Or read the transcript below:
(Transcription by J. C. Hendershot)
Interview with Charles Foster by Roger Aronoff
The “Take AIM” show on BlogTalkRadio, Thursday, September 9, 2010
ROGER ARONOFF: My guest is Charles Foster, who is featured in a new movie out in selected markets. The movie is called Mao’s Last Dancer. It is the story of Li Cunxin—I believe, is the name—whose autobiography of the same title was made into a film that opened last month. I saw it last week, here in the Washington, D.C. area, and I highly recommend it to everyone. Mr. Foster is an immigration lawyer in Houston, Texas—which is my hometown!—and he is played by Kyle MacLachlan in the film. We’ll talk more about that shortly. Charles, welcome to Take AIM!
CHARLES FOSTER: Thank you, Roger. I’m pleased to be with you.
ARONOFF: Great to have you on. Let me tell our listeners a little more about you. Charles Foster is a recognized expert in U.S. immigration law, with more than 30 years of experience representing and advising multinational companies. Along with his role as co-chairman of Foster Quan, one of the nation’s largest immigration law firms, Foster currently leads the Greater Houston Partnership Task Force on Immigration Reform, and serves as Chair of the State Bar of Texas, Immigration and Nationality Law Section. He also serves as honorary Counsel General for the kingdom of Thailand, and he has served as a senior policy advisor to both Presidents George W. Bush and Barack Obama during their Presidential campaigns. Why don’t we start there: Before we talk about the movie, what did you advise President Bush and President Obama on, when they were running for President?
FOSTER: I think the most unique situation was when then-Governor Bush was clearly going to be a candidate for President in 2000. I had followed President Bush and I only knew him slightly. But I did know one thing, that he had very strong views about immigration. So several mutual friends recommended that I work in his campaign on immigration policy—I wound up being, at that time, his only policy advisor. I thought my role would be relatively modest, and I came up with what I would call some technical recommendations about how to improve the Immigration and Nationality Act—and then-candidate Bush came back and said, “No.” He wanted something big, something that would be a game changer, that would deal with the big issues of immigration. I think he used the words “a grand bargain with Mexico.” So he, better than any other politician I’ve ever met, understood the immigration issue, cared about it. I speak a lot about this, and I always say that there’s only been two Presidents, really, in the history of the United States, that really ever focused on immigration policy to any real extent. That was John F. Kennedy—for different reasons—and George W. Bush.
ARONOFF: Okay. When Obama was running for President, he came to you, also, to get advice on the same topic?
FOSTER: Well, yes, in the following way: I had just continued with Bush. That became a very big deal in that campaign, because President Bush made it a big deal, met with President Fox several times—I prepared his talking points—and, really, he developed, working together, the basic outline of what’s often referred to as “comprehensive immigration reform.” He knew it would be better to route—if the border patrol—and, by the way, we were both products of Texas: I grew up in south Texas, he grew up in west Texas, I grew up in walking distance of the border—he knew the border patrol, if they were spending all their time, as he said, “Chasing someone’s nanny, and strawberry picker, or homebuilder,” it would be better to route people into a temporary workers’ program. That doesn’t exist. He also knew that fixing it at the employment site, so there was an effective way to verify employment—all of that’s part of comprehensive immigration reform. By the 2008 campaign, actually—and my wife thought I was suffering from schizophrenia—at different times I worked for several candidates, including Senator McCain, as well as President Obama, never believing that each of them would secure the nomination of their party. At one point, McCain was a long shot, but he was the only Republican I could support, because of his position on immigration reform—and I had no conflict at all, because I was hoping that whoever got elected President would support good immigration policy.
ARONOFF: We’re going to come back to that one, but let’s talk about this film. So Li was a young boy in a Chinese village around the time of Mao’s so-called “Cultural Revolution,” and was chosen to be tested to see if he was going to be a worthy ballet dancer. Why don’t you take it from there? Give us a brief synopsis—including how you became involved in the story.
