Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

• Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
• Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
• Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
• Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations under NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
• Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
• Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
• Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
• Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.
• Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.

On Marches and Flags

Last week, among the hundreds of American flags raised at Tuesday’s March for Human Dignity and Respect,  a few Mexican flags were spotted. That’s right.  Mexican citizens carried the Mexican flag in Washington DC, the capital of the United States, of all places.  The reaction of the anti-immigrant crowd was predictable- this was akin to General Santa Anna’s troops razing the Alamo, slaughtering the proud Texans within.  The FOX news crowd immediately seized upon the Mexican flag to show that the immigrants marching for a solution to our broken and corrupt immigration system where not like the immigrants of the past but rather a different breed who want nothing to do with American customs and culture.

Armed with fear, I set out to see if other groups were also resisting the melting pot of American integration.  Less than a week later, I discovered the Italian flag in cities across the country.  People who seem like normal and decent Americans gathered along city streets to wave the Italian standard.  In fact, in some cities, spectators made replicas of warships and “sailed” them proudly down the avenue. (with children, no less!)

It is worth pointing out at this time that Italy is mired in a prolonged economic slump with a government that seems incapable of responding to the crisis.  Italy has a strong history of organized crime that work in tandem with Italian-American gangs in the U.S.  At times like this, the refusal of Italians in the U.S. to integrate into mainstream American culture and renounce their warlike tendencies is troubling.

Then I learned that much of this country embarks upon a drunken bacchanalia every March 17 in honor of an Irish saint.  On March 17, otherwise abstemious and virtuous Americans become infected with the debauchery well known to afflict the Irish.  Waving Irish flags and consuming vast amounts of alcohol, the Irish and those easily influenced by ale and liquor make a mockery of American integration.

Finally, my studies led to some real Americans eager to take back their government.  I saw a protest this weekend that took into account the historical flags of our American forefathers.

That one in the middle, known as the Confederate Battle Flag,  was flown when Southern states, afraid of the direction of the country, rebelled violently against the national government, which was increasingly dominated by an industrialized and heavily immigrant north.

Guess, I sort of understand the fear.

Arizona loses again, but its citizens win

Today, the Supreme Court ruled 7-2 in Arizona v. Inter Tribal Council of Arizona, Inc. that the state of Arizona cannot separately require an individual to prove he is a citizen in order to register to vote beyond the regulations set forth by the federal government.  This decision stated that Arizona’s additional “proof of citizenship” form was contrary to the National Voter Registration Act, the federal law establishing a specific form for Voter Registration.  The Court held that this form was sufficient evidence of citizenship without additional proof and on that basis struck down the Arizona law requiring a registering voter to prove he is a citizen.

Although this case was decided under the Elections Clause, where federal law always trumps state law, this is an important decision for those who have had to jump over additional unconstitutional hurdles, simply due to the biases of those who enact and implement Arizona’s laws.  No longer will citizens of Arizona be forced to jump through legal hoops that the Federal Government does not require.  We are hopeful that this reasoning will extend to other states and legislation that has placed additional burdens and barriers on individuals beyond what is required and permitted by the Federal Government.  Although Jeffrey Toobin did not think there were any major Supreme Court decisions today, Benach Ragland believes the enfranchisement of the voters of Arizona is major indeed.

The Supreme Court’s rejection of the theories offered by Arizona officials is another black mark against the litigation strategy the State of Arizona has embarked upon.  In the last year, this is Arizona’s second major defeat at the Supreme Court.  Less than a year ago, the Supreme Court knocked down Arizona’s SB 1070, the “show me your papers” law in Arizona v. United States.   Earlier this month, a federal judge in Phoenix ruled that Maricopa County Sheriff Joe Arpaio had systematically violated the civil rights of the Hispanic citizens of the United States.  While the Sheriff has expressed his intent to appeal, Arizona citizens are questioning the use of state funds to pay for ineffective and hubristic litigation.  How much money has been spent by Jan Brewer and Joe Arpaio to defend indefensible policies?  In  the era of the sequester and failing schools, can Arizona afford Jan Brewer’s and Joe Arpaio’s ego trips to court?

