Archive for the ‘Immigration In The News’ Category

The Immigration Debate Continues–This Time in Utah

Wednesday, July 14th, 2010

In state associated with people who know and understand persecution, the release by an “anonymous” group of a list of people it claims are illegally in the United States was distrubing. The list is intended to cause panic and concern.  The Governor of Utah has correctly already started an investigation into how such a list was compiled and who published this list, given the sensitive and apparently incorrect information it contained, and the damage such information can do to person and their children.  But, there is a larger issue here just privacy and security concerns.

It is good that the list was published.  Don’t get me wrong.  It is not good for the people and their families on the list.  It is not good for image of the state of Utah. But, rather, it is good that this list is out there, because it shows the inflammatory nature of the debate on immigration enforcement and reform.  Sometimes the truth is sacrificed when points are made about immigration, and that is certainly the case here.  It is also good in that is shows the politicians who support anti-immigration legislation the societal consequences of their speeches.  Surely they must have realized that this and much worse things were coming?  Next time, it might not be just a list. What if someone uses that list to “get” a person on it?  We know some of the people are the list are permanent residents and citizens.  Will anyone speak for them when harm is done to them?

How could it come to this, in Utah of all places?  Let me will tell you how– The mistaken perception that there is no immigration enforcement today, and the public’s desire that the issue of immigration be addressed by a reluctant Congress.  It is not an issue of Americans not embracing immigrants.  We frequently hear the mantra that we love “legal” immigrants.  The bigger problem is that “legal” immigration has become a bureaucratic nightmare bogged down in 20th century laws and not reflective of either our society or an economy of 2010.  Yet Congress continues to drag its feet in reforming immigration system.  President Obama has broken his promise to Hispanics to push immigration reform.  Congress is scared to death to vote on immigration on this mistaken belief that they will lose elections if they support a workable immigration system.  Bill O’Rielly understands that the need to reform our system and move forward with workable solution.  But vilifying helpless children is not a solution.  It is an attack. Unjustified, and unnecessary.

A bigger concern for Utah has to be the fallout and consequences of “The List” and prospective state legislation on immigration.  If Utah politicians ignore not only the political consequences, but their own heritage in moving forward toward passing an Arizona style “show me your papers” type of law, Utah will become, like Arizona, an economic pariah.  Utah will be faced with declining foreign and domestic investment as the result of efforts to isolate those states that pursue legislation that serves no legitimate law enforcement, drives immigrants further into the shadows and away from the police, and deepens the divide in the United States over what is good for the future of America.  Fifty different state laws on immigration policy is not a way to effectively run a country.

If only Utah would lead out on positive immigration reform, the story would be dramatically different and systemically better.   I pray that will happen. I fear it will not, because as the founding fathers of Utah learned as the victims of such laws, it is easier to vilify, and spurn, rather than to understand and move forward together toward a postive solution.

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The Supreme Court Recognizes An Old Right for Immigrants!

Thursday, April 1st, 2010

The Supreme Court yesterday issued what can only be considered a seminal decision as it applies to the constitutional rights of all immigrants. In Padilla v. Kentucky, 555 U. S. ___ (2010), the court expressed, at least in summary, its dismay at the increasing difficulties caused by today’s immigration laws:

Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of  federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

Over the 21 years of my practice, I have had literally hundreds of clients who were improperly informed or not informed at all, of the negative immigration consequences of their “plea.” It is, frankly, about time that the failure of the criminal defense bar to adequately inform their clients becomes a reason to have these convictions overturned. I foresee an enormous surge in Motions to Reopen removal proceedings based upon the Supreme Courts decision.
Some may not agree (certainly ICE won’t), and while not mentioned by name, Padilla v. Kentucky also in my view sets aside the BIA’s decision in Matter of Pickering, whch itself was severely limited in Matter of Cota-Vargas, where the BIA recognized the Full Faith and Credit Clause of the Constitution. Having a conviction corrected because a person was not informed of the consequences of that plea is clearly a legitimate reason to NOT hold that conviction as still rendering a person removalable. So says SCOTUS!

Criminal Defense lawyers around the country will now have to seek training in the immigration consequences of a plea, or do what some of the best criminal defense lawyers already do–retain competent immigration counsel to assist in the defense of their clients. AILA members–Immigration lawyers– should also proactively reach out to the criminal defense bar in their jurisdictions. Teach seminars, offer assistance, and even sign up to assist in the representation of accused individuals in state and federal courts.

Another important signal coming out of this decision is that the Supreme Court may be laying the groundwork for immigration reform as it relates to the extraordinarily harsh and failed policies of removal that were established as part of IIRAIRA (Illegal Immigration Reform Act and Immigrant Responsibility Act of 1996). The provisions substantially expanding “aggravated felony” definitions, demanding permanent bars for seemingly minor failures, and wreaking havoc on the Due Process clause of the constitution all scream for a “fix.” This decision sends a clear signal to Congress that it is time to get to work on the Reform.

