Archive | February, 2013

Hey FAU! Drop GEO!

20 Feb


Yesterday, after receiving a gift of $6 million, Florida Atlantic University announced that it was renaming its stadium “The Geo Group Stadium,” after the for-profit prison company, best known for operating detention facilities on behalf of Immigration & Customs Enforcement.  It is remarkable that any university would name a stadium after a prison company, but simply stunning that Florida Atlantic University, which sits in South Florida, a community that has been decimated by the overuse of civil immigration, would be so tone deaf as to think this was a good idea.  Although $6 million can certainly affect one’s “hearing,” FAU’s renaming of its stadium displays a failure of a university’s most cherished obligation, to empower students to make intelligent, ethical and moral decisions in a complex world.

FAU is a public school with over 30,000 students and boasts that 44% of its students are “minority or international students.”  Twenty-three percent of FAU students identify as “Asian” or Latino.”  And FAU sits in Southern Florida, where GEO operates a notorious link in the immigration gulag, the Broward Transitional Center, in FAU’s hometown of Boca Raton.

Universities have long been at the forefront on civil and human rights issues.  Universities nurtured the civil rights movement, the women’s and gay liberation efforts.  Universities divested from South Africa during apartheid and universities have led the charges against foreign sweatshops that made apparel sold in college bookstores.  And it is no surprise that universities have been actively involved in the immigrant rights movement.  Leading educators have stood up for the DREAM Act, have supported efforts to get individuals out of detention and deportation proceedings, and have led urgency to the need for a better system for employment-based immigration.  So, why would FAU accept a donation and so prominently highlight a company who makes it profits off the maintenance of an immigration detention apparatus that is morally dubious if not downright repugnant?

The GEO Group operates 73,000 “beds,” but it is not the Best Western.  “Beds” is corrections-speak for “places where detainees can try to sleep.”  It has a ignominious track record.  Before they were GEO, they were they were the Wackenhut Correctional Corporation.  British journalist Greg Palast wrote of Wackenhut’s operation of private prisons in New Mexico, “New Mexico’s privately operated prisons are filled with America’s impoverished, violent outcasts — and those are the guards.”  The Wackenhut name was so tarnished with scandal that the board changed the name in 2003.   Yet, transforming the way that they did business was much more elusive. Some of GEO’s greatest hits include:

In addition, the GEO groups lobbies for punitive immigration laws and resists efforts to introduce more discretion for judges to release detained individuals.  After all, the trough must be refilled.  It has a very cozy relationship with ICE.  Just last week, we learned that a former ICE bureaucrat David Venturella, who had some ambitious ideas about pumping up removal numbers, has left ICE for his payday at GEO.  The revolving door between government and for profit incarceration is quite lucrative for ICE bureaucrats, but there is no such door for detainees.

It is simply stunning that a university would agree to name a stadium after this behemoth.  It is especially galling in South Florida, where brave immigrant activists Marco Saavedra and Viridiana Martinez infiltrated the Broward Transitional Center to document abuses and conditions.  Would FAU name their stadium after the Bushmaster assault rifle? Or after Phillip Morris (rebranded as Altria)?  No university in their right mind would ever be associated with such corporate pariahs.  The goal for immigrants rights communities is to make the name of GEO as toxic as those names.  The devastating impact that GEO has had on the immigrant community in South Florida simply makes it an unacceptable choice for naming rights at a stadium.  Especially one in South Florida.  FAU must know that GEO is as much a pariah as gun manufacturers and cigarette pushers.  How many FAU students have been detained by GEO?  How many FAU student’s parents and loved ones languished in GEO’s dungeons?  How many kids never got a chance to attend a football game because GEO got them first?

Dream Activist has started a petition.  Please sign.  Please share on all your networks.  While FAU may be intoxicated with GEO’s money, they need to be reminded that their community or “customers” reject GEO’s profiteering on detention misery.

