible to apply for work authorization in the United States. For the H-4 or O-3 visa holder, here accompanying a spouse who is lawfully employed in the US, such a person is likely to be physically present in the United States for all or most of the year, rather  than under 3 months. Their visa status does not permit them to earn any “US source income.”  If they do earn any significant income from a foreign source while spending most of the year here, it will be considered “US source income” because they are located here, and it will be taxable here.  From the immigration perspective, earning any US source income would be considered freelance “self-employment” (since there is no U.S. employer) and it would be considered a visa status violation. That income, revealed later on the couple’s US income tax return, could render the non-work-authorized spouse ineligible to adjust status to lawful permanent residence under Immigration and Nationality Act (INA) § 245(c).

There is one important carve-out for foreign students and exchange visitors present in the United States under F, J or Q nonimmigrant visa status. These nonimmigrants, including their spouses and children in a dependent visa classification, are permitted to exclude from their U.S. gross income any pay received from a foreign employer. This group includes a wide assortment of students, scholars, trainees, interns, teachers, professors, researchers and research assistants, or leaders in a field of specialized knowledge or skill. F, J & Q nonimmigrants and their dependents may work from home for a foreign employer, and are not considered to have earned any US source income by doing so.

The ramifications for the foreign employer are much more significant, and involve overlapping global mobility issues of tax, immigration, corporate, and employment laws. The foreign company must determine how to obtain the appropriate visa status for its worker so it can have an employee legally residing and working in the United States. This in turn will require the foreign company to have some type of corporate entity or branch office doing business in the United States. In addition to establishing a legal presence in the United States, the foreign company must identify what other taxes its U.S. entity may be subject to, in addition to payroll tax, how that will affect treatment of corporate income of the foreign entity, and whether they can avoid double-taxation by means of a tax treaty. The foreign employer must consider local employment and contract laws in the jurisdiction where the employee is located in the United States, as the employee’s physical location determines which laws apply.

 *CAVEAT* I am an immigration attorney, not a tax attorney or accountant. Please seek advice on the tax implications of your specific situation from a qualified tax professional. 

Can I Work from Home for a Foreign Employer?

[Angelo Paparelli's reply]

Can a nonimmigrant who lacks authorization by U.S. immigration authorities be employed in the U.S. to work from his or her home in the U.S. for a foreign employer abroad?  My lawyerly answer is: It depends.  The question is not one of tax law.  The tax laws and immigration statutes have each been enacted for distinct purposes, and one legal regimen does not necessarily inform the other. Rather than taxation, the laws of employment and of immigration apply, as well as a subject of law study known as "conflicts of law." 

Phrase the question thusly and the answer may well be different from the one Karin offers:  

Does U.S. immigration law prohibit a foreign citizen from fulfilling an employment agreement with a company incorporated and doing business abroad?

Before answering, assume the agreement specifies that the required activities will involve creating and saving work product, through the use of a web browser in "the cloud," with the cloud's servers located on foreign soil.

Assume further that the agreement allows the foreign citizen to work from anywhere in the world, is made before the individual enters the U.S., and provides that salary payment shall be in a foreign (non-U.S.) currency with direct deposit into a foreign bank account and provides that the law of the foreign state and the courts of that state where the employer has its headquarters shall govern any disputes that may arise between employer and employee.

On these assumed facts, does the foreign employer or employee violate American immigration law if the employee fulfills his or her part of the bargain from a residence in the United States? My answer is:  Probably not, because the mere fortuity that the work is performed from within the U.S. rather than in any other country is too slim a fact to give the U.S. under conflicts of law principles a legitimate interest in applying American law. After all, no American workers were harmed by the work performed under this contract.  

As I read the INA, Congress has never expressly said that U.S. immigration law should be given extraterritorial effect.  See EEOC v. Arabian American Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 1230 (1991), in which the Supreme Court changed the longstanding presumption against the extraterritorial application of American law (unless a contrary intent appears) into a presumption against extraterritoriality (unless there is the affirmative intention of the Congress clearly expressed). To be sure, the U.S. immigration police would probably try to assert that a nonimmigrant who works from his U.S. home for a foreign employer on the facts I've posited has violated the immigration laws. But that doesn't mean the immigration cops would be right.  I believe, nonetheless, that the federal judiciary would follow EEOC v. Arabian American Oil Co. and say that U.S. immigration law cannot be applied extraterritorially to prohibit that which is lawful on foreign soil.

[Karin Wolman's retort] 

I fall unequivocally on the "unauthorized employment" side: The salary paid for the employment is active, earned income characterized by a combination of three factors -- provision of services for hire by the foreign national + physical presence in the US that is not brief nor intermittent + U.S. source income in exchange for provision of those services.

[Angelo Paparelli's rejoinder]

The real question then is not whether a foreign employer may employ a foreign citizen working in her American home without a work visa but WWTCD (What would the courts do)? 

A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely.  It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers.  These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.”  She wrote: 

[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011.  One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer.  We have always felt pride in our nation’s ways, and pride isn’t all bad.  But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.

Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of "American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet).  The construct of the federal courts that I’m about to describe rests on tottering and false assumptions.  These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation. 

(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion.  Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president.  Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.) 

The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous.  As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous.  Thus, the courts are under orders to let the agencies call the shots. 

So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws?  My 30-plus years as an immigration lawyer compel me to shout a “NO” answer. 

Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA).  The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws.  DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS).  The converse is also true, as USCIS readily admits. 

Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws.  Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization.  These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]). 

