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

State of Arizona v. United States – Potential Implications for Utah and Other States


Yesterday the United States Supreme Court heard oral arguments in State of Arizona v. United States, the case where the United States government has challenged the authority of a state to enact its own immigration enforcement laws instead of following federal regulations. When the Court delivers its written opinion in June, we can expect that the ruling will impact more than just Arizona as five other states have enacted similar enforcement-only laws that promote, explicitly or implicitly, the policy of “attrition through enforcement”. But the ruling could also clear the way for states to enact creative and forward-thinking laws such as Utah’s guest worker law given that the federal government is not stepping up to fix our nation’s broken immigration laws and policies.



If yesterday’s oral arguments are any indication of how the Court is likely to rule, it appears that states may have the Court’s blessing to venture deeply into immigration policy, which has traditionally been reserved for, and in the exclusive purview of, the federal government.  At issue yesterday was Arizona’s aggressive and controversial 2010 immigration enforcement law known as S.B. 1070, which makes “enforcement by attrition” (or in another words, “we’ll make your life such a living hell that you won’t want to live in our state”) the state’s policy with regard to undocumented immigrants.  The Court reviewed four key provisions of the Arizona law, including:


  • Section 2(B): commonly referred to as the “show me your papers” section, which requires all Arizona law enforcement officers to verify the immigration status of any person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully
  • Section 3: the section that makes it a crime under Arizona law for an immigrant to fail to carry their “alien registration document,” which is not a crime under federal law
  • Section 5(C): the section of the law that criminalizes unauthorized work, which also is not a federal crime 
  • Section 6: the section that allows warrantless arrests if an officer has “probable cause” to believe that a person has committed a crime that makes that person removable from the country

By all accounts, the oral arguments did not go well for the United States as most of the justices seemed skeptical of the federal government’s arguments against Sections 2(B) and 6 and appeared to be prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the United States illegally.  The Court spent much less time, if any, on the other two sections, which could be an indication that the Court is not likely to agree with Arizona on either of those provisions.  Experts say that from the argument it appears that Justices Roberts, Scalia, and Thomas support Arizona’s position and Justices Breyer, Ginsburg, and Sotomayor support the United States’ position, while Justices Kennedy and Alito appear to be poised to cast the potentially key swing votes on the matter.  Because Justice Kagan has recused herself from deciding the case due to her prior involvement in the case as the Solicitor General of the United States, only eight justices will decide the fate of the Arizona law.  If the vote is 4-4, the Ninth Circuit Court of Appeals’ decision striking down these four provisions of S.B. 1070 will remain in force.  Full reporting and analysis on the argument are available from Lyle Denniston on SCOTUS Blog, Greg Stohr of Bloomberg News, the New York Times, the Los Angeles Times, the Washington Post, the Associated Press (via the Seattle Times), Reuters, McClatchy, CNN, MSNBC, Fox News, Huffington Post, Politico, DC Dicta, and the Wall Street Journal (subscription required).

In March 2011, the state of Utah enacted a package of immigration laws, including H.B. 497 (an immigration enforcement law patterned after, but significantly different than, Arizona’s S.B. 1070), H.B. 116 (a law creating the Utah Guest Worker program to enable Utah to issue work permits to its undocumented residents and create a temporary worker program), and H.B. 466 (a law that created the Utah Commission on Immigration and Migration).  H.B. 497 has not yet gone into effect because a federal district judge granted a temporary injunction pending a ruling by the Supreme Court in the Arizona case.  H.B. 116 on the other hand, which will not go into effect until July 1, 2013, has not yet been challenged in court.

Utah has received national attention and praise for passing H.B. 116, which marked an attempt by a state to come up with an alternative to the “enforcement by attrition” policy espoused by laws such as Arizona’s S.B. 1070.  Utah enacted what would be a truly innovative solution for a problem we all know has been created by the federal government’s complete refusal to fix our broken immigration system.  In passing H.B. 116, Utah recognized the importance of striking the right balance on this issue so that while immigration enforcement would undoubtedly be a key policy objective of the law, it would not come at the expense of jeopardizing the state’s economy or its community values.  In short, Utah hoped to avoid the well-documented unintended consequences that other states such as Georgia, Alabama, and Arizona have been suffering as a direct result of their “enforcement by attrition” policies.

