Musings on Immigration

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The Arizona Law and Immigration Reform

Much has been written and said about the new Arizona Law pertaining to immigrants (it pertains to everyone actually, and certainly is not limited to undocumented immigrants). From Eugene Robinson and Richard Cohen at the Washington Post, to John Stewart on The Daily Show, and even Tom Tancredo, everyone is up in arms about this law. We have heard from Megan McCain (John McCain’s daughter), President Obama, and even from Governor Jan “Show Me Your Papers” Brewer, all opine about the law and WHY the Arizona Legislature had to act on “illegal” immigration.

The conventional wisdom now is that Congress will be “forced” to act on immigration reform. The caution to understand here, from pundits and politicians alike is that the prospect of immigration reform based upon a knee jerk reaction to an unconstitutional law does not change the inherent political dynamics in Congress. Immigration reform needs 60 votes to pass the Senate. The lone Republican who was supporting reform, Senator Lindsey Graham, has threatened to withdraw his support for moving the bill at this time if the Democrats do not move the climate legislation first; other Republican Senators likely to support the bill are not exactly popping out of the woodwork.

The caution sign is up. There will be no reform until President Obama exercises real leadership here and relentlessly calls for legislation, and actually proposes workable solutions. There will be no reform until some Republicans decide that doing what is right for America is more important cowtowing to nativists (some already have called for reform). And, there will be no reform until Democrats stop using the prospect of reform as sort of a carrot to get Hispanics to come to the polls in November. All three of these stumbling blocks to reform need to be removed at the same time. Let’s pray that our elected politicians in Washington will finally exercise leadership on immigration and do what is good and right for America.

Perception is Reality

One of my favorite movie lines is from “The Princess Bride.” Vizzini, the mastermind behind the kidnapping of Princess Buttercup, upon seeing the Man in Black pursuing them keeps repeating the word “inconceivable.” Finally, Inigo Montoya, one of of Vizzini’s then assistants says: “You keep using that word. I do not think it means what you think it means.”

That simple statement applies to so much in the immigration law world that it is hard to even define situations where it does not apply. Much of what we deal with is really about our perception of what the law is, not about what the law actually says. This is true for legislation and for court decisions. Today, this statement seemed more true than ever. I received an email from the Center for Immigration Studies, the anti-immigration “think tank,” promoting a new web program it is hosting on “Local Law Enforcement Authority to Check Immigration Status.” This email comes with this teaser:

This program . . . “discusses a recent court decision affirming that local law enforcement officers may question suspected illegal aliens encounter [sic] about their immigration status and then contact immigration authorities (ICE). Known as Estrada v. Rhode Island, this important decision should reassure local officers that they are not obligated to look the other way when they discover immigration law violations and provide guidance on reasonable actions officers may take in questioning foreign nationals.”


Thus comes into play Inigo Montoya’s statement, to paraphrase here–I do not believe that case means what you think it means. After all, if a court had stated that police officer could pull people over and question them about their immigration status and have no other reason for doing so, don’t you think that we would have all heard about this by now? Heck, the nutty proposed law in Arizona is exactly this, no? Having police ask people their immigration status based upon “reasonable suspicion” is the basis of Senator Russell Pearce’s brainchild. I thought, how could I have missed such a seminal case. Or, perhaps, the folks over at CIS are giving a court’s decision a little more “spin” than it actually deserves?
Go ahead, read “Estrada v. Rhode Island.” This case is exactly NOT about a law enforcement officer’s right to ask questions about a person’s immigration status, with no other basis for stopping the person. The case is about whether or not a police officer can be sued under civil rights and others laws, for engaging in this behavior. The case is NOT a constitutional analysis of the legality of the officers actions in the context of a criminal or immigration related case. Rather, this is a civil case brought by the ACLU of Rhode Island seeking civil damages against the officer because of his actions towards the plaintiffs in the litigation.

The 1st Circuit Court of Appeals explicitly did not rule on the legality of the officer’s action, but rather ruled on whether or not he enjoyed “qualified immunity” for so doing. By finding that the officer was immune from civil suit, the 1st Circuit did not uphold his actions as legal, it simply said he could not be sued over them, expressly NOT ruling on the broader question here.
In the totality of the circumstances, we cannot say that a reasonable officer in Officer Chabot’s position would have understood that his conduct violated Tamup’s constitutional right.

This is not exactly a rousing endorsement for law enforcement officers to engage in what is effectively racial profiling. Given the prospective Arizona law, there is no doubt behind CIS’s efforts to encourage law enforcement officers to stop and question people they believe are undocumented. What should be clearly understood is that no court has found it reasonable to stop and question a person about their immigration status, just because of how they look. But, perception being reality in immigration law, I fear that such activity could become the “law of the land.” That would be a tragic reality.