Finally, I can see looking down the road, similar due process claims as they relate to the ineffective assistance of counsel in Immigration Court and before the Board of Immigration Appeals. If an person is entitled to competent representation as it pertains to the immigration consequences of their criminal plea, does it not follow that they are entitled to competent representation during their actual removal hearings? Attorney General Holder set aside Matter of Compean early in his term as Attorney General, and reinstated In Re Lozada as the standard for claiming ineffective assistance of counsel. Lozada itself is a poorly reasoned decision and requires a wasteful use of State Bar resources to use the decision to a client’s benefit. Frankly, an argument can now be made that there is, in fact, a right to counsel in Immigration Court proceedings, and that where a person cannot afford counsel, one should be appointed and paid for by the government.

Regardless of any other thoughts, however, I personally want to the thank the Supreme Court for doing the right thing in this case. It shows you that perseverance and holding the government’s feet to the fire can bring results.



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Cross National Representation in the 2010 Winter Olympics

Tuesday, February 23rd, 2010

The Vancouver Games has been a showcase of cross national representation. Many athletes such as ski crosser Chris Del Bosco have had a choice in deciding which country to represent. Although Chris was born March 30, 1982 in Colorado Springs, CO, he skis for Canada. His father is a Canadian citizen which gave him dual citizenship allowing him to ski for either team.

Yuko Kavaguti, a figure skater, is Japanese but skates for Russia. She was born in Aichi, Japan on November 20, 1981 and currently resides in St. Petersburg, Russia. Since 2003, Kavaguti has lived and trained in Russia and was awarded her Russian citizenship in 2009. Unlike Chris she has no family ties to Russia. In fact she has to apply for a visa when she goes home to visit her family. She says that “People who follow sports understand that I’m not a traitor. I still consider myself Japanese. I chose to compete for Russia because I didn’t have a [good] partner in Japan.” Yuko also shared that she has always wanted to compete in the Olympics and did what she needed to fulfill her childhood dream.

Errol Kerr, who is also a ski crosser was born in New York but competes for Jamaica. He trained in California and he qualified ninth among the 33 riders who made their way down Cypress Mountain on Sunday, the culmination of two years of hard work after making the switch from Alpine racing. He is competing for Jamaica to honor his father, Errol Kerr Sr.

Cross country skier Kwame Nkrumah-Acheampong was actually born in Scotland, but moved to Ghana when he was a year old and remained in Africa for the next two decades. “When people notice I’m skiing and I’m African, they’re always surprised,” Nkrumah-Acheampong, 35, who’s known as the Snow Leopard, told the Daily News. “People’s first impression when they see me is, ‘What is he doing here?’ But they get over it when they see me ski.”

Chris, Yuko, Errol and Kwame are examples of how the world is shrinking and how national identity is become more and more relative. No where is this best exemplified then on the Olympic stage as athletes compete for their sport’s most prestigious honor.

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Entering America Legally–Not As Easy As You Think!

Friday, December 18th, 2009

In an interview on David Letterman, actor Robert Downey, Jr., talked about a problem he had last year in Japan, when upon entering Japan he was detained and questioned about his past criminal record. Downey said:

I probably should have seen there was a sign that said ‘No Felons Allowed’ in English and Japanese and I haven’t had that expunged yet,” he said. “You can actually get things expunged but I’ve been pretty busy. So I was detained, I was interrogated. It was a blast.

Haven’t you settled up? Haven’t you paid your debts? Letterman asked.

Clearly I haven’t paid my debts to Japan, said Downey.

While I certainly feel somewhat bad for Mr. Downey, this short exchange gave the impression that nothing similar would ever happen in America! Hah!

U.S. Immigration Law contains restrictions that bar entry to people forever, for virtually any youthful indiscretion they have ever had, e.g. simple possession of a marijuana 20 years ago, without regard to whether or not you were actually convicted of the crime! You do not even need to have been convicted; the fact that you admit you did it will also get you barred from entry. Heck you will even be bounced from the United States after overstaying your visa for one day, leaving one day late, and then trying to come back in on that visa. Or, you will be detained and returned because the officer thinks you MIGHT be working.

 


 

So, if you were watching David Letterman and thanking your lucky stars that America is far nicer to arriving tourists than Japan–think again!

