Archive for the ‘Immigration Reform’ Category

Senator Schumer, You are Wrong!

Thursday, August 19th, 2010

Last Week Congress passed its first major piece of immigration legislation in several years.  The Border Security Emergency Supplemental Appropriations Act of 2010 (H.R. 5875)

Besides the fact that the bill itself is a joke–passed without debate, study or analysis as to its effectiveness, there are two major problems–Funding of the $600 Million Dollars Bill, and the “Real” purpose of the bill.

First the “real” purpose of the bill–Schumer and other Democrats have barked loudly that the bill is intended to shut the mouths of border crazies who refuse to discuss any change to our nightmarish national immigration policies until America is safely tucked inside a sealed bubble, invulnerable from entry by anyway but the purest foreign national.  Senator Sessions from the border state of Alabama, who can only be described as absolutely crazed on the issue of immigration, responded to this strategy:

Democratic Sen. Chuck Schumer of New York was hopeful that the bill would bring Republicans back to the bargaining table. But one key GOP Senator, Jeff Sessions of Alabama, threw cold water on those hopes, calling the bill “more like an effort to receive positive press” for Democrats rather than a genuine attempt to stop illegal immigration.

“Make no mistake: while this small measure can have some value, if it is not followed by strong, sustained action; it is yet another gesture without consequence,” Sessions, the ranking Republican on the Judiciary Committee, said in a statement issued Thursday.

“The ‘Masters of the Universe’ in Washington are always proposing new plans to deal with the massive illegality at the border,” said Sessions. Last week, Sessions and Arizona Sen. John McCain, another key Republican, said the $600 million bill was only the first step in toughening the border.

So much for Republicans now happily agreeing to Comprehensive Immigration Reform.  Just in case Senator Schumer (and President Obama) did not get the message from Senator Sessions, let me make it perfectly clear:  Republicans will NOT support any type of immigration reform that recognizes the reality we are currently in.  Period.  President Obama, Senator Schumer–If you cannot do it without Republicans, you are not going to do it.  My suggestion is that you get the Democrats to fulfill the campaign promise of immigration reform, or kiss the Latino vote goodbye.  Clearly, the Republicans do not care about their future as a party of inclusion, do the Democrats also not care?

Now, the Second BIG problem with this bill–It is NOT paid for!  Senator Schumer said that this bill would funded on the backs of employers of foreign national employees–specifically those who have more than 50 employees, and who’s workforce is more than 50% made up of H-1B and/or L-1 workers.  For those specific companies, the USCIS is now going to collect an ADDITIONAL $2,000 fee, over and above the  H-1B filing fee of $2,230 and the L-1 filing fee of $820 these companies already pay to USCIS to file (but not necessarily approve) the application.

This full funding of this bill is unclear (like most bills that come out of Congress), but the funding is summarized as follows:

Rescinds from unobligated balances certain funds for: (1) U.S. Customs and Border Protection, border security fencing, infrastructure, and technology; (2) Transportation Security Administration (TSA), aviation security; (3) FEMA, administrative and regional operations; and (4) Department of Commerce, Bureau of the Census, periodic censuses and programs. Directs the Department of Defense (DOD) to pay in FY2010-FY2011 the full costs associated with deployment of the National Guard along the Southwest border.

So, while it is unclear how much Senator Schumer hoped to raise from his H-1B and L-1 visa stunt, perhaps a little math is in order.  So far this fiscal year, the USCIS has received about 43,000 H-1B applications for new H-1B workers (of a total 85,000 that are available).  That leaves 42,000 potential H-1B applicants to pay the $2,000 Schumer Fee.   If every one of those cases paid the Schumer Fee, that would raise $80,000,000.  That leaves only about $520,000,000 to be funded by the L-1 visa program and the other cost shifting noted above.  There are not even 85,000 L-1 applications filed in an entire year by all applicants, let alone the specific applicants to which this law applies.  Couple the numbers problem with the USCIS attack on the specific type of employer that Senator Schumer is targeted, and the resulting sharp decrease in usage of the H-1B and L-1 visa by those employers, and what becomes clear is that the Schumer fee cannot possibly raise more than a few million dollars.  How pathetic.

