The bill has been assigned to the Senate Judiciary Committee. The Judiciary Committee is chaired by Senator Patrick Leahy (D-VT). Senator Leahy is a strong supporter of immigration reform and has acted quickly to move the legislation. In the bill’s first weeks, he held hearings on the legislation. Those hearings generated more heat than light and their contents have long been forgotten. The bill moves ahead unscathed. The bill also seems to have survived the terrorist bombings in Boston. While immigration opponents seized on the foreign identities of the brothers Tsarnaev, the bill’s supporters were undaunted in arguing how the immigration bill would improve national security. The ability of conservative members of the Gang of Eight to resist what must have been a strong impulse to jump ship gives us cause for optimism over the bill’s future. Yesterday, the Heritage Foundation, a conservative think tank, released its most potent weapon against reform, a report in which they claim that reform will cost the American economy $6.3 trillion. This salvo fell flat as Republicans, such as Paul Ryan, Grover Norquist, Haley Barbour and Jeff Flake attacked the findings and methodologies of the Heritage report. If the report was intended to weaken the resolve of Republicans pushing reform, it seems to have failed. And, in a sign that the pro-immigrant crowd has gotten its political act together, the Immigration Policy Center was ready with its own report debunking the Heritage report. In the 24 hour news cycle, speed is everything and IPC should be commended for its rapid response.
Senator Leahy has scheduled a “mark-up” of the legislation for this Thursday, May 9. A mark-up is a meeting in which Senators debate, amend and re-write proposed legislation. The Committee will address all of these amendments. It is likely, given the Democratic advantage and the presence of two Gang of Eight Republicans, Jeff Flake (R-AZ) and Lindsey Graham (R-SC), that the legislation will emerge from the Judiciary Committee largely unscathed. After the Judiciary Committee votes, after weeks in which they will have to consider the 300+ amendments, the bill will be brought to the Senate floor for a vote in the full Senate. Expect major pyrotechnics there.
We will continue to update the progress of the bill as it moves through the Senate and the Congress. Stay tuned.
“¡Obama escucha, seguimos en la lucha!” This shouting was heard from downtown on 14th street as Sandra, Mariela, and I made posters to join thousands of people at the immigration rally held in front of the Capitol on Wednesday, April 10th. Since my arrival to the United States in 1999, I have attended every immigration rally in Washington, D.C. I find every experience of a rally to be very rewarding including being able to shout nonstop on the streets of DC without getting arrested. I am inspired and ignited by the hard working people who are forced to live in the shadows of society, who cannot drive or work, pay in-state tuition where their parents have lived and paid taxes for years, who did not have the chance to say goodbye to a family member who died in their country of origin, and who-above all-never lose faith in justice. Last Wednesday, thousands of undocumented brothers and sisters ventured out of the shadows of their homes, work, and communities, taking public transportation or carpooling, walking unafraid in Washington DC, to wave their colorful flags and say “presente.” I saw people of all ages and colors lifting the American flag, being proud of being in this nation and wanting to desperately have an opportunity to achieve the American dream. On last Wednesday, I saw the human face of the immigration issue. I hope and believe our President and our legislators saw it too.
As Washington, DC has seemed to jump from winter to summer, the politics of immigration reform are heating up. For the rest of this week, the Capital will be inundated with activists, lawyers, politicians and celebrities all advocating for immigration reform. Among all this activity, the Senate “Gang of Eight” is prepared to release their proposed bill. Rumored to be nearly 1500 pages, the Gang of Eight will provide the meat on the bone that all of us have been waiting to chew on. Benach Ragland will provide you with the latest and most comprehensive information regarding the politics, the proposal, and discussions as to how the proposals will affect the lives of immigrants.
Finally, we learned today that the Gang of Eight will release their bill as early as Thursday, April 11 and the House is not far behind. As deportations continue, people organize, and the CIS runs out of H visas in a week, the urgency of immigration reform could not be more obvious.
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.
