Tag Archives: Republicans

Congratulations to the National Center for Transgender Equality: Let’s Hope ENDA Does Better than CIR!

13 Nov

Our moment

Last night, Jen Cook and I went to the National Council for Transgender Equality’s  (NCTE) 10th Anniversary event.  The evening was themed “Our Moment,” reflecting the organization’s intention to build upon the successes of the gay rights movement in the past year, including the repeal of Don’t Ask, Don’t Tell, the Windsor decision, and the many states that have enacted gay marriage.  In fact, even as the party went on, the festivities were interrupted to announce that Hawaii became the 16th state to allow for gay marriage.  As acceptance of full rights for gays and lesbians has grown tremendously over the past few years, acceptance of the essential humanity of the transgendered has not moved as quickly.  There have been victories- the Affordable Care Act provides increased access to needed medical services to transgender individuals, transgender individuals such as Chaz Bono, Laverne Cox, and Lana Wachowski have upped awareness of trans issues in our culture.  Even Chelsea Manning has forced us to confront the dilemmas facing trans people in the military and in prison.

There was palpable excitement in the room last night.  Last week the Senate passed the Employment Non-Discrimination Act (ENDA), which would make it illegal nationwide to fire or discriminate in employment issues against someone for their sexual orientation or gender identity. Employment discrimination against trans individuals is a serious problem, with 90 percent of trans individuals reporting that they suffered some form of employment discrimination in their lives.  The Senate ENDA bill is termed “trans-inclusive,” because it has expressly included discrimination protections for transgender individuals, whereas previous incarnations had sacrificed the “T” in GLBT as protections for trans individuals were just a bridge too far for some.  But this years ENDA is trans-inclusive and is now headed to the House of Representatives.   As immigration lawyers, our hearts sank as we heard people express optimism over the chances for its passage in the House.  Over the last four months, we have watched as the House has run out the clock on immigration reform.  Even after being confronted by young activists who brought their plights to him over breakfast, Speaker John Boehner made it clear today that no immigration legislation is moving this year.

 

If anyone believes that House members can be moved by hearing the personal stories of those effected by our terrible immigration laws or due to employment discrimination because of gender identity, Boehner’s cold response to these teenagers who spoke truth to power should put that notion to rest.  George Washington called the Senate the “cooling saucer” because it was meant to temper the excitable House of Representatives.  That role has changed and a group of 40 Tea Party Republicans in the House can stymie the hopes and aspirations of immigrants and trans men and women.  It is truly ironic because both pieces of legislation easily passed the Senate and would easily pass the House if the speaker would just bring it to a vote.  Yet, the Speaker cares more about the needs of his 40 Tea Party members than he does the suffering of 11 million immigrants or the need for employment discrimination protection for vulnerable minorities.

Our involvement in trans issues began when young trans women came into our office and asked us to help them apply for asylum.  Most had come from Central America and they all had stories of beatings, rapes, and rejection by their family.  They braved smugglers and human traffickers to make it to the U.S., where they found a chance to be themselves.  We have been able to obtain asylum for dozens of transgender individuals and not just from Central America.  Persecution of the non-gender-conforming is a worldwide pestilence.  To hear and know their stories and their bravery in leaving their homes under dangerous circumstances to have a chance to simply be themselves fills us with great admiration and respect for these individuals.  Their needs are far more fundamental than a job.  They come to America to be who they are.  It all starts there.  Over the years of representing trans individuals in asylum and then for green cards and, ultimately, citizenship, we have watched them grow into themselves, get stable employment, start relationships and family, and give back to their communities.  To watch a human being develop to her potential is like watching a flower bloom.  You can never grow tired of it.

The NTCE has done tremendous work to bring trans civil rights to the forefront of the political arena.  Like immigration reform, I am confident that full civil rights for trans people will occur in the future.  Last night, we heard from 33 year old Dylan Orr, a White House appointee, and 23 year old Sarah McBride, a political activist, about their professional experiences as a trans man and trans woman respectively.  They are the future and that gives us confidence and joy.

A New Fiscal Year and the Same Old Dysfunction

1 Oct

1_photo

The air is noticeably crisper, the baseball playoffs have begun, I have started to see decorative gourds, but the traffic got a whole lot lighter today.  It is October 1, 2013, the first day of the fiscal year 2014 (FY2014), and the federal government has shut down over the inability of Congress to pass a budget that does not seek to undo the Affordable Care Act.  With the radical takeover of the House of Representatives, government functions, including immigration, have ground to a halt.  If the House can not even keep the government running, how are we to expect that they can actually create positive change by passing meaningful immigration reform?

