Musings on Immigration

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Obama is to Blame for the Failure of Immigration Reform

There has been a lot of casting of blame for this last weekend's vote against a sensible and compassionate immigration bill that would have given hope and a future to hundreds of thousands of immigrant children. Most of the pointing fingers direct blame at the Republicans for their "filibuster" of the DREAM Act. Without dispute the Republicans have, in fact, adopted a virulent anti-immigration position that will ultimately lead to minority status for the party. But Republicans are not the reason the DREAM Act failed. Everyone knew that Republicans would not vote for the DREAM Act. The only three Republicans who did vote for the DREAM Act either are leaving Congress or do not have a concern about the right wing of the party. So, if the Republicans are not to blame, who is? President Obama and the Democrats. Really.

Here are 5 reasons why President Obama is to blame for the failure of immigration reform.

1. Five Democratic Senators abandoned the party and voted against the DREAM Act. One other Democratic Senator was attending a Christmas Party. There is no evidence whatsoever that the White House made a single call to these Senators to secure their votes. The DREAM Act was 5 votes short of breaking the "filibuster" and passing cloture. That math is simple enough, no? If these Senators did what their party wanted and needed them to do, the DREAM Act passes. It appears someone dropped the ball.

2. If Democrats were serious about the DREAM Act, why not MAKE the Republicans actually conduct a filibuster? Make than talk ad nausea until the end of the session or until the American public grows tired of the obstructionism?

3. How many speeches did President Obama give endorsing the DREAM Act? None as near as I can find. Yes, he mentioned the DREAM Act on a couple of occasions in other contexts and his Spokesman Robert Gibbs referred to it in press briefings. But, we all saw that when President Obama wants something passed he ADVOCATES for it. Take the Health Care bill for example. How many times did President Obama give speeches urging, demanding, cajoling for passage of the Health Care bill? Oh, about a jillion. Every day in the months leading up to the vote in the Congress there was President Obama on CNN, FoxNews, MSNBC, giving a speech surrounded by uninsured people in urgent need of health care. He was constantly meeting with wavering Senators. Don't you think that had something to do with the passage of the bill? Where was he on Immigration Reform in the fall? One speech! Where has he been for the last two months on the DREAM Act? Missing in action.

4. Enforcement priorities--President Obama has deported more people than President Bush. Period. The theory for the Obama Administration is that if we just enforce the law enough the Republicans will support comprehensive immigration reform. And, advocacy groups allowed President Obama to get away with this strange, irrational theory of enforcement. President Obama is bringing Secure Communities to a police station near you. President Obama is putting employers out of business for not properly dotting all their "i's" and crossing all their "t's " on the worlds most complicated form, the Form I-9. President Obama is opening more private prisons and putting non-criminal foreign nationals in detention centers far removed from their families, lawyers and the real world in an effort to get these folks to give up and not fight their removal. President Obama is unwilling to put forward a working plan for immigration reform, leaving it up to the anti-immigrant crowd to provide Congress draft legislation for doing so.

Had enough? Not yet? Okay

5. Adjudicatory Processes--President Obama is allowing USCIS to adopt crazy, unrealistic, anti-business, extra-regulatory requirements for visas which have long served America well, such as the H-1B, the L-1B, the E-2, and even the EB-5 Investor Visas! USCIS is ramping up the "FDNS" or the "fraud unit," in an attempt to FIND fraud where none exists. These fraud units, which operate without the ability to prosecute actual perpetrators of fraud, appear to trying to find work to do, rather than actually addressing a real need. Meanwhile, USCIS delays adjudication of cases such as the H-1B to force employers to pay the "premium processing" fee of $1,225, which is nothing short of extortion. USCIS raises fees without raising the quality of services, or shortening the adjudicatory process. USCIS continues to delay the processing of FOIA requests and continues to withhold relevant information in direct contradiction to President Obama's first executive order on government openness.

I could go on, but why? President Obama and his administration has shown no desire to actually fix the immigration system America suffers under at this time. He has shown no leadership on the immigration issue. President Obama has not lived up to his campaign promises to immigrants, and Latinos specifically. And yet, President Obama and the Democrats keep coming back to the immigrant well asking for their support in the next election with the promise that if they get reelected they will finally "fix" the broken immigration system.

The reality is it is time for voters who want the immigration system fixed to better serve America, make legality the norm, create greater national security, and reduce illegal immigration to either hold the Democrats and President Obama directly responsible for their failures to date, or somehow get the Republicans to withdraw from their current anti-immigration position. Otherwise, Hispanic, Asian, African and other new immigrant voters may have no one to carry their views on immigration to successful legislation for many years to come.

The Lies of DREAM Act Opponents

I just ran across this blog by James Sinclair detailing the lies of the opponents of the DREAM Act. It is well worth your time reading it.

Is the Dream Act really about race?

Gabe Gonzales of the Huffington Post posted some interesting thoughts about race and the Dream Act. On December 13th he stated:

"I want to thank and applaud the candor of Rep. Dana Rohrabacher from California and Glenn Beck of Fox News. They finally had the courage and audacity to say what so many of us knew to be true but would never admit.

The immigration debate is not about law, not about fairness, not about justice. It's about race. Plain and simple. It's about the fear of more brown people coming into our society, our culture.

