Immigration Debated, Not Much Said

President Obama and Governor Romney addressed immigration in a debate setting for the first time Tuesday night. The transcript of their remarks can be found at ABC News Univision , and further coverage and commentary can be found from the New York Times, Washington Post, ImmigrationProf Blog, Colorlines, Greg Siskind, and the Huffington Post.

The National Journal reports that of all the topics hitting twitter during the debate immigration had the largest response. This is not surprising given the lack of attention the issue has gotten in the current election cycle. However, I hardly think this is surprising due to the rather sad state of the U.S. economy.

At any rate, I didn’t find anything either candidate said that surprising or compelling. Both began with the oft used “we are a nation of immigrants” and touted their desire to streamline the system, secure the border, and fix illegal immigration.

I would be impressed if either candidate presented a vision for an immigration system that is compatible with today’s global reality.

Missing from the immigration conversation is that the US is bleeding entrepreneurs due to the byzantine labyrinthine immigration system. Missing was attention paid to legal immigrants who have spent thousands of dollars on filing fees, legal fees and played the immigration waiting game for years in order to come here legally. Missing was acknowledgement that Americans do not have a desire to live in a society where we are constantly asked for our “papers.” Anyone who thinks this burden would not fall disproportionately on Latinos and other minority groups are kidding themselves – perpetual paper showing is not a hallmark of a free society. The headaches this mentality causes is on display in Georgia where residents in need of professional licenses are experiencing massive delays in renewing and obtaining new licenses due to new proof of legal presence in the U.S. requirements.

Victor Johnson at NAFSA sums it up well:

The truth is, today’s world of global mobility bears little resemblance to where we were generations ago when the basic structure of U.S. immigration law was created. We need a new, sustainable national policy now. NAFSA supports comprehensive immigration reform that is based on facts, fairness, and a shared future. True comprehensive reform must address the three pillars of border security and enforcement, broad visa reform, and resolution of undocumented persons.

I hope whoever is elected in November is able to move beyond talking points and craft a practical and just solution.

Romney on DREAMers & A Tale of Three Immigrants

By: Danielle E. Huntley, Esq.  

As I said in my last post on discretion and DREAMers, our current immigration system is unstable and flawed because it is wholly dependent on the whims of whoever is in charge of the executive branch. Mitt Romney’s latest statements that, if elected, he would end the Deferred Action for Childhood Arrivals (DACA) program illustrates this point perfectly.

Romney stated first in the Denver Post:

"The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I'm not going to take something that they've purchased," Romney said. "Before those visas have expired we will have the full immigration reform plan that I've proposed."

His campaign then clarified his statements following a request by the Boston Globe:

Responding to a Globe request to clarify Romney’s statement to the Denver Post, Romney’s campaign said he would honor deportation exemptions issued by the Obama administration before his inauguration but would not grant new ones after taking office.

The DACA program rests not in a statutory or even a regulatory framework it exists with the stroke of an executive pen and can die by the same. Coverage of Romney’s remarks can be found here, here, here and here.

The discretion problem is further illustrated by three different illegal immigrants in the news: Jose Antonio Vargas, Praq Rado and Qing Xiong Liu. Mr. Vargas, a Pulitzer Prize-winning journalist turned undocumented immigrant activist, was arrested in Minnesota for driving without a valid license.  ICE declined to detain him or initiate proceedings against him. Mr. Rado was arrested by ICE on a train en route to the East Hampton Film Festival for a screening of a short film about his experience of coming to America. He was apparently ordered removed in 2007. Mr. Liu, a Brooklyn father of two small children, was on a bus to Indianapolis in search of work when his ID was checked by ICE who had pulled over the bus Mr. Liu was riding in for speeding. ICE detained him in an Ohio facility because he had not complied with a prior order of removal. Mr. Liu was recently released from custody and has been reunited with his family in Brooklyn.

Assuming that all three of these men have no criminal records or other mitigating factors against them, their disparate treatment is a result of which particular bureaucrat reviews their case. It creates a system that does not uphold the rule of law and is unfair to the immigrants, legal and otherwise, who interact with it.

Please Proceed to the Back of the Line, Your Estimated Wait Time is 23 Years

By: Danielle Huntley, Esq.  

I have heard many times from folks on the left and the right that foreigners who wish to immigrate to the U.S. should ideally wait in line for a visa or a green card. I have also heard that illegal aliens should go to the back of the line if they are granted some type of amnesty. But, when pressed, very few can articulate what exactly the line is and who waits in it. Here I am hoping to help, by explaining the mythical line in layman’s terms.

First, some initial definitions are important. All foreigners who come to the U.S. on a visa are divided into one of two categories: immigrants and non-immigrants. An immigrant holds the immigrant visa or, as it is commonly known, the green card. They are legal permanent residents of the U.S. Non-immigrants hold non-immigrant temporary visas like tourist visas, work visas and student visas.

With that out of the way, back to my original question –what exactly is the line and who waits in it?

