Musings on Immigration

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Senator Kennedy–An Immigration Hero

Much will be said about Senator Kennedy’s passing over the next few days. My own personal experiences with the Senator were limited, but were nonetheless emblematic of what Senator Kennedy was to many–an Immigration Hero.

My last opportunity to be with Senator Kennedy happened about 4 years ago, when I testified before the Immigration Subcommittee of the Senate Judiciary Committee. What was striking about that hearing was Senator Kennedy’s commitment to the issue of immigration. The hearing was about refugees, and how we as a country handle refugee processing. Here is the key part of this story. There were only two Senators present for the hearing. Senator Chambliss, the Republican chair of that committee, who had invited me to speak, and Senator Kennedy.

Senator Kennedy came up to me after the hearing, shook my hand, and thanked me for that my testimony and my opinion (heck he did ask for my opinion). He was gracious, kind, and genuinely concerned about refugees, which virtually no other Senator cared enough about to show up for the hearing. Now, as a lifelong Republican I could say there are many reasons to knock down Senator Kennedy. But the bottom line is that he cared when no one else did. Ultimately, what better epitaph can be written about someone–He cared about those no one else cared for.

Senator Kennedy was a leader on a reform of our immigration laws, starting back when he was the junior Senator from Massachusetts. He lead the reform or the immigration quota system in 1967. He lead the way for IRCA in 1986. He lead the reform of our family and employment based immigration systems in 1990. He opposed as much as he could the disaster that was IIRAIRA, and even through 2007 was a key Senator in beating back the awful legislation that had passed the House of Representatives that would have sent immigration law back to the 1920s. He was, in every way imaginable, an Immigration Hero. We may never see a leader like him again.

Even though I did not agree with Senator Kennedy on many issues, I know he was right on this one. And I for one would hope that someone would one day say what I know say about him: He cared about those for whom no one else cared. God’s Speed to you Senator Kennedy.

Famous Irish Americans

With the recent death of Ted Kennedy, I thought it would be interesting to look at other famous Americans of Irish descent:

The last five presidents of the United States (Ronald Reagan, both George Bushs, Bill Clinton and Barack Obama) are all descendants of Irish Immigrants. Not to mention George Washington, the first president and Joe Biden, the current vice-president. In fact, no less than 29 US presidents claim Irish descent. Nobody was willing to admit to being English- but we have our suspicions Richard Nixon!

Walt Disney’s father was a Canadian of Irish decent.

Michael Collins, astronaut.

Athletes Tom Brady, John McEnroe and Mark McGwire are all Irish Americans too.

There have been 9 Irish American Supreme Court justices including Sandra Day-O’Connor, Anthony Kennedy and William J. Brennan.

Actors George Clooney, Lara Flynn Boyle, Mel Gibson and every other actor whose name starts with Mc or O’ (Jerry O’Connell, Chris O’ Donnell, Rose McGowan etc. etc.)

Too many writers to count.

Were there any bad Irish Americans?

After extensive research, I can state categorically that yes, there were two. Billy the Kid (November 23, 1859 — July 14, 1881), who was really just a victim of circumstance himself and James “Whitey” Bulger (born 1929) – legendary Boston mobster and former leader of the Winter Hill Gang. Sorry Mr. Bulger, I’m sure you were only doing your best!

The Economic Benefits of Immigration Reform

The Center for Trade Policy Studies issued a report which claims that an immigration reform program which included a legalization would save literally billions of dollars over the current policy of enforcement only. In Restriction or Legalization? Measuring the Economic Benefits of Immigration Reform, Peter B. Dixon and Maureen T. Rimmer claim that using standard economic analysis tools (most of which are too complicated for mere mortals to understand), legalization is a huge net gain to the U.S. economy over the alternative current policy of immigration restriction and deportation. To this finding I can only say, No Duh!

We have known for more than a decade, since the passage of IIRAIRA that enforcement was going to cost the U.S. taxpayer billions of dollars. The alternative option of a workable, immigration law, with a forward looking vision for U.S. families, business and our economy would clearly be a better alternative to the anti-immigration restrictionist model found in IIRAIRA. The question once again becomes, does Congress have the courage to do what is right and pass comprehensive immigration reform and put the vestiges of immigration restrictionism behind us, or not? Or, will it cave under the pressure of a vocal minority of those for him deportation is the only solution?