Immigration By The Numbers

Yesterday the USCIS released its FY 2009 immigrant visa numbers. More than a million people legally immigrated to the United States in FY 2009. Almost 60% of those folks did so through the adjustment of status process, meaning they were already in the U.S. when their place in line was reached. While not disclosed by USCIS, the supposition is that a number of those folks were actually out of status or, even undocumented, and were able to adjust status using INA 245(i), the penalty law still available to anyone who was a direct or derivative beneficiary of an immigrant visa petition or labor certification filed before April 30, 2001.

The most telling part of this report was the tiny portion used by employment based immigrants. The top three employer-based preferences in terms of green cards issued to the “principal” immigrant (not including their family members) remained the same in 2009 as the prior year—professionals with advanced degrees and aliens of exceptional ability (22,098), skilled workers, professionals, and needed unskilled workers (18,359), and multinational executives and managers and other priority workers (16,806).

This led me to think about the nasty positions taken by USCIS as it attempts to restrict the number of people immigrating to the U.S. through the severely limited number of employment based visas. The “Neufeld” memo continues to spill over form the H-1B categories into other nonimmigrant AND immigrant visas, RFEs, and denials. The sheer number, verbosity and intellectual dishonesty of the RFEs that pour out of the Service Centers are sending talented, potential immigrants for the gates. Yet, 900,000 other immigrants came into the U.S. last year based solely on their relationship to a U.S. Citizen or Lawful Permanent Resident, regardless of how their immigration would impact the job market, or what skill set they brought. The message is clear from the government and USCIS–get yourself a relative in the U.S. and you can come. But forget about an employment based immigrant visa.

I have previously blogged on the Immigrant Visa Wait Times. The crisis in employment based immigration created by these wait times may abate if the limited use of H-1B visas this fiscal year by employers continues. Prospective immigrants will just go home. We can conclude the obvious–the USCIS has been successful in dissuading employers from hiring new foreign workers and in restricting employment based immigration. While restrictionists and protectionists are undoubtedly delighted by this news, it is only America that will suffer in the long run.

We need talented, risk taking immigrants more than ever in the U.S. If they are continuously dissuaded from coming to the U.S. by a USCIS on a mission to limit employment based immigration, and by broken 20th century immigration laws, America will not reach its full potential in the 21st Century.

Return to Sender- Russian Adoption Case

The case of a 7-year-old Russian boy who was returned to Moscow by his adoptive U.S. mother has highlighted the challenges families face when an international adoption goes wrong.
For those of you that don’t know, an American woman, Tori Hansen, adopted a little boy in Russia. He had been removed from his alcoholic biological mother’s care a few years ago and put in an institution. He came to the United States, resided in the home of Ms. Hansen as her adopted son for several months and then last week, she put him on a plane back to Russia with a note pinned inside his jacket that read “I no longer wish to parent this child.” Apparently the child had emotional difficulties, was violent and difficult to control. That Hansen wasn’t aware of his potential problems prior to the adoption is hard to believe. A quick internet search of “Russia” and “older children” and “adoption” yields a host of potential challenges, including attachment disorders, behavioral problems and psychological issues. What is she trying to say? They don’t have google in Tennessee?
The problem is that you can’t put your adopted child back on a plane and send them off to a foreign country just like you can’t put your biological child on a plane and send him off the a foreign country with a note pinned to his jacket stating that you no longer wish to parent. This little boy was the subject of a full and final adoption decree in Russia. That means that as soon as he entered the United States, he became a US citizen. He has the same rights and privileges as any other American child. And his “mom” has the same obligations as if she had given birth to him. Nobody’s suggesting that she struggle along for years with a child that she cannot handle but there were resources available to her. She could have sought counseling for herself and the little boy, taken a parenting class, gotten to the bottom of his issues, or placed him for adoption with another family. The only things she couldn’t do was drive him out of town and drop him off on the side of the road or put him on a plane back to Russia or otherwise dispose of him.
There’s a lot of talk about criminal charges- abandonment, neglect etc. I’m surprised that nobody has mentioned the fact that the Russian authorities could also come after her for child support until this little boy reaches 18 (or 21 if he goes to college.) I’ve also heard that the Russian authorities are considering halting all adoptions by American citizens. I’m not sure that this is going to happen. 12 Russian children have been murdered by their US adoptive parents over the past 10 years and 3 others that I can think of were adopted by pedophiles and if that didn’t do it, I don’t know that this will either. I would definitely expect a slow down in the process. It would be really unfortunate if this turned out to be the last straw- according to the State Department 1,600 orphans were adopted by US families last year and the vast majority of those adoptions were successful. A U.S. government delegation will arrive in Moscow next week to discuss rules for American parents who want to adopt Russian children. I think everything will be ironed out. After all, Russia wants its orphans to find families. Expect further updates from the State Department.