FOSTER: It’s a remarkable story. You see it all in the book, and now in the movie, Maos’s Last Dancer, which—you could have made two or three movies about that. Coming out of the Cultural Revolution, Madam Mao wanted to restore ballet for China, which had been destroyed in the early parts of the Cultural Revolution, in part to compete with their then-archenemy, the Soviet Union. In a way only China could do, a decree went throughout the kingdom, the empire, and into every little village. Representatives of Madam Mao were sent to look for the perfect body—literally looking at millions and millions of young schoolchildren. To make a long story short, Li was plucked out of his village, along with, perhaps, a thousand others. Then they would move up to the Canton level, up to the state level, eliminating them as they would go. At the end of that process, there were 40 children selected. At the age of 11, Li was taken out of a village where he had never seen a plane, never seen a car, and was, really, taken from the 17th century into Beijing—it was barely in the 20th century—and for the next seven years, virtually seven days a week, was trained in a fashion that parents of children here in America that may put their kids in ballet class could never imagine—and he didn’t even know what the word ballet meant—and at the end of that process, was a remarkable talent.
And, by coincidence, President Carter had established formal diplomatic relations, and, pursuant to an agreement signed by President Carter and Deng Xiaoping after his historic visit to the United States, Deng Xiaoping goes back to China, says, “We signed this cultural exchange agreement, we have to send someone.” So out of all this, Li gets sent. He is picked because of the extraordinary talent he would represent—China would be proud of him—and also because he was a good student in Communist theology, and was deemed reliable. But once he got here to study with a remarkable artistic director, of the Houston Ballet, from London, that had established a personal relationship with the Chinese ballet academy—Beijing Ballet Academy—Li, like so many people that come to America, felt like he had found a country very different from what he had studied about. Rather than seeing capitalist oppression, he saw a land of milk and honey, and, on a very personal basis, he made a decision that’s made every day by thousands of people: He wanted to live and work in America, where he had more opportunities, artistic freedom. But he recognized that that decision, to stay in America, was going to set off a storm, at least back in China, and so part of the movie, as you know, is when Li goes back to the Chinese consulate, as a face-saving measure, to take personal blame, to exonerate his mentor, Ben Stevenson, the head of the Houston Ballet. Unexpectedly, the Chinese physically grab him—it takes five guys because, as you see in the movie, to achieve the abilities that Li did, it takes an athlete. He was probably stronger than a Washington Redskins linebacker in terms of his upper body strength, his leg strength.
ARONOFF: Okay. One of the arcs of the story—it’s a love story, it’s great ballet. We see the difference between the styles, where one of the Party members in China wants it to be with guns in the ballet, that sort of thing, whereas they see a video of Baryshnikov and get all excited about a different way that ballet can be. So you’ve got that. You’ve got a love story. You’ve got this arc of how the Chinese government was this totalitarian state, plucking kids from their family and, as you say, working them seven days a week, no involvement with their family. But toward the end of the film, going along with the opening-up of China, they seem to become more compassionate, less totalitarian. Let’s talk about that aspect of it, the arc of the Chinese government from that period, from the time, early on, and then when they seized him at the consulate, to later on. I know you have a lot of familiarity with that.
FOSTER: I do, because, this was an extraordinary case. As you say, when the Chinese seized my client—actually, while I was in another room, thinking I was negotiating, or at least explaining some of the legal basis upon which Li had to remain in the U.S., which was very clear, it was no problem from the U.S. side—as I focused on what was in the best interest of my client, individually, as lawyers do, setting aside any personal thought of what was in the better interest, the group interest, or the interest of the Houston Ballet, I realized that one of the consequences, I thought, I would be forever banned from China. But I’ve actually, ever since then, continued to have very active relations with China, both as chairman of the Asia Society, I’ve traveled to China—but, Roger, as you said, the movie does show this arc of change. It does show the close of a very difficult period for China, on the death of Chairman Mao and the arrest of the so-called “Gang of Four,” including Madam Mao. Fortunately, Deng Xiaoping arose out of the ashes—who was a real pragmatic fellow, as he famously said, he didn’t care if the cat was white or black as long as it caught mice. So Deng Xiaoping allowed, first, the introduction—for peasants to own private, small plots of land to produce their own products—and then he experimented with Special Economic Zones, first in Shenzhen and then in Shanghai, to allow a different form of economic system to develop. As we all know, China has gone from one of the poorest countries in the world, by any standard, gross national product or on a per capita basis, to one of the wealthiest countries, certainly in terms of gross national product. So China, as part of that, on the economic side, in the last several decades, has made tremendous—as we all know—tremendous progress, and in reality, while no one could call it a democracy there’s far more individual choice and openness than China has ever experienced before. Li’s story partially straddles that, and while he’s banned from China he’s ultimately able to return to China after a number of years.