While the Supreme Court’s decision will undoubtedly impact the outcome of the legal challenges to Utah’s H.B. 497 and similar laws in other states, it will be much more interesting to see what impact, if any, the Supreme Court’s decision will have on state laws such as H.B. 116.  Will the Supreme Court recognize that Utah and other states also have authority, in the face of federal inaction, to pass innovative immigration laws such as H.B. 116 or will it follow its longstanding precedent that has recognized that such immigration policy is reserved exclusively for the federal government?  While the latter seems to be the more prudent approach for the Supreme Court to take, if the federal government is going to continue abdicating its responsibility to fix our nation’s broken immigration system, then states such as Utah ought to be empowered to enact their own innovative solutions such as H.B. 116.

"Show Me Your Papers" - Federal versus State Immigration Laws


It’s only April, but the Supreme Court has already had a monumental year.  Today, April 24, 2012, the High Court will referee another major debate between the Obama administration and the states.  Arizona’s SB 1070 has spurred the age-old controversy testing the powers of state against federal government with its significant anti-immigration implications.

SB 1070 is dubbed by some as the “show me your papers” legislation. SB 1070 makes it a misdemeanor crime for an alien to be in Arizona without the required documents, adding an extra burden on aliens who are already required by federal law to register with the U.S. government if they’re above the age of 14 and remain in the U.S. longer than 30 days.

The Obama administration challenged the constitutionality of SB 1070 soon after its enactment on April 23, 2010.  Almost two years later to the day, the High Court will deliberate over the constitutional challenges brought forth by the federal government against Arizona’s law.

Critics of the law argue that it’s unconstitutional. They argue that the law violates the Commerce Clause and gives states unlawful power over federal government.  They also challenge the law based on the likelihood that it will encourage racial profiling among other civil rights violations.  President Obama called the law “misguided”, and stated that it would “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and communities that is so crucial to keeping us safe.”[1]

On the other hand, supporters of Arizona’s SB 1070 argue the state law is designed to support, not challenge, the federal government’s existing efforts to control illegal immigration.  Proponents say the law is designed to “pick up where the federal government has failed.”[2] Moreover, supporters of the law argue immigration enforcement should not exclusively fall within the powers of federal government, and should invite participation from local and state law enforcement agencies as well.

Tomorrow, the Court will hear oral arguments and a decision can be expected sometime in June.  Also around the same time this summer, the Supreme Court is planning to announce its decision on health care reform, which was deliberated last month.  If the Court decides not to strike down SB 1070, it will open the door to similar legislation in other states.  Already half a dozen states, namely Alabama, Georgia, Indiana, South Carolina and Utah, have adopted similar laws.  If the Court upholds Arizona’s law, the reverberation will be felt across the country and each and every one of us in the U.S. can get ready to hear “show me your papers.”

Needless to say, the constitutional implications if the High Court upholds Arizona’s SB 1070 are significant.  It is not disputed that the law is designed to help regulate immigration. And because immigration has always fallen exclusively within federal authority, it is difficult to believe that any state laws involving immigration will not actually interfere with or impede federal law.  If every state decides to restrict or modify federal laws, there is no end in sight.  Before we know it, we will be known not as the United States of America, but as a collection of Autonomous Nations of America.

It is also clear that this kind of state legislation will encourage discrimination, racial profiling, and foster an atmosphere of fear and distrust of local law enforcement.  Laws such as SB 1070 will not only harm the immigrant community, but all citizens will be negatively impacted by these laws.  For one, laws such as this will further restrict the already limited resources of the law enforcement agencies who will be burdened with an additional role of becoming immigration agents, causing a financial strain on our local government and negatively impacting the safety of our communities.  

