Archive | November, 2012

This is Personal

30 Nov

One of the burdens I carry is the knowledge that I come from one of the country’s anti-immigrant hotspots.  No, I am not from Arizona, Alabama, Postville, Iowa  or Hazelton, Pennsylvania.  I grew up in Suffolk County on the eastern end of Long Island, New York.  While Suffolk County never passed laws like Arizona’s infamous SB 1070 or Alabama’s even more odious HB 56, Suffolk County gained notoriety for an even more loathsome practice– extreme violence against immigrants.

This phenomenon really got underway in 2004 when Israel Perez and Magdaleno Escamilla, day laborers from Mexico, were lured to a basement in Farmingville, NY with the promise of work where they were beaten and stabbed.  This hate crime occured as local anti-immigrant organizations used more and more inflammatory rhetoric against immigrants and aligned themselves with well-known white supremacists such as Glenn SpencerPBS sponsored a documentary about the violence and its aftermath:

Watch Video | Farmingville: Trailer | POV | PBS.

In 2008, Ecuadorean Marcelo Lucero was stabbed to death on the streets of Patchogue, New York.  Mr. Lucero was walking down the street, when he was attacked by a group of young men who went out to “beat on some Mexicans.”  This episode introduced the world to the practice of “beaner-hopping,” which is an activity where young men would find Hispanic men and beat them in the street.

During much of this time, the County Executive for Suffolk County was a despicable little troll named Steve Levy, who sought national prominence by bashing immigrants at every turn.  Rather than manage the affairs of his county, Levy attacked immigrants, changed parties and sought the Republican nomination for governor.  Levy assumed that he could ride his harsh rhetoric to Albany and never considered whether his words may have contributed to the climate that killed Lucero.   His huge campaign warchest was not enough to buy the nomination for governor and Levy declined to seek another term as executive, handing over $4m in campaign funds to the District Attorney, all but acknowledging serial corruption.

Suffolk County has a new executive, who signed an executive order earlier this month requiring agencies to translate official documents into several languages.  The county has 1.5 million residents, 20 percent of whom speak languages other than English at home. Interestingly, these are the languages other than English most commonly used in Suffolk: Italian, Mandarin, Spanish, Polish, French Creole and Portuguese.

That Levy would be out of office, Lucero’s killer in jail, and Suffolk residents contributing to the re-election of the President committed to immigration reform shows that, even in the darkest corners, the sun light can come in.  I am very relieved.  Mo Goldman, help is on the way!

The ACHIEVE Act is Introduced

27 Nov

Last week, we brought you news of the plans of certain Republican Senators to introduce an alternative to the DREAM Act.  Today, Senators Hutchinson (R-TX), Kyl (R-AZ) and McCain (R-AZ) introduced the ACHIEVE Act. The Senators held a press announcement to describe their new bill. They described it as the product of a year of work. Mercifully, there appears to have been some pressure to end their work and put forward a bill as, if they had continued to work, the bill and the process they propose would have become even more cumbersome than the three step process they have outlined.

In last week’s blog, we went over the ACHIEVE Act in detail. It is far more restrictive than the DREAM Act, open to far fewer people than DACA and a monument to bureaucratic obligation and inefficiency. Yet, there is something very revealing about the ACHIEVE Act. All three sponsors of the ACHIEVE Act voted against the DREAM Act in 2010. Its introduction in this lame duck session shows just how much the ground has shifted on immigration since the election. The Democrats should seize the initiative and bring forward the DREAM Act and let the debate begin. The ground has shifted and the Republicans are playing defense on this issue right now. Now, in the lame duck session, is the time to get DREAM done, as the preface to bigger reform in the next Congress.

The STEM Jobs Act: More of the Same From the House Republicans

25 Nov

The House of Representatives is moving quickly to give the appearance that they have changed their tune on immigration.  The House is scheduled to vote this week on the STEM Jobs Act, sponsored by the anti-immigrant Lamar Smith (R-TX).  The STEM Jobs Act would provide 55,000 additional visas for foreign nationals receiving advanced degrees in science, technology, engineering, and mathematics.   Supporters of the STEM Jobs Act argue that it addresses an acknowledged problem area in U.S. immigration law– the difficulty that many needed and valued graduates have in securing residence.  In light of the many technology companies founded by foreign students, the cumbersome path to residence has caused many of these graduates to flee the U.S. and begin building their businesses in other countries.  There is widespread agreement that those graduating with advanced degrees in the STEM fields ought to be given enhanced opportunities to seek residence in the U.S.