When debating the DREAM act, Rohrabacher said, "This legislation not only increases the burden on our hard-pressed government programs and services, but will give foreigners who are here illegally preference over non-minority citizens." Non-minority citizens. Hmmm. That's an interesting phrase. Whatever do you mean Rep. Rohrabacher?

We all know what he means. "Non-minority citizens" means "white people." He doesn't even try to disguise who he's most interested in protecting. It's not American citizens, only "non-minority citizens." The rest of us are out of luck.

Beck was even more straight forward. He announced that the DREAM Act would mean, "...if you're white or you're an American citizen or a white American citizen, you're pretty much toast. "

Just like the Arizona law. Just like Sharron Angle putting Latino gang bangers in her political ads. Just like the manufactured debate about the 14th Amendment. What they all meant was very plain. We don't want brown people here. They aren't welcome. This country is for white people. This is about race. Nothing else. Race.

You will know this to be true by the howls of protest that will come from the right when they read this post. How dare we speak of race? How dare we impugn the character of the non-minority Rep. Rohrabacher? How dare we speak the truth? Watch. It will happen. And you will know them by how much they protest. For Rohrabacher and people like him: Opposing immigration reform is about race.

Take the debate on the 14th Amendment. Why are all these right wing ideologues, strict defenders of the Constitution, suddenly willing to throw out an amendment that has been part of our countries legacy for over a hundred years? Why attack the 14th Amendment? Why do it now?

We know the answer. It's about race.

The 14th Amendment says that anyone born in this country is considered a U.S. citizen. It is our birthright. Since 1868, it has been the law of the land. But now, a number of non-minority representatives, people like Rohrabacher, Rep. Steve King (Iowa), and Rep. Lamar Smith (Texas), want to do away with it. Why? Why now?

We know the answer, it's about race.

Thank god we live in America. It's true that as a country we have a long way to go in solving our race problems. Injustices remain, there are still things to fix, battles to be won, and it will take all of us working together to win them. But one thing is clear, we as a country don't like racists, no matter how much they cover their thoughts up with pretty language and seemingly rational arguments. We just don't like them, and they can't win.

I know there are lots of people who have genuine concerns about immigration policy in the U.S. Questions about security can be genuine. Worries about integrating the undocumented into our society can be genuine. But I for one am convinced that when we have a rational discussion about this, the vast majority of Americans will come solidly down on the side of legalizing the undocumented, and creating a rational, workable way for those who want to join this country to do so. I am equally convinced that those who shout the loudest, drowning out any chance for real discussion, are not concerned about immigration policy, border security or even fairness.

For them, it's about race.

I think the Republican Party has a choice to make. It can allow people like Rohrabacher Angle and Jan Brewer to dominate their politics, or it can chart a new course. It can stand with those flirt with overt racism, or stand against them. There is no middle ground here. There is no ducking.

If you believe like I do that hate and racism have no place in our politics and that only by finding common ground can we solve our problems, then remember the words of Rohrabacher. Remember what Glenn Beck's concerns really are. Remember those words and the words of those who would defend them, and remember that for those who shout loudest,

It's about race."

An Open Letter to Senator Isakson

Lino Rodriguez, an attorney at Kuck Immigration Partners, responds to Senator Isakson's Mean spirited response to a request that he be a DREAM Act Sponsor

Dear Senator Isakson,

First off let me say that I hope, and pray, that the DREAM Act succeeds, as it is both fiscally and humanely a step in the right direction. As a constituent I am deeply disappointed in your stance on the matter. In your e-mail you write:

• “I believe the DREAM Act would reward those who have obtained an education in a system in which they have not contributed.”

With all due respect, this is simply not the truth. These children and their parents pay into our system daily through sales taxes, property taxes, and even income taxes (through the use a Tax ID number). Moreover, these families boost our economy through their day to day spending. To say that they have not contributed to the system is a gross overstatement.

Many of these young adults have taken it upon themselves to continue their education while paying out of state tuition to simply be met with a dead end. This money is, again, a large contribution to the “system” you mention.

To punish these children for their parents’ illegal entry when they were just minors is truly unconscionable. Can you honestly tell me that these minors should have looked up at their mother or father at the border and said, “This is not a good idea, we should probably turn around.” That is, simply, absurd. We should be encouraging these individuals to become productive members of our society; which is exactly what the DREAM Act would create.

What we are creating for these kids, “Americans” for all intents and purposes, is a situation where they have nothing for which to strive. The DREAM Act would strengthen our country by creating a more educated populace, strengthen our military by opening up a pool of would be applicant, and create a sense of hope in an entire generation of immigrant children.

Those that would seek the protection of the DREAM Act are not here by choice, yet we are treating them as if they made the choice to come to the United States illegally. They are stuck through no fault of their own. Instead of punishing them for something they had no control over; let’s reward them for their good character and drive to become productive, educated, members of our society.

Thank you for your time.


Lino R. Rodriguez, Jr., Esq.

Here is the email Lino received from Senator Isakson:
Dear Mr. Rodriguez:

As someone who has contacted me in the past about immigration issues, I thought you would find the following update interesting. If you do not want to receive this type of update in the future, please fill out the webform on my website and choose "DO NOT SEND ISSUE UPDATES" from the drop down topic list.

On Tuesday, November 30th, Senate Majority Leader Harry Reid (D-NV) filed a new version of the so-called DREAM Act, which would create a path to conditional legal status for some undocumented children of illegal immigrants who go to college or join the military. Senator Reid is expected to seek a procedural vote to allow the measure to proceed on Thursday.