It took only three years longer than promised—and a leak that may or may not have been intentional—but the White House has finally produced a legislative proposal to fix the immigration system. Dubbed the Comprehensive Immigration Reform Act of 2013, the bill would create a pathway to citizenship for most of the 11 million removable noncitizens in the country, mandate the eventual use of E-Verify for most employers, and dull many of the draconian provisions enacted in the 1996 immigration bill. With the leaked portions of the bill totaling more than 200 pages, there’s a lot to chew on. Today, we’ll look at the part of the White House bill relating to legalizing the undocumented, and tomorrow we’ll review the enforcement-related sections.
Lawful Prospective Immigrant (LPI) status
As has by now been widely reported, the bill would allow qualified applicants to first obtain “Lawful Prospective Immigrant” status and later adjust to lawful permanent resident (a “green card” or LPR) status, a prerequisite for foreign nationals wanting to become U.S. citizens. To qualify for LPI status, noncitizens would have to be physically present in the United States on the day the bill was introduced and not have been convicted of a number of specified criminal offenses. Noncitizens could apply for LPI status if they were in removal proceedings, were under an outstanding order of removal, or had illegally re-entered the country after a prior removal. Applicants for LPI status could generally not be detained or removed, and would not be considered “unlawfully present,” while their applications were pending.
Qualified immigrants would initially be granted LPI status for a period of four years, during which time they would be authorized to work and travel abroad for up to six months, subject to renewal. Noncitizens with LPI status could also petition for their spouses and children to receive the same status, even if they are living overseas. Interestingly, the White House bill does not specifically state that LPI status could be accorded based on same-sex marriages. However, it incorporates the standing definition of “spouse” in Section 101(a)(35) of the INA, which is written in gender-neutral terms. As the bill is written, it is thus unclear (perhaps intentionally so) what, if any, protection same-sex couples would receive.
Adjustment to Lawful Permanent Resident (LPR) status
To qualify for adjustment, LPIs would have to satisfy any outstanding federal tax liability, be actively studying English and U.S. history, and not have left the country for more than six months while in LPI status. Applicants aged 21 or older when the bill was introduced would have to pay a $500 penalty to adjust status in addition to any processing fees. The government could not grant any adjustment applications until either eight years after the date of the law’s enactment, or 30 days after all immigrant visas became available for family- and employment-based petitions filed before the date of enactment, whichever came first (but no sooner than six years after LPI status was first granted). The only exception would be for noncitizens who were under 16 when they initially entered the country, were enrolled or had obtained a high school or college degree when they applied for LPI status, and had completed two years of college or the military when they applied for LPR status. (Or in other words, those who would qualify under the DREAM Act.)
Administrative and judicial review of denied applications
For noncitizens whose applications for LPI or LPR status were denied, the bill would require the creation of an administrative body housed within the Department of Homeland Security to hear appeals. Notices of appeal would have to be filed within 60 days of the denial, and stays of removal would generally be granted while appeals are pending. If their administrative appeals were denied, prospective LPIs and LPRs could file a challenge with a federal district court, which, in turn, could uphold or reverse DHS’ decision or remand the case back to executive officials for consideration of additional evidence. Importantly, federal judges would also have authority to issue stays of removal, and immigrants would not be considered “unlawfully present” while their appeals—administrative or judicial—were pending.
Protections for Employers of Prospective LPIs
Finally, the White House bill contains a number of protections for employers of workers seeking to legalize their status. For example, employers who learn of employees with pending LPI applications would not violate the law by continuing to employ them while their applications are pending. The bill would also prevent genuine employment records submitted in support of an application for LPI or LPR status from being used against the employer in a civil investigation or criminal prosecution. These provisions may well have been added due to the DACA program, which lead to concerns among some employers of liability or retaliation if their workers used employment records to demonstrate the extent of their presence in the country.
Comparison to “Gang of Eight” Framework
While the bipartisan group of Senators known as the “Gang of Eight” has yet to propose actual legislation, it’s almost certain that the path to citizenship in the White House bill is more realistic and immigrant-friendly. Unlike the Senate framework, for instance, the White House would not make the issuance of green cards contingent on satisfying an unknown set of security “triggers.” Based on statements from Marco Rubio, the Senate plan might also require the undocumented to rely on a third party (such as a qualified employer or family member) to sponsor them for a green card, which could potentially leave millions without a true path to citizenship. While we will wait to see an actual bill before expressing final judgment on the Senate plan, the White House has set a high bar.