The STEM Jobs Act would make 55,000 visas available to graduates who have received Ph.D. or master’s degrees in science, technology, engineering or mathematics.  According to the House Committee on the Judiciary, STEM graduates with Ph.D.s can receive residence if they:

  • have received a doctorate from an eligible U.S. university in computer science, mathematics, engineering, or the physical (excluding biology) sciences.
  • agree to work for the petitioning employer for at least five years in a STEM field.
  • have taken all their course work while physically present in the U.S.
  • are petitioned for by an employer who has gone through the labor certification process to demonstrate that there are not qualified or available U.S. workers for the position.

If there are visas left over after the Ph.D. visas are given out, graduates with STEM master’s degrees will be able to seek their residence on similar terms.

The House voted on the STEM Jobs Act earlier this year.  However, it failed for two reasons: (1) the House leadership used a procedure that required a 2/3 vote; and (2) only 20% of the Democratic caucus supported the Act.  The reason for the lack of Democratic support was because the bill does not increase the total number of visas available.  The bill eliminates the 55,000 diversity visas (visa lottery), so that the total number of visas issued in any given year is unchanged.  As the diversity visa remains one of the few ways that an individual with no family or employment ties to the U.S. can immigrate, many Democrats opposed its elimination.

The new STEM bill also eliminates the diversity visa.  Yet, the Republicans have sweetened the deal by providing for a temporary visa for the spouses and children of permanent residents.  This visa would allow the approximately 320,000 spouses and children of permanent residents waiting for immigrant visas to enter the U.S. and await their residence in the United States.  It would have the effect of uniting couples separated due to the backlog of visas in the category of spouses and children of permanent residents.  Currently, there is a two year backlog to receive residence as the spouse of a permanent residence.  Individuals receiving green cards today would have had to marry and file prior to July 2010.  The new law would allow people in that queue to enter the U.S. one year after filing an immigrant petition and then could wait out the queue in the U.S. with their families.  Something similar  has been done before in 2000, when V visas were given to those waiting in the backlog.  According to press reports, individuals entering to wait out the family based queue would be ineligible for employment authorization.

In summary, the STEM bill seems to be a non-serious effort to reform our immigration laws.  It is acknowledged that the process of obtaining residence for highly educated and skilled immigrants in the STEM fields is highly cumbersome and onerous.  Yet, STEM fails to fix that.  The cumbersome and onerous part is the labor certification, which requires employers to jump through a variety of hoops to petition for residence for foreign nationals.  Yet, STEM leaves that process intact.  Moreover, by tying a STEM graduate to an employer for five years, the STEM Jobs Act places more restrictions on a STEM graduate than on an individual who received her PH.D. in literature, who does not need to remain with her employer for five years.  If the goal of this bill is to unleash the creative and entrepreneurial talent of the STEM graduates, why are they tied to a specific employer for five years?  If, as the House Judiciary Committee states, STEM graduates are behind many of the innovations and new businesses, why does the STEM Jobs Act shackle them?

The STEM Jobs Act uses a lot of words to create exactly what already exists.  It is called the second employment based preference where an employer may sponsor an individual with an advanced degree through the labor certification process.  However, the current law provides visas for all types of graduates and employees who help the economy.  Those visas, except for India and China, are already current.  The India and China backlog is disgraceful and should be remedied, but it can be done in a far more pithy way than the STEM Jobs Act does.  Add 55,000 visas to the second preference.

This also raises the question of whether those visas should be taken from the diversity visa.  I am no fan of the diversity visa.  It seems silly for a country to give out residence based upon a lottery.  Immigration should be about filling the needs of American families and business.  A lottery strikes me as a very unsophisticated way to give out a very valuable benefit.  That being said, I do not think that the diversity visa should be traded for the STEM Jobs Act.  If the STEM Jobs Act eliminated the need for a labor certification and allowed STEM graduates freedom to work for themselves or traditional employers, the STEM Jobs Act could certainly make better immigration policy.  However, the STEM Jobs Act continues on the same bureaucratic path that has caused the problem we have now and does very little to unleash the forces of STEM graduates.  As immigration law becomes a topic of legislative inquiry, those interested in serious reform should make it clear that the same old ways of doing things must come to an end.

