Finding A Way To Yes

Originally published on the AILA Leadership Blog

Senator Chuck Grassley (R-Iowa) is not happy.

He wasn’t always that way.  In fact, if you look at his website you’ll see that not long ago he was smiling at his constituents back in Iowa.

Why is he so mad?  Well, I think it started last summer when he got his hands on an unsigned draft USCIS memorandum which showed someone in the agency had the audacity to think through ways in which USCIS could apply the dysfunctional immigration law in a functional way.  The Senator wasn’t impressed that the government was actually thinking creatively.  All he saw was “backdoor amnesty.”
Now it seems he is upset because some agency insiders told him they were being pressured by the leaders of the United States Citizenship and Immigration Services into granting too many visa petitions which risks letting fraudsters and other ne’er-do-wells into the country.  That has Grassley so livid he issued a press release and wrote a letter to Janet Napolitano the Secretary of Homeland Security demanding an immediate investigation of “USCIS visa approval policies” by the Office of Inspector General.

Senator Chuck Grassley today asked the Secretary of Homeland Security and the Inspector General who oversees the U.S. Department of Homeland Security to address evidence from statements made by immigration officers that senior U.S. Citizenship and Immigration Services leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible.

Grassley claims the information emanates from agency “whistleblowers” who are upset about the goings on at the California Service Center, which specializes in temporary professional visas, including those for scientific researchers, physicians, engineers, teachers, artists and international executives and managers.

Grassley first raised concerns over U.S. Citizenship and Immigration Services visa policy after whistleblower accusations that supervisors directed staff at the California Service Center to “find a way” to approve visa applications and expressed a desire to “instruct generosity” when processing immigration benefits.  Since then, additional agency staff has come forward with allegations of retaliation and pressure asserted by leadership.

This doesn’t sound good.  But can Grassley be sure it’s true?

The problem, as I see it, is that Grassley has only heard from a small group of insiders.  If Grassley really wants to get a picture of USCIS visa approval policies he should file a couple of visa petitions with USCIS himself and see what happens.  I imagine Grassley could start out with a petition for a highly specialized foreign engineer whose rare skills are needed for the success of a critical U.S. infrastructure project.  A couple of weeks after he files the petition with the USCIS Grassley will undoubtedly receive a ten-page Request for Evidence from the agency threatening to deny the petition if he doesn’t prove “engineering” is a profession, provide evidence of the company’s ability to pay prevailing wages, send a list of contracts and invoices for the past year, provide a schedule of proposed worksites and supervisors, offer a breakdown of the engineer’s job duties, including the percentage of time devoted to each specific duty, and on and on and on.  At that point Grassley will see for himself that despite what the USCIS “whistleblowers” might be whispering in his ear, visa applicants usually have to jump through hoop after hoop to “find a way” to the USCIS’ so-called “generosity.”

Next, Grassley should file a visa extension request for a foreign company that opened a U.S. branch last year and, after USCIS approval, transferred a key executive to oversee the U.S. operation.  He should be sure to pick a company that has shown a healthy profit in its first year in America, created jobs for U.S. workers, and successfully met the goals of its U.S. business plan.  Grassley will be stunned when USCIS denies the visa petition—despite the immediate job loss to U.S. workers—based on grounds that don’t exist in the law.

In short, I suspect that if Grassley’s petitions landed on the desks of the very same USCIS “whistleblowers” that are fueling his anger, he would quickly see how the “generosity” he decries in his letter to Napolitano is in fact sorely lacking within the USCIS benefits bureaucracy.

The truth, if Grassley is interested, is that a “culture of no” continues to poison too many USCIS adjudications.  Unfortunately, what Grassley doesn’t seem to fathom is that a USCIS culture of “finding a way” to “yes” is another way of saying “say yes if the applicant has shown he or she is eligible by a ’preponderance of the evidence’.”  That means that applicants are required to prove they are deserving of an immigration benefit, such as a visa or employment authorization, but the law says that if it is more likely than not that a benefit is deserved, it should be granted. Unfortunately, in reality, deserving immigrants are turned away from our shores every day as the result of improper decision-making by USCIS “insiders.”

But Grassley may be right about one thing.  It is high time for an OIG investigation of USCIS decision-making.  In fact he’s spot on.  A full investigation would likely reveal an abandonment of the rule of law in favor of entrenched biases, and a propensity to apply the fraud label to every typographical error and disagreement of perspective.

If Grassley is concerned about helping Iowa and the rest of the nation jumpstart this jobless recovery he shouldn’t defend chronic bureaucratic opposition to meaningful agency reform.  To the contrary, Grassley should enthusiastically encourage all government leaders who have the courage to work internally within their agencies and externally with stakeholders to promote transparency, openness, and meaningful dialogue.  America’s leaders are obligated to call for change and to prevent researchers, entrepreneurs, innovators and academics from being further stymied by those who look for a way to get to “no.”

