Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

Have We Really Come To This?

The headline in a report on KGUN9 (a Tucson, Arizona TV station) reads:

Group of illegal immigrants shot at, 1 wounded near Rio Rico (AZ)

Apparently a group of undocumented immigrants were shot at while walking in the desert away from the border on Friday. The reports indicate that two men wearing camouflage used high-powered rifles to shoot at them. One of the five immigrants was wounded in the attack and was treated by local authorities in the hospital. This same group also told authorities that they had passed two bodies nearby during their trek.

Another Headline in the Arizona Republic Reads:

Phoenix murder of Latino man called hate crime

The Maricopa County Attorney’s Office has alleged that the May 6 fatal shooting of a Mexican-American man in south Phoenix by a neighbor shouting racial epithets was a hate crime. The allegation was filed June 9 as one of six aggravating factors that the office raised in the case of Gary Thomas Kelley. Aggravating factors allow judges to enhance prison sentences in the event of a conviction. Kelley, 50, is charged with second-degree murder in the killing of Juan Varela, 44. He also is accused of menacing Varela’s brother Antonio with a gun. According to initial police reports, Kelley shouted, “Hurry up and go back to Mexico or you’re gonna die.” Varela, in fact, was a third-generation, native-born U.S. citizen.

George Santayana, a notable philosopher, coined the phrase, “Those who do not learn from history are doomed to repeat it.” We have seen this type of hatred before, all starting with a belief that the majority was just trying to get people to “obey the law.” Xenophobia has a long history in America. Isn’t it time we got over our fear of the foreign, and embrace what our own experiment in democracy has shown: That immigration makes us stronger!

Use as a simple example, the U.S. National Soccer Team, making a run for advancing into the next round of the world cup. The names on this team reflect a vibrant country of immigrants and acceptance of diversity: Howard, Guzan, Spector, Hahnemann, Bocanegra, Onyewu, Cherundolo, Bornstein. This is not a team of ”native” Americans, but team of immigrants. Stronger becuase of their diverse backgrounds, not weaker.

Yet, we struggle with a national debate on immigration, fueled in some part by fear, some part by racism, and some part by economics. But, can you answer me this question: Why do State Legislators keep spending so much time on the immigration issues, when they have other more important issues to deal with? Do state legislators really believe that if every immigrant left their state, that every other issue would disappear? Everyone would have jobs, there would be adequate healthcare for all, there would be no shortfall in state revenues, and crime would be eliminated? Do they really believe this? Or are these demagogic legislators really just trying to stir up hatred, distrust and their supports for election purposes?

We all can understand the economic argument, although the facts bear out that deporting 12 million people is not only economically non-viable, but would be a 1.7 TRILLION dollar hit to our economy. To some extent, we can understand the fear of the new, the fear of the stranger. Such fear has been around for as long as we have been a nation. That we will have to get over, and I believe that cooler heads will prevail.

What we cannot understand is the race based legislation that is being passed in places like Arizona. You can argue that SB 1070 is not race based. BUT, the intent of the legislation is clear–chase Hispanics from Arizona. Many other states around the US are going to try to adopt this type of legislation. But, like legislation from prior years which targeted African Americans, and Asian Americans, and even German Americans, this legislation will be laid in the dust bin of history. I just pray it happens before more people are killed, before more people take the hidden race baiting of laws like SB 1070, to the action stage. We do not need more deaths, we need more leadership. Leadership that will solve this crisis and create an immigration solution that works FOR America, not against it.

Don’t bring the Arizona law to North Carolina

As Arizona implements their new immigration law (A.R.S. 13-1509), making it a federal misdemeanor, punishable by 30 days in jail and/or a $100 fine, for failing to carry one’s “certificate of alien registration or alien registration receipt card”, other states have looked to replicate this law, namely North Carolina.

Senator Don East of Surry County, NC has introduced Senate Resolution 1349 which if approved, would require immigrants to carry proof of citizenship or an alien registration card. The problem with this law and with the Arizona law is that they both ignore the complexity of the every changing area of immigration law.

For example, if you are from Haiti and you were in the USA illegally you could have been arrested under this new law up until January of 2010. After the earthquake in Haiti all Haitians that were already here with no criminal records could apply for “Temporary Protected Status.” You could have been in the USA illegally one day and be completely legal the next all do to a devastating even that took place thousands of miles away…

Besides ignoring the fact that immigration law is constantly changing, this new law ignores the reality that it takes TIME for application to be processed. Even if you had applied for legal status with immigration it still takes them a few weeks, months or even years to make a decision.

You could be here completely legally and just because you have no evidence of your legal status you could be put in jail.