So, once again, as citizens, we are left holding the debt for Congress’ effort to throw more money at the border, without a solution to our immigration crisis.  Senator Schumer, you are wrong.   This bill is not about border enforcement, nor is it about getting Republicans to play ball on immigration reform.  This bill is about money; money to special interests who will benefit from it’s spending. But this new law is not about fixing a broken immigration system.   You probably don’t want my advice, but here it is anyway.  The next time you move forward on immigration legislation Senator Schumer, I suggest aiming a little higher in your aspirations and fix the system, don’t just repair a broken pipe.

SB 1070 is Dead–Where to do we go from here?

Wednesday, July 28th, 2010

In her decision on the constitutionality of Arizona’s SB 1070, Judge Bolton was quite specific as to what provisions were unconstitutional:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 –A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070–A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070– A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work

Section 6 of S.B. 1070–A.R.S. § 13-3883(A)(5): authorizing the warrant-less arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

Her rationale was simple–These specific provisions unconstitutionally infringe on the Federal Governments authority in the area of Immigration.  She has a long line of authority supporting her reasoning, dating back to Supreme Court cases from 1941.   There is not going to be a successful appeal.  Period.  From a rational point of view, we do not want or need, as a country, 50 different states passing 50 different versions of immigration law.  It is not good for commerce, it is not good for the country, and it certainly is not good for immigrants.

Rather than wasting time (and we are wasting time) fighting a law that the writers KNEW would be declared unconstitutional (don’t doubt that Kris Kobach knew he would lose this fight), why don’t opponents of “illegal immigration” spend time working with members of Congress to pass legislation that changes our immigration laws to reflect the economics of the 21st Century, the goals we have as a country for new immigrants, the demands employers have for skilled and unskilled labor, due process guarantees, and the reunification of families?  Why, because the folks who virulently oppose “illegal immigration” are not interested in fixing the system to decrease illegal immigration. They are only interested in eliminating immigrants.

Twenty years of fighting illegal immigration by ever tougher enforcement and attrition simply has not worked.  Billions of dollars have been spent, and yet folks still cross the border illegally and overstay their visas.  The size of the border patrol has quintupled and we have deported record numbers of immigrants, and yet there is no significant decrease in the overall numbers of undocumented immigrants (absent economic reasons).  As Einstein said:  Doing the same thing over and over again and expecting a different result is the very definition of Insanity.  Do we really want an insane immigration policy?  I hope so, because that is exactly what we have right now, and we desperately need to fix it.

How about instead of appealing a well reasoned and strongly supported decision, Governor Brewer (and her fellow Governors)  sits down with her members of Congress and encourages them to pass a Comprehensive Immigration Reform package that discourages future illegal immigration by making available avenues for legal immigration that meet the economic and societal needs of a modern America?  This same legislation can shrink the size of the current undocumented population by providing incentives to obtain legal status.  Magically, her concerns are addressed, AND the folks at DHS can focus on those folks who mean to do us harm, rather stopping dishwashers  and landscapers.

An Amnesty–Is That Legal?

Tuesday, July 20th, 2010

I was driving to court recently down a highway in Atlanta when I drove past a toll booth with a HUGE sign on it.  The sign read “AMNESTY.”  I thought:   “wait a second!  Amnesty” is a dirty word, literally unmentionable in polite company.  How could there be an “Amnesty?”

On my way back to the office, I passed the toll booth again.  Again, the sign was there. This time I slowed down (a little), and noticed it was a “Toll Amnesty.”  This toll “Amnesty” is apparently a regular event in Georgia.  I explored a little more about this “Amnesty,” trying to understand how a toll “Amnesty,” turning illegal drivers into legal ones is permitted, but an “Amnesty” that would turn “illegal” people into legal people is not.   I dug around a little on the Internet and found some information about the reason for and the goal of this toll “Amnesty:”

What is the toll violation amnesty program?