ARONOFF: How do you view U.S. relations with China today? How concerned are you that they have quite a different view of our partnership? And Obama’s use of “soft power”? Because a lot of people still are very concerned about what their intentions are, militarily, about their manipulation of currency, about the amount of U.S. debt that they hold. And they recently claimed “indisputable sovereignty” over the South China Sea, which would seem a rather provocative act. So I’m wondering how you view China today, and the U.S. relation with China.
FOSTER: Well, I think there are, as you mentioned, a number of important bilateral relations. But what my view is, no matter who the President of the United States is, the U.S.-Sino relation is clearly our most important bilateral relations. And we’re going to have problems and issues. But we’re going to have to, in the long run, live together, work together, because what China does, and what the U.S. does, impacts the whole world. So we’re working through those difficult issues. I’m not trying to minimize them, but I think, ever since Richard Nixon went to China with Henry Kissinger and started this process, again, no matter who was elected President, no matter what they said before they went into office, most Presidents—excuse me, every President of the United States—has essentially followed the same policy, which has shown a certain flexibility toward China, and China, in some ways, toward the U.S.
For example, each side, there’s sensitivities, and there may be protests, but, in the end, both countries realize that they’re not going to let any one issue derail this important relationship. And I think, for all the issues that we could raise about China, I always point out to my friends that—using your word, the arc—you look at, overall, where China has come from, to where it is today. When the picture starts, China is outside of the system. It is, you could say, virtually a rogue nation that has no stake in the game. Today, China has one of the biggest stakes in the game. They are one of the two or three major players in the world economy. So while that causes issues and tensions between the U.S., as you’ve mentioned—for example, the value of the yuan, the renminbi—in the long run, the mere fact that it is playing such a significant role in the economy is a restraint. The military issue is of concern, but I think that we have to put that into perspective, in the sense that China sees itself, now, as a major power, and having a first class military goes with that status in the world, and it’s proper for the United States to express concerns, have issues, to monitor, but it was not ever realistic to say that a China that had grown into, at least, an economic superpower was going to keep a military that was the same they had in the 1950s.
ARONOFF: Mm-hmm. So let’s wrap up on the movie. You were played by the actor Kyle MacLachlan, who many would know from either his film role, in the movie Blue Velvet, or TV series—Sex and the City, and Desperate Housewives. Tell us about your Hollywood, your film-making experience, and being portrayed in a film—what that was like for you.
FOSTER: A lot people ask that. You’d have to say it’s sort of flattering to have one of your cases, something that you were involved in, turned into a motion picture. You never expect that. So I would be less than candid if I didn’t say it was. When I realized that this great book, Mao’s Last Dancer, was being turned into a movie, I had more than passing interest about the script, and who was going to play me, and in the end I was very pleased with the performance of Kyle MacLachlan. I got to know him, I spent three days here. I always felt like his—he comes from Seattle, so he may have heard more of a Southern accent than I hear when I speak, but I’ll let your listeners decide that. But I think he does a good job. Overall, the movie, as you pointed out, is a remarkable movie. As far as I know, everybody who’s seen it says, if not a standing ovation, the movie uniformly gets a big round applause from an audience in a way I’ve never seen. It’s a great story, very enjoyable.
ARONOFF: It’s true. It was such a big story, as you see in the film—but, of course, we didn’t really have this 24-hour news cycle back then, so I think most people don’t really recall it. Was it mainly a local story, in Houston, or did it receive much national attention at the time? What was the media angle to this?
FOSTER: Well, that evening in the consulate, the negotiations went on 21 hours, and the Chinese kept on telling me that if Li stayed it would be a humiliation, an embarrassment, to China. My response was, I agreed with him, but I said, “Let’s keep this a secret. It can be our secret. But if you hold Li, you’re going to put this on the front page of every newspaper in the world.” It became, momentarily, a very big story, because it was put on the front page of every newspaper in the world. I remember, a few days after this happened, I had a client of mine, said he woke up in Dubai, or something, and turned on his television—he saw me knocking on the door of the Chinese consulate in Houston. But the story, as they say in the business, had no legs, for a couple of reasons. First of all, Li was released after 21 hours, and, secondly, we made the decision, before Li and I walked out to face a horde of cameras, that we would downplay what happened in the consulate, and just characterized it as a misunderstanding. I had never really told the press, ever, all the true story, although it was in documents filed in the federal courthouse—but no reporter ever bothered to look it up—because I had used the press. When the press had gathered outside, I would go out and tell them nothing, and go back in and talk to the Chinese and say, “Release him. If you release him, then they don’t have to know anything.” But at some point the press, the local press, went ahead. They had to file some story. They didn’t quite get it right, but by the following day it was in every newspaper in the world. But, again, when we walked out, and Li was released, that’s all we wanted. I did not want Li to be completely ostracized from his country of birth, his parents—he was worried about his brothers and his parents—so we downplayed the story, and the press quickly turned it into a love story, and they dropped the political angle, and it didn’t stay in the press for a long time.