Immigration Reform Follies!

19 Feb

The past few days have revealed tremendous silliness in the immigration reform debate.  It is a true pity given the serious stakes involved for everyone persecuted by the U.S.’ brutal immigration laws.

Just today, we saw prominent immigrant rights groups’ applauding the honesty of ICE bureaucrat representative, Chris Crane because he stated in some forum or another:

For this pearl, Mr. Crane has been lauded by all sorts of ostensibly pro-immigrant types as a whistleblower.  After all, here is an ICE agent stating that ICE only cares about hitting its numerical targets for removal.  ICE has recently come under some well-deserved heat for conducting data-mining and all sorts of definition-expanding permutations to ramp up the removal of criminals.  It would seem that Mr. Crane is stating that ICE is going after low hanging fruit and not the dangerous criminals, who we all can agree, at least in theory, deserve removal.  At last, someone within ICE points out that the emperor has no clothes.  Right?

Well, only if you pay no attention to everything else Chris Crane has ever said.  Based upon his testimony, Mr. Crane believes that ICE is not being allowed to do its job of keeping the community safe because the ICE political leadership has instructed ICE officers to focus their removal efforts on those convicted of crimes or repeated immigration law violators.  Apparently, Mr. Crane believes that community safety would be enhanced if ICE agents were permitted to make arrests when they are “on duty in a public place and witness a violation of immigration law.”  If only ICE agents were empowered to make arrests in such circumstances, public safety would be enhanced.  This makes us wonder: what does it look like when a student falls out of status due to failure to maintain appropriate credits, or what does it look like when a tourist visa expires, or what does it look like when an undocumented person clear your plate, does it look that much different than when a documented individual re-fills your water?  If ICE agents were empowered to make arrests because of these and other “immigration violations” they witness, the U.S. would look a lot more like those totalitarian regimes where the only law is the presence of a gun and handcuffs.  No thanks.  Yes, ICE is doing everything can to pump up their removal numbers, but if Mr. Crane and his allies had their way, that number would be way higher than 400,000 and community safety would not be enhanced.  Recall that Chris Crane is the plaintiff in a lawsuit, where he is represented by uber litigation-loser Kris Kobach, where he alleges that DACA is illegal because it means he can not arrest and remove every undocumented youth he comes across.  Nonetheless, members of the non-profit industrial complex for immigration reform have embraced Crane’s quote, displaying an alarming lack of awareness of what Crane is actually saying.

This followed this weekend’s adolescent drama that occurred when the President’s plan for immigration reform was leaked to USA Today.  Immediately Marco Rubio and other Republicans groused that the President never spoke to them and that there were significant divides between the President and the GOP in Congress.  John McCain insisted that the President, by talking about immigration reform was trying to derail it.  And Newt Gingrich (why do we still have to listen to this pompous blowhard?) went on TV and blurted out the partisan truth that the Congressional GOP would not pass anything that had Obama’s name on it and the President had to call Senators McCain, Graham, and Rubio (Senator Flake was unavailable) and tell them “don’t worry, baby, I love you and your plan.”

The President’s proposal is very intriguing.  We will discuss it in detail in the next couple of days, but it goes to territory where none of the other plans go: shrinking the definition of “aggravated felony,” allowing for immigration recognition of expungements and other ameliorative statutes, and restoring suspension of deportation.  For those of us who care about due process in the immigration courts and greater flexibility in removal statutes who thought that immigration reform would be all about E-Verify, border fences, legalization at the back of the line and a guest worker program, the introduction of due process concepts into the debate is welcome.  The very real humanitarian considerations represented in the President’s plan should not be overshadowed by high school cafeteria antics


Immigration Reform 2013: Understanding the “I-Squared” Act

18 Feb

We’ve previously told you about the broad proposals for immigration reform put forward by President Obama and the bipartisan group of Senators known as the “Gang of Eight.” Today, we’ll take you through an actual piece of legislation currently pending in Congress: the Immigration Innovation (or “I-Squared”) Act of 2013.

