Man of Steel, Man of Immigration

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Last year during a set visit to the Plano, TX set of the new Superman movie Man of Steel, a reporter asked the film's director Zack Snyder whether the film would feature a young Clark Kent coming to terms with his powers while growing up in Kansas - a topic that was heavily tread on Smallville's ten season run.  Snyder responded, "You need a Superman that has built-in sort of values... I always remember everyone saying like, 'You're not going to show him growing up in Kansas, are you?' I'm like, 'Why make Superman?.... to understand him, you have to understand the Why of him.'"

The point he was making, inelegant though it be, demonstrates a key understanding of what makes Superman tick.  For decades, comic book writers were unabashed about the Why of Superman, the reason he is the way he is: he was raised in a loving household by two good-hearted, God-fearing, and hardworking American parents who accepted him despite his many differences and taught him the value of responsibility.  Clark Kent had the idealized American childhood, and that childhood made him grow up to become Superman.  It's something we could all aspire to, which is why he became a symbol of American exceptionalism - strength and dominance, tempered by benevolence and justice (sadly, it's also this fundamental goodness that makes Superman unpopular today.  He comes from a very 1950's mode of un-ironic thinking that makes people unable to identify with him).  His DNA may be Kryptonian, but he is a Kent, a Kansan, and an American in all other aspects of his being; his mid-western roots are the wellspring of his value system.  It's the ultimate nature vs. nurture question, with the writers hewing towards nurture at every opportunity.

But the Why of Superman also highlights an interesting dichotomy: Superman wears his homegrown American values on his blue spandex sleeve, but he is still an illegal alien.  Even though America is his adopted home, he is not a citizen and that makes him, politically speaking, someone to fear.  America has a long and storied history of xenophobia that is sadly still present today; treating aliens like second class citizens, regardless of whether they crossed into the U.S. from the Sonoran Desert or across the vast gulf of space.  The Immigration and Nationality Act, the law governing U.S. immigration policy, is designed to create a nearly impenetrable barrier to entry into the U.S.  Superman, the classic immigrant, would be no exception to our immigration policies.  And that means if Superman applies for U.S. citizenship through the usual channels, he's more likely to end up on a boat to Belize than taking the oath of citizenship.

So what are the usual channels that will fail the Last Son of Krypton in his efforts to become an American citizen?  Generally speaking, the only ways to become eligible for citizenship are through family-based or employment-based visas under INA Section 203(b).  I think we can rule out a family-based visa right off the bat.  For Superman to be eligible for one of those, he would have to be sponsored by a parent, sibling or spouse.  And to benefit from any one of those relationships, he would have to divulge his secret identity and his relationship to Jonathan and Martha Kent.  To do so would not only open them up to potential threats from the likes of Braniac, Bizarro, and General Zod, but also to potential criminal liability - they did, after all, harbor an illegal alien, a criminal offense punishable by upwards of 20 years in prison (I think it's safe to assume that Clark, being legally adopted by the Kents, possesses the appropriate documents - a passport and social security card - but cannot use those documents in his guise as Superman).

No if Superman wants to protect his alter ego and his family, his only other option is to get a job.  And his gig at the Daily Planet isn't going to cut it for the same reason that a family-based visa won't work for him. For an American employer to hire him, the employer would have to A) give others a chance to apply for the job by advertising the  opening to all qualified candidates and B) prove that he is the most qualified for the job, and C) that no American citizen was as willing, able, or qualified as him.   The employer would also have to prove that in hiring Superman, it was offering the "prevailing wage" and "prevailing working conditions."  In most cases, this is a difficult threshold to overcome, but not so for someone who can run faster than a locomotive and leap tall buildings in a single bound.  Frankly, I think most employers could report with a straight face that Superman is the best possible employee for whatever position he's hired for.

Those employment-based visas are limited, however.  The government allocates only a very small amount of them each year, although preference are given to "priority workers" who have

extraordinary abilit[ies] in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. 

The last time I checked, there was no case-law describing how to categorize an immigrant who was powerful enough to push planets out of orbit and could take a vacation inside the sun, so I'm just going to wing it here and say that I think a credible argument could be made that Superman's abilities would fall into the "athletics" column.  Luckily for him, there's no question about Superman's feats drawing national and international acclaim.  Hell, any professional sports team could bring him on without a second guess.  And when you think about it, Superman's knowledge of Kryptonian technology could allow him to fall into the "sciences" column, making him a valuable commodity for defense contractors like Raytheon and Northrop Grumman, especially in light of the repeated extraterrestrial attacks his mere presence seems to draw towards Earth.

There's only one problem with this option.  Superman has no papers of any kind; no foreign passport, no identification card, no temporary visa.  He arrived as a newborn infant with no documentation and never passed through an authorized port of entry.  This makes him not only an illegal alien, but an undocumented one to boot, which means that no employer could hire him without opening their business to criminal liability.

So despite his extremely useful skill set, Superman can't avail himself of the usual channels since he lacks proper documentation.  That means the only other option available to the Man of Steel is to apply for asylum as a refugee under INA 208.  A refugee is defined as

any person who is outside any country of such person's nationality or, in the case of a person having no nationality,is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...

It's safe to say that when Congress passed this bill, they hadn't contemplated its potential effect on aliens of extraterrestrial origin whose home planet had been destroyed by a nearby supernovae.  While Superman could argue in front of an immigration judge that he is "unable" to return to his place of origin since it no longer exists, it's not for any of the reasons outlined in the legal definition, making it difficult to know how a judge would look at his application for asylum (I suppose it could be argued that being the biological son of Jor-El, a renowned Kryptonian scientist who fell into disgrace due to his theories that Krypton was about to explode, could open Superman to some form of political persecution).  It's certainly plausible that Superman's particular status could be found to fall within the definition if he hires a savvy immigration attorney to make a compelling case, or the judge is able to make the facts fit the legal definition of "refugee."   But there's yet another hurdle even if this occurs; INA 208(2)(A) clearly states that asylum can be denied if the alien can be removed to a "safe third country"

in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection...