Normally, the State Road and Tollway Authority (SRTA) charges a $25 administrative fee, as provided by Georgia law, each time someone fails to pay the toll to travel on the tolled section of Georgia 400. During the limited time of this amnesty program, SRTA is willing to reduce a portion of the $25 administrative fee to $15 per violation. During amnesty, the Customer will be responsible for the $15 administrative fee plus the toll per violation.

Why is SRTA offering its customers an opportunity to compromise their violations?

SRTA’s primary goal is to collect all tolls due. We believe one way we can accelerate the collection of unpaid tolls is to offer a temporary financial incentive to our customers – namely, a partial waiver of the normal $25 per violation administrative fee-if the tolls are voluntarily paid now.

So, the toll “Amnesty” is designed to FORGIVE people for breaking a law (a misdemeanor in Georgia),  bring people out of the shadows of toll illegality, and, as an incentive to do so, have people pay LESS of a fine than if the agents of the state went out and rounded up everyone who is a toll violator.  Does the State of Georgia know who these “illegals” are?  Sure they do! If you  fail to pay a toll, a photo of your car and license plate is taken, so the State of Georgia knows exactly who broke the law and where they live!   (If only those Utah state employees lived here, they could have put their “hit” list out for the Georgia State Patrol to go out and arrest these illegal drivers.)

Let’s compare a proposed national “Amnesty” (or for those of you with sensitive ears–legalization) with this Georgia “Amnesty.”   An immigration “Amnesty” would FORGIVE people for breaking the law (a misdemeanor if they came in illegally and a civil violation if they overstayed their visas), bring people out of the shadows and into our mainstream economy, and lessen the penalties currently in place (a 10 year bar in the home country) to encourage people to come forward right away and become “legal.”

Wow, that is the same rationale for both programs.  One run effectively by the State of Georgia and one denied a chance at being effective by national politicians.  Why can we do one and not the other?  Why can we give “amnesty” to illegal drivers but not to “illegal” people?  Simple–A lack of leadership and a lack of political courage.

Once we can convince our national political leadership that immigration reform is GOOD for America (and it would be very good for America) and that the example set by the Georgia State Road and Tollway Authority is a good one to follow,  we can end this divisive debate over immigration, calm racial tensions in America and get back to work fixing our economy.  My only question is — which national politician has the courage to stand up and lead on this key issue?

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.

I HAVE Read the Arizona Law. And, It Still Stinks!

Saturday, June 5th, 2010

I was at church on Sunday when a fellow parishioner decided to engage me on the Arizona anti-immigration Law.  His main point was this:  ”it is exactly like federal law.”  When I explained to him that it was not actually “exactly” like federal law and that in fact there is no federal law allowing for racial profiling and arresting people because they look “illegal,” he would not believe me (keep in mind, we are at church).

I have heard repeatedly over the last month, from folks who may have read the Arizona law, but who have NOT read the federal law, that the Arizona law is somehow nothing more than an extension of what the Federal government already does.  Nothing could be further from the truth. In fact, the Arizona law is classic Kris Kobach.   When he worked in the Attorney General’s office under Ashcroft, he took Section 263 of the INA (written as part of the Alien Registration Act of 1940— this law is how we put thousands of Japanese into internment camps), and turned it into “Special Registration” or NSEERS.  NSEERS was designed to have Muslim men who had come into the U.S. legally come and “register” with the then INS.   NSEERS did not require anyone who entered illegally come in and register (that is true).   The program is considered an failure, as it produced no viable evidence of anyone involved in terrorist activities.  It did lead, however, to 13,000 Muslim men being arrested, jailed and placed in removal proceedings, so perhaps Kobach did achieve his goal.