Undoubtedly 2012 is shaping up to be a critical year packed with substantial decisions to be made, not only for our elected officials and the Justices deliberating behind closed doors, but also for the rest of us who will be hitting the polls in November.  If you are undecided on how to cast your vote, we can expect the next few months will offer tremendous opportunity to learn not only what core issues are at stake, but also how the candidates fall. The good news is, even if you’re undecided about who should next take the seat at the white house, we can all at least agree that Arizona’s misguided attempts at immigration reform are unconstitutional.  We can only hope that the Supreme Court Justices will come to this conclusion too.


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This is not the time to sit on the sidelines and simply observe. It is time to talk to friends and family, communicate with our representatives and do our part to put an end to constitutional infringements such as SB 1070 and similar laws.  To save you some time in your efforts to get the word out, see below for a sample letter you can send to your legislatures and media outlets:[3]

Dear Editor,
Next Wednesday the Supreme Court will hear oral argument on the anti-immigrant Arizona law SB 1070.   This law promotes discrimination based on the way people look and speak and that is un-American.  The Arizona law, and a number of other copycat laws in states like Alabama and Georgia, encourages discrimination against all of people of color, including those who have been American citizens all of their lives.

We need the Supreme Court to protect our basic rights and strike down this discriminatory law.  State "show me your papers" laws like the one in Arizona are not the solution to our broken immigration system.  We need Congress and the President to take leadership on immigration; what we do not need is a confusing patchwork of fifty different state laws that promote discrimination.

After Alabama passed its law, farm workers left for other states and crops were ruined.  When Arizona gained a reputation for discrimination after passing its law, the state lost an estimated $145m in convention business.  When teachers in Alabama were forced to become immigration agents, students were afraid to attend school.  When cops are required to check immigration papers, they spend less time solving serious crimes.  When states sanction profiling, U.S. citizens and immigrants alike get stopped and harassed.  We must do better than SB 1070. The Supreme Court must strike it down.

Sincerely,

YOUR NAME




[1] http://www.nytimes.com/2010/04/24/us/politics/24immig.html?_r=1&ref=us
[2] http://www.ibtimes.com/articles/332061/20120423/arizona-sb1070-supreme-court.htm
[3] Courtesy of American Immigration Lawyer’s Association’s Legislative Action Center.

Oscar De La Hoya Loses Bout, Wins Green Card

Little did Oscar De La Hoya know, that when he lost his first bout in controversial and memorable fashion to Felix Trinidad, he helped win a deserving fellow his permanent resident status.  On September 18, 1999, Felix Trinidad beat Oscar De La Hoya in a hotly disputed split decision, De La Hoya’s first professional loss.  As fate would have it, that same day, my client, Mr. Rosas arrived in Georgia, completing his long journey from Guatemala to the United States.
Fast forward twelve years.  Mr. Rosas was placed in removal proceedings after being arrested for driving without a license in Cobb County.  Having been in the U.S. for more than ten years, never been arrested, and being the father of a U.S. citizen child with Down Syndrome, Mr. Rosas was seeking Non-LPR Cancellation of Removal which would cancel his removal from the U.S. and result in Mr. Rosas obtaining his permanent residency.  There was a catch.  Mr. Rosas is completely illiterate, and given the fact that he is unable to read, never kept a single document (What was the point?  He didn’t know what the documents said.) to prove that he had been in the U.S. for the past ten years as required.  At trial, the government attorney stipulated to Mr. Rosas’ good moral character, and the fact that his U.S. citizen child would suffer exceptional and extremely unusual hardship if Mr. Rosas were removed to Guatemala. 
The only outstanding issue was whether Mr. Rosas could establish that he had been present in the United States for the requisite ten years prior to being placed in removal proceedings.  With the lack of documentation, Mr. Rosas would have to do so based on his testimony alone, a very difficult task under current immigration law.  Enter De La Hoya’s memorable loss in 1999.  Mr. Rosas testified that he knew exactly the date he came to the U.S. because, when he arrived at his friend’s house in Georgia, the De La Hoya fight was just coming to a close, and all of the friends who had gathered to view the fight were screaming in disbelief that the judges had robbed De La Hoya of a victory.  Mr. Rosas went on to provide details about the split decision, Felix Trinidad, and De La Hoya’s reaction to the loss.  His memories of the occasion were very vivid, and Mr. Rosas testified steadily, credibly and with great detail.
As luck would have it, the Judge deciding Mr. Rosas’ case is a boxing fan and recalled the De La Hoya loss to Trinidad as vividly as Mr. Rosas.  Based on Mr. Rosas’ detailed description, and the Judge’s familiarity with the fight, the Judge (and the government attorney) was convinced that Mr. Rosas had entered the U.S. in September, 1999, and therefore established his eligibility for and warranted cancellation of removal.  In short, because De La Hoya lost his fight in such memorable fashion, he helped win Mr. Rosas’ permanent residence through cancellation of removal.  On behalf of Mr. Rosas, thank you Mr. De La Hoya.  Sometimes even when you lose you win.