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The Best (and Worst) of 2009

Tuesday, December 8th, 2009

Let’s face it – 2009 has not been a big year for immigration…but that may not be such a bad thing. Immigration advocates have bemoaned the Obama Administration’s lack of action on the issue, but, in the spirit of the holidays, I believe we have a lot to be thankful for as we look back on this past year…
• Obama’s Inauguration – THE GOOD: Obama has succeeded in driving record numbers of naturalized citizens to the polls with his calls for change and a renewed belief in the American Dream. That’s a positive start. THE BAD: He has not delivered on his promise to address immigration reform just yet.
• Committee Formation – THE GOOD: A committee has been formed to begin discussing a reform package. THE BAD: It has been pushed to the back burner for the moment, given the state of the economy and healthcare in the U.S.
• Janet Napolitano – THE GOOD: Janet was an exceptional choice who has more or less met the high expectations the Administration, and the general public, set for her. THE BAD: Pretty much anyone would have been better at being the DHS Secretary than Michael Chertoff.
• Worksite Raids – THE GOOD: Or lack thereof, should I say? Sure, we’ve seen some action, but nothing compared to the atrocities we saw in Postville or New Bedford a few years back. The few raids that did occur were not only conducted in a much more humane manner, but actually went after bad-apple employers as well. THE BAD: The E-Verify issue continues to crop up and seems to be growing in popularity since the Administration tends to waffle on how they want to handle the enforcement aspect of the immigration issue.
• Relief for Widows – THE GOOD: In one of my personal favorite highlights of the year, widowed spouses of U.S. Citizens are now eligible to have their petitions reinstated at the discretion of USCIS. THE BAD: At the very least, they can request deferred action.
• Mass Trials – THE GOOD: For immigrants detained at the border, en masse trials are no longer a viable option and have been overruled. Unlike previously when immigrants caught at the border were rounded up, read their rights as a group and asked to enter group guilty pleas, each person now shall be awarded an individual hearing before the judge. THE BAD: It will probably be much less efficient and a lot more expensive.
• Lou Leaves – THE GOOD: Lou Dobbs and his nightly rants will no longer corrupt innocent minds across the nation, and Boston-Boy John King and his Magic Map will fill the 7PM primetime spot on CNN. THE BAD: Lou’s considering a Senate run for the state of New Jersey. (I don’t like New Jersey either, but come on!)

Either way, again, 2009 has not been a big year for immigration. We can only hope for good things in the year to come.

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Who is an “American?”

Wednesday, November 4th, 2009

This last weekend, for the first time since 1982, an AMERICAN won the NYC Marathon. As someone who has run several marathons and who would have been lapped by this winner, I greatly admire these fleet footed men and women.
Why is this an immigration issue? Well, it turns out a commentator on CNBC by the name of Darren Rovell thinks there are different kinds of “Americans.” In this case, Meg Keflezighi, an American ,who immigrated to the United States when he was 12 as a refugee, proudly wore the USA on his sweat stained jersey as he cruised to victory in the NYC Marathon. Much was made in the press of the fact that an American had finally won this particular marathon again after more than 25 years! But, Mr. Rovell was apparently looking for a controversial way to express his ignorance.
Mr. Rovell noted:

“He is an American citizen thanks to taking a test and living in our country…Nothing against Keflezighi, but he’s like a ringer who you hire to work a couple hours at your office so that you can win the executive softball league.”

Rovell explained his bizarre views in an article on CNBC’s web site: It’s a stunning headline: American Wins Men’s NYC Marathon For First Time Since ‘82. Unfortunately, it’s not as good as it sounds. Meb Keflezighi, who won yesterday in New York, is technically American by virtue of him becoming a citizen in 1998, but the fact that he’s not American-born takes away from the magnitude of the achievement the headline implies.

Mr. Rovell later apologized, because he realized what an idiot he sounded like. But the apology was hollow, without meaning, and dug the hole even deeper. He explained that because this great runner had trained here since he was young, he was now American “enough” to count.

It turns out, Keflezighi moved to the United States in time to develop at every level in America. So Meb is in fact an American trained athlete and an American citizen and he should be celebrated as the American winner of the NYC Marathon. That makes a difference and makes him different from the “ringer” I accused him of being. Meb didn’t deserve that comparison and I apologize for that.

Mr. Rovell, you sir are an emblem of what is wrong with the immigration debate in America today. I suppose that in your opinion that folks like Albert Einstein (immigrated as an adult), Zbigniew Brezinski (immigrated as an adult and fellow NBC employee), Isaac Asimov (a favorite of mine), Dan Aykroyd (he was born funny in Canada), Alexander Graham Bell (a Scott, who immigrated as an adult), Wayne Gretzky (learned Hockey in Canada), Patrick Ewing (who was also a U.S. Olympian–guess we should give that Gold Medal back, eh Mr. Rovell), and literally millions of others, simply do not count as “real” Americans to Mr. Rovell because they did not “grow up” as Americans. I guess we should reject them and their contributions to America becuase they did not “grow up” here.
As my kids might say, Dude, stop drinking the Haterade! America is a nation of immigrants. Once you take that oath, it is your future that matters, not your past. This sentiment is the beauty of what it means to be an American. You are part of a greater good, you are part of the greatest experiment in the history of mankind. You the former immigrant, are now an American. You are now as good as Mr. Rovell, even if you did not grow up in America. You are now as good as anyone else. Mr. Rovell, take a civics course and learn what it means to be an “American.”

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