Even the sweetener of uniting families is fairly sour.  Applicants would have to have their I-130 petitions pending for a year before they could seek their visas.  This is roughly half of the current backlog.  Once here, they spouses of permanent residents could not work.  This restriction on employment authorization serves no rational purpose other than to stoke marital discord and financial hardship.
The STEM Jobs Act is not an opening bid in the new immigration reality.  It is a last gasp of the dinosaurs who have strangled and stymied meaningful reform of our immigration laws.  We won the election.  Our ideas should be the starting point.

Giving thanks

21 Nov

As we celebrate Thanksgiving, we at Benach Ragland want to extend special thanks to the many people that have supported us this year as we got our law firm up and running.  Getting a business going is no small task and we could not have done it without the help of so many people who believed in our dream and whose love, hard work and support made our law firm a reality.

First, our spouses.  Mona Luddy Benach, Tazim Mawji, and Bernie Cook lived through the plans, changes of plans, and further changes of plans.  We love you and needed your support, ideas, and love to make this happen.  We also want to thank our fourth spouse, Justin Stewart-Teitelbaum, who helped his wife, Dree Collopy make the jump.  In addition, we are grateful to our kids who endured momentarily absent parents and “playdates” at the office in the planning stages.

Second, we want to thank our marvelous staff.  Cyndy Ramirez Clark, Liana Montecinos, Sandra Arboleda and Prerna Lal make the attorneys look good and make coming to work a joy.  Their hard work, belief in our mission and deep concern for providing excellent service to our clients make Benach Ragland what it is.

Third, we want to thank everyone who worked with us and helped us get this firm up and running.  Dave DePietto at NexFirm provided financial expertise, strategic planning and a belief in our ability to succeed.  His second in command at NexFirm, Seth Garrison makes the trains run on time.  Steve Manekin is our accountant and buys us steak.  Marc Shandler, our realtor, found us a space that feels like us and drove a hard bargain on our lease.  Joe Fuld, father to Max Fuld and founder of The Campaign Workshop, designed our logo and kept us from embarrassing ourselves with silly logos.  Diane Seltzer is our favorite lawyer.  Winston Sanchez and Jeiruzka Izquierdo provided delicious food for our open house.  Many others helped and we are extraordinarily grateful to all of you.

Finally, we want to thank the great lawyers who have inspired us and taught us the practice of law.  Denyse Sabagh and Michael Maggio are always here in our hearts.  And, sometimes, Denyse is here in person!!

Many thanks to friends, old and new, who have been part of this amazing journey.  We would not be here without you.  Happy Thanksgiving everyone.
Andres, Jen, Thomas and Dree

My Trip to the White House to Discuss Immigration Reform

21 Nov

In Washington, we have very hot summers without a real beach to beat the heat.  Our winters can be wet, sloppy messes or we can get pounded with multiple snow storms in a city completely unprepared for more than three inches of snow.  Along with the occasional security scare, World Bank protest and Presidential motorcade, life in the Nation’s Capital can be challenging.  However, certain things make up for that.  I can see the Washington Monument from my window, the reflection of the Lincoln Memorial on the pool and the genuine devotion of DC area residents to ideas in the public sphere are some of them.

Last night, I had another opportunity to appreciate Washington life.  I received an invitation to attend a meeting at the Office of Public Engagement of the White House to discuss priorities for the Obama administration in the second term.  Now, I would have crossed continents and oceans for such an opportunity.  Luckily, all I had to do was take a short two-block walk on a lovely night and I was in the West Wing.  Amazingly, the security guards at the White House are far more relaxed and confident than the guards at your standard federal building.  Perhaps that was due to the President being on the other side of the earth.  Relieved that I got to keep my belt on, I entered the White House, with about seven other people– an impressive collection of people.  An ornate, inviting, and comfortable lobby awaits:

In the lobby, a TV blared Chris Matthews talking Benghazi non-stop.  It must be strange to sit all day in a lobby where national news is talking about your co-workers all day long.  I asked the receptionist if that grows tiresome and she told me that the TV is usually tuned to ESPN.  Good call.  We were welcomed into the White House by the lovely Rumana Ahmed, pictured below:

What a great impression of inclusion and American diversity and unity all at once to be welcomed to the White House by Rumana.