That said, and to make the argument that the Arizona law mimics federal law, Kobach has now taken Section 264(e) of the same Alien Registration Act of 1940, and included it in the new Arizona law (A.R.S. 13-1509).  Section 264(e) makes it a federal misdemeanor, punishable by 30 days in jail and/or a $100 fine, to fail to carry one’s ”certificate of alien registration or alien registration receipt car issued to him pursuant to subsection (d).”  Now subsection (d) of the INA 264 says:  ”every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this Act shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at a such time as shall be prescribed under regulations issued by the Attorney General.”   That alien registration document refers to the registration document created under the section of law that Kobach previously used to remove Muslim men from America.  However, in case you were thinking that this federal statute was actually being used, a search of court records reveals no prosecutions federally for this offense, and the last citation to the statute in an immigration appeals court case 32 years ago.

So, while technically true that federal law does require anyone required to “register” to carry proof of that registration with them at all times, in reality, enforcement of this law has been suspended for decades for good reason–the law has not kept up with the changes in immigration law.  There are now dozens of ways to prove one’s legal status, many of which do not even include proof (e.g. Canadians who enter by showing a passport are given no proof of entry).  The law is basically unenforceable, or other words, broken.

A bigger issue, however, is the provision in the Arizona, that is causing the most outage —  the racial profiling provision found in Section 3 of HB2162, now A.R.S.  Section 11-1051. This is the big lie. This provision does NOT have any federal immigration statutory counterpart. There is a federal regulation that reads as follow:

8 CFR 287.8(b)(2)  If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.

The question becomes this.  What are “articuable facts” to a trained ICE or CBP officer of a person’s illegal presence in the United States, versus what those facts are to a Maricopa County Deputy Sheriff?   Let’s not kid ourselves, this new Arizona law will lead to racial profiling, and thus creates the strong possibility that it is unconstitutional.  Kobach knows he is pushing the envelope on constitutionality here. He has repeatedly played this game at the expense of cities and counties around the United States. His plan is clear, keep getting gullible and politically ambitious politicians to pass marginally constitutional laws, in the hopes of establishing the outer fringes of what is unconstitutional on the issue of immigration enforcement (e.g. mandatory e-verify vs. housing discrimination).

So, Section 11-1051 is an attempt to establish how much “profiling” will be allowed in Federal law.  Kobach wrote:

“[F]or any ”lawful” stop, detention or arrest (actually he wrote “contact” but then realized after passage that this would fail constitutional muster so he had the AZ folks change it) made by a law enforcement official or a law enforcement agency of this state,  . . . county, city, town . . .  in the enforcement of any other law or ordinance of a county, city or town or this state (to make sure to include housing violations and cars on blocks in the yard, because you know those are signs of  ”illegals”), where ”reasonable suspicion” exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, . . . .

Do you really believe that a statute this vague, ambiguous and downright inflammatory actuallywill pass constitutional muster?  I hope not, because it does not.    Now, tell me this–What does this language mean? The term “reasonable suspicion” is nowhere defined in the Immigration and Nationality Act.  So, what is “reasonable suspicion” that  someone “is an alien unlawfully present?”  Is it the clothes they wear? Their haircut? Perhaps the car they drive? The person’s accent?  Or, do you just know it when you see it, like pornography.

Perhaps the problem here is Kobach. Do we really want a man on a mission to aggrandize himself (and make a living on the lawsuits he causes to be filed by the laws he writes) to be the puppet-master behind these ambitious blinded politicians?  Isn’t a dialogue on the most effective way to curb illegal immigration, without passing unconstitutional laws denigrating entire races of people?  Surely we, as a society, are capable of agreeing on a solution that enforces our borders, punishes bad employers, secures America, AND provides compassion to people, energizes our economy, supplies needed labor and investment, and provides for an appropriate flow of immigrants and non-immigrants in the future.  I just hope we come to a solution before Kobach dreams up his next unconstitutional nightmare.