Here are things that are not going to happen because of the government shutdown:  our client, a lesbian from South Africa, will not get to present her case for protection to an immigration judge and she will remain in limbo for the forseeable future, worrying whether she must return to a country where “corrective rape” is a common occurrence for those deemed to be gay; our clients, DI and NM, husband and wife, will continue to be separated while they wait for the National Visa Center to resume processing DI’s case and deciding whether the birth and marriage documents from Iran are the right ones, and our client, DR will have her hearing rescheduled once again.

DR’s case presents an amazing saga of government bad luck and government dysfunction.  DR is supposed to go before the immigration judge on Monday, yet the case is likely not to go forward due to the shutdown.  Even if it did, the word is that the Congressionally-limited 4000 green cards available through cancellation of the removal for FY 2014 are already gone.  Chew on that for a minute.  The 4000 visas available for cancellation, meant to get the country through the entire year, were gone before the FY even started.  Thus, the Judge could not even grant the relief we were seeking.  Perhaps she could have reserved one of the FY 2015 visas and had us return in a year to finish the case.  This was supposed to all occur last year for DR.  However, last year, Super Storm Sandy closed the immigration court in New York for about two weeks.  DR missed her hearing and, by the time, she returned to court in December 2013, the cancellation visas were all gone.  Certainly, there would be new cancellation visas on October 7, a week after the FY begins, we all reasoned in December.  So, we scheduled for October 7.  Oops.  The irony of all this is that the government and the Judge all agree that she should be granted her residence.  Yet, it is Congress that has continued to stand in the way.  The 1996 Congress which passed the dreadful immigration law which limited cancellation grants to 4000 a year has caused endless bureaucratic delay and now with a shut down has made it impossible for the parties to work out a solution.  Meanwhile, DR keeps working and going to school, wondering when she will get the relief she deserves.

The Congressional inaction has also stalled immigration reform.  Millions of immigrants wait for the chance to regularize their status and integrate more deeply into American life.  The promise of reform has been tantalizingly close since June when the Senate passed its immigration bill.  Yet, the House has done nothing with that bill.  Rather than build, they seek to destroy.  In the meantime, millions of immigrants, their families and their employers get up and go to work and school.  They do their jobs while the House Republicans close the biggest employer in the DC area.  Yet, the deportation machine keeps running.  ICE has announced that enforcement and removal operations will continue during the shutdown.  The heavy priority on enforcement over benefits and relief has been noticed in the immigrant priority.  Certain immigrant groups have taken matters into their own hands, seeking entry into the United States across the Mexican border.  I have no idea what will be the long-term effect of that strategy, but I do know that it can not be any less effective than trying to lobby Speaker of the House John Boehner.

At least the traffic in downtown DC is better.

Meet Jim Mowrer, Running Against Steve King of Iowa

23 Aug

Mowrer with ACB and JDC

On Tuesday, August 20, approximately fifty people gathered at Benach Ragland’s offices in Washington, DC to meet and support a 27 year old candidate for Congress from the 4th District of IowaJim Mowrer, born on a farm in Boone Iowa, and a veteran of our war in Iraq, is challenging the incumbent Steve King for his seat in Congress.  Readers of this blog need no introduction to Steve King as he is a leader of the extreme anti-immigrant faction of American politics.  With little results to his name, King has emerged as a rallying point for the “deport ‘em all” crowd with his willingness to say things that are not only insulting but patently and verifiably false.

As this post is about Jim Mowrer and the talents that we hope he will take to Congress, we will not belabor King’s venality.  However, King has seemingly been driven mad by the prospect of immigration reform, and like a wounded beast, his attacks have grown more desperate and chaotic.  In the past month alone, King has managed to earn rebukes from the majority of his own party as well as his church.  Briefly, in the past six weeks, King has:

To list all the idiotic things that Steve King has done and said, as well as the many people who are growing tired of King’s obsession with immigration to the exclusion of the best interests of his constituents would be to devote too much space to this clown. Especially, when there is so much to say about Jim Mowrer.