Prior to the meeting, I reached out to many Friends of Benach Ragland and asked for advice as to what specifically should be said about immigration.  Together, we came up with a wish list of immigration priorities, which grew to fifteen items.  Briefly, however, they settled on a restoration of judicial review over most immigration decisions, a generous waiver of most grounds of removability, reform of visa numbers to eliminate lengthy backlogs, DREAM Act, Permanent Partners, enhanced protection for minors, and increased ease in admitting highly educated immigrants.  I prepared my elevator speech to tell them what they needed to do on immigration.  However, it is well known military truism that the best strategy evaporates in the first seconds of battle.  The meeting grew in different ways and adaptation was necessary.

Rumana took us upstairs to meet Jon Carson.  We walked through the internal guts of the working White House and I was surprised to see people piled on top of each other, still working hard at 6:30 with the President in Cambodia.  The workspace was decidedly not plush.  Jon Carson is a super affable guy who oozes sincerity.  I learned that he has a son in Pre-K at my kids’ school, but, unfortunately, his son and my Pre-K son are in different classes!  Washington Living, again. 

He told us that the administration wanted to hear about what they can do better in the second term and how can they use the next four years to push progressive ideas.  Jon said that the two main immediate issues were the fiscal cliff and immigration.  He also mentioned the logistics of having to sign up millions of Americans for health insurance coverage.  The results of the election really dawned on me as the administration was planning the implementation of the Affordable Care Act.

Jon said that the theme of the second term of the Presidency would be “citizenship,” a theme the President highlighted at the Democratic National Convention.  We previously riffed on the meaning of citizenship as immigration lawyers, but, sitting in the White House talking about making policy and administrative moves that would affect the lives of millions of people, the active nature of the concept became clearer.  It is about creating closer ties of community with volunteers, schools, religious institutions and neighbors.  Naturally, therefore, the conversation turned to organizing.  Many observers have attributed the President’s victory to an organized workforce and volunteer system that delivered the vote and the participants in the meeting discussed how the Obama volunteer organization, Organizing for America, can be deployed not only in service of an election but also in service of progressive ideals.

As the discussion turned to immigration, I offered that some of the best organized and effective advocates are the undocumented youth who have created networks that have pushed immigration to the forefront.  Organizations like DreamActivist and United We Dream have regularly outpaced more traditional organizations in calling attention to immigration injustices.  Jon mentioned that only once has the President urged the public to contact Congress and that was during the debt ceiling fight last year.  That call to arms shut down the Capitol Hill switchboard.  I mentioned that undocumented youth are pretty good at shutting down switchboards and that, if the President came out strong for immigration reform, he would have formidable allies ready to work.  I told Jon that there was a lot of mistrust of the administration on immigration and that they needed to see strong Presidential leadership to get behind immigration reform.  Jon replied that the White House was well aware of the mistrust and expressed hope that DACA represented a turning point.

Jon wanted to know if immigration reform could be a rallying point for progressives for the long term.  Everyone in the room seemed to agree that it was.  Someone pointed out that no matter what their political persuasion, business supports immigration reform and immigration could be a way to begin to repair damage between the President and business community.  I offered that the important parts of the core of the President’s support of Latinos, Asians and women could be solidified with immigration reform.  Latinos would be Democrats for a generation with a generous immigration reform program – one that does not offer some simple and easy fixes while tightening enforcement, but one that recognizes that we have overdosed on enforcement and are in need to benefit reform.  More butter, less guns.  In addition, an appeal to women could be made if Michelle Obama met with U.S. citizen children whose parents have been deported.  The staggering human cost of enforcement on steroids needs to be examined.

