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Undocumented Immigrants Have The Right To Stay Here

By       Message Jack Clark     Permalink
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Few things lately have gotten me more annoyed, or more accurately, disgusted, than to hear right-wingers like Sean Hannity continually bleating about undocumented immigrants: They didn't respect our sovereignty. They didn 't follow our laws. We can't reward people who broke the law.

So this article is addressed to two groups. One is right-wingers who call for deporting all 12 million undocumented immigrants.

The following is also addressed to those -- and there are many -- who begrudgingly say, as if they were being so magnanimous, "Oh, they're here, it 's too much trouble to deport them, let them stay."

I maintain that undocumented immigrants have the right to stay, and probably the right to citizenship as well.

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Let me start off by discussing three legal concepts that are quite instructive.

The first two concepts are simple.

"De jure" means according to law.

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"De facto" means actual, being in effect although not formally recognized, not legally or officially established.

The third concept takes a bit of explaining. It's called equitable estoppel. Before offering the definition, I'll give an example of equitable estoppel:
[I]f a landlord agrees to allow a tenant to pay the rent ten days late for six months, it would be unfair to allow the landlord to bring a court action in the fourth month to evict the tenant for being a week late with the rent. The landlord would be estopped from asserting his right to evict the tenant for late
payment of rent.
So a definition of equitable estoppel would be a doctrine that
bars a person from adopting a position ... that contradicts his or her past statements or actions when that contradictory stance would be unfair to another person who relied on the original position.
The past statements or actions can include silence, and taking no action.

Do you see where I'm going here?

The US de jure immigration policy forbids entry and work here without formal permission and official documentation.

The US de facto immigration policy has for decades allowed entry and work here without formal permission and official documentation.

The concept of equitable estoppel bars our government from now adopting a position that contradicts the de facto immigration policy, because that contradictory stance would be unfair to the undocumented immigrants who relied on the de facto policy.

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I'm not saying the doctrine of equitable estoppel is enforceable in a court of law on behalf of undocumented immigrants.

I am saying the doctrine of equitable estoppel is applicable by analogy. In other words, the same elementary principles of human fairness and decency that underlay this doctrine -- the reason this legal doctrine arose in the first place -- are applicable to our everyday lives, and therefore to our dealings with undocumented immigrants.

Simply put, you don't lead a person down a path, and then pull the rug out from under them.

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This article is adapted from a segment of the weekly Blast the Right podcast. Jack Clark is a pseudonym for retired attorney Jerold Block, now working full-time to advance progressive causes.

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