Which basically means that the U.S. can deny Superman asylum if they determine that he can live safely in Canada.

Based on all of these factors, Superman is f**ked.  But that doesn't mean the story ends.  When an alien is denied citizenship for any reason, it falls to the U.S. Immigration and Customs Enforcement branch (otherwise known as ICE) to deport that alien back to his or her country of origin.  But how do you deport Superman?  Assuming he can be somehow captured and subdued, he can easily be back across the border within the hour.  And even if deportation were possible, where do you deport Superman to?  He's not "from" anywhere on Earth, and the technology doesn't exist to send him back to Krypton, which would essentially be a death sentence anyway since there's a massive empty void where the planet used to be.

So Superman is here to stay, but failing some extraordinary intervention on behalf of Congress or the President, the U.S. will functionally remain closed to him.  There is hope, however, that this will not always be so. Word on the street is that our immigration law could change this year to create a path to citizenship for aliens who are already present in the U.S. without documentation.  The bill appears to be gaining bipartisan support and has been flogged repeatedly in the news by Republican Senator Marco Rubio.  If it goes through, it could make citizenship attainable for the Man of Steel.  And I think that such a bill is the right thing to do.  Not only for the millions of immigrants who want nothing more than to live and work in this country, but also for a man who stands for truth, justice, and the American way.  He's spent his life fighting for America; it's time to make him one of us.

In Defense of The Dent Act

Summer 2012 has given us two of the biggest films in history, both from a cultural and box-office standpoint.  With the summer movie season waning, I thought this was a good opportunity to  look back and discuss the relationship these films have with the law.  Today, I begin with The Dark Knight Rises.

Warning: Spoilers! If you haven’t seen The Dark Knight Rises and don’t want to know what happens, read no further.

The Dark Knight Rises raised a number of interesting legal issues that could each be the subject of their own posts: the way the film dealt with the Bruce Wayne bankruptcy, the federal response to the siege of Gotham, to name a few.  But one stands taller than the others and that's the subject of this post.

In the immediate aftermath of the movie’s release, there was some discord amongst critics about one issue in particular… something they felt was so wrong-headed that they had to call the director on it – they hated the Dent Act. More specifically, there was some hand-wringing over the Act’s constitutionality.

Cliff notes version: it is utterly constitutional.

Let’s step back for a minute.  What exactly is the Dent Act? At the beginning of the film, we learn that shortly after the death of Gotham’s District Attorney Harvey Dent, sweeping anti-crime legislation was passed that gave the city’s police and prosecutors “teeth” to fight organized crime in the city.  We know that eight years after Dent’s demise, the Dent Act did it’s job, almost completely decimating crime in the city, and leaving a gaping hole for Bane and his League of Shadows thugs to storm in and take the city.

So what tools does the Dent Act grant law enforcement Gotham City to combat organized crime?  Did the Act authorize a mass hiring of police officers, in effect turning Gotham into a police state?  Did it place stricter sentences on those convicted of organized crime activities?  Did it finally root out the bad guys in Gotham’s notoriously corrupt police force?  Unfortunately, the movie doesn’t tell us much about the mechanics of the law and only pays it lip service before delving into the “Batman coming out of retirement” storyline. The only substantive information we have on the Dent Act is told to the audience by Joseph Gordon-Levitt’s character; apparently the Act has kept hundreds of mobsters behind bars by denying them parole.

I readily admit ignorance here. Like others when I first heard this, I threw my hands up in disgust.  “How unconstitutional is that?!” I nearly screamed aloud to my wife in the theater.  As it turns out, it’s pretty damn constitutional.

Let’s get some basic facts out of the way: the discretion to grant or deny parole typically resides in a state’s parole board.  They have the right to determine if an offender should be released before his full sentence has been served and they may grant or deny parole based on a variety of factors.  What concerned me was whether a piece of legislation could make that determination for them.

As a rule, states have the power to regulate their own law enforcement and legislate their own criminal codes.  With some Eighth Amendment exceptions (such as sentencing juveniles to life in prison with no possibility of parole), the state is allowed to make a blanket determination regarding who should and should not be released from incarceration before the full sentence has been served.

In reality, many states have done just that. The Massachusetts legislature recently considered an overhaul of the state’s criminal sentencing laws that, among other things, would abolish parole for repeat violent offenders. Massachusetts already bans parole for anyone convicted of first-degree murder. Pennsylvania considered a similar overhaul of their criminal sentencing statutes three years ago.  Sixteen states have taken it much farther by abolishing the parole system altogether.

Therefore denial of parole under the Dent Act for prisoners convicted of violent crimes such as murder, assault, or drug dealing (in many states, crimes of possession with intent to distribute are considered crimes of violence) is constitutional because there is a framework for just that kind of legislation in other states.  On the other hand, I think the Dent Act will have a harder time demonstrating its constitutionality when is denies parole to those convicted of non-violent crimes such as racketeering, gambling, prostitution, and money laundering.

Movies so often get it wrong when it comes to portraying the law so it’s nice to find a case where the movie gets it right (even though I’m convinced no one in the screenwriting process actually did the necessary legal research).  While we don’t know anything else about the substance of the Dent Act, the parts we do know about will probably hold up under scrutiny.  And frankly, even without knowing the Act’s other substantive provisions, I think that denying parole to 1000 dangerous and violent criminals would be enough to give Gotham’s Police Department a break in getting its crime problem under control.  Putting the Batman out of the job was probably just icing on the cake.