The Healthcare Debate and Immigration Reform

Unless you have had your head buried in the sand for the last thirty days, you are aware that America is having a national “Debate” on healthcare reform. That is if you call a “debate” yelling at each other, accusing the other side of the “debate” of being a Nazi, a socialist, a birther, or a communist. Frankly, the only part of this debate that is not surprising to me, is how calm it is compared to the national debate we have experienced in the recent past on immigration enforcement and reform.

Yelling Lady

Whether or not we agree with whatever reform package might be introduced in September by Senator Schumer, or what might ultimately be voted on by Congress, we have to understand is that the vehemence, vituperation, passion, and outright hatred we are experiencing right now over the healthcare reform agendas will PALE in comparison to what we will hear during the immigration debate.

Let’s not kid ourselves. The groups that oppose immigrants are as strong as ever. Heck, the Know Nothings over at the Center for Immigration Studies even have a “press conference” next week touting their newest anti-immigrant theory about how the entire healthcare crisis in America is caused and increased by immigrants, both legal and illegal. And this from what some in the media believe is a mainstream non-partisan research group! Groups such as Numbers USA, FAIR, and the myriad of other Tanton-affiliated anti-immigration groups will ensure that the phones on Capitol Hill shut down and that they scream louder than anyone else. Their solution for our immigration crisis (actually, their solution for ANY crisis), is simply to deport all undocumented andlegal immigrants, closing the door on the last person to leave.

Rather than close your ears to the current Healthcare debate, listen carefully, see where loudest shouts come from, and then be ready for the same crowd to shout down immigration reform, but do so louder, bolder and with more vehemence. Be ready for the name calling, the anti-American accusations, and the nastiness to be worse than we have ever experienced. Be prepared now to engage in constructive advocacy, but also learn from those supporting healthcare reform. If any reform of either healthcare OR immigration happens in the next six to ten months it will happen ONLY if the supporters are louder (but nicer) and more insistent than the opposers (to coin a phrase).

You now have a history lesson happening before your eyes. Recognize it, learn from it, and whatever you do, don’ t repeat it.

H-1B Investigations–USCIS Run Amok!

As many of our members know, the USCIS is like a Jekyll and Hyde creation. With one face, USCIS happily grants benefits, issues approvals, and welcomes people as citizens. With the other face UCSIS distrusts everyone, believes there is a lie on every application, and looks for ways to disqualify clearly qualified applicants. As you all know, this is not an exaggeration. It is true of an agency still steeped in the “Culture of No.”
Many of you remember the Religious Worker “Benefit Fraud Assessment Teams” that went out to make sure that the Catholic Church was actually still in business. The ability of the USCIS to conduct effective program reviews, rather than just sticking with its core strength of adjudications is rather dubious, to say the least. Recently AILA shared some information about a “new” benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the “fraud fee” in the H-1B program. This new program involves the hiring of a private contractor to send “investigators” out to conduct 25,0000 site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition. Yesterday, a client of mine received such a visit, and thanks to a terrific Human Resources Professional, we have a brief report of the scope of this style of fraud “investigation:”

The investigator came back yesterday. Her name was ______________. She indicated that she was a contractor hired to conduct these investigations (this is similar to the investigators that conduct the background investigations for government clearances). She had a badge with a picture.

She first met with me (HR REP). She asked me some very basic questions about the company, what we did, how many employees we had, work hours, office locations, etc. She also asked me how many employees we had on H1Bs, how many we had sponsored for permanent residency and how many total of our employees are legal permanent residents. It was hard to answer these off the top of my head. She said approximate numbers were ok even after I offered to get an employee list that I could look at to get her the exact numbers. She then asked me a couple of questions about the H-1B employee – what he did, his salary, work hours and start date. She asked me for ID so she could verify that I was who I said I was and she asked to see a W-2 or pay stub. I didn’t have either so I showed her the payroll register from our last payroll which satisfied her requirement. She then met with the foreign national employee for a couple of minutes. He said that she asked him about his job duties, work hours and salary. She also checked his ID. She asked me for a quick tour around our offices and left.

It was a pretty quick process. None of her questions were hard to answer – hopefully we passed. She was very nice and professional. I did apologize to her that I missed her when she came over the first time and she said that they want their visits to be “surprise” visits so unfortunately this is a problem they have to deal with.

The foreign national employee did tell me that he asked her if he was selected randomly and she indicated that he wasn’t – I guess they are going to be doing this for everyone.