PS- I took this picture myself!  – ACB

After Lengthy Court Battle, Client Sworn in as U.S. Citizen

Last Friday in Baltimore, Maryland, our client, Temitope (“Tope”) Akinsade, was sworn in as a U.S. citizen. Naturalization ceremonies are always gratifying, but this event was particularly moving in light of the government’s relentless and ultimately unsuccessful effort to deport Tope – who has been a lawful permanent resident for over 12 years. To know Tope’s story is to understand both the unfairness of our immigration laws and the charade that is ICE’s supposed policy on prosecutorial discretion.

A native of Nigeria, Tope came to the United States with his family as a 7-year-old in 1988. In 2000, at the age of 19, he pled guilty to a felony embezzlement charge after cashing three checks for some neighborhood toughs at the bank where he was working as a teller. Shortly after the incident, Tope reported the transactions to his supervisor and agreed to cooperate with the police and the FBI in their investigation. On the advice of his attorney, who assured him he would not be deported but would “become a citizen in five years,” Tope pled guilty to one count of embezzlement by bank employee. He was sentenced to one month in community confinement and three years of probation, which he successfully completed.

Believing the incident was behind him, Tope enrolled at the University of Maryland, where he earned a bachelor’s degree in computer science with honors. He stayed at Maryland to earn a master’s degree, receiving a full fellowship from the National Science Foundation. Tope was then offered a slot in a leadership program at General Electric, working in the company’s Global Research Center in upstate New York. For several years he worked for GE and traveled to and from the U.S. without incident.

Then, one morning in January 2009, Tope was arrested by ICE agents, charged with being deportable from the United States, and sent to a detention center in Batavia, New York. Authorities claimed that his embezzlement conviction qualified as an “aggravated felony,” which under U.S. immigration law means near-mandatory deportation. He was held for seventeen months before being released on bond. Although he had not been sentenced to prison for the underlying crime, Tope spent nearly a year and a half imprisoned by ICE, and he faced removal proceedings in immigration court without the right to an appointed attorney.

Over the course of many months, Tope’s case ground its way through the notoriously slow workings of immigration court. An immigration judge sustained the government’s claim that Tope’s embezzlement conviction in 2000 met the definition of an “offense involving fraud or deceit,” and thus an aggravated felony. As a result, he not only was found deportable but also declared ineligible for virtually all forms of relief – including cancellation of removal – despite having been a green card holder for nearly nine years. The Board of Immigration Appeals affirmed the immigration judge’s decision.

Tope then brought his case to the federal courts. He appealed the BIA’s removal order to the U.S. Court of Appeals for the Second Circuit in New York. At around the same time, he hired a criminal attorney to file a writ of error coram nobis in U.S. district court in Maryland, asking the court to vacate his embezzlement conviction based on the gross misadvice about immigration consequences he was given during his criminal proceedings in 2000. The district court judge found that Tope had received ineffective assistance of counsel, but ruled that he had not been prejudiced because the trial court gave a general warning during his plea hearing that if he was not a U.S. citizen, a conviction could lead him to be deported. Tope appealed the judge’s order to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. His fate now rested in the hands of the two federal appeals courts.

Tope’s fortunes finally began to change when Thomas Ragland took the case. Thomas filed briefs and presented oral argument in the Second Circuit, urging the court to vacate Tope’s removal order because the embezzlement statute under which he was convicted required proof of either an intent to defraud or an intent to injure – and the record of conviction was inconclusive as to Tope’s intent at the time of the offense. The government strenuously opposed these arguments, insisting that the conviction was clearly an aggravated felony and that Tope should be deported without delay. In May 2012, the Second Circuit issued a precedent decision agreeing with Thomas’ arguments that Tope had not been convicted of an aggravated felony, because both the immigration judge and the BIA had improperly inferred an intent to deceive in the commission of the embezzlement offense – which was not established by the record of conviction. In addition, given the relatively minor nature of the crime, the passage of time, and Tope’s exemplary achievements, the court also wondered aloud why ICE refused to favorably exercise prosecutorial discretion in the case. Finding that the government had failed to prove its aggravated felony charge, the appeals court vacated Tope’s order of removal.