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.
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
Last week, we saw politicians competing to put forward the most comprehensive immigration reform. The President outlined a plan. We saw Republicans and Democrats, who could not agree on anything for close to four years, all agree that immigration reform is needed and that a path to citizenship is an essential to that effort. We learned that the even the House has a bipartisan working group planning to develop its own immigration legislation. Simultaneously, a federal judge in Dallas, Texas dealt a near fatal blow to the ICE agents lawsuit, where they alleged potential injury if they refused to follow the DHS secretary’s directives regarding DACA. While the Judge did not entirely dismiss the lawsuit, FOBR Ben Winograd at the Immigration Policy Center described the lawsuit as” hanging by a thread.“ Bad week to be on the losing side of history.
With all due respect, the position of the ICE agents union is crystal clear. They so believe in an anti-immigrant policy where their actions are not subjected to meaningful review that their views are meaningless in an effort to reform the immigration law in a way to break their power. The ICE bureaucrats are afraid of being demonized for participating in the democratic process. Well, welcome to the arena, folks. You can’t continue to say outlandish and self-interested garbage and not be called out on it. The bureaucrats have always had a weak grip on the basics of democracy. While begging to be treated with kid gloves, the ICE bureaucrats union has staged a vote of no confidence in ICE’s political leadership, sued the Department to stop DACA, and has encouraged its members not to follow the direction of their management. In the military and any other law enforcement agency, that is known as insubordination and can result in dismissal or, in the case of the military, the brig. But ICE bureaucrats ask not to “be demonized.”
If the ICE bureaucrats do not want to be demonized, they should stop resisting efforts to create intelligent immigration policy and participate in implementing immigration law, both today’s and tomorrow’s in a more humane and useful way.
There is a single line in the President’s immigration proposal that has escaped a lot of attention. As the idiotic “back of the line” concept and the path to citizenship dominate the headlines, the language of the proposal indicates that the administration would like to eliminate one of the most onerous obstacles to asylum for thousands of applicants- the notorious one year rule. If this became law, the President will preside over a vast improvement in U.S. refugee and asylum law through a procedural change that will make thousands of people eligible for asylum.
At the very end of the President’s proposal, the administration writes that the proposal “better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.” To us, this can only be referring to the one-year rule for applying for asylum. The one year rule requires an individual to apply for asylum within one year of the date of admission in order to qualify for asylum. While there are regulatory exceptions to the one year rule, these are stringently applied and many people who have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, political opinion or membership in a particular social group have been unable to receive the protection of asylum.
The one year rule has been disastrous for many people who have fled harm. It is applied regardless as to whether the applicant knew of the rule and generally fails to take account of all but the most serious forms of post traumatic stress disorder. In addition, it discourages many people from seeking asylum when they do not believe that they can meet one of the exceptions to the one year rule. It has also made a mess of the immigration courts. Here is how it works in practice. An individual in the U.S. for over a year applies for asylum with the U.S. Citizenship & Immigration Service. The asylum office can not grant the application unless the applicant can establish that he qualifies for one of the exceptions. If the asylum office denies the application for asylum, they place the applicant into removal proceedings. (Of course, the asylum office calls this the much nicer, yet misleading “being referred to the immigration judge”) An immigration judge then may review the application for asylum. If the judge decides that a person is ineligible due to the one year rule, the judge must consider whether it is more likely than not that the applicant will be persecuted or tortured. Under such circumstances, a judge can enter an order of removal but withhold removal to the country of persecution or torture. So, the government is allowed to deport such an individual, just not to that individual’s home country. Realistically, there is no other country where the individual may be deported to, so the individual is allowed to remain in the U.S. with work authorization, often being required to report to ICE, but never being able to travel or get a green card. So, individuals who fail to apply for asylum within one year of the date of entry are provided with the same form of humanitarian protection as people convicted of “particularly serious crimes” or who have participated in the persecution of others. Clearly, these are not equivalent infractions, yet the result in the same.