Unlike the frameworks put forth by the President and the Gang of Eight, which address numerous aspects of the immigration system, the I-Squared Act is narrowly focused on employment visas for professional and other highly skilled workers. However, as immigration lawyer Greg Siskind points out, the I-Squared Act is what’s known as a “marker bill”—meaning it was designed not to be passed on its own, but to serve as a model for similar provisions to be included in the eventual comprehensive reform bills.

Creation of a “Floating” Cap on H-1Bs

The biggest proposal in the I-Squared Act involves the H-1B program, which allows professionals and similarly skilled employees to work in their fields of specialty for up to six years, and which commonly serves as a bridge for university graduates who hope to obtain employment-based green cards. Due to the program’s popularity, the annual allotment of 65,000 slots is routinely filled just weeks (if not days) after USCIS begins accepting applications—leaving employers, and especially technology start-ups, unable to tap much of the pool of foreign labor on which they rely.

To remedy this problem, the I-Squared Act would allow the annual H-1B cap to “float” between 115,000 and 300,000 depending on market conditions and existing demand. For example, if the cap was reached within 45 days, the government would automatically make an additional 20,000 slots available. By contrast, if the number of approved H-1B petitions in a given year was more than 20,000 below the original cap, the government would reduce the base figure by 20,000 for the subsequent fiscal year.

Importantly, the bill would also exempt applicants with advanced degrees from the cap altogether; facilitate the ability of sponsoring employers and employees to extend H-1B status;  and for the first time allow the spouses of H-1B workers to themselves obtain employment authorization documents. Finally, to fund education in STEM (science, technology, math, and engineering) fields, the bill would raise the fees that H-1B employers must pay—from $750 to $1,250 for those with fewer than 25 employees, and from $1,500 to $2,500 for those with 25 or more employees.

Reforms to the Employment-Based Visa System

For many years, the employment-based green card system has been plagued by two opposing different problems. The demand for some types of green cards far exceeds the supply, creating lengthy backlogs and frustrated applicants. Meanwhile, the supply for other types of green cards far exceeds the demand, resulting in thousands of slots for permanent residency going unused each year.

To fix the first problem, the I-Squared Act would eliminate the per-country quotas altogether for employment-based green cards. Under current law, the government may not issue more than 7% of the green cards in any particular category to residents of any particular country. As a result, noncitizens from countries with many applicants, such as India and China, face much longer waits to obtain permanent residency than noncitizens from countries with few applicants. Indeed, due to the per-country quota, the government is only now processing EB-3 applications for Indian beneficiaries filed in November 2002. By eliminating the per-country quotas for employment-based green cards, the I-Squared Act would result in their being issued on a first-come, first-served basis. (What a novel idea!)

To address the second problem, the I-Squared Act would “recapture” all unclaimed employment-based green cards since 1992, making them available to current applicants and rolling them over to future years as necessary. It would also increase the annual percentage of green cards issued for the most popular categories (EB-2 and EB-3) from 28.6% to 42.9%. In combination, these proposals would do much to reduce (if not eliminate) the extensive waiting periods that currently face applicants for the most popular employment-based green cards.

In fact, by expanding the number of EB-2 visas available each year, the I-Squared Act would accomplish many of the same objectives as the STEM Jobs Act pushed during the lame duck by House Republicans. (Green cards in the EB-2 category are available to noncitizens with advanced professional degrees or who otherwise possess “extraordinary ability.”) Unlike the STEM Jobs Act, however, the I-Squared Act would not eliminate any existing green cards as an artificial attempt to “offset” the increase.