At the same time, Thomas also briefed and argued the coram nobis appeal in the Fourth Circuit. In July 2012, the court sustained the appeal and reversed the lower court’s ruling, agreeing with Thomas’ argument that a trial court’s general warning about deportation consequences at the plea stage was inadequate to overcome an attorney’s specific (incorrect) assurances to his client that entering a guilty plea would not render him deportable. Thus, in another precedent decision, the Fourth Circuit vacated Tope’s embezzlement conviction altogether. Federal prosecutors urged the en banc Fourth Circuit to rehear the case, but their request was denied.

With a clean record – as both his removal order and his felony conviction had now been vacated – Tope submitted his naturalization papers last November. Several weeks after appearing with Thomas for an interview at U.S. Citizenship and Immigration Services, he was notified that his application had been approved. On Friday May 24, Tope took the oath of allegiance and became U.S. citizen.

Tope spent over a year in ICE detention based on a single conviction that did not result in any jail time, and which ultimately was vacated by the federal court of appeals. And the government relentlessly sought to deport him based on an aggravated felony charge that evaporated under the glare of judicial scrutiny. In the past two years, ICE has stated that its personnel will use “prosecutorial discretion” to judiciously manage its expenditure of resources in immigration proceedings. In a memo published in June 2011, ICE Director John Morton outlined a series of factors to be taken into consideration when deciding to exercise prosecutorial discretion. Among these factors was the length of time spent in the United States, particularly in lawful status, the pursuit of higher education in the United States, whether the individual entered the United States as a child, whether the individual poses a national security or public safety concern, ties and contributions to the community, and whether the individual has cooperated with law enforcement. All of these factors weigh in favor of an exercise of prosecutorial discretion for Tope Akinsade, yet ICE refused and instead aggressively and persistently sought to deport him. It was not until the Second Circuit ruled in his favor that Tope was assured that his conviction, later held to be constitutionally unsound, would not prevent him from remaining in the United States. Fortunately, the federal appeals courts were persuaded by legal arguments challenging both the BIA’s removal order and the U.S. district court’s denial of coram nobis relief. The law prevailed where ICE’s discretion and common sense failed. Tope Akinsade is a proud and deserving United States citizen.

The April 10 Immigrant Rights Rally by Liana Montecinos

 

“¡Obama escucha, seguimos en la lucha!” This shouting was heard from downtown on 14^th street as Sandra, Mariela, and I made posters to join thousands of people at the immigration rally held in front of the Capitol on Wednesday, April 10^th.  Since my arrival to the United States in 1999, I have attended every immigration rally in Washington, D.C.  I find every experience of a rally to be very rewarding including being able to shout nonstop on the streets of DC without getting arrested.  I am inspired and ignited by the hard working people who are forced to live in the shadows of society, who cannot drive or work, pay in-state tuition where their parents have lived and paid taxes for years, who did not have the chance to say goodbye to a family member who died in their country of origin, and who-above all-never lose faith in justice.  Last Wednesday, thousands of undocumented brothers and sisters ventured out of the shadows of their homes, work, and communities, taking public transportation or carpooling, walking unafraid in Washington DC, to wave their colorful flags and say “presente.”  I saw people of all ages and colors lifting the American flag, being proud of being in this nation and wanting to desperately have an opportunity to achieve the American dream.  On last Wednesday, I saw the human face of the immigration issue. I hope and believe our President and our legislators saw it too.

Things are about to get really interesting

As Washington, DC has seemed to jump from winter to summer, the politics of immigration reform are heating up.  For the rest of this week, the Capital will be inundated with activists, lawyers, politicians and celebrities all advocating for immigration reform.  Among all this activity, the Senate “Gang of Eight” is prepared to release their proposed bill.  Rumored to be nearly 1500 pages, the Gang of Eight will provide the meat on the bone that all of us have been waiting to chew on.  Benach Ragland will provide you with the latest and most comprehensive information regarding the politics, the proposal, and discussions as to how the proposals will affect the lives of immigrants.

Today, April 10, 2013 at 3:30 PM on the West Lawn of the Capitol, tens of thousands of immigrants and their friends will hold a rally for commonsense immigration reform that includes a path to citizenship.  Over the past few days, buses of immigrant supporters have departed from cities all across the United States to attend the rally.  Along with the rally, immigrants are lobbying Congress, meeting with the media, and demonstrating the urgent need for immigration reform.