ARONOFF: Just to wrap this part up: He stayed in the country, remained as a dancer, and married another dancer—actually, married two dancers, as shown in the movie. Where is he today? What’s happened with him?
FOSTER: Well, he did stay in the United States, and although his decision to stay put strain between him and the Houston Ballet, because they felt that their reciprocal trip that they were going to take, the first performing arts group to China, had been placed in, and was placed in, jeopardy. Ultimately, because he was a great talent, he became a superstar for the Houston Ballet, won every international competition, and, at one point, was viewed as the world’s greatest male dancer—or, as he said in the movie, “Big Ballerina.” And so he had an incredible career, on the international scene, dancing. He finished his career as the star of the Australian National Ballet. He did remarry—another principal dancer with the Houston Ballet who happened to be from Australia. Toward the end of his career they relocated to Melbourne, where they both danced together with the Australian National Ballet. Li was a remarkable person, because the day he retired, it was announced, by the largest investment house in Australia, that he had joined them as the head of their Asian investment desk, where he was in charge of a number of bright college graduates—and Li had never really gone beyond, I think—formal education—beyond the fourth grade. He taught himself a whole lot about the investment world while he was in the ballet, and so he’s continued to have a remarkable career. Then he did the book. That was in—I think, now, its 39th printing. And now this great movie, called Mao’s Last Dancer!
ARONOFF: It’s great. I recommend it. Let’s finish up by talking about the immigration issue. As you talked about, you were involved in helping to create what was known as “comprehensive immigration reform,” which, of course, sort of famously went down to defeat during the second Bush administration. At the end of that—John McCain, for instance, I think, disappointed a lot of people—maybe you, I don’t know—when he came away saying he was no longer for that, he wanted to do border security first, and then we deal—whether it’s 12 million or 20 million illegal aliens, undocumented workers, however you call them, who are here—we deal with that later. So in light of that not passing, what is your view? How would you like to see the current situation resolved?
FOSTER: Well, I still support the position that was originally advocated by President Bush, now supported by President Obama, and was recently very much supported by Senator McCain—he had to take a detour, in my opinion, solely because of the difficult primary fight that he was in. Whether he comes back to what I would call the “right position” or not, or how fast he can, that remains to be seen. But I don’t think anything is really changed. I think anyone that looks at this realizes that the elements of comprehensive immigration reform is clearly the only game in town, and that I’m very disappointed—since your show deals with media—how the media has allowed itself to really fall for what I think is, essentially, a lot of hype about Arizona. Virtually everything that the American public thinks about Arizona is wrong. It has nothing to do with criminal aliens. Arizona is not under a siege of criminal aliens. If anything, things have never been better in Arizona in terms of its crime rate, in terms of the amount of illegal immigration. All that’s happened is that for certain political and—commentators have exaggerated and have projected all the violence, real violence, going on in Mexico, into Arizona. Although it’s in Mexico, almost like a slight of hand, they’ll talk about—even the Governor of Arizona will talk about—beheadings and murders. But that’s in Mexico! It has nothing to do with Arizona! But, forgetting that, the Arizona statute has nothing to do with criminal aliens. It says you can be arrested solely because there’s a reasonable suspicion that you’re in the United States without a proper immigration document. That’s what Arizona says, and yet most of the American public thinks it has to do with having to arrest these serious criminal—gun-toting, drug-bearing criminal aliens. The laws are perfectly clear on that: They can be arrested any time, and, if arrested, they’re going to be deported upon completion of their criminal sentence. What I would say is, after this election, when people can set aside all the rhetoric, I hope the Republicans—and particularly our good Senator, John Cornyn—will work together with Senator Chuck Schumer—they’re both, respectively, the chairman and the ranking Republican on the Immigration Subcommittee—to do what everyone knows is right, and that’s essentially this comprehensive immigration reform, as developed by President Bush.