Authorization of “Immigrant Intent” for Student Visas

One of the biggest ironies (if not tragedies) of immigration law is that to obtain a temporary visa to enter in the United States, most noncitizens must affirmatively prove that they have no intention of permanently settling in the country. In other words, unless they can demonstrate that they intend to return home, most nonimmigrant visa applicants are forbidden from entering the country in the first place. For some types of visitors—such as tourists—this requirement makes sense. But for others—especially those who are highly skilled—it is entirely self-defeating. After all, how can we expect to attract talented foreigners to work here if we say up front that we don’t want them to stay?

Under current immigration law, applicants for only three types of temporary visas are permitted to possess “immigrant intent,” i.e., a desire to remain in the United States indefinitely: professional workers (H-1Bs), intra-company transferees (L-1s), and certain immediate relatives of permanent residents who are awaiting their own green cards (Vs).

The I-Squared Act would for the first time authorize visiting students (Fs) to have “immigrant intent,” meaning in practical terms that their ability to study in the United States would not depend on their having a foreign residence that they have no intent of abandoning. This change is not only long overdue, but crucial to attracting the very type of student to whose diploma we hope to ultimately staple a green card.

Should I Seek a Provisional Waiver or Just Wait for Immigration Reform?

13 Feb

bird-in-handThe optimism and hope that have been generated by all of the hype around immigration reform has been intense.  Every day, a new prominent political figure comes out in favor of immigration reform.  Look, Sean HannityCondoleeza Rice!  Was that closet really big enough for Fox News Chairman Roger Ailes? Eric Cantor and John Boehner now support the DREAM Act after voting against it in 2010!  It is enough not only to induce whiplash, but it is creating a frenzy of anticipation that often manifests itself in odd ways in the privacy of a consultation with an immigration lawyer. Specifically, many people are now asking, should I just wait for immigration reform?

For the past couple of years, the last resort of the hopeless case was the possibility of immigration reform.  The whiff of a chance of a possibility of potential reform was the only bit of hope that we could muster for some folks who came into our offices.  After we explained that the law did not provide them with any practical options, we were able to console the client with the hope that someday the political system will come to their rescue. As the day becomes more and more visible, the number of people considering doing nothing and hoping for the best appears to have increased.

Frankly, that has always been a pretty decent option for many people.  People who entered the U.S. illegally and had few significant family ties generally had little opportunity to fix their immigration situation.  Sure, we could do some long shot application with little chance of success that would cost a lot of money.  But we often advised people not to spend their money on quixotic ventures and to sit back and see whether the law will develop in a way that could benefit them.  Wait and see was really the best advice.

Now, we seem to be on the verge of the “see” portion of wait and see.  Immigration reform seems imminent and the incentive to wait and see has increased.  But, even though the promise of immigration reform seems within our grasp, real changes that will help untold numbers of people have taken effect now. It is unwise to avoid these measures in the hope that immigration reform will save the day.

The biggest example of this is the I-601A provisional waiver.  The government has changed the process of seeking waivers of inadmissibility for those spouses of U.S. citizens who are only inadmissible due to unlawful presence.  By allowing the couple to seek a waiver of inadmissibility in the U.S. before making an uncertain trip to the U.S. embassy in their home country, the administration has removed a formidable obstacle to legalization of thousands of immigrants married to Americans who are unwilling to take the risk of being separated from their families for up to a decade. This procedural change has the potential to allow thousands of people to legalize their status.

Yet, just as these very important and welcome changes take effect, people are pulling back.  Why should I try to seek a waiver when Obama is going to legalize everyone anyway?  The answer is the old cliche about the bird in hand.  The provisional waiver is the bird in hand and, as much as we believe it is going to happen, and as much as we want it to happen, immigration reform is not a done deal and can collapse.  It has happened before.  There are forces assembled to fight immigration reform tooth and nail.  They will find a ready audience in much of the Republican caucus in the House, always fertile ground for anti-immigrant sentiment.  Even if Congress passes immigration reform, there is no guarantee it will include a path to citizenship.  The Senate plan offers applicants a temporary status that will last until a border commission says that the border is secure, an automated entry and exit system is imposed, and the entire backlog is cleared.  Senator Dick Durbin, one of the most pro-immigrant Senators, said that that temporary status could last as long as ten years!  At the end of those ten years, applicants can seek residence!  To paraphrase the Beatles, the path to citizenship is the long and winding road.  If it even happens!