While I understand the complex details of students who are seeking financial assistance for educational purposes who were brought to this country by their parents without a choice, I will not support programs that reward illegal activity. I believe the DREAM Act would reward those who have obtained an education in a system in which they have not contributed.

I have always stood firm on pushing the Senate to secure our borders and have always drawn a clear distinction between legal and illegal immigration. Those individuals who come to our country legally and obey our laws should be welcomed. But at the same time we must secure our borders and end the opportunity of illegal entry. I will therefore vote against the procedural motion to allow debate on the DREAM Act to proceed.

I further believe that this is the wrong time to be considering such legislation and the Senate's first priority during this lame duck session should be to extend the expiring tax cuts immediately. It would be unconscionable to raise taxes on any American during these tough economic times.

Thank you again for contacting me. If I can be of any further assistance, please do not hesitate to contact me again.

Johnny Isakson
United States Senator

A Discussion on Fox News - Atlanta About Immigration

You know, when you appear on Fox News that the questions are going to be tough. That is what I love about this discussion--Tough questions, Tough answers:

Russ and I spoke both before and after this segment about Immigration and Immigration Reform. What I admire about him, is that he get both sides of the debate and understands that we are all going to have to settle somewhere in the middle.

The Next Goal--Eviscerating the 14th Amendment

I originally posted this at the AILA Leadership Blog.

The next goal of the anti-immigration crowd is to eliminate what some call “birthright” citizenship. This is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen. Have no doubt about it, despite what you will read below, the anti-immigrant movement, including folks like new Arizona Senate President Russell Pearce, and new Kansas Secretary of State Kris Kobach have plans in the works to try to destroy this fundamental and well settled constitutional issue. For folks like Pearce and Kobach (see the picture above from his campaign website) the overriding concern is not the rule of law (if it were they would follow the law), rather, their concern is purging the United States of immigrants and if that means trying to overturn 130 years of Supreme Court precedent, so be it.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that somehow, a U.S. born child is born of a mother or a father who was NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States. Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth. That is the reason that websites like exist, to try to dispel myth and rumor from factual and supportable truth.

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my lobby. As noted in Wikipedia:

This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left outindentured servants, slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.

In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.

The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens.

So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard.

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866:

to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42.

See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases.

Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. .

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether:

a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.

For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens.

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birther movement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.

Purported Voter Fraud and the "Illegal" Bogeyman

Yikes--just when you thought this election season could not get any crazier. Last Wednesday, a Tea Party Congressional candidate from Arizona, Jesse Kelly, appeared on the Mark Levin show. Kelly stated that "rumors" were floating around that "Mexicans" were going to be bused in to vote against him in the election.

LEVIN: You’re gonna have to squeeze out every single vote there plus some because they’re gonna pull their dirty tricks like they always do, Jess.

KELLY: They already are down here. We’re already getting reports of voter fraud. Especially in one of the counties in my district there is actually rumors — people have video of them busing people across from our southern border. We’re a border district. They literally bus people across from Mexico to have them vote at the polls on election day, give them a meal, and then bus them back. So we’re really fighting against that down here.

You can listen to this segment here in case you cannot believe what you read:

The Arizona Secretary of State tried to quash this rumor by detailing the fact that such a thing has never happened nor is there any evidence it is going to happen. But, facts be damned--if I heard it on the radio, or saw it on the internet, or someone sent it to me in a forwarded chain email, it must be true.

Not to be dissuaded, Maricopa County Sheriff Joe Arpaio (he of the thousands of unserved warrants), is urging his "supporters" to become actively involved in rooting out voter fraud by being physically present at the polls across Arizona. Presumably, they are going to confront people they do not think may be authorized to vote. Here is what Sheriff Joe said:

STOP ILLEGALS FROM STEALING THE ELECTION! . . . Our grassroots army of VOTER FRAUD PREVENTION VOLUNTEERS will stand vigilant across the nation. We will be the first and strongest line of defense to ensure that only legal citizens vote on November 2nd. . . .(Emphasis in original)

While some might say there is nothing wrong with this call to ensure that only qualified voters register, there are some things to keep in mind. First, there is no evidence of any voter fraud of the kind imagined by Sheriff Joe. Second, this technique is oddly reminiscent of the efforts to stop black Americans from voting after the Civil War--from

QUESTION: Which of the following techniques was used to prevent blacks from voting in the south during the late 19th century?

ANSWER: The end of the Civil War, the period of Reconstruction, and the 15th Amendment to the United States Constitution were attempts to protect the rights, including voting, of the ex-slaves, especially in the states of the defeated Confederacy. The first attempt involved threats, violence, and scare tactics. . . .

So, you decide where the truth stops and the fabrications begin.

Sheriff Joe now says that he did not authorize this email. Well, he may or may not have authorized it, but it sure sounds like him!

For sure, we must remain vigilant against people that would bring the bogeyman back in whatever form. Inciting fear and hatred works. It is for good people everywhere to stand up and say--"No More." The failure of our Congress to fix our broken immigration system allows politicians like Sheriff Joe to demagogue this issue and use it to drive a wedge through our society. Wouldn't you like Congress to finally fix the system that causes and permits this divide to exist? Don't hold your breath. Politicians from both parties benefit too much from not fixing the immigration system.