ARONOFF: Well, I think the concern of a lot of people is, look, rather than say that those who were here can stay and get a green card even if they have to go back, pay back taxes, pay a fine—that sort of thing—people who consider it amnesty, but would say, like McCain says, “Okay, I think, politically, what needs to be done in this country is that we need to really make sure that we stop the flow of people coming in, and then we deal with the other issue.” Do you have a problem with that?
FOSTER: No. But, ironically, we have better operational control of that border than ever before in American history. There are more people in place on the border, more technology, more drones. The spending has gone up, on border patrol alone, in just a little bit more than a decade, has gone up more than 700 percent. The entries across that border are as low as they have been in decades, and yet, you would, reading the media, you would think it’s worse. It is actually—we have greater control. Point one. Point two: We’ll never, ever have perfect control. Look at the Berlin Wall. I could give you that. Even with machine gun towers every hundred yards, there were still about a thousand people a year that somehow managed to cross that border. You know they faced being machine gunned. And, finally, comprehensive reform is actually more effective, because you fix it at the work site. 99 percent of all these people come to work. It’s almost inexplicable, it’s almost a complete failure on the part of Congress to fix the very document that you have to show to get a job in America. What is it? It’s the 1934 Social Security card—that is, you can get a better quality one in any flea market. Explain why politicians avoid that subject. If 99 percent come for a job, and to get a job you’ve got to show a Social Security card, and you can copy it so easy that the system doesn’t work—why not fix that? That’s comprehensive immigration reform.
As President Bush said, why should we have our border patrol—he told me this—chasing someone’s nanny? What are they doing now? Mostly, they’re chasing someone’s nanny coming back from vacation, strawberry pickers, the guy fixing your home, mowing your lawn, building your house. Why not route those people into a temporary program so we can focus on the bad guys? That’s comprehensive immigration reform. And finally, what to do about the 11 million. President Bush said “No amnesty.” Amnesty is where you give someone complete forgiveness, and they have the right to—as we did in ’86, under President Reagan—they became permanent residents of the U.S. Nobody’s proposing this. It would be to require everyone here in the country to register and all—and if you have no criminal record; if you pay back taxes, which we’d all like; if you pay into the system, which we all like; if you pay a fine because—what did they do? Maybe ten or fifteen years ago, they did something. 40 percent of them just simply overstayed a visa. That’s not even a crime! It’s less than a parking ticket! Why not have them pay a fine for that? And the others did commit a crime when, maybe ten years ago, twelve years ago, when they crossed the border without a permission—but, again, that’s not even treated as a crime by enforcement. It’s treated civilly. But they pay a penalty for that. They have to commit—all they get is a temporary status, a work status, and a right to travel. We’re not giving up anything. They’re already here working anyway. Why not have them work and pay into the economy—and they do not cut in line. That’s what President Bush told me. They, they don’t get any benefit in terms of citizenship, in terms of even getting their green card status. And final point: It is irresponsible to say, as some politicians will, “No, we don’t want to do that.” But what do they want to do? No one ever deals with the fact that we’ll never, ever—nor would we want to—round up 12 million people. The economic cost, how it would devastate the economy. In Houston alone, there’s an estimated 400,000 undocumented workers. If we pull them out of our economy, it would be worse than the Great Depression. It would have a huge rippling effect. It would crater whole industries—construction industries, for example. And finally, these are people. These are human beings. We often talk as if they are an alien life form. Who are these people? The ones who serve us in restaurants. Who are they? They’re working for us. They’re the ones who clean my office building every night. They’re the ones who wait on me in a restaurant. They’re the ones that are building our houses. They’re taking care of our children. These are not some alien, criminal life form. And many of them have been here for decades, with kids in school. Why would we ever fool ourselves and say, “No, we’re going to do nothing for these 12 million—we’ll have a permanent underclass, and we still benefit from their efforts, but we’ll never give them any hope”? We have a legal system that makes it impossible. One final point, then I’ll quit. The biggest scam on the American people is this phrase: We want those people to go back, and come in legally. That is, as a lawyer, and as someone who worked in policy, you might as well be saying “We want to go to Mars, and fly back from Mars.” There is no legal system by which they can do that. We have no legal system of which low-skilled workers can come into the United States in any effective way. Let’s be honest.