Immigration Reform or Immigration Timeout?

Monday, May 3rd, 2010

Tom Tancredo recently wrote an article about his plan to get Immigration under control. The last, and apparently most important part of his plan, is an immigration moratorium:

Every month our government lets in 75,000 permanent foreign workers via “green cards” and 50,000 temporary workers through numerous guest worker programs. That’s 1.5 million new foreign workers each year. Then add all the illegal aliens flooding across our open borders. Every one of those new arrivals is competing with American citizens for jobs – and contrary to the propaganda of the open borders lobby, they are not taking only “jobs Americans won’t do.”

Among the many problems with this plan, not the least of which includes the extraordinary harm to America’s economy, innovation, and world wide stature as the “Shining City on a Hill,” if immigrants were not allowed into America, is the fact that the numbers that Tancredo throws around are misleading at best, and an outright lie at worst. It appears that the lying by the anti-immigration movement is beginning to be properly understood by the media in the US, which for too long has been trying to view organizations like FAIR and CIS as not what they really are–fronts for a troubling ideology.

So, what is “wrong” with Tancredo’s numbers? First, in 2009, the USCIS admitted 1,130,818 people as lawful permanent residents of the United States. Of that number, over 667,000 of these people were already in the United States. We did NOT add them to the population or workforce. Further, only 144,000 of the larger total were actually employment based immigrants. 747,000 people were family based immigrants, following our countries long and storied commitment to family based immigration. There is no evidence that all these people are “foreign workers.” In fact, to the contrary many of these folks are parents, spouses and minor children who are not “foreign workers.” Of those 144,000 employment based immigrants, more than half of those people are actually the spouses and minor children of the actually employed immigrant. The reality of the numbers, ignored by Tancredo, is the simple fact that only 77,000 people immigrated permanently to the United States in 2009 through the immigration system.

The unfortunate part of these numbers is that they generally do not reflect immigrants who come to the United States to do jobs Americans “will not do.” Those immigrants, lesser skilled workers, are limited to only 10,000 people a year, and after taking in account family members, fewer than 5,000 lesser skilled employed workers actually immigrated to the US in 2009.

As to the 50,000 nonimmigrant workers allowed into the U.S., well, that number is simply not based in any reality that I am aware of. The numbers of H-1B visas submitted (not even approved) since April 1, 2010 is less than 20,000, and that goes toward the YEARLY total of 85,000 allowed into the U.S. Other nonimigrant categories, such as H-2B (65,000 a year), L-1 visas (less than 30,000 a year), E-2 Visas (less than 20,000 a year), an

The bottom line is this. The numbers are no overwhelming in a country of 300,000,000 people. In an economy of more than 140,000,000 jobs, adding fewer than 75,000 employment based workers to the economy each year is drop in the bucket of our economic engine. Yes, I understand the family based immigrants are going to seek work once they have legal status in the United States, but I also understand that even if half of the new 2009 immigrants (not counting those immigrants who were already in the United States and adjusted status–many if not most of those folks are already part of the economy), that means 230,000 new potential workers in the U.S. economy each year, or about 20,000 a month–in an economy of 134,000,000 jobs! And, that does not account for the fact that immigrants are far more entrepreneurial than native born citizens, and are more likely not seek employment, but rather, to create employment. so each month, there is a .00014 increase in new immigrant seeking employment each month. That is the crisis that Tancredo is warning about? Come on Tom, tell the truth.

The scare tactics of Tom Tancredo, when examined in the light of day are simply not supported by the facts and the numbers. An Immigration timeout? To the contrary, we need a better immigration system to encourage the employment based immigration that creates jobs and maintains American hegemony in technology, science, research, development, banking, and virtually every area in which America leads the world. We want immigrants, we need immigrants, and America is better off for our long history of encouraging immigration to our land of promise and hope.