The provisional waiver is law.  It is really happening and people can use it to fix their status and obtain residence.  No temporary status.  No watching committees and reading the tea leaves of pundits and politicians.  It is in the Code of Federal Regulations and there is a form.  Nothing in immigration is real until there is a form and the provisional waiver has a form- the I-601A.

The provisional waiver is not perfect.  It needs to be available more widely.  But it has the advantage of being law.  A bird in hand.  Over years in immigration law, we have learned that one must take the opportunities presented to you.  The government fails to bring conviction records to a hearing, move to terminate removal proceedings.  The government fails to oppose a motion to reopen, file a notification of non-opposition.  Seek an extension of work authorization even though the residence interview is in two weeks.  Immigration law is so stacked against the immigrant that we must take those opportunities presented to us when they are presented.  They may not come again.

Immigration Reform 2013: The Gang of Eight Plan

11 Feb


The week before last, we surveyed President Obama’s plan for comprehensive immigration reform. Today, we will look at a similar plan put forward by a bipartisan group of Senators known as the “Gang of Eight.” (Its members are Democrats Charles Schumer, Dick Durbin, Robert Menendez, and Michael Bennet, and Republicans John McCain, Lindsey Graham, Marco Rubio, and Jeff Flake.)

Like President Obama, the Senators want to modernize the legal immigration system, create a pathway to citizenship for the undocumented, and require mandatory employment verification for new workers. Unlike President Obama, however, the Senators have not called for same-sex marriages to be recognized under the immigration laws, and would make the pathway to citizenship conditional on meeting as-yet-undetermined enforcement targets. For these and other reasons, the Gang of Eight framework is less immigrant-friendly than the plan outlined by President Obama.

Pathway to Citizenship Contingent on Meeting Certain Enforcement Targets

Like President Obama’s plan, the Gang of Eight framework would create a path to citizenship for most of the 11 million undocumented immigrants now living in the United States. To qualify, undocumented residents would first have to pass a background check and pay a fine and any outstanding taxes. They would then receive “probationary legal status” allowing them to work and freely travel to and from the country, but not entitling them to receive any public benefits not currently afforded to temporary nonimmigrants. Eventually, those with probationary status could apply for permanent residency (i.e. a green card) and U.S. citizenship.

Unlike President Obama’s plan, however, the Senate framework makes the availability of this pathway contingent on meeting a series of (yet to be determined) enforcement measures. For example, the plan would require the completion of an entry-exit tracking system for all temporary immigrants arriving by air and sea. This seems to be a particularly unfeasible requirement. The entry-exit tracking system was mandated in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 but for budgetary reasons has never been implemented. In an era of fiscal austerity, the entry-exit system may never become completely functional—raising concerns that the Senate proposal contains mileposts that can not be met, undermining the path to citizenship.

The Senate plan would also increase the staffing and technology available to the Border Patrol, and create a commission of politicians and community leaders in the Southwest to make a recommendation on when the border was “secure.” (For a perspective from officials on the ground in busy ports on the Southwest border, read this New York Times Op-Ed by El Paso Judge Veronica Escobar.) Only once these (and potentially other) measures were in place would noncitizens in probationary status be permitted to apply for green card. Moreover, no green cards would be issued to individuals in probationary status until permanent residency is granted to all persons with petitions pending at the time of the bill’s enactment.

The only noncitizens who would be exempt from these “triggers” are: (1) those who initially entered the country as minors, and (2) agricultural workers. Although the framework does not contain precise details, the former would likely be able to obtain permanent residency along the lines proposed in the DREAM Act (i.e. after spending time in college or the military), and agricultural workers would be placed on a separate pathway altogether.