This was not a meeting for detailed proposals about restoring 212(c) or eliminating the three and ten year bar.  Rather, it was big picture.  The White House is now preoccupied with the fiscal cliff.  The top legislative priority after fiscal cliff is settled is immigration.  I have no doubt that the White House recognizes the need for very strong Presidential leadership on the issue.  I tried to emphasize over and over again that reform cannot be left to the Congress and the President must guide and frame the discussion.  I also have little doubt that the President is starting from a very generous reform program.  Lastly, I can tell you that the White House is prepared to deploy all its resources on this.  This includes mobilizing the extensive volunteer network and the OFA system to build support for immigration reform.  Remember all those emails you got during the campaign asking for $17?  They are not going away.  Instead of asking you for $17, whoever, they will ask you to call Congress to ensure that generous common sense immigration reform is passed.

This is the best opportunity in a generation for sensible and humane immigration laws and the White House appears committed to doing it right.  I know that there are those of you who don’t trust the administration at all to do what is right on immigration.  And I will concede that the air of the White House may have clouded my judgment.  It is very hard to remain cynical and jaded in the White House.  I hope that you can put aside your cynicism and can dare to believe that, in the words of Sam Cooke, a change is gonna come. (watch below!)  What do you have to lose?

On Dinosaurs- Can Immigration Reform Pass the House?

18 Nov

We have heard lots of talk about the need for bipartisan immigration reform in the new Congress.  We have heard that Senator Lindsey Graham (R-SC) will work with Senator Charles Schumer (D-NY) on a new bill for introduction in the Senate.  The Senate was five votes away from passing the DREAM Act in 2010, so it is possible to believe that the new political reality has jolted preservation-minded conservatives in the Senate to support common sense immigration reform.  But what about the House of Representatives?  What about the Tea Party supported freshman class determined to oppose compromise at all costs.  Well, their leaders seem to be telling them to compromise, but will they?   While Hannity and Krauthammer may be thought leaders in the GOP, they do not actually get a vote.

Speaker John Boehner “expressed optimism” that immigration reform could pass this Congress.  Well, he should know.  It is his caucus in the House that needs to be pulled along, kicking and screaming, to get common sense immigration reform through the House.  The restrictionists are counting on the Republican majority in the House to be their firewall against reform.  NumbersUSA president Roy Beck, a restrictionist, told the Los Angeles Times, “We have quite a bit of assurance that comprehensive immigration reform won’t pass the next Congress.  All of this is just national talk.  The House is not about national talk. It is about one district at a time.”  What gives Beck such confidence?  For one thing, the House has a 93 member “Immigration Reform Caucus,” dedicated to promoting the worst nativist and restrictionist views on immigration.  Many caucus members, such as Lamar Smith (R-TX) and Steve King (R-IA), have held leadership positions on immigration issues.  Second, the Chairmanship of the House Subcommittee on Immigration is due to pass to Rep. Bob Goodlatte (R-VA), another anti-immigrant zealot (his check for membership dues in the caucus must have bounced, as he is not a member).

Who is Mr. Goodlatte?  He is a ten term Congressman from Virginia Shenandoah Valley, which lies between the Blue Ridge Mountains and the Appalachians and was where a friendly population helped Stonewall Jackson defeat much larger Union armies.  On his webpage, Mr. Goodlatte writes of immigration:

Legal immigration has blessed our nation with talent, diversity, and a commitment to freedom and the rule of law.  However, illegal immigration mocks that law and our system of justice.  It is estimated that there are over 10 million illegal aliens currently living in our country.  Illegal immigration costs our taxpayers billions of dollars every year, while taking jobs from law-abiding citizens and legal residents.  We must crack down on illegal immigration and enforce our current immigration laws.  In addition, we must not grant amnesty to individuals who have broken our laws.

Mr Goodlatte also brags about supporting all of the terrible ideas on immigration that have enthralled the most extreme elements of the Republican party.  If Republicans think that immigration reform is their way to a more electable future, it will not be achieved with dinosaurs like Goodlatte leading the way.

If the Party is serious about changing its tune on immigration, it would do well to marginalize extremists such as Goodlatte, Steve King and Lamar Smith and to empower those few moderates, such as Mario Diaz-Balart (R-FL) and Chris Smith (R-NJ), who have positive track records on immigration.  In addition, last week’s victory by Cathy McMorris Rodgers (R-WA) over Tom Price (R-GA) for the fourth top Republican slot augurs well that the GOP leadership is serious about marginalizing its extremists.