Tomorrow, on April 11, the American Immigration Lawyers Association (AILA) National Day of Action for Immigration Reform is being held.  Immigration lawyers and their clients will meet with their representatives to share their stories of the  hardships of the U.S. immigration laws.

If you can not make any of these events, we urge you to make your voice heard by contacting your representatives. 

Finally, we learned today that the Gang of Eight will release their bill as early as Thursday, April 11 and the House is not far behind.  As deportations continue, people organize, and the CIS runs out of H visas in a week, the urgency of immigration reform could not be more obvious.

The Leaked White House Immigration Bill: the Legalization Component

It took only three years longer than promised—and a leak that may or may not have been intentional—but the White House has finally produced a legislative proposal to fix the immigration system. Dubbed the Comprehensive Immigration Reform Act of 2013, the bill would create a pathway to citizenship for most of the 11 million removable noncitizens in the country, mandate the eventual use of E-Verify for most employers, and dull many of the draconian provisions enacted in the 1996 immigration bill. With the leaked portions of the bill totaling more than 200 pages, there’s a lot to chew on. Today, we’ll look at the part of the White House bill relating to legalizing the undocumented, and tomorrow we’ll review the enforcement-related sections.

Lawful Prospective Immigrant (LPI) status

As has by now been widely reported, the bill would allow qualified applicants to first obtain “Lawful Prospective Immigrant” status and later adjust to lawful permanent resident (a “green card” or LPR) status, a prerequisite for foreign nationals wanting to become U.S. citizens. To qualify for LPI status, noncitizens would have to be physically present in the United States on the day the bill was introduced and not have been convicted of a number of specified criminal offenses. Noncitizens could apply for LPI status if they were in removal proceedings, were under an outstanding order of removal, or had illegally re-entered the country after a prior removal. Applicants for LPI status could generally not be detained or removed, and would not be considered “unlawfully present,” while their applications were pending.

Qualified immigrants would initially be granted LPI status for a period of four years, during which time they would be authorized to work and travel abroad for up to six months, subject to renewal. Noncitizens with LPI status could also petition for their spouses and children to receive the same status, even if they are living overseas. Interestingly, the White House bill does not specifically state that LPI status could be accorded based on same-sex marriages. However, it incorporates the standing definition of “spouse” in Section 101(a)(35) of the INA, which is written in gender-neutral terms. As the bill is written, it is thus unclear (perhaps intentionally so) what, if any, protection same-sex couples would receive.

Adjustment to Lawful Permanent Resident (LPR) status

To qualify for adjustment, LPIs would have to satisfy any outstanding federal tax liability, be actively studying English and U.S. history, and not have left the country for more than six months while in LPI status. Applicants aged 21 or older when the bill was introduced would have to pay a $500 penalty to adjust status in addition to any processing fees. The government could not grant any adjustment applications until either eight years after the date of the law’s enactment, or 30 days after all immigrant visas became available for family- and employment-based petitions filed before the date of enactment, whichever came first (but no sooner than six years after LPI status was first granted). The only exception would be for noncitizens who were under 16 when they initially entered the country, were enrolled or had obtained a high school or college degree when they applied for LPI status, and had completed two years of college or the military when they applied for LPR status. (Or in other words, those who would qualify under the DREAM Act.)

Administrative and judicial review of denied applications

For noncitizens whose applications for LPI or LPR status were denied, the bill would require the creation of an administrative body housed within the Department of Homeland Security to hear appeals. Notices of appeal would have to be filed within 60 days of the denial, and stays of removal would generally be granted while appeals are pending. If their administrative appeals were denied, prospective LPIs and LPRs could file a challenge with a federal district court, which, in turn, could uphold or reverse DHS’ decision or remand the case back to executive officials for consideration of additional evidence. Importantly, federal judges would also have authority to issue stays of removal, and immigrants would not be considered “unlawfully present” while their appeals—administrative or judicial—were pending.