The line refers to foreigners waiting for the green card. While there are restrictions on certain types of non-immigrant visas they are better understood as quotas, rather than a line.

An immigrant’s place in line for a green card is determined by the date an immigrant petition is filed on their behalf by either a family member, an employer or, in limited instances, for themselves.  The date the petition is filed gives the immigrant their priority date which controls their place in the line.

The line is controlled by the Visa Bulletin put out monthly by the State Department.  Here’s where one of the biggest misconceptions about the line falls apart– there is not a singular line. There are at least 65 different lines for different categories of immigrants.

Each category of immigrant listed in the Visa Bulletin has a cutoff date, which means that USCIS is issuing green cards for immigrant petitions filed in that category before that date. If the Visa Bulletin’s cutoff date in a category is January 1, 2005 then all immigrants in that category with a priority date before January 1, 2005 can be issued green cards.

These lines move at vastly different paces. For some immigrants their time in line lasts as long as it takes USCIS to process the petition, for others the wait can be decades long.

Who has the longest wait for family based petitions? According to the October 2012 Visa Bulletin immigrants in these four categories have the longest wait times:

1. Siblings of U.S. Citizens from the Philippines have the longest wait, a whopping 23 years long.  Their cutoff date is February 8, 1989. (I was in preschool when these petitions were filed).
2. Married children of U.S. Citizens from the Philippines come in at second place with just more than a 20 year wait. Their cutoff date is July 22, 1992.
3. Unmarried children of Permanent Residents who are 21 years of age or older from Mexico come in at third place with just under a 20 year wait. Their cutoff date is October 1, 1992.
4. Married Children of U.S. Citizens from Mexico come in at fourth place with a 19 year wait. Their cutoff date is February 8, 1993.

The wait times calculated above are just estimates. The line does not necessarily advance a month with each monthly bulletin. This highlights how unpredictable and complicated our system is. If comprehensive immigration reform does come to fruition and some type of amnesty is granted, should illegal aliens be able to jump ahead of individuals who have been waiting to immigrate legally to the U.S. for years? If they are to go to the back of the line, which line should they go to the back of? If the wait is decades long is that workable?

In the coming weeks I plan on posting more details on how the Visa Bulletin works and how immigrants are categorized.

DREAM Act-lite and the Rule of Law

By: Danielle Huntley, Esq.  

The coverage of the Obama administration’s policy change towards so-called DREAMers, illegal aliens who were brought here as children, has garnered significant media coverage. Coverage here, here and here.

In my view, what has been missing from the discussion is how a change like this is emblematic of an inherent problem in our system. It continues a trend of the government creating immigration “law” through executive orders, policy memorandums and updates to various operational manuals; none of which are subject to meaningful legislative review or the regulation making process.

What are the limits of presidential power and prosecutorial discretion? On the one hand this program could be stopped at any time – it is wholly within the whim of the executive branch to maintain it. It creates no affirmative rights, only a process to ask the government to ask for its discretion. Conversely, if a DREAMer is under a final order of removal and they benefit from this program, how is that action different from a warden releasing a prisoner from prison after she has been found guilty by a court and sentenced?

This policy change is beneficial for this subset of illegal aliens, but it stands in stark contrast to the many policy changes that have created burdens where none is legislatively authorized.

Objections to the National ID Card Asked and Answered

By: Danielle E. Huntley, Esq.  

There are two primary objections raised when discussion of a national biometric ID card is raised. The first is that it will drive the undocumented further underground, and the second is that it is too severe a privacy invasion.

The first objection, that a national ID card will drive the undocumented further underground is valid to a point, but I do not think it is anymore valid than claiming that driver’s licenses drive non-licensed drivers further underground. To drive in the United States you need a license, and it is relatively simple for an officer to check the validity of that license. To work in the United States we need a similar way for employers to efficiently check the identity of an employee and whether they are authorized to work in the United States. Without a simple, efficient and accurate system in place to check the work eligibility of prospective employees, a void is created that enables unscrupulous employers to exploit the undocumented, and incentivizes those looking for work to come to the United States and be at the mercy of those same employers.

The second objection is weightier because the Federal Government would have unique biometric data from U.S. Citizens (NB - USCIS already has biometric data from legal permanent residents). I think the best way to overcome this legitimate fear, is to think of all of the data that the Federal Government has on each of us right now, and that we have no way to restrict or control its dissemination in a secure way. Biometrics, if done right, could provide that security. The goal of a biometric national ID card would not be the capture of an individual’s entire life story or entire biometric profile, but just enough information to prove that you are who you say you are.

Additionally, the entity that holds the national ID card’s biometric data would need to treat that data like the IRS treats tax and financial information in its custody. For example, let’s say that the FBI is investigating an individual for suspected money laundering. The FBI cannot simply access IRS records and examine that individual’s tax returns and other financial disclosures. By statute, the FBI would need a court order to compel the IRS to disclose the financial information it has in its custody. Similar, strong non-disclosure laws would be important to protect biometric data collected for a national ID card.

Next up employer sanctions…