The Arizona Law and Immigration Reform

Friday, April 30th, 2010

Much has been written and said about the new Arizona Law pertaining to immigrants (it pertains to everyone actually, and certainly is not limited to undocumented immigrants). From Eugene Robinson and Richard Cohen at the Washington Post, to John Stewart on The Daily Show, and even Tom Tancredo, everyone is up in arms about this law. We have heard from Megan McCain (John McCain’s daughter), President Obama, and even from Governor Jan “Show Me Your Papers” Brewer, all opine about the law and WHY the Arizona Legislature had to act on “illegal” immigration.

The conventional wisdom now is that Congress will be “forced” to act on immigration reform. The caution to understand here, from pundits and politicians alike is that the prospect of immigration reform based upon a knee jerk reaction to an unconstitutional law does not change the inherent political dynamics in Congress. Immigration reform needs 60 votes to pass the Senate. The lone Republican who was supporting reform, Senator Lindsey Graham, has threatened to withdraw his support for moving the bill at this time if the Democrats do not move the climate legislation first; other Republican Senators likely to support the bill are not exactly popping out of the woodwork.
The caution sign is up. There will be no reform until President Obama exercises real leadership here and relentlessly calls for legislation, and actually proposes workable solutions. There will be no reform until some Republicans decide that doing what is right for America is more important cowtowing to nativists (some already have called for reform). And, there will be no reform until Democrats stop using the prospect of reform as sort of a carrot to get Hispanics to come to the polls in November. All three of these stumbling blocks to reform need to be removed at the same time. Let’s pray that our elected politicians in Washington will finally exercise leadership on immigration and do what is good and right for America.

Perception is Reality

Tuesday, April 20th, 2010

One of my favorite movie lines is from “The Princess Bride.” Vizzini, the mastermind behind the kidnapping of Princess Buttercup, upon seeing the Man in Black pursuing them keeps repeating the word “inconceivable.” Finally, Inigo Montoya, one of of Vizzini’s then assistants says: “You keep using that word. I do not think it means what you think it means.”

That simple statement applies to so much in the immigration law world that it is hard to even define situations where it does not apply. Much of what we deal with is really about our perception of what the law is, not about what the law actually says. This is true for legislation and for court decisions. Today, this statement seemed more true than ever. I received an email from the Center for Immigration Studies, the anti-immigration “think tank,” promoting a new web program it is hosting on “Local Law Enforcement Authority to Check Immigration Status.” This email comes with this teaser:

This program . . . “discusses a recent court decision affirming that local law enforcement officers may question suspected illegal aliens encounter [sic] about their immigration status and then contact immigration authorities (ICE). Known as Estrada v. Rhode Island, this important decision should reassure local officers that they are not obligated to look the other way when they discover immigration law violations and provide guidance on reasonable actions officers may take in questioning foreign nationals.”

Thus comes into play Inigo Montoya’s statement, to paraphrase here–I do not believe that case means what you think it means. After all, if a court had stated that police officer could pull people over and question them about their immigration status and have no other reason for doing so, don’t you think that we would have all heard about this by now? Heck, the nutty proposed law in Arizona is exactly this, no? Having police ask people their immigration status based upon “reasonable suspicion” is the basis of Senator Russell Pearce’s brainchild. I thought, how could I have missed such a seminal case. Or, perhaps, the folks over at CIS are giving a court’s decision a little more “spin” than it actually deserves?
Go ahead, read “Estrada v. Rhode Island.” This case is exactly NOT about a law enforcement officer’s right to ask questions about a person’s immigration status, with no other basis for stopping the person. The case is about whether or not a police officer can be sued under civil rights and others laws, for engaging in this behavior. The case is NOT a constitutional analysis of the legality of the officers actions in the context of a criminal or immigration related case. Rather, this is a civil case brought by the ACLU of Rhode Island seeking civil damages against the officer because of his actions towards the plaintiffs in the litigation.
The 1st Circuit Court of Appeals explicitly did not rule on the legality of the officer’s action, but rather ruled on whether or not he enjoyed “qualified immunity” for so doing. By finding that the officer was immune from civil suit, the 1st Circuit did not uphold his actions as legal, it simply said he could not be sued over them, expressly NOT ruling on the broader question here.
In the totality of the circumstances, we cannot say that a reasonable officer in Officer Chabot’s position would have understood that his conduct violated Tamup’s constitutional right.
This is not exactly a rousing endorsement for law enforcement officers to engage in what is effectively racial profiling. Given the prospective Arizona law, there is no doubt behind CIS’s efforts to encourage law enforcement officers to stop and question people they believe are undocumented. What should be clearly understood is that no court has found it reasonable to stop and question a person about their immigration status, just because of how they look. But, perception being reality in immigration law, I fear that such activity could become the “law of the land.” That would be a tragic reality.