Immigration Wants to be Your Friend

Recently U.S. Citizenship and Immigration Services (USCIS) issued a memo to its immigration officers explaining how to do “unannounced cyber site-visits” on petitioners and beneficiaries of applications filed with the agency. That's right, Immigration wants to be Your Friend! Now Immigration intends to look at your social network to check up on you, and possibly use what they find against you in an effort to deny your application.

The memo advises immigration officers on how to set up profiles on social networking sites (e.g.. Facebook, Myspace, Hi5, Buzznet, etc.), and search for petitioner and beneficiaries on cases they are reviewing. This virtual visit, as detailed by USCIS, “provides an excellent vantage point for [immigration fraud investigators] to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities.” You also need to understand that USCIS supposes that every petition presented to them is fraudulent, so USCIS will be doing their “research” on many different types cases.

Clearly, immigration applicants should use extreme caution (and common-sense) when setting up a profile on any social-networking site. Here are a few guidelines;

  • Don’t make your social page public;
  • Don’t accept requests from people you do not know;
  • Don’t put yours or your spouse’s personal information on social networking sites; and
  • Don’t address your personal, relationship issues, in the world of social media.

Immigration Officers have free reign to ask (almost) any question to a petitioner or a beneficiary at an interview. Adjudicators can come to your house and check on the "bona fides" of your relationship. Now adjudicators will also “follow” you on-line; but, do you really want to be their “friend”?

What is going on in Nevada with Immigration ?

We are two weeks out from the election, and silly season is in full bloom, from a candidate in Delaware who does not understand the Constitution, to a candidate in Kentucky, who may or may not have worshiped Aqua Buddha, to perhaps the wackiest candidate of all in Nevada, Sharon Angle (the first "Asian" in the Nevada State Legislature).

This week two significant things happened that bring home how the immigration "thing" remains a strong undercurrent to this election.

First, Sharon Angle told a group of Hispanic youth at a Hispanic youth group meeting over the last weekend (trying to defend her anti-Latino/anti-immigration ad), that some of them "looked Asian" to her so how was she to know who was Hispanic anyway:

Second, a Republican funded and led group, Latinos for Reform, has run an ad in Nevada urging Latinos not to vote (for Democrats) because Democrats have not delivered on their promise of immigration reform.

While is it true that the Democrats blew their chance (perhaps their only chance) to pass Comprehensive Immigration Reform, urging people not to vote as a solution to who they voted for before (clearly Latinos for Reform could not urge Hispanics to vote for Sharon Angle) smacks of voter suppression. The last thing the Republicans need to be seen doing right now is suppressing the Latino vote.

As these two cases in Nevada demonstrate, once again the Immigration issue raises its ugly head. You would think that politicians of both parties would be tired of dealing with the consequences of not dealing with immigration reform. Yet, neither party appears willing to compromise and do what is right for America. The truly sad part here is that the issue of immigration politics is publicly degrading an entire race of people. Using words like "illegal" to really mean Mexicans, regardless of immigration status denigrates people, real people, and cheapens the debate.

Senator Hatch Offers Another Non-Solution to the Immigration Mess

This week Senator Hatch (R. Utah) offered an anti-immigration bill to the Democratically controlled Senate. This bill, known as the "STRENGTHENING OUR COMMITMENT TO LEGAL IMMIGRATION AND AMERICA’S SECURITY ACT" (truly an ironic name) is nothing more than the same political gamesmanship that Senator Hatch claims that Senator Reid engaged in by seeking passage of the DREAM Act.

Senator Hatch says his bill would do the following:
  • Require eligible states, counties and cities to participate in the Secure Communities or 287(g) programs or forego compensation for incarceration expenses;
  • Specify that illegal aliens may only be paroled or granted deferred action on a case-by-case basis; mass paroles and deferrals would be prohibited;
  • Preclude applicants who are members of known criminal organizations and gangs from getting visas to come to the U.S.;
  • Require the Homeland Security Secretary to create a mandatory exit procedure for foreign visitors to the U.S.;
  • Eliminate the Diversity Visa Program unless Congress signs off on changes to combat fraud and eliminate abuse in the program;
  • Require the Health and Human Services Secretary to submit an annual report to Congress outlining the total dollar amount of welfare benefits received by households of illegal aliens in every state and the District of Columbia;
  • Place limits on states’ ability to receive federal funds to provide Medicaid and Children’s Health Insurance Program coverage to children and pregnant women who are not U.S. citizens;
  • Amend the criminal code to clarify that defendants who possess or use false or others’ identity in the commission of a felony are punishable for aggravated identity fraud, regardless of whether or not they know the victim;
  • Require the Internal Revenue Service (IRS) to notify social security holders within 60 days after “no-match” letter is sent to the employer– if the employer fails to contact the IRS and correct the conflicting information;
  • Require the Treasury Secretary, Federal Trade Commission Chairman and Social Security Commissioner to conduct a study on the most cost-effective ways to protect the credit of individuals, especially children;
  • Stiffen penalties for drug offenses such as cultivating marijuana on federal land and using booby traps, poison and other hazardous substances to cultivate or manufacture illegal drugs on federal land;
  • Direct the National Drug Control Policy Director to formulate a Federal Lands Counterdrug Action Plan for preventing the illegal production, cultivation and manufacture of controlled substances on federal lands.
So, what is the real story? First, are these changes in the law necessary to "solve the immigration problem"? And, second, why did Senator Hatch really write and present this bill?

