According to the New York Times, President Obama conceded Wednesday that getting an immigration bill passed this year was a bit of an uphill battle, but said that “we need to start a process,” whatever that means. The President understands that Congress can only do so much fighting every year – and after health care and a soon-to-be debated climate change bill, Congress’s yearly allotment of fight might just be used up.
I think that the most interesting part of the article is a quote from Bill Clinton at the end, where he stated, “I don’t think there’s any alternative but for us to increase immigration” in the context of promoting economic growth and fixing the long-term wellbeing of Medicare and Social Security. To me, that’s a fascinating public policy proposal – Medicare and Social Security are bound to go bust at some point in the next few decades, so how do we prevent that from happening? There’s always been the idea of private accounts, investing Social Security funds, etc., but that seemed politically untenable when President Bush proposed something along those lines a few years back. If we don’t want to play with funds currently available, the only alternative is to have more people pay into the system. How do we make that happen? Immigration! The more legal immigrants we bring in each year, the more funding there is for Medicare and Social Security and the more tax revenue the government receives (and yes, there is a cost associated with increased immigration as well, but almost every study has shown that immigration produces a net profit for the economy). Keep in mind that Congress sets annual immigration levels at an arbitrary number that can always be changed as circumstances dictate. The problem, though, is that circumstances never seem to dictate that anything be changed – Congress always seems to find a reason to maintain the status quo, even when it’s clear that letting more people immigrate to the United States every year would be in the country’s best interests. I think that Congress’ position on this issue is a reflection of a mistaken belief among large segments of the American public that increased immigration will somehow erode our national character or turn parts of the U.S. into de-facto Mexican territory. C’mon people - we’ve absorbed generations of immigrants over the past two centuries, and have always been able to emerge more ”American” than ever. There’s no reason that can’t happen again in the 21st century.
This is my LAST post about the Arizona immigration law until something newsworthy happens, I promise. I just wanted to share this interesting article from CNN”s website showing the ripple effects SB 1070 is having on Arizona’s economy, especially with respect to Latino-owned businesses. Aside from being unconstitutional, offensive, and just plain bad public policy, this law is strikingly anti-small business as well, and is already having a noticeable effect on business activity in the state’s Latino communities. Why? Many Latino consumers are only leaving their homes when absolutely necessary now, reducing the time they spend shopping and their levels of discretionary spending. Latinos are a major part of Arizona’s economy, and this reduced economic activity is almost certain to have a deliterious effect on Arizona’s well-being, especially given the state’s current budget deficit of more than three billion dollars.
I wanted to share this great opinion piece by Linda Greenhouse in the New York Times about Arizona’s anti-illegal immigration law. I had no idea that the law expanded the definition “trespassing” to include being “present on any public or private land in this state” without authorization to be in the United States. That means that anyone in Arizona can be stopped at any time merely for looking illegal. You can be sitting on a park bench, minding your own business, thinking about the weather and your plans for the weekend, and a police officer can stop you and ask you for your immigration documents. Let’s say you were born in Phoenix – do you have your birth certificate with you? If not, you could be hauled off to jail and possibly put in removal proceedings, unless a member of your family is kind enough to bring your birth certificate down to the police station for you. What if your family lives out of state? Would you qualify for bail? If you’re indigent, would you even be able to make bail?
Obviously, this idiotic piece of legislation is going to create all sorts of problems for all sorts of people, but mainly for people that happen to be brown and can’t speak English very well. As any immigration attorney worth their Kurzban knows, ethnicity, language ability, and the way that someone dresses have absolutely no relation to immigration status. An aspiring actor from Canada can be just as illegal as a farmer from Mexico – yet would an Arizona police officer ever think to ask the Canadian for immigration documents? Does the 18-year-old that came to the United States illegally at the age of six months from El Salvador look, sounds, or act differently than the 18-year-old Salvadoran-American that was born in the United States? Of course not! Yet which of these 18-year-olds will be asked by Arizona law enforcement about their immigration status? They either both will be asked or neither of them will be asked, and that is the key problem with this legislation – since there is no meaningful difference between these two hypothetical people, the only clue that one might be illegal is his ethnic background, in which case a U.S. citizen has the same chance of being rounded up and jailed as his undocumented counterpart. In my opinion, there is no way that racial profiling can be avoided with a law like this, and innocent American citizens will almost certainly be questioned and even arrested on the vaguest of evidence. This law was non-functional from the start, and should be confined to the ash heap of history – to paraphrase President Reagan – as soon as humanly possible.