As a tax paying North Carolina resident I say leave the jail space for the murders and drug dealers. Don’t waste our tax dollars jailing people who will have evidence of their legal status just as soon as an immigration officer mails them their card.

Everyone has a blog…even USCIS!

United States Citizenship and Immigration Service has recently added their own blog to the blogosphere. It is called The Beacon and can be accessed at the following URL:

http://blog.uscis.gov/

Besides covering important issues like advanced parole, immigration is now publishing stories about adoptions and recognizing our veterans under their “wounded warriors” program. It is nice to see that immigration is away of the thoughts and questions that are on people’s mind.

The Fees, The Fees, Where are the Fees (Going Up!)

The surprise announcement of a proposed fee increase at today’s USCIS stakeholder meeting should take no one by surprise. USCIS plans to raise filing fees by “generally” 10% or so across the board, except for Naturalization (which is already at an outrageous $675, but will really now be $680) and Adjustment of Status, which is only going up 6% (by $55!!), but the Form I-140 filing fee is increasing by 20% to $580 and Premium Processing is skyrocketing to $1,225!!! USICS is doing this at a time when inflation has been basically nonexistent, there has been zero accountability from USCIS, and quality of service levels have dropped across the board.

Director Mayorkas has said that the USCIS is taking further steps to cut spending by $160 million from its $2.5 BILLION dollar budget (less than 1%). There is no doubt that USCIS is hamstrung by Congress, which gives USCIS virtually no funding. And, federal law is clear that USCIS does have to recoup some costs from users of its services. These mandatory recoverable costs include:

• Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;
• Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land,buildings, and equipment;
• Management and supervisory costs; and
• The costs of enforcement, collection, research, establishment of standards, and regulation.

OMB Circular A-25, User Charges (Revised), par. 6, 58 FR 38142 (July 15, 1993). INA section 286(m), 8 U.S.C. 1356(m), also provides DHS broader discretion to include other costs in their “recapture” from filing fees.

A very interesting and potentially very expensive (for users) change in the regulations is that USCIS is setting up the new fee structure to NOT be tied to Form numbers, such that for the Form I-129, used for many nonimmigrant visas, they can charge separate and disparate filing fees for each type of visa. The USCIS also is now effectively limiting the types of Forms for which fees can be waived by rewriting the regulation on fee waivers.


What is disturbing to me is that there is nothing in the announcement about reducing the over-hiring from previous two years (staff cuts) or even reducing salaries. Frankly, that is the first place EVERY business in America starts. Heck, even the Department of Transportation had to furlough 2,000 people from its employee roles in March because of a budget fight with Senator Bunning. Why is there such a reluctance to cut positions or salaries?. It is quite clear that the USCIS is overstaffed. Otherwise how do you explain the extraordinary number of unnecessary and redundant Requests for Evidence from the Service Centers that appear to be nothing more than “make work” for examiners? Nor is there anything in the USCIS fee increase proposal about trimming other areas of its budget, including the virtually useless “call centers,” employees benefits, or any other expense.

The real issue here is not necessarily the outrageousness of yet another fee increase, but really the source of funding for USCIS. More than 95% of USCIS’s funding comes from user fees. I know of no other federal agency which gets this much of their funding directly from its users. In that respect, USCIS is in many ways like a private business. If Congress is mandating that USCIS be funded from is users like a private business, then USCIS needs to operate like a private business and be run as such. That would start with cutting not just “expenses” but overhead, which includes much of the over-hiring that was done in the previous administration.

Further, let’s look at what we are NOT getting in this fee increase–quality control, employee accountability, and performance metrics. We don’t know how USCIS measures its employees or its programs, and we do not know what criteria they use, particularly for “rogue” examiners who issue unnecessary and overbroad RFEs and denials. We are also getting no RATIONAL explanation for the HUGE fee increase for premium processing, other than the USCIS needs the extra money to modernize its systems!

Now, this is a proposed rule. So I strongly urge every person who reads this to submit formal comments on the proposed rule through www.regulations.gov. The comment period runs for 45 days, beginning June 11, 2010 and ending July 26, 2010. Additional detail on the methodology and data USCIS used to develop these fees will be available at www.regulations.gov on June 11, 2010. I would encourage us to voice our strong opposition to these fee increase until USCIS justifies this increase with better performance, and real budget cuts, not a superficial less than 1%!

I HAVE Read the Arizona Law. And, It Still Stinks!

I was at church on Sunday when a fellow parishioner decided to engage me on the Arizona anti-immigration Law. His main point was this: ”it is exactly like federal law.” When I explained to him that it was not actually “exactly” like federal law and that in fact there is no federal law allowing for racial profiling and arresting people because they look “illegal,” he would not believe me (keep in mind, we are at church).