How Do We Bring Up Immigration Centered Discussions in an Education Environment?


Earlier this week I had an opportunity to speak at an Immigration and Education Forum in Athens Georgia organized by the University of Georgia College of Education Faculty Senate and the Dean's Council on Diversity. I was honored to be speaking with four other co-panelists who are each on the frontlines of immigration and education, teaching and working with students who are, or who interact with documented and undocumented youth each day.  It was inspiring to hear from them, and to witness the remarkable work they are doing.  

Each of these co-panelists spoke from the heart and were so deeply impressive. I wanted to share with my readers the presentation of Ian Altman.  I think you will be equally impressed.

            Good afternoon, everybody.  My name is Ian Altman, and I am the English Department Chair at Clarke Central High School.  I am here to talk to you about how and why I bring up the issue of immigration in my classes, of how the same reasons that prompt me to deal with it in my classes also prompt me to advocate politically and personally for my undocumented students, what exactly I am willing to do for those students, and what I hope to accomplish for them.
            I would like to begin with the simple observation that the study of language and literature is, broadly speaking, part of what in a less embarrassed age we called the humanities.  I know of no better statement of the place of literature in the humanities than William Faulkner’s Nobel Prize acceptance speech, in which he said, “I decline to accept the end of man….  I believe that man will not merely endure: he will prevail.  He is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance….  The poet's voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.”  Accordingly, every semester I tell my students without equivocation or apology that I can teach the Georgia Performance Standards all day long, and train them to pass those absurd standardized tests, but if at the end of the semester they haven’t learned something more and deeper about their own humanity, then I might as well have been working in a factory building robots.

            Thus, when I taught 9th grade literature, I always taught Rudolfo Anaya’s novel Bless Me, Ultima, largely because it is about a young boy learning of the compassion and sacrifice Faulkner speaks of, and because he learns that by watching many of the other characters’ willingness to stand for goodness and nobility.  And now when I teach 11th grade American literature, I always begin with an analysis of the Declaration of Independence, followed by analyses of Martin Luther King’s “Dream”speech and his “Letter From Birmingham Jail.”  I also have students concurrently read Steinbeck’s novella Of Mice and Men, followed by Chaim Potok’s novel The Chosen.  Both of these books deal with issues of friendship and loyalty.  And the purpose of this combination is to raise the question of whether and how a democratic society can function unless people actually care for other people individually and not just in the abstract.  It explores the connection of the political system to interpersonal empathy.  Following this, I focus on the theme of integrity with a reading of Arthur Miller’s play The Crucible, wherein the protagonist refuses to live without that quality.  Again concurrently, we study several non-fiction pieces which have to do with the integrity of our culture and our political system.