First, to tell you the real story, let's go over each point individually:
  • Require eligible states, counties and cities to participate in the Secure Communities or 287(g) programs or forego compensation for incarceration expenses;
  • The theory here is that the police should be mini-ICE agents and anyone who has contact with the police in a criminal related matter needs to be cleared through the immigration process--How much is this costing, and how is paying? What about the police departments, like Salt Lake City's which views these programs as one which HURTS community policing and actually creates the opportunity for more crime against immigrants, who now will be afraid to call the police? This is a bad idea which solves no immigration problem and creates larger community problems.
  • Specify that illegal aliens may only be paroled or granted deferred action on a case-by-case basis; mass paroles and deferrals would be prohibited;
  • Ooo, scary, President Obama might grant amnesty to everyone by fiat, but 1. He cannot legally or politically do it. 2. He has said he won't do so. This is an issue created by the anti-immigrationists with no real basis in reality. Preclude applicants who are members of known criminal organizations and gangs from getting visas to come to the U.S.; Don't you think this is already prohibited? Of course it is. They call this "pandering."
  • Require the Homeland Security Secretary to create a mandatory exit procedure for foreign visitors to the U.S.;
  • There is already a mandatory procedure. Senator Hatch now wants a complicated and outrageously expensive procedure. We already tried what he wants and the REPUBLICAN Congress stopped it. Why? it is technically and financially impossible at the present time. But, hey, why don't we just put an RFID chip in everyone when they come into the U.S. and we can track them everywhere they go?
  • Eliminate the Diversity Visa Program unless Congress signs off on changes to combat fraud and eliminate abuse in the program;
  • There is NO evidence of fraud and abuse in this program! The Department of State, which runs this program is enormously strict and hyper-vigilant in its implementation of this program every year. There are plenty of reasons to restrict or eliminate this program, but fraud and abuse is not one of them!
  • Require the Health and Human Services Secretary to submit an annual report to Congress outlining the total dollar amount of welfare benefits received by households of illegal aliens in every state and the District of Columbia;
  • Okay, good idea. Are you going to lobby for spending the money do conduct this study? Oh wait, there has already been such a study, in Arizona of all places. Guess what? Illegal immigrants were NOT receiving welfare benefits and cannot legally get them anywhere in the U.S. This is another non-issue created and fed by the anti-immigrationists to gin up anti-immigration sentiment.
  • Place limits on states’ ability to receive federal funds to provide Medicaid and Childrens' Health Insurance Program coverage to children and pregnant women who are not U.S. citizens;
  • Wait, so someone is a permanent resident, and you Senator Hatch want to deny pre-natal coverage and punish them? For what reason? You want unhealthy children born in the United States? Really? Perhaps you have gone over to the dark side. Who wrote this Bill for you?
  • Amend the criminal code to clarify that defendants who possess or use false or others’ identity in the commission of a felony are punishable for aggravated identity fraud, regardless of whether or not they know the victim;
  • This is in direct reaction to a Supreme Court decision. If you want to make this a separate deportable offense, just say so, and say it is unforgivable. You have done it for many other laws. Doing so, however, does not make it good public policy. Even without this change, anyone convicted of identity fraud is still going to be deported. The question is can they be forgiven or not. Mercy is something America has always been known for. Perhaps you have forgotten that.
  • Require the Internal Revenue Service (IRS) to notify social security holders within 60 days after “no-match” letter is sent to the employer– if the employer fails to contact the IRS and correct the conflicting information;
  • Right now there is no communication between the IRS and the immigration services. Why? Because it violates the Privacy Act. And, because the IRS wants the money and does not care where it comes from. It this a good public policy decision? Good question. What will it accomplish? Unclear other than to give the impression that it will end identity theft. Which it won't.
  • Require the Treasury Secretary, Federal Trade Commission Chairman and Social Security Commissioner to conduct a study on the most cost-effective ways to protect the credit of individuals, especially children;
  • Good idea. You funding it? Why not just ask the GAO to do this--like you do for other studies! Why do you need a law to request this study?
  • Stiffen penalties for drug offenses such as cultivating marijuana on federal land and using booby traps, poison and other hazardous substances to cultivate or manufacture illegal drugs on federal land;
  • Really? These are not already against the law?? How much time is too little for jail time? And, what does this have to do with "Legal" immigration. Wait, I have not seen ANY positive immigration reforms or changes here--the title of this bill clearly falls under The Deceptive Trade Practices Act!
  • Direct the National Drug Control Policy Director to formulate a Federal Lands Counterdrug Action Plan for preventing the illegal production, cultivation and manufacture of controlled substances on federal lands.
Good idea. Why have you not done this before?, Even more so, why do you need a LAW to do this. Write the Director a letter and ASK that they do it now!

What are the chances that this bill ever has a hearing or sees the light of day?? Zero.

The final question is: why did Senator Hatch write and present this bill? The answer is three words: Senator Robert Bennett.

Charles Kuck Speaks at the Utah Chamber of Commerce!

A wonderful morning at the Utah Chamber of Commerce!

Kris Kobach and the Anti-Immigrationists Loses Another One

In his unending quest to turn America into an anti-immigrant nation, preying on peoples' fears and turning neighbor against neighbor, Kris Kobach has lost another of his crusades. In Lozano v. Hazelton, the 3rd Circuit Court of Appeals has affirmed the decision of the District Court Judge and rejected Kobach's argument that states and localities have the ability to regulate immigration in any way, shape, or form.