 

For us, it started with the fact that Mowrer simply is “not Steve King.”  That alone is cause for support.  However, on getting to know the man, it is quickly apparent that Mowrer is a special individual who can make a positive impact on Congress and our public debate.  Mowrer radiates Iowa earnestness and optimism despite a challenging life. Born on a farm in Boone, Iowa, Mowrer lost his father at the age of seven to a farming accident.  His mother had to leave the farm for the town and, for a while, the Mowrers relied upon the social safety net.  Mowrer is careful to credit his mother’s hard work, but is not blind to the role that Social Security survivor benefits provided to his family at their moment of tragedy.  Mowrer went to Iraq with the Iowa National Guard.  Mowrer points to his service in Iraq as when the immigration issue hit home for him.  Mowrer describes fighting alongside permanent residents and the profound impression that their patriotism had for him.  To Mowrer, they were Americans as much as anyone else; they were his brothers in arms.  Mowrer movingly describes putting on citizenship ceremonies in Iraq for his fellow soldiers and the pride that they and he felt during those moments.

Mowrer returned from Iraq and went back to Iowa.  He immediately noticed the extreme Steve King fatigue that residents of the 4th District were experiencing.  He also noted their embarrassment with the Congressman’s antics.  Mowrer knew that King did not represent the people that he grew up among in the 4th District and that those people were suffering while King embarked on his diatribe against immigrants instead of focusing on issues that matter to Iowa.  For example, there is still no Farm Bill, an essential part of Iowa’s economy.

At Benach Ragland on Tuesday, Mowrer promised to be a leader on immigration reform.  While it may be enough for him not to be Steve King, Mowrer said he would lead on immigration reform.  He supports comprehensive immigration reform, the path to citizenship and the Senate bill.  But, just as importantly, Mowrer has a deep respect for immigrants.  As he says, all his brothers in Iraq had “U.S.” on their uniforms and it did not matter where they were from, where they were born or whether they were residents or citizens.  When he needed back up, they were there.

Mowrer at BR

And we will be there all the way for Mowrer.  He has a chance to unseat King.  Defeating King would send a message to all those who follow him that the era of demonizing immigrants is over and the era of solutions and inclusion is here.  There is no room in the public debate for the hateful rhetorical bombs that King lobs.  His followers seldom seem to have the same enthusiastic disregard for the facts and the will of their constituents.  His defeat would send them running to the hills.  King was pushed to the limit in 2012 by a candidate who did not come from the district.  He does not have a war chest for this race and he has alienated his allies in the GOP.  But, most importantly, King is out of step with his constituents.  In a recent poll, the 4th District of Iowa overwhelmingly supported the principles in the Senate immigration bill, including the path to citizenship.

King’s deranged obsession seems to be catching up to him.

 

Mowrer’s campaign website is http://www.mowrerforiowa.com

Facebook: https://www.facebook.com/MowrerforIowa

Twitter: @JimMowrer

From the Committee to the Senate Floor: The Immigration Bill Survives!

22 May

 

Yesterday, by a vote of 13-5, the United States Senate Judiciary Committee passed S. 744, the immigration reform bill.Flake  Three Republicans (Lindsey Graham (SC),Graham Jeff Flake (AZ) and Orrin Hatch (UT)) joined all ten Democrats to vote the legislation out of committee. Hatch

 

 

 

 

 

The five opponents were the five Republicans who had spent the several mark-ups attempting to torpedo the legislation with odious and unworkable amendments, most of which were defeated.  Yet, Senators Jeff Sessions (AL), Ted Cruz (TX), John Cornyn (TX), Mike Lee (UT), and Chuck Grassley (IA), have vowed to renew their efforts on the Senate floor, where the bill goes next.
Cruz Lee and Cornyn

The bill emerged after several mark-up sessions, largely intact. The bill still offers a provisional status and a path to citizenship, expedited residence and citizenship for undocumented youth, improvements in due process, increased use of E-Verify, tighter border controls, a new temporary worker visa, improved opportunities for employment-based immigration, enhanced H-1B provisions, and more liberal policy for asylum seekers.

The bill was improved by the passage of the following amendments:

  • Coons 2- limits ICE’s authority to perform nighttime removals.
  • Coons 5- provides immigrants with statutory right to see their “A-file” in removal proceedings
  • Hirono 21- allows undocumented youth to obtain federal financial aid
  • Blumenthal 2- prohibits solitary confinement of individuals in ICE detention
  • Blumenthal 8- restricts ICE enforcement at schools and hospitals.
  • Blumenthal 12- provides for expedited naturalization for undocumented youth in military

The bill was made worse by the following amendments:

  • Grassley 44- made conviction of a third DUI an aggravated felony.
  • Graham 1- allows DHS to terminate asylum of an individual who returns to country of nationality

