Whenever I come across a news article on immigration, I see a bunch of comments along the lines of "illegal immigrants are criminals and should be treated as such." This is oft-quoted chapter-and-verse in the anti-immigration jeremiad, and one that deserves a little parsing over.

First, let's accept the statement "illegal immigrants are criminals" as true because, like all tautologies, it is. Saying "illegal immigrants are criminals" is like saying "unemployed Americans are jobless"—you are correct, but that doesn't get us any closer to the far more important question of why this is the case. We really need to ask why so many Americans are jobless, and we similarly need to ask why so many immigrants are illegal.

Sadly, this is a question that never seems to get raised in the debate over undocumented immigration. The fence aficionados tend to argue that undocumented immigration is morally wrong because it is illegal, but that gets the logic of law backwards. An act is not necessarily unethical because it is illegal—failing to register a car and speeding are both illegal acts, but we certainly wouldn't call those perpetrators criminals. Yet, when the person failing to fill out the proper paperwork or taking a prohibited shortcut happens to be an immigrant, they are demonized as criminals, now on par with drug-dealers and thieves.

A question of morality

The real question—the real debate that we and our elected representatives in Congress must have—is this: Is undocumented immigration immoral? And, if so, how immoral? And what level of retribution does it deserve?

What do you think? Tell us
in the comments below.

What is the appropriate penalty for the young man who risks death crossing a border to be a migrant farm worker? Right now, it's a one-way ticket out of here and an invitation to try again. It's hard to make America less appealing to someone who hungers so much for a better life.

How do we stop the undocumented children who grew up here—who've only known life here—from thinking that they, too, are American and deserve the freedom or liberty that comes with an education, even though they egregiously failed to fill out the proper paperwork as a toddler?

I'll admit that I really don't care if someone cuts the line into America. I actually do think undocumented immigration is about as awful as failing to get your car registered and inspected. Both serve important purposes, and should give police probable cause to do some extra poking around, but really deserve no more than a fine. Neither one offends my moral convictions, at least not the way robbery, assault, and other similarly punished crimes do.

Obviously, we need a secure process to vet immigrants in order to prevent terrorists and criminals from entering. Now, before you start raving about Mexican drug cartels, let me remind you that the vast majority of Hispanic immigrants are law abiding, much like the vast majority of Italian immigrants who, despite the Mafia, were law abiding too.

Secondly, the resources we waste tracking down and deporting day laborers could be better spent tracking down and deporting gang members.

Job creators

More importantly, immigration is actually good for America. Immigrants don't take our jobs, they create our jobs. According to a Small Business Administration study, immigrants are 30% more likely to start a business than non-immigrants.

Moreover, one of the key factors in economic growth is population growth. Without immigration, our economy would stagnate because, collectively, Americans are getting older and having fewer kids. A 2009 Cato Institute study found that opening the door to more immigrants would lead to economic gains of $180 billion annually, whereas more enforcement would result in an annual $80 billion in economic loss, marked by fewer jobs, less investment and lower levels of consumption.

Now, you may disagree and think, despite the evidence to the contrary, that more immigration is a bad thing. That's fine—let's have that debate, which is a debate worth having. But let us emerge from the endless cycle of "illegal immigrants are criminals" against "we are a nation of immigrants." Sure, they both may be true, but that's not really saying much, now is it? 

Jim Saksa is an attorney at Fox Rothschild LLP. The commentary above is his personal opinion only, and none of it should be considered legal advice.