I have heard repeatedly over the last month, from folks who may have read the Arizona law, but who have NOT read the federal law, that the Arizona law is somehow nothing more than an extension of what the Federal government already does. Nothing could be further from the truth. In fact, the Arizona law is classic Kris Kobach. When he worked in the Attorney General’s office under Ashcroft, he took Section 263 of the INA (written as part of the Alien Registration Act of 1940 — this law is how we put thousands of Japanese into internment camps), and turned it into “Special Registration” or NSEERS. NSEERS was designed to have Muslim men who had come into the U.S. legally come and “register” with the then INS. NSEERS did not require anyone who entered illegally come in and register (that is true). The program is considered an failure, as it produced no viable evidence of anyone involved in terrorist activities. It did lead, however, to 13,000 Muslim men being arrested, jailed and placed in removal proceedings, so perhaps Kobach did achieve his goal.

That said, and to make the argument that the Arizona law mimics federal law, Kobach has now taken Section 264(e) of the same Alien Registration Act of 1940, and included it in the new Arizona law (A.R.S. 13-1509). Section 264(e) makes it a federal misdemeanor, punishable by 30 days in jail and/or a $100 fine, to fail to carry one’s ”certificate of alien registration or alien registration receipt car issued to him pursuant to subsection (d).” Now subsection (d) of the INA 264 says: ”every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this Act shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at a such time as shall be prescribed under regulations issued by the Attorney General.” That alien registration document refers to the registration document created under the section of law that Kobach previously used to remove Muslim men from America. However, in case you were thinking that this federal statute was actually being used, a search of court records reveals no prosecutions federally for this offense, and the last citation to the statute in an immigration appeals court case 32 years ago.

So, while technically true that federal law does require anyone required to “register” to carry proof of that registration with them at all times, in reality, enforcement of this law has been suspended for decades for good reason–the law has not kept up with the changes in immigration law. There are now dozens of ways to prove one’s legal status, many of which do not even include proof (e.g. Canadians who enter by showing a passport are given no proof of entry). The law is basically unenforceable, or other words, broken.

A bigger issue, however, is the provision in the Arizona, that is causing the most outage — the racial profiling provision found in Section 3 of HB2162, now A.R.S. Section 11-1051. This is the big lie. This provision does NOT have any federal immigration statutory counterpart. There is a federal regulation that reads as follow:

8 CFR 287.8(b)(2) If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.


The question becomes this. What are “articuable facts” to a trained ICE or CBP officer of a person’s illegal presence in the United States, versus what those facts are to a Maricopa County Deputy Sheriff? Let’s not kid ourselves, this new Arizona law will lead to racial profiling, and thus creates the strong possibility that it is unconstitutional. Kobach knows he is pushing the envelope on constitutionality here. He has repeatedly played this game at the expense of cities and counties around the United States. His plan is clear, keep getting gullible and politically ambitious politicians to pass marginally constitutional laws, in the hopes of establishing the outer fringes of what is unconstitutional on the issue of immigration enforcement (e.g. mandatory e-verify vs. housing discrimination).

So, Section 11-1051 is an attempt to establish how much “profiling” will be allowed in Federal law. Kobach wrote:

“[F]or any ”lawful” stop, detention or arrest (actually he wrote “contact” but then realized after passage that this would fail constitutional muster so he had the AZ folks change it) made by a law enforcement official or a law enforcement agency of this state, . . . county, city, town . . . in the enforcement of any other law or ordinance of a county, city or town or this state (to make sure to include housing violations and cars on blocks in the yard, because you know those are signs of ”illegals”), where ”reasonable suspicion” exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, . . . .

Do you really believe that a statute this vague, ambiguous and downright inflammatory actuallywill pass constitutional muster? I hope not, because it does not. Now, tell me this–What does this language mean? The term “reasonable suspicion” is nowhere defined in the Immigration and Nationality Act. So, what is “reasonable suspicion” that someone “is an alien unlawfully present?” Is it the clothes they wear? Their haircut? Perhaps the car they drive? The person’s accent? Or, do you just know it when you see it, like pornography.

Perhaps the problem here is Kobach. Do we really want a man on a mission to aggrandize himself (and make a living on the lawsuits he causes to be filed by the laws he writes) to be the puppet-master behind these ambitious blinded politicians? Isn’t a dialogue on the most effective way to curb illegal immigration, without passing unconstitutional laws denigrating entire races of people? Surely we, as a society, are capable of agreeing on a solution that enforces our borders, punishes bad employers, secures America, AND provides compassion to people, energizes our economy, supplies needed labor and investment, and provides for an appropriate flow of immigrants and non-immigrants in the future. I just hope we come to a solution before Kobach dreams up his next unconstitutional nightmare.