While this is a significant victory for the constitution and for sane people everywhere, it is not the end of the story. The news media is parroting a press release put out by the Federation Against Immigration Reform ("FAIR") claiming this decision "obstructs local efforts to control immigration." Of course it does! Hallelujah! Do we really want every state and locality in America passing its own immigration laws? Really? Do we really need 50 different state laws and innumerable city and county laws all dealing with immigration and immigrants in a different way? Well, FAIR does, along with its loudly barking but apparently toothless watchdog, Kris Kobach. Let's hope that state and local politicians tire of spending taxpayer money defending themselves in federal court in lawsuits they cannot win.

This decision clearly establishes that the Federal Courts will continue to shot down legislation that infringes on the Federal Government's exclusive control of immigration related laws. Following the decision of the District Court in Arizona, which was another defeat for Kobach and his crusaders, the 3rd Circuit's decision also sends an indirect message to the politicians who would rather demagogue the immigration issue rather than demand that their federal legislators actually fix our broken immigration system. Perhaps now, we can move forward toward immigration reform? Don't hold your breath, there is surely more demagoguery on the way.

Illegal immigrant has the grades but not the papers  |

Illegal immigrant has the grades but not the papers  | A terrific article about our client Miriam Torres, and the awful situation she finds herself in because of the choices made by her parents, and the broken immigration system.

USCIS Knows What Its Problems Are. Will It Now Fix Them?

Recently, the USCIS conducted a survey of more than 5,000 “stakeholders” (folks who care about and participate in the U.S. immigration system in some way). These stakeholders were asked to identify the key areas of concern for them. The USCIS has now released its initial report from this survey, identifying the areas of concern most frequently raised by stakeholders. The report is enlightening.

This initial report lists the following areas of concern, in order, that USCIS will address:

  • National Customer Service Center
  • Nonimmigrant H-1B (specialty occupations)
  • Naturalization
  • Employment-Based Adjustment of Status
  • Family-Based Adjustment of Status
  • Employment-Based Immigrants Preference Categories 1, 2 (priority workers, professionals and holders of advanced degrees) and 3 (skilled workers and professionals)
  • Refugee and Asylum Adjustment of Status
  • Form I-601 (Application for Waiver of Ground of Inadmissibility)
  • General Humanitarian Programs
  • Employment Authorization and Travel Documents

The USCIS has committed to:

convene working groups to review each of the issue areas. Leaders from across USCIS will join analysts, adjudicators and customer service representatives in examining policy and instructional documents that guide our work. USCIS will follow the federal rulemaking process whenever appropriate, and once approved, new policies will be available electronically.

While it is all well and good to internally review and examine policies and procedures, isn’t that the source of the problems with these listed areas of concern? After all the biggest problem identified by stakeholders is the Customer Service it offers!! I challenge the USCIS to involve stakeholders in these working groups so that not only are real concerns voiced, but solutions can be discussed in an open forum, generating more and better ideas than have been coming out of USCIS since its formation. Making stakeholders and customers wait to comment on “”possible” internally generated changes until “potential” federal regulations are published (comments which are frequently ignored by USCIS in the rulemaking process) is more of the same old way of doing business.

Director Mayorkas should follow the promise President Obama made shortly after he entered office to make the internal decision making process more open and transparent. Enough of internal working groups. Let’s really fix these problems. Together.

Senator Schumer, You are Wrong!

Last Week Congress passed its first major piece of immigration legislation in several years. The Border Security Emergency Supplemental Appropriations Act of 2010 (H.R. 5875)

Besides the fact that the bill itself is a joke–passed without debate, study or analysis as to its effectiveness, there are two major problems–Funding of the $600 Million Dollars Bill, and the “Real” purpose of the bill.

First the “real” purpose of the bill–Schumer and other Democrats have barked loudly that the bill is intended to shut the mouths of border crazies who refuse to discuss any change to our nightmarish national immigration policies until America is safely tucked inside a sealed bubble, invulnerable from entry by anyway but the purest foreign national. Senator Sessions from the border state of Alabama, who can only be described as absolutely crazed on the issue of immigration, responded to this strategy:

Democratic Sen. Chuck Schumer of New York was hopeful that the bill would bring Republicans back to the bargaining table. But one key GOP Senator, Jeff Sessions of Alabama, threw cold water on those hopes, calling the bill “more like an effort to receive positive press” for Democrats rather than a genuine attempt to stop illegal immigration.

“Make no mistake: while this small measure can have some value, if it is not followed by strong, sustained action; it is yet another gesture without consequence,” Sessions, the ranking Republican on the Judiciary Committee, said in a statement issued Thursday.

“The ‘Masters of the Universe’ in Washington are always proposing new plans to deal with the massive illegality at the border,” said Sessions. Last week, Sessions and Arizona Sen. John McCain, another key Republican, said the $600 million bill was only the first step in toughening the border.

So much for Republicans now happily agreeing to Comprehensive Immigration Reform. Just in case Senator Schumer (and President Obama) did not get the message from Senator Sessions, let me make it perfectly clear: Republicans will NOT support any type of immigration reform that recognizes the reality we are currently in. Period. President Obama, Senator Schumer–If you cannot do it without Republicans, you are not going to do it. My suggestion is that you get the Democrats to fulfill the campaign promise of immigration reform, or kiss the Latino vote goodbye. Clearly, the Republicans do not care about their future as a party of inclusion, do the Democrats also not care?