Protections for Employers of Prospective LPIs

Finally, the White House bill contains a number of protections for employers of workers seeking to legalize their status. For example, employers who learn of employees with pending LPI applications would not violate the law by continuing to employ them while their applications are pending. The bill would also prevent genuine employment records submitted in support of an application for LPI or LPR status from being used against the employer in a civil investigation or criminal prosecution. These provisions may well have been added due to the DACA program, which lead to concerns among some employers of liability or retaliation if their workers used employment records to demonstrate the extent of their presence in the country.

Comparison to “Gang of Eight” Framework

While the bipartisan group of Senators known as the “Gang of Eight” has yet to propose actual legislation, it’s almost certain that the path to citizenship in the White House bill is more realistic and immigrant-friendly. Unlike the Senate framework, for instance, the White House would not make the issuance of green cards contingent on satisfying an unknown set of security “triggers.” Based on statements from Marco Rubio, the Senate plan might also require the undocumented to rely on a third party (such as a qualified employer or family member) to sponsor them for a green card, which could potentially leave millions without a true path to citizenship. While we will wait to see an actual bill before expressing final judgment on the Senate plan, the White House has set a high bar.

Immigration Reform 2013: The Gang of Eight Plan

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

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.

Immigration Reform 2013: The President’s Plan

What a week it has been.  There has been more positive discussion of immigration reform in the last week than in the past decade and while none of it is perfect, it is a huge improvement over Mitt Romney endorsing self-deportation and SB 1070.  Hard to believe that that was just six months ago.  In the past week, there has been two major comprehensive overhaul plans, word of a third, and the introduction of independent bills that would make discrete but needed improvements to the system.  We will lay out the basics on all these developments in the next few posts.  And we’ll start with the President, not just because he is President, but because it is the better plan.

The President’s Plan focuses on four major areas of reform: (1) continuing to strengthen border security; (2) cracking down on employers hiring undocumented workers; (3) earned citizenship; and (4) streamlining legal immigration.

Border Security

The President’s plan will continue the militarization of the border.  The President’s plan talks a lot about working with local communities and foregoing governments to combat transnational crime.  It goes without saying that by creating a legal and efficient immigration system, immigration reform will allow the Border Patrol to focus on the criminal gangs operating in the border region.  We have said it before and will say it again: the lack of a reasonable immigration policy is the biggest reason for illegal immigration.

Adam Serwer reports on immigration and he wrote: “[T]he fact is that enforcement can only do so much to deter illegal immigration, because those seeking a better life will brave ever more dangerous obstacles to get here. What’s needed is an immigration system that allows enough people in to work so that people think they have a decent enough chance to get here that risking their life to do so isn’t worth it.” The President’s plan seems to get this even as it talks about more Border Patrol resources.  We will not spend a lot of time discussing the technology and resources being thrown at the border.  The border is more secure than ever and the immigration enforcement agencies have a budget in excess of $18 billion, yet everyone wants to throw more money at it.  As immigration and immigrant rights and not the budget are our focus, we will leave these matters to the budget hawks.

Cracking down on employers hiring undocumented workers

The President came into office promising to end the Postville-style raids that rounded up hundreds of immigrants who were doing nothing more than working.  He has largely stuck to that promise and has devoted his employer verification efforts to identifying employers who are violating documentation requirements.  For example, a couple of years ago, there was a lot of news about ICE actions against Chipotle for hiring undocumented workers.  While the ICE action resulted in many immigrants losing their jobs, they were not put through an expedited criminal-deportation program as occurred in Postville.  We have heard of very few cases of individuals placed into removal proceedings for being on Chipotle’s payroll.

The President’s plan will include phased-in nationwide use of E-Verify.  E-Verify is the online verification system to let employers know if documents presented for employment authorization are bona fide.  It is already required by several states and required of employers with federal contracts.  E-Verify is coming nationwide and seems to be one of the prices paid for immigration reform.