Details Emerge on Republican Alternative to DREAM Act

16 Nov


Before the tectonic plates shifted last week, there was a recent time that the Republican Party stood a chance to exploit the serious disaffection of the Latino and immigrant communities with the Obama administration.  Last spring, Senator Marco Rubio (R-FL) teased the electorate with a so-called “Republican DREAM Act.”  Although no legislation was drafted, Rubio’s attempt to reconcile his party with the immigrant community got serious attention.  Rubio’s proposal was described in the press as providing an opportunity for DREAMers to seek non-immigrant status.  His plan would have created a nonimmigrant visa for DREAMers, which would not generate a new pathway to residence, but would, rather, allow DREAMers temporary status and, if they could find a basis for residence through the traditional means, they would be allowed to adjust status to residence.  Of course, this is all hyperbole as none of this ever made it to the legislative drafting process because Rubio could not gather the support of his party.  The White House, however, was sufficiently concerned with the Rubio proposal that it asked DREAM advocates not to work with Rubio.  When DREAM advocates still seemed open to Rubio’s proposal, the White House moved on DACADACA took all the wind out of Rubio’s sails, and, as we have argued before, may have turned the tide for the President in this election.

Since the election exposed the GOP’s serious problem with the Latino and immigrant communities, Republicans have been moving fast towards greater receptivity to immigration reform as a salve to their self-inflicted wounds with Latinos.  On the heels of that stampede come details about Rubio reviving his alternate DREAM Act.  Yesterday, the Daily Caller reported details on the Republican alternative to the DREAM Act.   Additional details were provided by the National Review.  They are calling it the ACHIEVE Act and it basically follows the ideas that Rubio floated last spring.  According to the Daily Caller, the ACHIEVE Act would create a new nonimmigrant visa, dubbed the “W-1” that would allow a young person to attend college or serve in the military.  The details are a bit hazy, but it seems that the W-1 is to attend school or serve in the military.  The requirements for W-1 status are:

– Applicant must have lived in the U.S. for five years prior to the Act’s enactment

– Must have entered the country before age 14

– Must have good moral character

– Applicant must not have committed a felony, must not have committed more than one misdemeanor with a jail term of more than 30 days, must not have committed a crime of moral turpitude, and must not have a final order of removal pending

– Must have knowledge of the English language, U.S. history, and of principles of U.S. government

– Applicant must be 28 or younger at time of application (or 32 if they have a bachelor’s degree from a U.S. college);

– Must pay a $525 fee

– Must submit to a medical exam and a background check, submit biometric and biographic data, and register with the Selective Service.

According to the National Review, to maintain W-1 status, a student must: (1) check in with DHS every six months; (2) avoid welfare or government sponsored financial aid, and (3) maintain studies.  The National Review also says that W-1 students would also be able to work while attending school.

Upon completion of a degree, the student could seek a W-2 visa, which is a four year work visa.  An applicant must have received a degree or served four years in the military, continue to maintain the requirements of status regarding crimes, good moral character, welfare and reporting.  A $525 fee would also be required.  After completing four years of work, an applicant could then seek a W-3 visa, which would be renewable indefinitely every three years.  The program would provide no new means of seeking residence.  Residence may be sought through any of the existing means of seeking residence and, presumably, W-3s would be eligible for to apply for residence.

So, there you have it.  The first details of the Republican ideas regarding undocumented youth.  The eligibility requirements are considerably stricter and less generous than DACA and they impose tremendous work upon applicants and the immigration service.  In addition, the ACHIEVE Act would require undocumented youth to be in some form of temporary status for ten years before they could apply for a quasi permanent W-3 and/ or residence.

This proposal is a poor cousin to the DREAM Act.  Nonetheless, it ought to be welcomed as a departure from the “deport them all” and “self-deportation” rhetoric that has passed for policy in the GOP.  Republicans seem to have accepted the moral claim of DREAMers and have made a serious first offer as to a legislative solution.  It is far from perfect, but it represents miles in the journey that Republicans have traveled since last Tuesday.