The profusion of asylum cases that can only become withholding or torture cases due to the rigid interpretation of the one year rule has contributed to the immense backlogs in immigration courts. Since the asylum office must refer every single one year rule case to the court, many cases that should be resolved at the asylum office now wind up in court. And why? Because they did not apply at the first instance possible? The one year rule reflects an erroneous belief that a person who truly fears persecution will apply immediately upon arrival and that failure to do so is an indicator of fraud. The one year rule reflects Congress’ lack of faith in the asylum officer and immigration judges who try thousands of cases every year. An asylum officer or immigration judge is almost always able to tell between someone opportunistically and cynically seeking asylum improperly as opposed to a legitimate asylum seeker, regardless of when they filed.
Immigration reform that gets rid of the one year rule and lets the asylum officer and immigration judges do their job would be a tremendous improvement in asylum law and we hope that this little-noticed provision makes it into any final bill.
What a week it has been. There has been more positive discussion of immigration reform in the last week than in the past decade and while none of it is perfect, it is a huge improvement over Mitt Romney endorsing self-deportation and SB 1070. Hard to believe that that was just six months ago. In the past week, there has been two major comprehensive overhaul plans, word of a third, and the introduction of independent bills that would make discrete but needed improvements to the system. We will lay out the basics on all these developments in the next few posts. And we’ll start with the President, not just because he is President, but because it is the better plan.
The President’s Plan focuses on four major areas of reform: (1) continuing to strengthen border security; (2) cracking down on employers hiring undocumented workers; (3) earned citizenship; and (4) streamlining legal immigration.
Border Security
The President’s plan will continue the militarization of the border. The President’s plan talks a lot about working with local communities and foregoing governments to combat transnational crime. It goes without saying that by creating a legal and efficient immigration system, immigration reform will allow the Border Patrol to focus on the criminal gangs operating in the border region. We have said it before and will say it again: the lack of a reasonable immigration policy is the biggest reason for illegal immigration.
Adam Serwer reports on immigration and he wrote: “[T]he fact is that enforcement can only do so much to deter illegal immigration, because those seeking a better life will brave ever more dangerous obstacles to get here. What’s needed is an immigration system that allows enough people in to work so that people think they have a decent enough chance to get here that risking their life to do so isn’t worth it.” The President’s plan seems to get this even as it talks about more Border Patrol resources. We will not spend a lot of time discussing the technology and resources being thrown at the border. The border is more secure than ever and the immigration enforcement agencies have a budget in excess of $18 billion, yet everyone wants to throw more money at it. As immigration and immigrant rights and not the budget are our focus, we will leave these matters to the budget hawks.
Cracking down on employers hiring undocumented workers
The President came into office promising to end the Postville-style raids that rounded up hundreds of immigrants who were doing nothing more than working. He has largely stuck to that promise and has devoted his employer verification efforts to identifying employers who are violating documentation requirements. For example, a couple of years ago, there was a lot of news about ICE actions against Chipotle for hiring undocumented workers. While the ICE action resulted in many immigrants losing their jobs, they were not put through an expedited criminal-deportation program as occurred in Postville. We have heard of very few cases of individuals placed into removal proceedings for being on Chipotle’s payroll.
The President’s plan will include phased-in nationwide use of E-Verify. E-Verify is the online verification system to let employers know if documents presented for employment authorization are bona fide. It is already required by several states and required of employers with federal contracts. E-Verify is coming nationwide and seems to be one of the prices paid for immigration reform.
Earned citizenship
It is the earned citizenship portion that we are most interested. The President’s program will require undocumented individuals to come forward and register. Applicants would have to undergo biometrics and a background check and “pay fees and fines” to receive temporary status. This temporary status seems little more than a work permit and the security of knowing that you will not be removed. DACA is a good indicator of what this might look like. Then, once the line has been cleared, individuals would be able to seek residence. It is unclear whether they will have a new means of seeking residence or whether they must use the extent process. We have written before of the fallacy of the line and how tying meaningful change to “clearing” the line makes no sense. “Going back to the end of the line” has become a political phrase, divorced from any meaning or reality and no one really believes that people will have to wait 25 years for the Filipino fourth preference to clear before people starting seeking residence. Applicants for residence will be required to “pay their taxes, pass additional criminal background and national security check, register for Selective Service (for men between 18-26), pay additional fees and penalties and learn English and U.S. civics.” It appears that the President’s program would create a new means to apply for residence rather than requiring immigrants to go through the current broken system.