You can see from this brief report that we as attorneys have yet another issue with which to deal. Now we must advise our clients of these waste of time investigations not targeted to find those employers or employees abusing the H-1B program, but rather designed to throw as much enforcement as the government cannot afford at a problem that does not exist in order to justify jobs and and the expense of a program that should be more effectively and efficiently run. Just what we need in the middle of an economic downturn, more government regulators! Where is John Galt when you need him?
What makes the expenditures of these funds in such a random way even more outrageous is the recent report noting that the number of affirmative filings to USCIS has decreased by almost 50% year over year at the USCIS. Because USCIS’s budget is entirely dependent on fees paid by users, the question becomes this: why is USCIS spending money on a program “looking” for problems when they would be better off using their resources to solve the problems they already have as an agency and better manage the extant operations that need to run more effectively.

Jail Break: Re-Developing the Detention System for Immigrants

Throughout the course of the Bush Administration we heard numerous horror stories that managed to escape from the walls of America’s detention centers about the mistreatment of immigrant detainees. There were accounts of immigrants who had been abused by guards, asylees who had been detained despite being granted status, mothers who were not allowed access to breast pumps, children who were held behind razor wire, women giving birth while chained to a bed, sick men being denied any sort of medical examination or treatment for pain relief, people misdiagnosed as psychotic or even drugged to facilitate their transfer. The list goes on and on. In fact, from January of 2004 through April of 2008, over 70 immigrants died while in detention, the vast majority due to limited or no access to health care, or just falling through the cracks of the system.

The Obama Administration has thus far been mostly mum on the immigration issue. In fact, just earlier this summer, the Administration rejected a federal court petition to make legally enforceable rules for immigrant detention centers, which set off immigrant advocacy groups disappointed with the President’s lack of departure from Mr. Bush’s immigration enforcement policies. However, just today the Administration announced an ambitious initiative to reform the crippled immigrant detention system. While details were vague, and the first steps remain months ahead in the future, the plan is to consolidate detainees in more suitable centers for non-criminal immigration violators and to establish a more centralized authority over the system with more direct oversight of individual detention centers.

Among the points outlined in the plan are:

• Effective immediately: families will no longer be sent to T. Don Hutto Residential Center in Austin, Texas, a center which drew heavy fire from the American Civil Liberties Union and other groups for its substandard conditions and harsh treatment of detainees, particularly children. Hutto will be converted into an immigration jail for women, and families in detention will be re-routed to the Berks Family Shelter Care in Leesport, Pennsylvania, which is better equipped to handle families. In the meantime, the Administration is currently halting plans for construction of three new family detention centers;
• A new philosophical approach to immigrant detention: according to Mr. John Morton, a career prosecutor and head of the Immigration and Customs Enforcement agency, “the system’s purpose [is] to remove immigration violators from the country, not imprison them”;
• Creation of the new Office of Detention Policy and Planning to review and redesign all facilities, programs and standards, with a particular focus on detainee health care;
• Re-Development of the Office of Detention Oversight, to put a manager each of the 23 largest detention facilities to promptly respond to issues and conduct routine and random checks and inspections; and
• Eventual construction of new civil detention centers in order to relieve the dependency on vacancies in the criminal justice system.

In its most drastic departure from the Bush Administration’s immigration policies yet, the Obama camp, just 200 days into its first term, is taking some much-needed action on a long-overdue reform of a detention system that is not only in chaos, but in crisis.

MLB: Migration, Labor, and Barack Recapping the President’s Immigration Runs, Hits and Errors

Summer is for baseball; for watching America’s pastime under a hot sun with a cold drink. It’s also a half-way point; an All-Star Break or a seventh-inning stretch, if you will. The kids are out of school, the boss is on vacation, and we can look back over the past six months and evaluate what we’ve done, and what we need to do to cross home plate. As we enter the bottom of the 7th inning of Mr. Obama’s first year as President, it’s worth examining his immigration policies thus far to determine where he has made strides and where he has struck out.

Run: Replacing Chertoff with Napolitano
To begin, Obama brought in a new starting pitcher to replace Department of Homeland Security (DHS) Secretary Michael Chertoff. Janet Napolitano has proven to be a good trade; as a Governor, she has good stats on immigration and a record to match. Critics, however, say that she has actually increased immigration enforcement measures and crackdowns, which Obama had originally pledged in the pre-season would be more moderate than his predecessor’s. And, looking at her numbers, it’s true; in April of this year there were 9,037 immigration cases in the federal courts, an increase of 32% from 2008 under President Bush. Secretary Napolitano has also begun auditing over 600 businesses across the country, and she expanded the widely-criticized E-Verify program. The number of deportations has reportedly increased. So what’s going on?