Modernizing the Legal Immigration System

Also like the President’s plan, the Gang of Eight framework calls for improvements to the existing immigration system. Although short on specifics, the Senators’ plan does include two concrete ideas. First, the Senators call for reducing the mind-bogglingly long backlogs in the family and employment visa categories so that future noncitizens do not feel compelled to come or stay illegally. Second, the Senators call for the awarding of green cards noncitizens who have received either a PhD or Master’s degree in science, technology, engineering, or math—or what are colloquially referred to as “STEM visas.”

Although seemingly noncontroversial, these proposals carry potential for legislative gridlock. For example, disagreement could well arise over the number of green cards allocated for the family- and employment-based systems. Marco Rubio in particular has called for an increase in the percentage of visas awarded on the basis of skills rather than family connections. Groups representing U.S. engineers could also call for tight quotas on the number of STEM visas or insist that they be awarded only to PhD rather than Master’s graduates. Finally, unlike President Obama’s plan, the Gang of Eight framework makes no mention of whether same-sex marriages should be recognized under the immigration laws—as President Obama has proposed—and Sen. McCain has said that extending immigration privileges to LGBT relationship could derail the entire effort.

Mandating E-Verify

Like President Obama, the Gang of Eight plan would also require the mandatory phase-in of “E-Verify,” the system that most employers can now use on a voluntary basis to determine whether new hires are authorized to work in the United States. (E-Verify is now mandatory only for federal contractors and for private employers in four states, including Arizona.) While not specifically mentioning the creation of a national ID card, the framework says prospective workers should have to demonstrate eligibility through “non-forgeable electronic means”—suggesting that lawmakers would either require the creation of a new biometric ID card or a revamped, tamper-proof Social Security card.

Notably, unlike the President’s plan, which calls for E-Verify to be made mandatory within five years and would create exemptions for some small businesses, the Senate framework contains no timeline and mentions no such exemptions. The Gang of Eight proposal also calls for “procedural safeguards” and “due process protections” to ensure that authorized workers are not mistakenly identified as ineligible for employment.

Guest-Worker Program

Finally, the Senators’ proposal calls for the creation of a large guest worker program for “lower-skilled” immigrants. While few details are mentioned, employers would first have to demonstrate that they unsuccessfully tried to recruit U.S. workers to fill the position, and the overall quota would fluctuate based on whether the economy was creating jobs. Also, while the framework refers specifically to the needs of the agricultural industry, the program would likely extend to other industries as well. There currently is such a program in place, but most employers find it riddled with inefficiency and delay.  Any new guest worker program must be responsive to the needs of business and the guest workers so that employers are willing to use the program. Finally, the Gang of Eight framework would allow guest workers who have “contributed to their communities over many years” to eventually obtain green cards.

Again, although seemingly noncontroversial, the creation of a guest worker program could prove to be the most difficult obstacle for lawmakers to overcome. Indeed, the 2007 immigration reform bill ultimately died over an amendment that would have terminated a guest-worker program after five years. Thus far, key sticking points between business and labor relate to how the annual quotas for guest workers would be set and the labor rights that employees would possess while in the country. Fortunately, reports are emerging that labor and business are nearing agreement on the details of a guest worker program—which, if true, would be instrumental in pushing immigration reform over the finish line in 2013.

Why Immigration Reform Must Also Avoid the Mistakes of 1996

6 Feb


Those following Tuesday’s hearing before the House Judiciary Committee could be forgiven for thinking the sole cause of our country’s immigration problems was the Immigration Reform and Control Act of 1986 (“IRCA”), the landmark bill that created a pathway to citizenship for roughly three million undocumented immigrants. Time and again, Republican committee members faulted the legislation for not only being too soft on enforcement, but creating a supposed magnet for future unauthorized immigration.