            The reason I mention all this is that it provides the backdrop for our classroom discussions of immigration, immigrants’ rights, and the rhetoric surrounding those issues.  In light of the place of literature in the larger context of the humanities, and of the thematic focus of my courses, there are two fundamental reasons to talk about immigration.  First, it has to do with human lives, human tragedies, and human values; and second, those values are inscribed in the language with which our culture has encrusted the issue.  Part of my job is to break that crust open so that my students may begin to get a sense not just of how we speak language to communicate values and the arguments surrounding those values, but also, and more importantly, how our language speaks us and largely determines what arguments we are capable of making.
            Is that controversial?  Yes, because it means that our ostensibly free thoughts are not necessarily our own, and are largely determined by our language, which means that the language itself must be critically examined and its structures critiqued.  Is that necessary?  Yes.  Because while we always like to say that we create safe learning environments where students can feel comfortable, another facet of the humanities that we don’t often like to talk about is that when the humanities are done right, when they are taught as though they actually matter, which they do, they require that we genuinely risk something of ourselves.  The humanities are inherently unsafe.  It is not sufficient to say along with someone like Stanley Fish that serious study in the humanities should have no bearing on how we live our lives, that it should remain crystalized in the ivory tower where it can safely hurt no one, help no one, and affect no one in any meaningful way.  Nor is it sufficient to agree with the likes of Max Thompson that we are teaching standards and only using books to access those standards.  I can’t think of a more nefarious misunderstanding of what the study of literature and language arts actually involves philosophically, cognitively, politically, and morally.  Students may acquire superb skills but not learn anything really important if they don’t realize that great literature should affect their understanding of the world and of themselves.  The critical thinking we always like to invoke is barren without that real risk.    
           Accordingly, my students have to risk some of their most cherished beliefs.  That is how, when I have a student staunch in his belief that undocumented immigrants should be treated like criminals, that student, if he has learned anything at all in my class, will not be able to look at the student next to him, who might well be undocumented, as a member of some abstract category of people against whom he has a political grudge.  He will first and foremost view that student as a human being not fundamentally different from himself.  That does not mean I want him to change his political views.  It does, however, mean that I want him to understand the human tragedy of what has occurred in our political system, and to empathize with those who have been affected.  It furthermore means that he will understand that he, too, is affected in the sense that we are all in some way morally diminished by it.  That of course has nothing explicit to do with the Georgia Performance Standards, and I make no apologies for that.  If it makes someone happy to call it a study of “Theme” under the standards, so be it.
            But what about the undocumented student sitting in the room?  Is it right to call her out, so to speak?  Of course not; I would never do that.  I simply raise the issue as an academic topic and focus primarily on its rhetoric.  Students may speak up for themselves, or they may not.  I often don’t know which students are undocumented because I don’t get into their personal business unless they come to me with it.

           But some of them have come to me with it, and when that happens I am faced with the necessity to teach by example.  Here is where the political, the professional, and the personal coincide.  That makes it risky for me, but I believe all the more necessary, because these are my students.  They are young women and men with whom I have a bond in our common humanity, and, legal issues aside, if their moral rights are being violated, then it is obligatory for me to stand up for them.  Otherwise, I can’t show up to work every day and look them in the eye with any integrity.  Sometimes we must teach by example. 
            That doesn’t mean that my concern for students is simply professional or political; those are superficial aspects of the deeper sense in which as a human being I care for them as individuals.  In other words, to be their teacher is to be a political advocate for them; and that, fundamentally, is to be their friend and to be loyal to that friendship.  That is the human and personal basis on which our democratic values and our whole democratic system rest.

            So what exactly do I do for my undocumented students?  Some of it is material.  I’ve raised money for college application fees, spent countless hours helping to edit admissions and scholarship essays, more hours writing recommendation letters.  All of that is just part of teaching high school students, though.