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.



The Immigration Malaise–Is the Mojo Gone?

Tuesday, March 9th, 2010

Are we back in the 70’s? As a child of the 70’s myself, I have not so fond memories of the economy and the politics of that era. I am experiencing a sort of deja vu right now as I consider the possibility of immigration reform happening during this Congress.

Now, don’t get me wrong. there were good things about the 70’s. At some point I will think of them and write a blog about them. But, for now, let’s focus on the parallels that cause me concern.

The 70’s were famous for “stagflation.” a seemingly unending period of increasing prices, no or slow growth, coupled with a general feeling of the blah’s among the American People. We had lost our “mojo.” It was tough to find jobs, and what jobs you could find were not one’s you wanted to do. The politics of the era were even worse. Simply put: Vietnam, Watergate, Nixon, Ford, Carter. Not exactly a pantheon of great issues or leaders.

Here we are in 2010. We have a non-growing economy, with no “stagflation” but with a general sense of the “blahs.” Few employers are hiring, and no one is willing to take risks. Again it feels like that unique American mojo has dissipated. Politically? Well what can you say? If anything, the partisanship, and cross party rivalry is even worse than during the 70’s. Nothing is effectively getting done, and certainly nothing that requires courage is passing Congress.

Which, finally, gets me to my point. The entire immigration structure in America appears to have lost its way. Congress is lacking the courage and political will to tackle a difficult but necessary issue. The government agency responsible for “service” is currently in “screw you” mode, trying every which way to limit the ability of employers to get visas for prospective employees, seeing “fraud” under every bush and behind every tree, and trying its best to dissuade folks from actually using the immigration system. The agency responsible for enforcement recorded an increased number of removals for FY2009, and is on track for a “better” year this year. The agency in charge of letting folks into the country legally, is doing a terrific job of turning away nonimmigrants with valid visas. The agency responsible for protecting American workers jobs is doing such a great job that many employers with audited petitions now wait TWO years or more to see if the advertisement they ran TWO years ago was adequate for a position available TWO years ago, which the person can then wait another 7 years to fill permanently. Overall, I would say the immigration system has lost its mojo.

So, what can we do. Enlist Austin Powers to find the Mojo? Or, push forward with hope and a belief that the good and right will ultimately prevail. What caused me to ponder on this was rather unusual. I was listening to “great speeches in history” on my IPod, and happened upon Ronald Reagan’s’ Inaugural Speech from 1981. I particularly love this quote:

Well, I believe we, the Americans of today, are ready to act worthy of ourselves, ready to do what must be done to ensure happiness and liberty for ourselves, our children and our children’s children. And as we renew ourselves here in our own land, we will be seen as having greater strength throughout the world. We will again be the exemplar of freedom and a beacon of hope for those who do not now have freedom.

Whether you believe that President Reagan was a great President or not, you have to admit, the speech was inspirational. And, it made me think. Maybe not all hope is lost. If there were only someone to inspire us. If only there were someone to move us forward as a country on the issue of immigration. Right now, I am still searching for that leader, that voice. Let’s hope she shows up soon.