October in Northern Ohio

Amnesty for Lou Dobbs?

How dysfunctional is the US immigration system?  It is so dysfunctional that even Lou Dobbs, a man who has built his brand spewing hate speech at immigrants, can’t even follow it. Read the AILA Leadership Blog

Counting the Silverware

Originally published on the AILA Leadership Blog

Nobody likes to pay for legal advice.

But it’s a double whammy when you end up paying for really bad legal advice.  Just ask the good citizens of Hazelton, Pennsylvania whose pockets have been emptied to the tune of $2,400,000 in legal bills run up by Kris Kobach, a fringe anti-immigrant restrictionist and candidate for Kansas Secretary of State.

Kobach proudly touts his role in drafting the poorly-written 2006 Hazelton statute, which thrusts on landlords and businesses the responsibility for figuring out who is and isn't lawfully present in the U.S. before renting or providing services to an individual.  The law was quickly thrown out by a federal judge because it violated the Constitution.  Just last week, the 3rd Circuit Court of Appeals agreed stating,

It is ... not our job to sit in judgment of whether state and local frustration about federal immigration policy is warranted. We are, however, required to intervene when states and localities directly undermine the federal objectives embodied in statutes enacted by Congress.

Now the taxpayers of Hazelton are left with Kobach’s astronomical legal bill; and he is pining away for still more litigation claiming, "It's going to be difficult for [the 3rd Circuit Court of Appeals decision] to stand. The court really had to stretch to find a way to agree with the ACLU."   Can you hear the “ch’ching” of Kobach’s legal fee cash register?  How many more small American communities will be duped by Kobach into supporting his hate filled anti-immigrant crusade?

And Hazelton is not alone.  Sharing the dubious honor of owing Kobach a lot of money are Farmers Branch, Texas ($4,000,000), Valley Park, Missouri ($270,000) and Maricopa County, Arizona ($12,600 plus expenses).   According to Political Correction this adds up to a whopping $6,600,000!  Not a bad day’s pay for shoddy lawyering.

Along with the legal bills Kobach is developing an impressive record of courtroom defeats.  His 3rdCircuit smack-down comes on the heels of Judge Susan Bolton’s ruling that S.B. 1070, Arizona’s infamous “show me your  papers” law, also offended the Constitution.  In case you hadn’t heard, Kobach was instrumental in drafting that law too.

Kobach claims to be an expert in the Constitution. But he might want to take a moment and read it. The good news is that even if he won’t the courts will.

In the meantime, if you live in small town America hold on to your wallets.  And if Kobach visits your town you might want to count the silverware when he leaves.

Crying Wolf

Originally published on the AILA Leadership Blog

On August 20 John Morton, head of ICE, issued a memorandum to the agency about how to handle deportation cases involving foreign nationals who are also legally eligible to apply for green cards.  The policy has got the anti-immigrant restrictionists and their friends on Capitol Hill in a tizzy and howling about (what else?) back door amnesty.  It has also provided fresh anti-immigrant fodder for Fox News.

But the ICE memo represents a welcome (and all too rare) outbreak of common sense at the agency, not a back door amnesty program.  I would suggest that the restrictionists, politicians, and televised talking heads read the memo before incorrectly (and irresponsibly) claiming it authorizes the mass cancellation of deportations or directs the dismissal of deportation cases against dangerous criminals.

The truth is that the memo is quite limited in scope.  It affects only foreign nationals in deportation proceedings who are the beneficiaries of immigrant visa petitions, which, when processed,  will give them an immediate right to file for a green card.  Stated differently, the memo affects only people who can immigrate legally under existing laws--meaning they have otherwise played by the rules and waited their turn for a visa.

To suggest that the memo will lead to the dismissal of deportation cases against dangerous criminals, as some have charged, is ludicrous.  In fact, the memo directs that ICE attorneys "shall promptly consult with the Field Office Director (FOD) and Special Agent in Charge (SAC) to determine if there are any investigations or serious adverse factors weighing against dismissal of proceedings."  Adverse factors include criminal convictions, evidence of fraud or other criminal misconduct, and national security and public safety considerations.

I have never been shy about criticizing ICE when it is warranted.  But this memo, if implemented across the US, could go a long way toward reducing the tremendous backlogs that plague the immigration courts, and relieving overcrowding in the vast ICE detention system.  The memo represents an attempt to efficiently use  scarce law enforcement resources so the government can target for removal those who would do Americans harm--terrorists, violent criminals, drug traffickers, and alien smugglers.