I think and write so often about immigration issues involving foreign nationals that I was taken aback for a moment by this article in the New York Times about U.S. Citizens living abroad that are renouncing their citizenship in record numbers. Ok, so “record numbers” in this context is a grand total of 743 for 2009, but that’s more than a three-fold increase from the 235 renunciations that occured in 2008. The main reasons behind this trend seems to be the uniquely American concept of double taxation – taxing income that U.S. citizens earn abroad above $91,400 - as well as rules from the USA Patriot Act that require persons that hold American bank accounts to have an address in the United States, making it nearly impossible for many expats to maintain an account in this country. The decision to renounce one’s citizenship must be extremely difficult, since nationality and identity are so closely linked, but practical considerations usually trump ideological ones in the end, and in this case, the reality is that Americans abroad pay much more in taxes than they should, and don’t see much benefit in remaining an American on paper if they have no plans of living in the United States again.
The only thing I’d advise someone considering such a couse of action is to be as sure as possible that ”home” for you is now abroad, and not in the U.S. A renunication is not reversible, and is a drastic step to take if your future is anything but absolutely certain.
Arizona Governor Jan Brewer signed an anti-illegal immigration bill into law today, turning Arizona into a state openly hostile to anyone that police has “reasonable suspicion” to be in the country illegally. I had previously written about how this bill was more a message to Washington to start enforcing immigration laws than anything else, but I’m still shocked that any United States governor would sign something that is so blatantly unconstitutional and poorly-conceived. In fact, the mere act of the state legislature passing this bill was message enough; there was no reason for Governor Brewer to actually soil her name and the names of every Arizonan of conscious by signing this abomination into law as well. This is indeed a sad day for the United States, for the Constitution, and for the concept of equal treatment under the law for all people, irrespective of national origin.
For further details about this law, check out my earlier post.
An interesting precedent decision came down from the BIA yesterday. In Matter of Koljenovic, 25 I & N Dec. 219 (BIA 2010), the Board held that an “adjustment” is an admission for purposes of seeking a waiver under section 212(h) of the Immigration and Nationality Act. The Respondent in this case, Safet Koljenovic, entered the United States illegally, adjusted his status to permanent resident in 2001, was convicted of second-degree organized fraud in 2004, and was put into removal proceedings in 2006, after returning from a trip abroad. Mr. Koljenovic attempted to apply for a section 212(h) waiver in Immigration Court – which would have allowed him to re-adjust his status to that of a lawful permanent resident – but the Immigration Judge denied his request, stating that he lacked the necessary seven years of continuous lawful residence after having been admitted to the U.S.
Matter of Koljenovic makes the definition of “admission” consistent with that under the provisions for Cancellation of Removal for Lawful Permanent Residents, creating a sort of harmony between the various forms of relief from removal available to permanent residents convicted of different crimes. Many crimes render permanent residents and other aliens completely ineligible for any form of relief, while others are completely harmless; still other crimes allow lawful permanent residents to apply for a waiver of inadmissibility or for cancellation of removal, both of which would essentially return them to the position they were in before proceedings were initiated. These forms of relief all have specific eligibility requirements per statute, and Immigration Judges won’t even consider the merits of a particular case unless these preliminary requirements have been met. In this case, Mr. Koljenovic lacked the required seven years of continuous resident after having been “admitted,” and did not qualify for the only form of relief that would have helped him – a section 212(h) waiver. Interestingly, this seven years is measured from the date that proceedings were initiated rather than from the date that the crime was committed, in contrast to Cancellation of Removal. Matter of Koljenovic does us all a favor (well, all of us except Mr. Koljenovic) by clarifying the requirements for 212(h) eligibility and demonstrating that, although these waivers are a versatile tool for the immigration attorney, they cannot and will not apply to every fact pattern.