Now, the Second BIG problem with this bill–It is NOT paid for! Senator Schumer said that this bill would funded on the backs of employers of foreign national employees–specifically those who have more than 50 employees, and who’s workforce is more than 50% made up of H-1B and/or L-1 workers. For those specific companies, the USCIS is now going to collect an ADDITIONAL $2,000 fee, over and above the H-1B filing fee of $2,230 and the L-1 filing fee of $820 these companies already pay to USCIS to file (but not necessarily approve) the application.

This full funding of this bill is unclear (like most bills that come out of Congress), but the funding is summarized as follows:

Rescinds from unobligated balances certain funds for: (1) U.S. Customs and Border Protection, border security fencing, infrastructure, and technology; (2) Transportation Security Administration (TSA), aviation security; (3) FEMA, administrative and regional operations; and (4) Department of Commerce, Bureau of the Census, periodic censuses and programs. Directs the Department of Defense (DOD) to pay in FY2010-FY2011 the full costs associated with deployment of the National Guard along the Southwest border.

So, while it is unclear how much Senator Schumer hoped to raise from his H-1B and L-1 visa stunt, perhaps a little math is in order. So far this fiscal year, the USCIS has received about 43,000 H-1B applications for new H-1B workers (of a total 85,000 that are available). That leaves 42,000 potential H-1B applicants to pay the $2,000 Schumer Fee. If every one of those cases paid the Schumer Fee, that would raise $8,000,000. That leaves only about $598,000,000 to be funded by the L-1 visa program and the other cost shifting noted above. There are not even 85,000 L-1 applications filed in an entire year by all applicants, let alone the specific applicants to which this law applies. Couple the numbers problem with the USCIS attack on the specific type of employer that Senator Schumer is targeted, and the resulting sharp decrease in usage of the H-1B and L-1 visa by those employers, and what becomes clear is that the Schumer fee cannot possibly raise more than a few million dollars. How pathetic.

So, once again, as citizens, we are left holding the debt for Congress’ effort to throw more money at the border, without a solution to our immigration crisis. Senator Schumer, you are wrong. This bill is not about border enforcement, nor is it about getting Republicans to play ball on immigration reform. This bill is about money; money to special interests who will benefit from it’s spending. But this new law is not about fixing a broken immigration system. You probably don’t want my advice, but here it is anyway. The next time you move forward on immigration legislation Senator Schumer, I suggest aiming a little higher in your aspirations and fix the system, don’t just repair a broken pipe.

New Pro Se program coming to Charlotte Immigration Court

The Charlotte immigration court plans to implement an orientation program, run by volunteer immigration attorneys, for everyone who is in immigration court for the first time and who does not already have an attorney. This program will mirror the volunteer attorney programs in the San Francisco and San Antonio immigration courts.

Each person will have an opportunity to speak with a volunteer immigration attorney for about ten minutes. The attorney will do a quick analysis of each case and provide each person with a list of documents to bring to an immigration attorney. They will also be provided with a list of immigration attorneys who have meet certain competency requirements. The program is scheduled to start sometime in October of 2010.

GOP candidate for Governor announces Arizona-style immigration bill for Florida

According to an report, Florida’s Attorney General Bill McCollum, and a GOP gubernatorial candidate, yesterday announced a bill to be introduced in the Florida Legislature that will rival Arizona’s embattled immigration law.

This requirement of “reasonable suspicion” – legal buzz words that mean something less than “probable cause”, sets this bill apart from the Arizona law, according to McCollum. The bill also allows judges to consider a defendant’s immigration status when setting bond amounts and in allowing prosecutors to bring higher-level charges against illegal immigrants and stiffer sentences at conviction.

Also different than the Arizona law, the AG’s bill would not allow citizens to sue police agencies for failing to enforce the law – this would instead be left to the Attorney General’s office. Employing illegal immigrants would also become a violation of state criminal law, and the bill would require businesses to use the federal E-Verify program before hiring anyone. The Florida bill specifically prohibits racial profiling.

A federal judge postponed the implementation of various portions of the Arizona law in July, including a section that required officers to check an individual’s immigration status while enforcing other laws. The Department of Justice brought suit challenging the law on supremacy grounds – that the federal government has the responsibility of creating and administering immigration laws, and that the states cannot implement such laws.

McCollum’s challenger, Rick Scott, accused the Attorney General of “flip-flopping,” according to Scott’s communications director. She attributed the proposal to McCollum’s sliding poll numbers.

Immigrant-advocacy groups denounced the bill immediately. Cheryl Little, the Executive Director of the Florida Immigrant Advocacy Center in Miami, released a statement criticizing the bill, saying that it would add chaos and confusion to an already broken system.

