Immigration Opponents Should Really Try to Educate Themselves

U.S. immigration law is extremely complex and must balance multiple goals, many of which often conflict. To make things even more difficult, piecemeal legislation and special interest lobbying over the years have left numerous provisions on the books years after they have already proven ineffective in achieving their stated goals. Many of these provisions, originally intended to keep illegal immigrants from coming to the U.S., or staying here, had no measurable effect on the volume of illegal immigration. However, Congress almost never bothers to remove these failed experiments from the legislative books. Even worse, once the illegal immigrants arrive, these same provisions actually keep them from leaving illegal immigrants from leaving.

Just one example of this is the combination of sections 245(a) and 212(a)(9) of the Immigration and Nationality Act ("INA"). Section 245(a) says that, among other things, if you entered the United States illegally, or entered legally but failed to maintain your legal status here, you are ineligible to apply for your greencard here, so you must return to your home country to apply. That would be fine, if it weren't for 212(a)(9) that says, if you leave the U.S. after staying here illegally, even if you're leaving to apply for a lawful visa, you will be barred for at least three years, and as long as ten years, from reentering the U.S. So, the restrictions in 245(a) keep illegal immigrants from applying for greencards here in the U.S., and 212(a)(9) keeps them from leaving to apply for greencards in their home country; a veritable tag team of ineptitude that has caused the illegal immigrant population to swell to near-unmanageable proportions.

Section 245(a) has been around for many years and is actually not all that bad by itself. Section 212(a)(9) was added by Congress back in 1996 in an attempt to stem the flow of illegal immigration. The thinking was that imposing a severe penalty for coming or staying illegally would keep people from doing that. Well, it didn't work, and the reason should be rather obvious: People coming to the U.S. illegally usually aren't U.S. immigration lawyers, so they're not going to know about the either 245(a) or 212(a)(9), much less their disastrous combined effect - until it's too late.

Congress is, once again, debating immigration reform - which means they have the opportunity to fix this, as well as other problems that keep our immigration system from working the way we all want it to. Unfortunately, immigration opponents, either out of ignorance or perhaps due to some more nefarious motive(s), continue to argue that the current immigration laws are fine; we only need to enforce them. Well, I respectfully disagree. They are not fine and enforcing them often leads to horrendously cruel and unjust results. That is why we need immigration reform so badly. I just hope we get true reform this time, instead of just another product of politically-expedient give and take.

For the "enforcement first" or "enforcement only" people

Yesterday, a client of mine had an immigration interview. She is in her 20's and is married to a U.S. citizen. She and her husband were high school sweethearts and still act like newlyweds even though they've been married for more than 2 years. Cute couple.

Her problem is that she was ordered deported in 2004. Not her fault, and she wasn't even there when it happened. She came to the U.S. when she was 5 years old. Her parents filed immigration applications for the whole family, but they were ultimately denied (long story and not really relevant to my client's case) and all the appeals were eventually denied, although that process took years. While all this was going on, my client was growing up, going to school, falling in love - basically leading a fairly normal life.

Now, since my client initially entered the U.S. legally, she is eligible to get her greencard through her marriage. Moreover, even though she has an outstanding deportation order, she is entitled to have that order rescinded if her marriage case is approved. That is what I was in the process of doing when we all went to the interview yesterday.

Unfortunately, we got an interviewing officer with a misplaced sense of duty. Once he discovered the 2004 deportation order, he immediately notified ICE instead of simply completing the interview. We were able to finish the interview eventually (after a supervisor intervened), but ICE had already been summoned, and you can't unring that bell.

Once ICE arrived, I immediately started "doing my thing" to see what (if anything) I could do to prevent my client from being arrested and deported. The ICE officers were very understanding and sympathetic (which has almost always been my experience with ICE - despite what you read in the media) but had no discretion; once they have a person subject to a final deportation order, they are required to detain her.

Fortunately, mandatory detention is not the same as mandatory deportation. Also,ICE was not that busy, and my case had gained the sympathetic ear of the ICE supervisor on duty yesterday. He personally escorted my client to the detention facility (which is in the same building - another fortunate circumstance) and personally spoke with the Detention supervisor (who also knew me from previous cases I had handled - yet another fortunate circumstance) who agreed to release my client under an Order of Supervision. She is still technically "detained" and has to report to ICE periodically, but she can sleep at home, in her own bed, with her husband, and otherwise live life normally while I am working on her case.