Constantine Kallas, a former Trial Attorney with ICE in Los Angeles, was found guilty of accepting bribes from undocumented immigrants and filing phony applications for employment authorization and other immigration benefits after a three-week jury trial in the U.S. District Court in Los Angeles. Kallas now faces up to 256 years in prison on more than 36 counts of conspiracy, accepting bribes, tax evasion, and various other fraud charges. An article today in the L.A. Daily Journal states that “Kallas posed as an immigration judge or other high-level official to obtain bribes as high as $20,000. By the time of his arrest in 2008, Kallas’s bank accounts showed he had collected nearly $1 million beyond his salary over an eight-year period.” The article also stated that L.A. Immigration Judges Mimi Tsankov and Tara Naselow-Nahas testified for the prosecution, recounting how Mr. Kallas asked that a particular case be dismissed because the Respondent was “cooperating with the government.” The only problem: Mr. Kallas never revealed that the Respondent was his housekeeper’s daughter, and Judge Naselow, at the time Mr. Kallas’ supervisor, never authorized a dismissal. Oh, and Mr. Kallas’ housekeeper had also paid him $7,000.00 to get the case kicked out of court.
I hope that this case serves as a warning to all those immigration practitioners out there – on either side of the aisle - that are considering doing something fraudulent. Simply put, DON’T DO IT. You will be caught, the Daily Journal will write an article about you, and you’ll be an embarrassment to your family and friends. You’ll also have defrauded your government and put the cases of every other immigrant with whom you’ve dealt in question. Is that really worth a few extra hundred thousand dollars? These are tough times, but the answer still has to be a resounding NO.
Aside from severely screwing up international air travel, Iceland’s Eyjafjallajokull volcano has also caused a serious immigration conundrum for countless foreign nationals stuck in the United States. After all, if someone’s authorized stay ended on April 15th, but that person’s flight was cancelled and he can’t return home until after the 15th, he’d be unlawfully present in the U.S. and could potentially have problems re-entering the country. Not to worry, though – U.S. Customs and Border Protection and USCIS have announced measures that foreign nationals can take to avoid any immigration problems due to the volcano. Travelers that entered on the Visa Waiver Program (VWP) can go to CBP’s offices at the airport (I know that this is the case in Los Angeles, at least), and seek “satisfactory departure.” Foreign nationals that entered the U.S. on a visa have to go through USCIS to extend their authorized period of admission, and should ideally do so at least 45 days prior to the expiration of their stay. Interested travelers can contact CBP or USCIS directly for more information. The bottom line is that, with the right planning, this volcano need not spew lava on anyone’s ability to re-enter the country if they’re stuck in the U.S. through no fault of their own.
Filed Under (Miscellaneous) by Joe on 15-04-2010
I’m going out of town tomorrow, but will be back at my computer writing more fun immigration articles bright and early Tuesday morning. See you then!
Lawmakers in Arizona frustrated with the DHS’s inability to police its border with Mexico passed a draconian anti-illegal immigration law this past Tuesday. Among its many provisions, Arizona police officers would now be able to question anyone about immigration status in the course of “any lawful contact made by a law enforcement official or agency” if “reasonable suspicion exists that the person is an alien unlawfully present in the United States.” State and local law enforcement would also be able to hold suspected undocumented aliens pending transfer to federal custody, transfer undocumented aliens to federal custody on their own initiative, and arrest, based solely on probable cause and without a warrant, anyone that has committed a public offense that renders them removable from the United States.
Are Arizona lawmakers really this naive? I’m sure that they’re aware of a thing called the Supremacy Clause in the U.S. Constitution, which says that the federal government has sole jurisdiction over the enforcement of federal law. I’ll translate from legalese: any state law that attempts to enforce federal immigration law is unconstitutional, and will be overturned on review. Alas, I’m fairly positive that Arizona lawmakers are not all that naive, rather just pissed off that the federal government is not doing its job and securing the state’s border with Mexico. I see passage of this law – and an apparently almost certain signature by Republical Governer Jan Brewer - as more of a message to Washington to get its act together and do a better job of enforcing immigration laws. Yet, although I can accept this law’s symbolic value, the fact remains that it is extremely misguided, will sow fear in immigrant communities, and will ultimately impede the police from fighting crime (see my post earlier this week on ICE’s 287(g) program). Arizona couldn’t have done more to create the feeling of a police state in its own backyard if it tried, and the loss of trust this law will engender among immigrants – legal or not – is hardly worth any perceived symbolic value it might have in Washington. The lawmakers of Arizona would be well advised to lobby DHS and President Obama to do their jobs, and not pass legislation that will almost certainly be remembered with embarrassment and disgust.
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