Earned citizenship

It is the earned citizenship portion that we are most interested.  The President’s program will require undocumented individuals to come forward and register.  Applicants would have to undergo biometrics and a background check and “pay fees and fines” to receive temporary status.  This temporary status seems little more than a work permit and the security of knowing that you will not be removed.  DACA is a good indicator of what this might look like.  Then, once the line has been cleared, individuals would be able to seek residence.  It is unclear whether they will have a new means of seeking residence or whether they must use the extent process.  We have written before of the fallacy of the line and how tying meaningful change to “clearing” the line makes no sense.  “Going back to the end of the line” has become a political phrase, divorced from any meaning or reality and no one really believes that people will have to wait 25 years for the Filipino fourth preference to clear before people starting seeking residence.  Applicants for residence will be required to “pay their taxes, pass additional criminal background and national security check, register for Selective Service (for men between 18-26), pay additional fees and penalties and learn English and U.S. civics.”  It appears that the President’s program would create a new means to apply for residence rather than requiring immigrants to go through the current broken system.

The bill does exempt DREAMers and certain agricultural workers from the back of the line requirement.  The President’s plan seems to indicate that DREAMers would, well, get the DREAM Act, which would allow them to obtain residency through a new system. The President’s plan calls for strong administrative and judicial review procedures of legalization decisions.

Streamlining Legal Immigration

The President also addresses future flows.  The plan states that it will increase the numbers of family based visas and allow the State Department to “recapture” unused visas.  In addition, employment-based visas would be more plentiful in an effort to alleviate the backlog in the employment based categories.   This has the potential to be a tremendous improvement as the backlogs are caused by the simple economic principle that demand exceeds supply for immigrant visas.  The problem is exacerbated by the fact that unused visas are “lost” at the end of the year.  So, there are currently too few visas and the government is failing to distribute all of them.  The question is whether the President’s program would create sufficient visas and efficiencies to meaningfully address the backlog.

The President’s plan promises “to staple green cards to the advanced degree diplomas of STEM graduates” who are going to work in their field in the U.S.  STEM refers to graduates in science, technology, engineering and mathematics.  This is a terrific idea that has very widespread support.  It is widely acknowledged that the U.S. needs to do a better job of providing a fast track to residence for STEM graduates.  As conservative columnist David Brooks wrote in today’s New York Times: “Because immigration is so attractive, most nations are competing to win the global talent race. Over the past 10 years, 60 percent of nations have moved to increase or maintain their immigrant intakes, especially for high-skilled immigrants.  The United States is losing this competition. We think of ourselves as an immigrant nation, but the share of our population that is foreign-born is now roughly on par with Germany and France and far below the successful immigrant nations Canada and Australia. Furthermore, our immigrants are much less skilled than the ones Canada and Australia let in. As a result, the number of high-tech immigrant start-ups has stagnated, according to the Kauffman Foundation, which studies entrepreneurship.”

The President also proposes a vibrant “start-up visa” to provide residence to foreign nationals who start businesses and create jobs in the U.S. and would expand the immigrant investor visa classification.  It would also create a new visa for employees of federal national security science and technology laboratories.

Other important parts

• The President’s program recognizes that the immigration court system is underfunded and hopelessly backlogged.  The plan discusses additional funding for the immigration court system.  Additional funding for additional judges and support personnel could go a long way to easing procedural hurdles and pressures that often result in quick orders of removal.
• The President’s program states “The proposal streamlines immigration law to better protect vulnerable immigrants, including those who are victims of crime and domestic violence.  It also better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.”
• Finally, the President’s plan also makes clear that the same-sex partners and spouses of American citizens and permanent residents will be treated equally under immigration law.

Comments

We think, overall, that the President’s program is very good.  There are reasons that we are reluctant to pronounce it as “excellent.”  We would like to see a greater commitment to restoring due process to the immigration courts, restoring discretion to immigration judges, and an effort to re-balance the grotesque overreaction that has allowed so many permanent residents with minor and ancient crimes to be locked up and deported without any chance to explain to a judge that they should be allowed to remain.  We would like the plan to abandon the meaningless “back of the line” language.  We would prefer more full-throated defense of asylum and the need to keep families together.

However, there is much to like in the President’s program.  The inclusion of GLBT families into immigration reform is a big deal and we applaud it.  In addition, we like the increase in visa numbers, which might render the “back of the line” garbage moot.  And we like that the President has made a path to earned citizenship an essential part of his plan.  Too many of us have been afraid that we would get an enforcement heavy bill that does little to benefit immigrants.  We do not see a lot of new enforcement here and we see several benefits.

Next post, we will address the Senate’s “Gang of Eight” plan and the reasons we feel that the President’s program is better.