Since I was there, knew what I was doing and caught a couple of breaks, my client will be OK; she'll get her greencard and yesterday will become just a scary story she can tell her children someday. However, there are literally thousands of "illegals" with situations very, very similar to my client's who don't catch those breaks. As a result, they are deported from the U.S.

This case exemplifies the need for comprehensive immigration reform (i.e., not just "enforcement first" or "enforcement only") because my client was very nearly chewed up and spit out by conflicting immigration laws. The "benefits side" of the law says that people like my client can get greencards even with a final deportation order, while the "enforcement side" of the law says that all final deportation orders must be enforced. Comprehensive reform would (hopefully) reconcile these two provisions so they would work in harmony. Both "enforcement first" and "enforcement only" solutions will, the vast majority of the time, result in people like my client being deported from the U.S.

So, what do you enforcement guys think? After reading my story, do you still think "enforcement first" or "enforcement only" is the way to go? If so, I'd love to know why. It's been my experience that few people are truly "heartless" so there must be some reason why you think it would be OK to deport my client; I just can't imagine what that reason would be.

Politics for the Potential Immigrant

You might not believe it considering all the controversy surrounding immigration in the U.S., but we have one of the most—if not the most—wide open and liberal immigration policies in the world. Every year, more than 400,000 foreign nationals legally move to the United States.

The United States as a society (not necessarily politicians, mind you) seems to have realized the potential immigrants bring to this country. Numerous studies have shown that immigrants are more likely than U.S. citizens to start businesses, earn advanced degrees and fill needed positions in the workforce that many citizens refuse to take themselves.

But it’s clearly not liberal enough because every year, just as many people enter the country illegally. Consequently, immigration has become a major political rallying point, dividing popular opinion and resulting in drastic measures by lawmakers nationwide. One great example was the passage of a law called SB-1070 in Arizona in 2010 that gave local police the power to stop and question anyone they might think is in the country illegally. However, the U.S. Supreme Court ruled much of the law unconstitutional before it took effect.

On the other side of the aisle, lawmakers have tried to find ways to deal fairly with the millions of undocumented immigrants already living in the U.S., working, raising families and contributing to society. One such example is the DREAM Act, which would offer a pathway to citizenship for millions of undocumented immigrants, allowing them to live their lives in the light of day. The implications would be far-reaching. It is estimated that just in Los Angeles, The DREAM Act would benefit over 32,000 undocumented youths between the ages of 13 and 19.

The DREAM Act has been introduced to Congress a handful of times in the last few years and has failed every time. Efforts to reform the legal immigration system have been equally frustrated, though well-intentioned lawmakers and citizen activists continue to speak out in hopes that these reforms will come. But, for the time being, hopeful U.S. immigrants are stuck with the current laws and have no choice but to navigate the current maze of rules and regulations which make up our broken immigration system.

There are quite a few options available to someone wanting to immigrate to the U.S. Most people have heard of Lawful Permanent Residency (“green card”). And of course, marrying a U.S. citizen will get you into the country or keep you here, at least most of the time. But there are numerous lesser-known visas available for immigrants who want to come work temporarily in the U.S.H-2A visas are available for individuals seeking work in the agricultural industry or other seasonal occupations. Highly-skilled immigrants who can fill needed positions  can obtain H-1B visas (although there has been a shortage of H-1B visas for the past several years. E visas are available for immigrant entrepreneurs who want to invest in the U.S. economy, students can come on F or M visas and more.

The DREAM Act is before Congress again, this time as part of S. 744, the Immigration Reform Bill currently wending its way through Congress. Although not perfect, most immigration advocates agree it is a very good Bill that will solve many of the problems created by the current, broken system.

Unfortunately, nobody knows when, or if S. 744 will become law, and until then we need to work within the current maze of hard to understand and often conflicting rules and regulations of the current system. We can only hope that relief comes soon. We have already waited too long.