ARONOFF: So what about the idea that, by, in essence, coming over, cutting in line—we have people from all over the world that would like to come in, who can’t just cross the border—and, maybe, who have unique skills, particular high intelligence, or whatever—that, because of the situation here, now, we don’t let nearly as many people like that come in—and more people are brought in because of their relations with people who are already here? How would you deal with that?
FOSTER: Well, I understand. There’s that basic fairness argument about cutting in line, that they’ve cut in line. Again, one answer to that—and I had that discussion with President Bush—those individuals that are waiting in line, that line is based upon either a family petition or an employer petition, and, depending on the backlog, it could be a few years, or even five years, depending upon the preference category. Basically, you have to have a close U.S. citizen relative, or even a lawful permanent resident relative, or a job offer, and you have to prove the unavailability of U.S. workers. And so, to answer that, under all the proposals that are being discussed, no one here would get a leg up, would get one inch ahead of anyone that was already, quote, “in line.” Those people are in line to get lawful permanent residency, to become legal residents—green card holders—and no one’s talking about giving the millions that are here that, simply an interim, temporary status, recognizing that they’re here anyway—and we might as well bring them into the system—that any honest discussion would say we’re never, ever going to lift—or could we lift out, and pull out—12 million people out of our economy.
And so it specifically addresses that issue: They do not cut in line, and they get no benefit toward becoming a legal resident or a citizen of the United States. They just get a temporary status that could be extended upon proof of payment of all back taxes, and enrollment in an English language and civic course. It is a realistic policy. It makes sense, and I’ve yet to hear of any other realistic alternative to that, other than more border enforcement—and that is a proven failure. Until our economy went down, at the time we were spending more money than ever on border enforcement, we had the highest levels of illegal immigration. Why? Because there were jobs in the economy, and people eventually found some way. The border enforcement’s very effective, in fact. It’s so effective that once someone gets here, we’re fencing them in. They won’t go home. When I grew up in south Texas, we didn’t have this problem. We had very little enforcement, and yet we didn’t have all this illegal immigration. It’s counter-intuitive. Why? With little enforcement, people would come up, work within a hundred miles of the border, go home on the weekends, and they kept their families in Mexico. But we broke that circular immigration as we made the border so difficult and dangerous and expensive to cross. We also, inadvertently—another unintended consequence is, we’ve created a whole new industry, and that is, organized crime. Essentially, organized crime now controls the border, and you have to pay anywhere from $2,000 to $6,000 dollars to cross that border.
ARONOFF: Well, which—
FOSTER: Our policies have actually created—has not stopped illegal immigration. You’ll stop it when you fix it at the work site. And all we’ve done is fence people in, and we have these terrible stories of people trying—workers, who are working for us—trying to see their wives and kids. We read in the paper where a child or a spouse has suffocated in the back of a van, because there’s no legal way to get them in. And we’ve also created an incentive for organized crime to—they’re providing our temporary workers’ program, rather than Congress.
ARONOFF: So, in the absence of comprehensive immigration reform, we have existing laws. Now—
ARONOFF: —obviously, you’re not happy with these existing laws, but how do we get around that? I mean, in your view. In other words, do we enforce the laws as they exist? Or do we not enforce them? And just one other thing I’ll toss into that is that I know some people talk about privatizing immigration—in other words, having people come through, basically, agencies who will get these worker permits and things. So let’s kind of wrap it up with that.
FOSTER: Well, yes, we should enforce the existing laws, and they are being enforced to the extent possible. I’ve already said, we have greater operational control of that border than any time in the history of America. That is undisputable. Secondly, the rate of deportation, particularly the rate of deportation of criminal aliens, are at an all-time high. The Obama administration deported more individuals, in its first two years, than, I think, the Bush administration did in its eight years—partially, by the way, because, in defense of the Bush administration, after 9/11 the focus of immigration enforcement shifted from the border and the rounding-up of workers to focusing on individuals, rightly or wrongly, that were a suspect class that could be involved in terrorism. But, again, the laws are being enforced, but if laws don’t make sense, then we should change them.