The LDS Church, Russell Pearce, and Compassion

How did Russell Pearce become the face of the LDS Church to Hispanics? For those of you who do not know him, Russell Pearce is a member of the Church of Jesus Christ of Latter Day Saints (the Mormons) and the State Legislator in Arizona (formerly regarded as a extreme but who now has become “mainstream” in Arizona politics), who is responsible for working with Kris Kobach and the folks at FAIR to develop extreme forms of anti-immigrant legislation, including SB 1070. How did a man who is intolerant toward immigrants become the face of the LDS Church in Arizona?
To preface that answer, you have to understand how contrary his stand is to the work the Church is doing with Hispanic. The LDS Church actively engages Hispanic communities in Arizona and throughout the United States through its Spanish speaking congregations and its missionaries. Many Church member give hundreds of thousands of hours of volunteer service to help these congregations. The Church’s mission and vision is one of bringing the Gospel of Jesus Christ to everyone, regardless of their immigration status.
Now, Russell Pearce wants the Church the change its “policy” and to now ask all Hispanics their immigration status BEFORE they attend Church or listen to the missionaries. Basically, he is telling the Church not carry out what the Church considers its core mission. Let’s all agree that Russell Pearce’s vision of the Church’s outreach will simply not happen.
The tragic part of Russell Pearce becoming the public face of the Mormon Church to Hispanics is that it is so contrary to what the Church teaches about forgiveness, compassion, and faith. The LDS Church spent the better part of 30 years fighting the Federal government on a law the Church considered not only unconstitutional, but unjust. Yet, Russell Pearce apparently believes that ALL laws, regardless of their original purpose, their relevancy today, or their effectiveness must be enforced to their fullest extent. He sounds so much like Javert from Les Miserables, that it is scary.
In an interview with Univision this week, Russell Pearce expressed his inner soul:
PEARCE: We [Mormons] believe in the rule of law, All I’m gonna say our church teaches the rule of law, absolutely.
SALINAS: It also teaches compassion, no?
PEARCE: Which compassion, what about the child molesters, should we have compassion for them too?
SALINAS: That’s what the church says, that we should not turn…
PEARCE: Hang on, hang on. We should have compassion with child molesters, burglars, rapists, right? They still go to jail. The laws are going to be enforced. You break the law, there are consequences. Don’t have compassion for people who break the law. There are consequences. We are a nation of laws.[...]
SALINAS: Should the Mormon church be criminalized or sanctioned for helping undocumented immigrants?
PEARCE: If they do it deliberately, treat them as you would treat any other person. I do not support law breakers.
SALINAS: Even if they are Mormons?
PEARCE: I don’t care what church they’re part of. Illegal is illegal. The law is the law.
So, you members of the LDS Church who serve in Hispanics congregations where someone might be undocumented, Russell Pearce wants you arrested. He wants you punished for not obeying every law on the books. Does this also sound familiar to you? As Inspector Javert said:
“Right or wrong, the law is the law and it must be obeyed to the letter.”

In many ways I pity Russell Pearce. His demand for justice without mercy speaks volumes about where he is coming from. I don’t know Russell Pearce or what demons drive him to this position, but I do know this, Russell Pearce does NOT speak for the LDS Church. He does not speak for the hundreds of thousands of Mormons who regularly give compassionate and caring service to Hispanics both within and outside our congregations, regardless of their immigration status. And, he does not speak for me.
In a footnote to this blog, I also note that the most stridently anti-immigrant parts of the law drafted and passed through the efforts of Mr. Pearce were struck down today by Federal District Court Judge Bolton. I had to say I told you so, but, I told you so. Chalk this one up as a victory for the Constitution.

SB 1070 is Dead–Where to do we go from here?

In her decision on the constitutionality of Arizona’s SB 1070, Judge Bolton was quite specific as to what provisions were unconstitutional:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 –A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070–A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070– A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work

Section 6 of S.B. 1070–A.R.S. § 13-3883(A)(5): authorizing the warrant-less arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

Her rationale was simple–These specific provisions unconstitutionally infringe on the Federal Governments authority in the area of Immigration. She has a long line of authority supporting her reasoning, dating back to Supreme Court cases from 1941. There is not going to be a successful appeal. Period. From a rational point of view, we do not want or need, as a country, 50 different states passing 50 different versions of immigration law. It is not good for commerce, it is not good for the country, and it certainly is not good for immigrants.

Rather than wasting time (and we are wasting time) fighting a law that the writers KNEW would be declared unconstitutional (don’t doubt that Kris Kobach knew he would lose this fight), why don’t opponents of “illegal immigration” spend time working with members of Congress to pass legislation that changes our immigration laws to reflect the economics of the 21st Century, the goals we have as a country for new immigrants, the demands employers have for skilled and unskilled labor, due process guarantees, and the reunification of families? Why, because the folks who virulently oppose “illegal immigration” are not interested in fixing the system to decrease illegal immigration. They are only interested in eliminating immigrants.

Twenty years of fighting illegal immigration by ever tougher enforcement and attrition simply has not worked. Billions of dollars have been spent, and yet folks still cross the border illegally and overstay their visas. The size of the border patrol has quintupled and we have deported record numbers of immigrants, and yet there is no significant decrease in the overall numbers of undocumented immigrants (absent economic reasons). As Einstein said: Doing the same thing over and over again and expecting a different result is the very definition of Insanity. Do we really want an insane immigration policy? I hope so, because that is exactly what we have right now, and we desperately need to fix it.

How about instead of appealing a well reasoned and strongly supported decision, Governor Brewer (and her fellow Governors) sits down with her members of Congress and encourages them to pass a Comprehensive Immigration Reform package that discourages future illegal immigration by making available avenues for legal immigration that meet the economic and societal needs of a modern America? This same legislation can shrink the size of the current undocumented population by providing incentives to obtain legal status. Magically, her concerns are addressed, AND the folks at DHS can focus on those folks who mean to do us harm, rather stopping dishwashers and landscapers.