The Committee fought off several “poison pill” amendments designed to gut the entire process or to make the immigration system more inhumane than it is today:

    • Cruz 3- would have barred anyone who was ever out of status from obtaining citizenship
    • Grassley 1- would have retained the one year filing deadline for asylum
    • Cornyn 3- would have made people convicted of minor offenses ineligible for provisional status
    • Grassley 18- would have required applicants for provisional status to disclose all previous social security numbers

GS

  • Sessions 1- would have imposed a $5000 minimum bond for release from custody
  • Grassley 67- would have subjected businesses hiring H or L workers to increased audits and bureaucratic oversight
  • Lee 15- would have required affirmative intent in employment discrimination based upon national origin
  • Grassley 34- would have imposed 20 year sentence for document fraud convictions
  • Grassley 45- would have expanded criminal penalties for illegal entry and re-entry

The strength of the bill was enhanced by the support of Republican Senator Orrin Hatch of Utah.  Senator Hatch has long been a champion of the H-1B program.  The Committee adopted Senator Hatch’s amendments to increase the availability of H-1B visas and earned the Senator’s support in the Committee.  Senator Hatch has not committed to his vote on the floor, but his support in committee, made the bill more strongly bipartisan and showed that the “Gang of 8” can pull reasonable Republicans into the bipartisan consensus that our immigration system requires serious overhaul.  This compromise required some serious accommodation by both Democrats and Republicans on the Committee and it is a welcome sign for our democracy that this issue did not cause the wholesale breakdown that we have come to expect.  This suggests that immigration reform has become a categorical imperative for both parties.

Unfortunately, the bill that came out of committee is as defined by what it does not include by what it does include.  Under pressure from the White House, Senator Leahy pulled his amendment to ensure that LGBT individuals and couples are treated equally and fairly under the immigration bill.  Republicans, including members of the Gang of 8, had balked at LGBT inclusion and, as a result, the Committee gave into homophobia.  We are extremely disappointed that LGBT families were thrown aside in the passage of this bill.  We remain hopeful that the Supreme Court will make this a non-issue soon enough.

The bill will now head to the senate floor, where there will be more debates and amendments.  Immigration reform will likely dominate the Senate for the month of June.  In some good news, Senator Mitch McConnell of Kentucky, the Republican leader, has said that he has no plans to block consideration of the bill.  While any single Senator can filibuster a bill, that Senator needs the support of 40 of his/her colleagues to sustain the filibuster and it is hard to imagine that succeeding without the support of the Senate leadership.

We hope for a strong show of support from the United States Senate.  A bill that gathers 65+ votes will storm out of the Senate and place a lot of pressure on the House to support common sense immigration reform.

An Open Letter to Rep. Spencer Bachus

21 Mar

Dear Congressman Bachus,

Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S.  By stating and asking “it looks to me like there is an overuse of detention by this administration.  If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society.  You are welcome in our club and we are glad to have you.

However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention.  The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings.  While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks.  IIRIRA fueled the explosion of detention in several ways.  First, it expanded mandatory detention to cover lots of people convicted of minor offenses.   Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings.  These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings.  By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees.  It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress.  Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings.  For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended.  In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence.  Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention.  And IIRIRA made it clear that it did not matter when the offense occurred.  It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual.  Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law.  The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal.  IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman.  Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status.  Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status.  When encountered by ICE, they have often been detained in the discretionary determinations of ICE.  It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act.  In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions.  Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester.  Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice.  Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.

Finally, Congress has provided ICE with enormous sums of money to spend on detention.  As you know, nature abhors a vacuum.  As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically.  ICE will spend the money Congress gives it on detention.  It is up to Congress to say “no.”

Congressman, thank you for taking a stand against the overuse of detention.  We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies.  Thanks again for speaking out and we hope that the words are matched with action.

Sincerely,

Benach Ragland LLP

 

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

 

What is the Deal with the Immigration “Line?”

28 Jan

Line

This morning, we had a chance to review the five page blueprint for immigration reform produced by a bipartisan group of eight Senators.  There is a lot to discuss on the blueprint, but one thing specifically jumped out at me:

“Once the enforcement measures have been completed, individuals with probationary legal status will be required to go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the United States, and current employment, among other requirements, in order to earn the opportunity to apply for lawful permanent residency. Those individuals who successfully complete these requirements can eventually earn a green card.

Individuals who are present without lawful status – not including people within the two categories identified below – will only receive a green card after every individual who is already waiting in line for a green card, at the time this legislation is enacted, has received their green card. Our purpose is to ensure that no one who has violated America’s immigration laws will receive preferential treatment as they relate to those individuals who have complied with the law.”