In truth, while the 1986 law was indeed flawed (more on that below), a far more disastrous piece of legislation was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Part of the GOP’s 1994 Contract with America and signed by President Clinton just weeks before his re-election, the measure sought to “get tough” on immigrants by eliminating common forms of relief from removal, permitting deportation without a hearing before a judge in many cases, and imposing draconian penalties on any noncitizen who was unlawfully present for more than six months.

Yet far from occasioning a reduction in the illegal immigration, the 1996 Act was followed by a rapid rise in the country’s undocumented population. Indeed, while precise numbers are impossible to calculate, a substantial percentage of today’s undocumented immigrants would possess legal status if not for IIRIRA. In weighing various proposals for immigration reform, federal lawmakers would thus be wise to avoid the mistakes of 1996 in addition to those of 1986.

Bars for “unlawful presence”

In hopes of deterring immigrants from illegally entering or remaining in the country, the 1996 Act created the so-called “unlawful presence” bars. Under these provisions, all noncitizens who were unlawfully present for more than six months became inadmissible for three years as soon they departed the United States. Similarly, noncitizens who were unlawfully present for more than a year became inadmissible for ten years upon leaving the country.

Yet rather than dissuade noncitizens from remaining illegally in the country, the law had largely the opposite effect. Caught in a cruel Catch-22, many undocumented immigrants who were legally eligible for permanent residence chose not to pick up a visa in their home countries for fear of triggering the bars. While Congress allowed such noncitizens to obtain waivers in cases of “extreme hardship,” applicants were—until the recent creation of a provisional waiver by the Obama administration—required to apply for such waivers from abroad, leaving them stranded for ten years if their applications were denied.

Reinstatement of removal

In hopes of deterring previously deported immigrants from illegally re-entering the country, the 1996 Act created a new process known as “reinstatement” of removal. The provision gave immigration authorities the ability to remove any immigrant who illegally re-entered the country without a hearing before an immigration judge—regardless of whether the individual had subsequently become eligible for a green card, asylum, or any other form of immigration relief. (The reinstatement process also explains how Maria Arreola, the mother of DREAMer Erika Andiola, was en route to Mexico less than 24 hours after being arrested by ICE.)

By any measure, the reinstatement provision has dissuaded few deported immigrants from illegally re-entering the country. According to the Department of Homeland Security, the number of reinstated removal orders has increased almost every year over the past decade, and accounted for a record 130,000 or the nearly 400,000 removals that occurred in fiscal 2011. The reinstatement provision has also prevented countless immigrants from obtaining forms of immigration relief for which they subsequently became eligible, including permanent residence based on a marriage to a U.S. citizen. Thus, rather than deter deported immigrants from illegally re-entering the country, the principal effect of the reinstatement provision has simply been to drive such noncitizens further underground.

Elimination of suspension of deportation

A further (but not final) flaw of the 1996 Act was the elimination of a common form of relief from removal known as “suspension of deportation.” Prior to IIRIRA, undocumented immigrants placed in deportation proceedings could avoid removal by demonstrating that they possessed good moral character; that they were continuously present in the United States for at least seven years; and that their removal would could extreme hardship to themselves or a spouse, parent, or child that was U.S. citizen or permanent resident.

In 1996, Congress eliminated this provision from the INA and replaced it a form of relief called “cancellation of removal.” Under this new provision, undocumented immigrants could only qualify for relief by showing, among other things, that they were continuously present for the previous ten years, and that their removal would cause the much higher standard of “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident spouse, parent, or child—but not to themselves.

As with the other punitive provisions mentioned above, the elimination of suspension dissuaded few if any noncitizens from entering the country illegally. To the contrary, abolishing the provision has likely encouraged many undocumented immigrants who would have previously qualified for relief to stay in the shadows. Indeed, it’s entirely possible that if suspension of deportation still existed, ICE would have had no need to conduct a nationwide review of more than 300,000 pending removal proceedings for cases meriting favorable exercises of prosecutorial discretion.