Immigration Reform Not Here Yet - But Progress Is Being Made

Today, the President was briefed on the Immigration Reform Bill soon to be introduced in the Senate. The following is is statement following the briefing:


The White House
Office of the Press Secretary

Statement by the President on Commonsense Immigration Reform

This afternoon, Senators Schumer and McCain briefed me on the bipartisan immigration reform bill that they have drafted with their colleagues in the Senate. This bill is clearly a compromise, and no one will get everything they wanted, including me. But it is largely consistent with the principles that I have repeatedly laid out for comprehensive reform. This bill would continue to strengthen security at our borders and hold employers more accountable if they knowingly hire undocumented workers. It would provide a pathway to earned citizenship for the 11 million individuals who are already in this country illegally. And it would modernize our legal immigration system so that we’re able to reunite families and attract the highly-skilled entrepreneurs and engineers who will help create good paying jobs and grow our economy. These are all commonsense steps that the majority of Americans support. I urge the Senate to quickly move this bill forward and, as I told Senators Schumer and McCain, I stand willing to do whatever it takes to make sure that comprehensive immigration reform becomes a reality as soon as possible.

This is the legislation promised by the Senate back in January. Since Senator Rubio said in January that legislation would not be ready until March, at the earliest, the legislation seems to be on track and has not (yet) hit any significant roadblocks - of course, it hasn't been introduced yet; that is where the "fun" begins.

Senate Proposal Is A Good Start

Yesterday, January 28th, 2013, a bi-partisan group of Senators issued a 4 page memo outlining their vision for immigration reform. The memo admits that our current immigration system is broken, and discusses, among other things both a path to legalization for undocumented aliens as well as a new path to permanent residency for graduates from U.S. colleges and universities who receive graduate degrees (i.e., either Master's or Ph.D.'s) in a STEM (Science, Technology, Engineering or Mathematics) discipline.

This is an excellent sign that Congress recognizes the importance of immigration reform and is making reform a high priority. The memo has already reinvigorated public debate on this topic and the White House has confirmed that it has a working draft of a Bill and is merely waiting for Congress to come up with a Bill of it's own before introducing the President's Bill. However, this is just the very beginning of a very long, difficult process which is likely to take most of 2013. Senator Marco Rubio, one of the author's of the memo, estimates that draft legislation based on the memo will not be ready for mark-up until at least late March.

In addition, there is some troubling language in the memo that I hope will be addressed and resolved during the drafting of the actual Bill:

1.  The memo would require the effectiveness of the Bill's border security provisions to be confirmed by a commission composed of politicians and "community leaders living along the Southwest Border." Benefits outlined in the legislation for undocumented aliens will not be implemented until the effectiveness of border security has been confirmed by the commission. Moreover, although they will receive no benefits initially, the undocumented population will be required to register with the government and simply wait for this commission to tell them whether and when they will be able to become documented.

2.  The memo indicates that special treatment should be given to undocumented individuals working in the Agricultural industry.

The above provisions are troubling because they could completely stifle actual reform and encourage a flood of fraudulent applications which would further discourage true reform in the future. First, the memo does not mention how the "effectiveness" of border security is to be measured. If this is left to the commission, it is quite possible that it will never conclude that the measures are effective. This would mean that the millions of undocumented aliens registered with USCIS will never receive any benefits. They will, however, through the registration process, have told immigration officials who they are and where they can be found.

Second, we have tried to give agricultural workers special treatment before, and that turned out to be, at best, ineffective. Congress passed the Special Agricultural Worker (SAW) program in 1986 that required, among other things, that an alien had to have worked as an agricultural worker in order to receive benefits. This resulted in a huge number of applications supported by either counterfeit or fraudulent employment letters. This problem caused years-long delays in adjudications and prevented even legitimate agricultural workers from ever receiving the intended benefits. Unless the Bill effectively addresses the problems created by the previous SAW program, we will just see more of the same. Even worse, such massive fraud will cause anti-immigration groups to become even more entrenched in their positions by confirming their beliefs that immigrants are bad for this country.

Again, this is just a memo. We won't see a Bill for at least another two months. The memo has brought immigration reform into the forefront of public debate and that is a very good thing. However, although it is undeniably a very good start, it is only a start; there is still a long way to go.