As an immigration lawyer, I have to ask “which line?”  There are dozens.  Let’s try to figure out what they could mean.  There are two basic ways that people seek residence, these are: (1) through family; and (2) through employment.  There are other means, but these represent the bulk of immigrant visas.  The Immigration & Nationality Act limits the number of immigrant visas can be issued annually.  The allocation of that finite number of visas is divided by type of application and country of nationality.  Demand exceeds supply and backlogs in each category have developed.  For example, the Jamaican unmarried son or daughter over 21 of a U.S. citizen would have had to  start the immigration process prior to December 22, 2005 to receive an immigrant visa today.  If the same immigrant were from the Philippines, she would have had to started the process fifteen years ago in 1997.  In the employment based context, an employer who seeks an immigrant visa on behalf of an Indian professional with a bachelor’s degree but no advanced degree would have had to start the process before November 8, 2002 for that employee to obtain a visa today.  On another note, the law allows immigration judges to grant residence to 4,000 people a year if they can demonstrate that they have been in the U.S. for ten years, have good moral character, and their removal would cause exceptional and extremely unusual hardship on their U.S. citizen or permanent resident spouse parent or child.   That cap has already been reached for this year and no new visas through cancellation may be granted until October 2013.  Thus, there are a variety of lines that immigrants may fall into.

How does one get into the queue?  A priority date is established when an immigrant petition or application for a labor certification is filed.  If the petition and/or labor certification is approved, an applicant may take her spot in line depending upon the category.  The immigrant visa backlog is maintained by the Department of State, which does not track applications for labor certifications until an immigrant petition has been filed.  Thus, there are many more thousands of people beginning to get in the queue by filing applications for labor certifications.  Also, the State Department is not aware when people drop off the queue.  A person can die while waiting and, obviously, leave the queue.  People get married, divorced or just grow disinterested in immigrating.  The queue is highly dynamic and fluctuates often.

So, which line do individuals go to?  The blueprint seems to require everyone in the queue to obtain residence before a single beneficiary of the new plan gets residence.  That might take a while.  After all, visas are now available for the Filipino brothers and sisters of American citizens if their American brother or sister originally sponsored them prior to April 15, 1989.  Twenty three years.  Does the plan truly require everyone in the queue to get their residence before anyone who applies under the new program?  Does this mean that no one will get a green card for at least 23 years??  It’s amazing that in an era where there is so much concern over “big government,” members of the Senate would propose a process that takes a quarter century to begin.  At least the Soviets stuck to five year plans.

Here is another sneaky fact that makes this whole idea unworkable.  Many of the undocumented in the U.S., the eleven million, that would supposedly benefit from this program, are already in the queue!!!  Many of them have sought immigration benefits and it is only due to the outrageous backlogs that they become undocumented. They have played by the rules, too, but the system has failed them.   It is a myth that there are so many people abroad who “play by the rules” and are waiting patiently for their turn to come in.  Yes, they exist, but not likely in the numbers that the back of the line crowd says, and should be immediately let in with residence rather than waiting in these atrocious backlogs.

There are, in fact, many highly skilled employees, waiting their turn to apply for residence due to backlogs in employment visas.  These folks are here on temporary visas, working and waiting.  They would seem to have a legitimate gripe if the undocumented got immediate residence.  But the solution is not this garbage about the back of the line.  Raise the immigrant visa numbers to an amount that is commensurate with the American employers’ demands for a workforce.  Don’t make immigrants pay for the arbitrary levels of immigration that were created nearly half a century ago.

So, that’s the issue with the line.  So far, the only politician we have seen who gets this is Jeb Bush, who published the most sane piece on immigration that we have seen during this discussion.  The former Florida governor wrote:  “There is no “line.” Critics of comprehensive reform often argue that illegal immigrants should return to their native countries and wait in line like everyone else who wants to come to America. But unless they have relatives in the U.S. or can fit within the limited number of work-based visas, no line exists for such individuals.For most aspiring immigrants, the only means of legal admission to this country is an annual “diversity lottery” that randomly awards visas to 55,000 foreigners. There are roughly 250 applicants for each visa every year. The absence of a meaningful avenue of access increases the pressure for illegal immigration.”

There are many lines; there is no line.  The line moves, grows and contracts.  Immigration reform will have to deal with this messy reality rather than attractive soundbites such as “go to the back of the line.”