Of course, none of this is to say the 1986 Act shares no responsibility for our current immigration problems. It does. However, the key drawback of the 1986 bill was not that it was too “soft” on immigration enforcement, but that it failed to allocate a sufficient number of visas to meet the rising demand for immigrant workers. Indeed, even if the current Congress provides a pathway to citizenship for all 11 million undocumented immigrants, nothing will be solved without modernizing the immigration system to accommodate current and future demand.

Taken together, the lessons of the immigration laws passed in 1986 and 1996 are clear. Without a system that accommodates market demand for immigrant workers, many noncitizens will feel no choice but to enter the country illegally. And without a practical way to obtain green cards for which they are legally eligible, undocumented immigrants are more likely to be trapped inside the country (or driven further into the shadows) as a result of punitive immigration laws than dissuaded from illegally entering or remaining in the first place.

The Whine of the ICE Bureaucrats

3 Feb


It has been a tough week for the ICE bureaucrats who have sought to undermine the political leadership of this country to pursue their own restrictivist and nativist agenda.  Regular readers of this blog (my wife and my mother), will know that we have sought to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more generic tactics like refusal to complete trainings and sick-outs.  But, like their pals Kris Kobach, Steve King, Jeff Sessions, and Joe Arpaio, time has passed them by and they continue their ignominious descent into laughable irrelevance.

Last week, we saw politicians competing to put forward the most comprehensive immigration reform.  The President outlined a plan.  We saw Republicans and Democrats, who could not agree on anything for close to four years, all agree that immigration reform is needed and that a path to citizenship is an essential to that effort.  We learned that the even the House has a bipartisan working group planning to develop its own immigration legislation.  Simultaneously, a federal judge in Dallas, Texas dealt a near fatal blow to the ICE agents lawsuit, where they alleged potential injury if they refused to follow the DHS secretary’s directives regarding DACA.  While the Judge did not entirely dismiss the lawsuit, FOBR Ben Winograd at the Immigration Policy Center described the lawsuit as” hanging by a thread.”  Bad week to be on the losing side of history.

Increasing the hope that immigration reform will finally happen in 2013 is the largely unanimous support of reform by the country’s major labor organizations.  The AFL-CIO and the SEIU, the country’s two largest union organizations, are major supporters of immigration reform.  But just when you thought that the unions had finally come together with the business community, there is one union that wants you to know that they are not on board.  Guess who?  The American Federation of Government Employees National ICE Council issued a press release to declare that the AFL-CIO does not speak for the ICE union.  The union wrote: “Respectfully, we see a lot of problems with the recently proposed reforms and we plan to exercise our rights as American’s to participate in the democratic process and voice those concerns publicly in the upcoming months; we hope to do so without groups like the AFL-CIO demonizing us for expressing a different opinion.”


With all due respect, the position of the ICE agents union is crystal clear.  They so believe in an anti-immigrant policy where their actions are not subjected to meaningful review that their views are meaningless in an effort to reform the immigration law in a way to break their power.  The ICE bureaucrats are afraid of being demonized for participating in the democratic process.  Well, welcome to the arena, folks.  You can’t continue to say outlandish and self-interested garbage and not be called out on it.  The bureaucrats have always had a weak grip on the basics of democracy.  While begging to be treated with kid gloves, the ICE bureaucrats union has staged a vote of no confidence in ICE’s political leadership, sued the Department to stop DACA, and has encouraged its members not to follow the direction of their management.  In the military and any other law enforcement agency, that is known as insubordination and can result in dismissal or, in the case of the military, the brig.  But ICE bureaucrats ask not to “be demonized.”

If the ICE bureaucrats do not want to be demonized, they should stop resisting efforts to create intelligent immigration policy and participate in implementing immigration law, both today’s and tomorrow’s in a more humane and useful way.