Can anyone say it’s not smarter to route people through a temporary workers’ program than having them come in illegally, when you can prove there are shortages of U.S. workers? Can anyone oppose upgrading the Social Security card so employers actually know whether someone’s authorized to work in America at the time they employ them? That’s comprehensive reform. And on what to do with the 12 million, no one can defend this proposition. If the Arizona law means that we want all of our police officers to forget rapists and murderers, and instead focus on bricklayers who may have violated the immigration 12 years ago, and round up all 20 million and remove them—no one could explain to me how that would be paid for economically, what would be the cost to American society, economically, socially, from a humanitarian point of view. There is no explanation. And so is it better—let me leave you with this—is it better to leave 12 million people—we do not know who they are—in America, as opposed to identifying them? We’re not giving away anything. They’re already working. Why not allow them to work and pay taxes? As it is, our current enforcement is forcing people—by the way, many undocumented workers, using a phony Social Security card, have paid into Social Security, somewhere close to 200 billion dollars in what we call “suspense accounts.” The current policy has been to force employers, once they’re notified that it’s a phony Social Security number, to force them off the payroll. So they stay here, working in the cash economy. It’s just not smart policy. So, yes, we should enforce our laws, but we should also enact comprehensive immigration reform—which is the only game in town that will work in terms of good immigration policy.
ARONOFF: One final thing, because a number of people have raised the issue about how the federal government has now sued the state of Arizona because they are taking immigration into their own hands, when then say it should be a federal responsibility, yet they don’t go after sanctuary cities, who, others would say, are doing the same thing, taking immigration into their own hands, making that decision at that level. Yet they are not being challenged by the federal government. How do you reconcile that?
FOSTER: Roger, as you may have discovered, I’m going to have a different view. I think whatever motivated the administration to bring that lawsuit—because one might say, “Well it wasn’t good politics, at least, or as a matter of discretion they could have done something, they could have just not acted—but the basic premise of the lawsuit is sound, and that is preemption. That is, it’s very clear that if you have a federal statutory, regulatory scheme, you cannot enact a state scheme that contradicts that. It’s very clear under all the federal laws that immigration policy is a federal, national policy, not a state-by-state policy and they brought, technically—again, whether you agreed or not—it was a good lawsuit, and I think the portion about preemption will be held up even at the Supreme Court, because many commentators say that what the state of Arizona did is the same as what the federal government does.
Even if that was true, it’s still preempted because the federal government has already regulated by statute this area. But even if it didn’t—well, excuse me—but the truth is, the Arizona law went much further than the federal law in a number of areas which time does not permit, so, from a technical point of view, I think the suit was appropriate, and in terms of the sanctuary cities, that’s very different because there is—by the way, “sanctuary city,” that’s not a legal term, it’s just what has been called that—that really refers to cities that are not enforcing federal immigration law, which is just the opposite. Arizona was trying to force it beyond what was provided at a federal level. Well, there’s two things to say about that. First of all, sanctuary cities, it just means that the—if you really look at the criticism, it’s where cities have been criticized for not having their police officers determine the immigration status of those individuals that they arrest. There is no legal obligation under federal law, so there is no violation of the laws. The federal government could not sue a city for failing to do something that there is no legal requirement for them to do so. Now—and the critics would say, “Well, they should do so in the spirit of enforcing our federal laws,”—but most cities, they want their—and by the way, the police chiefs all testified, they said, “Look, we want to go out there and arrest real criminals. We do not have time to take over and determine the immigration status of millions of individuals that may be residing in our city that are not committing any crime.” Now, if someone is arrested, in every city—Houston is often cited as a sanctuary city, but if you’re arrested in Houston because you’re a DWI, or you’re shoplifting, or whatever, your immigration status will be checked, and if there’s a hit, the Immigration Customs Enforcement, ICE, is notified, there is an immigration hold, and that person will be deported. So when people commit crimes they are, once the criminal justice system is through with them, they’re turned over to immigration. I know that. I’ve known that for years, as a practitioner. I happen to agree with the police chiefs that I don’t want the police chiefs chasing someone’s nanny, I want them chasing a burglar or a rapist.
ARONOFF: All right. Our guest has been Charles Foster, an immigration attorney in Houston. Obviously a great advocate for his position and for his clients. He was played in the new movie Mao’s Last Dancer by Kyle MacLachlan. It’s been great having you on with us today on Take AIM, and thank you so much for being with us today!
FOSTER: My pleasure. Thank you, Roger.