As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies.  Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies. 

Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws. 

These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law.  They are an affront to Congressional power and a testament to legislative lassitude over immigration.  Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere.  As Peggy Noonan concluded in her op-ed: 

The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.

And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them. 

We have work to do at home, on our culture and in our country. 

As 1930s radio shows and 21st Century talk-radio shock jocks remind us, words -- perhaps even more than images -- carry evocative power, the power to incite passion.  Fernando Lázaro Carreter, the academician and guardian of Spanish (whose quote appears in the title of this post and in a slide deck I published years back on immigration writing for lawyers), viewed words as the epidermis, at once opaque and translucent, that thinly veils the emotions of the speaker. Lázaro Carreter and other wordsmiths such as George Orwell, William Safire, Frank Luntz and George Lakoff all recognized the power of language, and its modern companion "messaging," to pierce the fragile skin of the public and likewise expose emotions.

Two recent immigration-related events illustrate the language-induced unveiling of popular passions.  The first involved Virgil Peck, a Republican state lawmaker in Kansas, and the second a newly-minted third-grade teacher in Georgia. Were it not for the viral power of media, their ill-advised words might have been quarantined in a small pocket of each state.  Instead, carried aloft by the winds of social media and the 24/7 news cycle, the contagion spread and popular emotions have now been unleashed.

Mr. Peck, wearing his heart too loosely on his sleeve, unleashed on himself a pecking Twitterstorm from all directions, reminiscent of the phone-booth scene in Hitchock's The Birds. Although he has since apologized, outraged citizens now demand his resignation for these ill-chosen comments during an appropriation-committee discussion of the spread of wild swine in Kansas:  

"It looks like to me if shooting these immigrating feral hogs works maybe we have found a [solution] to our illegal immigration problem."

The teacher, on the job for about a year, may face discipline for using a lesson plan by Christian writer and proponent of homeschooling, Brenda B. Covert, lifted from an "educational" website, to teach third graders about "illegal aliens." 

The lesson tells the allegory of an unwanted young boy, an interloper who hops a backyard fence to interrupt a play date involving Taylor, Sam and  Buster, Sam's dog.  Sam's mother, representing authority, makes the intruder leave.  A quiz follows with six questions, the last two of which are: 

5. What is a citizen?

A. a person who avoids cities

B. a person who lives in a city

C. a person who belongs to a country

D. a person who visits a country

6. What does the U.S. do with illegal aliens?

A. The U.S. puts them to work in the army.

B. The U.S. puts them to death.

C. The U.S. sends them back where they came from.

D. The U.S. shoots them into outer space.

Judging from the results of Newsweek's recent quizzing of Americans on the questions in the U.S. Citizenship and Immigration Services' naturalization examination (38% failed), the third-graders might be forgiven if they couldn't answer Question 5. (The 38% who flunked the naturalization exam would probably say that either 5.A or B. must be right, because, after all, "citizen" must have something to do with "cities.")

As for the last question (What does the U.S. do with illegal aliens?), I agree with 18-year-old Matt Trips, a self-described "pianist, composer, humanist, anthropologist, [and] probably some other stuff too," who says in the MUST SEE video below, "[Question 6] is disturbing to me on so many levels." (I won't paraphrase Matt [although I note that the town in question is not Duluth, MN, as he says, but Duluth, GA.] His 11-minute analysis speaks volumes about all that is wrong with teaching impressionable kids to fear other human beings and what a lesson like this says about our society.)

Matt's pique is mirrored by COLORLINES, a news daily that describes itself as "offering award-winning reporting, analysis, and solutions to today's racial justice issues." In keeping with COLORLINES' Drop the 'i' [illegal] Word campaign, writer Mónica Novoa rightly attacks EdHelper, the site where the offensive lesson plan originated: 

It’s outrageous that this website for educators provides such insidious anti-immigrant messages. As harmful as it is for children to indirectly imbibe hate speech through TV, media, etc., it is much more atrocious and harmful when that hate speech is being provided to them under the guise of education from a source they trust and possibly look up to.

The i-word opens the door to all kinds of messy interpretations, regardless of the form it takes. It teaches kids either that it’s ok to evoke violence against other human beings (whether in the form of a joke or a lesson plan) or to feel worthless if they are on the receiving end. While parents can prevent children from being exposed to racial slurs and hate-filled messages at home, it is also up to educators to ensure a safe learning environment. This is harmful to society as a whole, but especially to children who could be the target of i-word hate speech.

Had the Georgia teacher searched the web just a bit more, she would have found legitimate sources that offer an introduction to immigration and humanize immigrants, like the "Community Education Center" and "Teaching Tolerance."

Regrettably, however, the abuse of immigration language by public employees has occurred in the past.  Older observers of the immigration scene will recall Harold Ezell, then Regional Commissioner of the Immigration and Naturalization Service, who was wont to refer to undocumented immigrants entering America from Mexico's Rio Grande River as "wets" (short for the pejorative "wetbacks") and to dub apprehended immigrants as "illegal aliens" who should be "caught, skinned and fried." 

Compassionate and inclusive political speech -- a phrase I prefer over the maligned coinage, political correctness -- must frame the immigration debate of the future, as the astute philologists at the Opportunity Agenda demonstrate.  There can be no acquiescence with hate speech.  Xenophobes and nativists must be called to the carpet.  Now that the term "undocumented immigrant" has entered the Supreme Court's sober lexicon, introduced by a "wise Latina," the time is surely upon us to recognize, once and for all, that no human being is illegal!