            Those kinds of things are only one aspect of the picture.  I have also tried to make very clear to my undocumented students, and others, that they have a safe place in my classroom if they ever need it.  They can come and talk to me about whatever they want.  In a rage over the ravening political viciousness they have to deal with in this state, they can come in and curse and punch the file cabinet, and know that that’s okay with me.  Or, when there is something to celebrate – when college acceptance letters and scholarship notifications come in – they should realize that I want to be the first to know because it will be the fruition of all the work I’ve put into their success and because I care about their future.
            And then there is the political advocacy.  One student is directly responsible for my becoming so involved in this issue, and I owe her a debt of gratitude for that.  I knew college education for undocumented students was a problem, and was concerned about it, but didn’t realize how close it was to me until she told me how she was being affected.  So I’ve written editorials for our local newspapers; helped to organize these events at UGA to publicize the issue; I’ve called and emailed the Board of Regents and every single one of our state senators and representatives as these issues have come up in the legislature; and I’ve done everything in my power to galvanize as many people as I can reach to do as I have been doing.
            All of this, to come back to where I began, grows directly from what ought to be happening in literature and other humanities classes, for two fundamental reasons: first, because it makes good pedagogical sense for a teacher of the humanities to teach by example and act like a full-blooded human being with a spine; and second, because on a personal level, undocumented children, like all people, have souls like Faulkner said, and deserve to know that someone out there understands what they are going through and cares enough to stand up for them, and to have sympathy in the truest sense: to hurt through it together in the toil of the human spirit.        
  
It is heros like Ian Altman that inspire me each day to work for justice in our immigration system.  Bravo!

USCIS- Moves Forward, Proposing a Change in the Process for Certain Inadmissibility Waivers

Just few days ago, on March 30, 2012, USCIS posted the Notice of Proposed Rulemaking (NPRM) changing the process for certain inadmissibility waivers in the Federal Register.

If you’re interested in reading the entire rule and all the other attachments …here’s the link, enjoy the 60 + pages…

So in a nutshell who qualifies and what does the proposed rule say?

First of all, the rule applies to certain immediate relatives of U.S. citizens who are eligible for a provisional waiver of the unlawful presence grounds of inadmissibility while they are still residing in the US. The immediate relative must show that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. This proposed rule doesn’t mean that USCIS has lowered or modified their standard of “extreme hardship”? The “extreme hardship” standard remains the same.

Ideally, the proposed rule would have created a “one-step” process. Whereby, the I-130, I-601 waiver, I-212 etc., would all be filed simultaneously and in the interim some form of work authorization would be issued. But that’s not the case. The new proposed rule provides that the underlying I-130 or I-360 must be approved before the I-601 provisional waiver is filed, processed and approved. If the provisional waiver is granted the foreign national MUST leave the US and attend their immigrant visa appointment at a US Embassy/Consulate.

Having a provisional waiver is not a guarantee that the foreign national will return to the US with his or her immigrant visa. If at the consular interview, the DOS consular officer determines that there are other grounds for inadmissibility the provisional waiver granted by USCIS will be automatically revoked. Only if a waiver is available for the other grounds of inadmissibility will the foreign national eligible to refile the I-601 waiver.

So what happens if the foreign national is ahead of the game already...in other words, he or she already have an approved I-130 and they even have an immigrant visa appointment abroad? This proposed rule is not in effect and will likely not be in effect until much later this year when the final rule is published; therefore, all those who have an immigrant visa appointment must still attend their interview abroad. They must continue with the process by filing their I-601 waiver as they had previously planned and wait to hear back from the consulate on the approval or denial of their waiver petition.

For those who choose to re-enter the US unlawfully after a provisional I-601 waiver has been granted, think again, re-entering unlawfully will automatically revoke the provisional approval and the individual may be permanently barred from the US.

As for those who are in removal proceedings who qualify for the I-601 waiver, well their future is still up in the air as USCIS is considering how this proposed rule will apply.

FYI- USCIS will be accepting public comments on the proposed rule from April 2, 2012 until June 1, 2012. Here’s where to go to submit your public comment on the proposed rule www.regulations.gov.

Be cautious out there are is often case whenever there is a proposed rule or the mention of a possible change in the immigration laws that could somehow help the immigrant community …

There are always those, who like sharks smell blood and start to create their own version of how the rule applies. This is a proposed rule and no one should be submitting a I-601 waiver with USCIS for a provisional unlawful presence waiver at this time.

Here is the link to USCIS’ Q&A on the proposed rule change HERE.

We’ll keep you posted!