The bill does exempt DREAMers and certain agricultural workers from the back of the line requirement. The President’s plan seems to indicate that DREAMers would, well, get the DREAM Act, which would allow them to obtain residency through a new system. The President’s plan calls for strong administrative and judicial review procedures of legalization decisions.
Streamlining Legal Immigration
The President also addresses future flows. The plan states that it will increase the numbers of family based visas and allow the State Department to “recapture” unused visas. In addition, employment-based visas would be more plentiful in an effort to alleviate the backlog in the employment based categories. This has the potential to be a tremendous improvement as the backlogs are caused by the simple economic principle that demand exceeds supply for immigrant visas. The problem is exacerbated by the fact that unused visas are “lost” at the end of the year. So, there are currently too few visas and the government is failing to distribute all of them. The question is whether the President’s program would create sufficient visas and efficiencies to meaningfully address the backlog.
The President’s plan promises “to staple green cards to the advanced degree diplomas of STEM graduates” who are going to work in their field in the U.S. STEM refers to graduates in science, technology, engineering and mathematics. This is a terrific idea that has very widespread support. It is widely acknowledged that the U.S. needs to do a better job of providing a fast track to residence for STEM graduates. As conservative columnist David Brooks wrote in today’s New York Times: “Because immigration is so attractive, most nations are competing to win the global talent race. Over the past 10 years, 60 percent of nations have moved to increase or maintain their immigrant intakes, especially for high-skilled immigrants. The United States is losing this competition. We think of ourselves as an immigrant nation, but the share of our population that is foreign-born is now roughly on par with Germany and France and far below the successful immigrant nations Canada and Australia. Furthermore, our immigrants are much less skilled than the ones Canada and Australia let in. As a result, the number of high-tech immigrant start-ups has stagnated, according to the Kauffman Foundation, which studies entrepreneurship.”
The President also proposes a vibrant “start-up visa” to provide residence to foreign nationals who start businesses and create jobs in the U.S. and would expand the immigrant investor visa classification. It would also create a new visa for employees of federal national security science and technology laboratories.
Other important parts
The President’s program recognizes that the immigration court system is underfunded and hopelessly backlogged. The plan discusses additional funding for the immigration court system. Additional funding for additional judges and support personnel could go a long way to easing procedural hurdles and pressures that often result in quick orders of removal.
The President’s program states “The proposal streamlines immigration law to better protect vulnerable immigrants, including those who are victims of crime and domestic violence. It also better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.”
Finally, the President’s plan also makes clear that the same-sex partners and spouses of American citizens and permanent residents will be treated equally under immigration law.
Comments
We think, overall, that the President’s program is very good. There are reasons that we are reluctant to pronounce it as “excellent.” We would like to see a greater commitment to restoring due process to the immigration courts, restoring discretion to immigration judges, and an effort to re-balance the grotesque overreaction that has allowed so many permanent residents with minor and ancient crimes to be locked up and deported without any chance to explain to a judge that they should be allowed to remain. We would like the plan to abandon the meaningless “back of the line” language. We would prefer more full-throated defense of asylum and the need to keep families together.
However, there is much to like in the President’s program. The inclusion of GLBT families into immigration reform is a big deal and we applaud it. In addition, we like the increase in visa numbers, which might render the “back of the line” garbage moot. And we like that the President has made a path to earned citizenship an essential part of his plan. Too many of us have been afraid that we would get an enforcement heavy bill that does little to benefit immigrants. We do not see a lot of new enforcement here and we see several benefits.
Next post, we will address the Senate’s “Gang of Eight” plan and the reasons we feel that the President’s program is better.
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.”