Many immigration advocates are up in arms and calling for a relief, and I’ll even call some strikes on Janet. She did reject proposals that would have created legally binding rules regarding the conditions in immigration detention centers (some of which have been discovered to be grossly unacceptable). Strike one. She has agreed to bolster support for the 287(g) program, which basically turns local police into Immigration officers. Strike two. But I think it’s important to examine Secretary Napolitano’s approach to the overwhelming problem of immigration. It’s easy to forget, but Secretary Napolitano’s first task is, as her title implies, “Homeland Security,” meaning she must enforce the laws. And while her numbers may be up from Chertoff’s, her methods are more moderate and much more focused on labor issues. Unlike her predecessor, Secretary Napolitano seems to focusing on employers, particularly bad-apple employers who are exploiting undocumented workers, rather than on individuals. We haven’t had a Postville-style raid, or heard much about heavily-armed Immigration and Customs Enforcement (ICE) officers entering private residences without a warrant and arresting hard-working gardeners in front of their young children. Ms. Napolitano also argues that “no-nonsense immigration enforcement is necessary to persuade American voters to accept legislation that would give legal status to millions of illegal immigrants.” Good point.

Hit: Congressional Committees and Relief for Widows
Many Hispanic communities and groups seemed ready to nominate Obama for MVP after he promised to take on the issue of immigration during the first year of his first term, especially after Senator John McCain seemed to shy away from his endorsement of earlier immigration reform legislation. However, seventh months into his first year, all that’s really been done is that a committee has been formed to begin discussing what an immigration reform package should look like. It’s a good first step, but the play has fallen dead. Congress has discussed healthcare and Harvard professors and bailouts and biofuels, but they’ve kept quiet on immigration, and now they’re on break. There’s no question that in the wake of the economy and a much-needed healthcare reform, the immigration debate is being held at first base. It’s a good start, but let’s just hope Obama can bring someone to the plate to advance the issue.

Error: Distracting Hispanics with Sonia Sotomayor
There’s a strong sense in the Hispanic community and among immigration groups in the Capitol that Obama may have nominated Judge Sonia Sotomayor to the Supreme Court as a means of pacifying a group of voters who played such a crucial role in his election, but to whom he has yet to deliver on his pledges. Many Washington groups see Sotomayor’s nomination as a way for Obama to put off immigration reform for another year so he can turn his focus to the economy and to the energy crisis; a way to show support for Latinos without actually having to come through on the immigration issue.

I have to say, I hope they’re wrong. Sonia Sotomayor is incredibly impressive, super-qualified, and a great pick for a Supreme Court Justice (she even won over South Carolina’s Lindsay Graham, which anyone will tell you, takes more than a wink and a smile). Her nomination was in no way an error, but if it is being used as a means of distraction, I’m awarding Obama an error.

It may not have been a very exciting game so far, but I wouldn’t count Obama out just yet. He promised to address the issue in the first year of his first term, and while he’s still got time to hit one out of the park, I think this one’s probably headed into extra innings.

State Legislatures and Immigration Law–Its All About the Politics

Today’s report from the National Council for State Legislatures on the 2009 legislation related to immigration provides a stark view into the minds of local politicos on the issue of immigration:

While national attention on immigration has declined, state legislatures are deliberating record levels of immigrant-related legislation. In the first half of 2009, state legislation related to immigration topped last year’s totals. So far this year, more than 1400 bills have been considered in all 50 states. At least 144 laws and 115 resolutions have been enacted in 44 states, with bills sent to governors in two additional states. A total of 285 bills and resolutions has passed legislatures; 23 of these bills are pending Governor’s approval and three bills were vetoed. No bills have been enacted in Alaska, Massachusetts, Michigan or Ohio.

One of the key elements of this report is the focus on how FEW of the states have issued resolutions in support of some type of immigration reform at the federal level–only 12 so far this year. So here you have the local politicos, with zero knowledge or understanding of the legal immigration system we currently operate under, proposing and passing legislation that affects us, our clients, and our businesses, yet these same politicos apparently are showing no interest in having this issue removed from their plates. This dichotomy speaks volumes about how local politicos WANT to use the immigration issue as an election platform issue. If state legislators were truly interested in resolving the immigration standoff in Congress, they would all march up to Capitol Hill in D.C. and demand that Congress act now on a comprehensive solution to this problem. Keep in mind that the consequences of a failure of reform are borne disproportionately by the states. So the states that bear the burden of immigration reform failure are lead by politicos who WANT to keep the failing system, in order to use the failure of Congress to act on immigration as a platform issue for local political gain.

This is a tragic, but not surprising development by state legislatures who would be better off spending their time in attracting business and people to their state, rather than chasing them away.