It is stunning that the "just say no to sensible immigration policy" crowd, with Senator Grassley as their loudest cheerleader in Congress, once again cries wolf in the face of smart immigration enforcement.

Seneca County, Ohio

FAIR Should Send Texas State Representative Debbie Riddle On A Media Tour

What do you think?

Fernando's Hideaway

Originally posted on the AILA Leadership Blog.

By David Leopold, AILA President and Crystal Williams, AILA Executive Director

Washington reminds us Fernando Lamas, the Saturday Night Live character played by Billy Crystal who would interview various celebrities, often confusing them with someone else.  Always during the interview he would say, "You look mahvelous" and the sketch would end with, "It's better to look good than to feel good."

In Washington, it’s all about looking good too.  It doesn’t matter what the reality of any given situation might be.  All that matters is how it looks so that it can be packaged into a talking head sound bite and sold to the American public lock, stock, and barrel.

In the national “debate” on immigration, it’s all about looking good too.  It doesn’t matter if what is being said is accurate, or if what is being proposed is effective.  It only matters if someone notices you look tough on immigrants, even if what you propose or pass does nothing to fix our broken immigration system.

So we get a Senator once known for his integrity and thoughtfulness suddenly making up a phenomenon that doesn’t exist (“drop and leave”) and using it as a basis to argue that we ought to make stateless persons of innocent babies born in the U.S. to foreign nationals.  Then we get a group of Senators who only days ago stood for a comprehensive approach to immigration reform suddenly proposing—and passing—an enforcement-only measure that offers no solutions and accomplishes nothing more than adding to the national deficit.

In the meantime, we have approximately 11 million people, the vast majority of whom are here for no reason other than to better their lives and the lives of their families, living in the shadows and vulnerable to exploitation.  We have an over-taxed deportation system that can’t seem to figure out which way to turn.  We have a immigration detention apparatus in which 113 people have perished since 2003.  We have politicians all out-promising and under-delivering.  Nothing is fixed.  No progress is made.

It’s time to stop worrying about how it looks and start looking at how it works.  We know what needs to be done.  Now, will our so-called national leadership show a little courage and do it?  Or will they pretend, like Fernando did, that everything just looks “mahvelous”.

Who Doesn't Have Cojones?

Originally published on the AILA Leadership Blog

She’s going to do all that she can to continue down the litigation path to allow secure borders…Jan Brewer has the “cojones” that our president does not have to  look out for Americans, not just Arizonans, but all Americans, in this desire of ours to secure our borders and allow legal immigration to help build this country, as was the purpose of the immigration laws

Guess who said that? Who else but Sarah Palin!

The half-term—“I can serve the people of Alaska better on Fox News”—Governor of Alaska was on Fox News Sunday (where else?) talking about Arizona Governor Jan Brewer’s losing court battle to revive the moribund S.B. 1070 “show me your papers” law.

Catchy sound bites, especially when made on the safety of a facebook page or in a Fox News studio, are pretty easy to construct.  It gets a little more difficult when you try to mix in facts.

Sarah Palin, Governor Jan Brewer, and others who claim Obama doesn’t have the “cojones” to enforce the immigration law may want to read yesterday’s TRAC Immigration Report.  According to the report “newly-released figures from Immigration and Customs Enforcement (ICE) show that during the first nine months of FY 2010, more non-US citizens were removed from the country than during any similar period in the Bush Administration.”  The report also shows that the “sharp increases in ICE detention and removal of non-U.S. citizens had been accomplished largely by catching noncitizens who had not committed any crimes in this country but who had either crossed the border illegally or had overstayed their visas.”  TRAC also reports a current shift in targeting to noncitizens who have committed crimes in this country.  ICE “has already broken all previous records, and climbed to an all-time high,” according to TRAC.  In fact, under Obama, the removal pace of criminal aliens is 60% higher than under the last year of the Bush administration.

To be sure, I have serious questions about whether ICE is actually engaging in smart enforcement.  Who is really being removed? Is ICE really focusing on terrorists, violent criminals, and drug dealers?  Or are they continuing to inflate the statistics by removing unfortunate folks that somehow got caught in the web of America’s dysfunctional immigration system?  And, like many others, I am also eagerly awaiting signs of significant improvements in the dysfunctional ICE detention apparatus which has claimed the lives of 113 immigrants since 2003.

Yet, to brazenly claim that Obama is soft on immigration enforcement is pure demagoguery.   But I guess speaking the truth takes “cojones.”

Let the Government Think

Originally posted on the website of the American Immigration Lawyers Association (AILA)

WASHINGTON, DC - The American Immigration Lawyers Association (AILA) today applauded the brainstorm of ideas in a draft memo from the United States Citizenship and Immigration Services (USCIS). The now-public draft, leaked without the permission of USCIS, examines the legal framework of immigration and explores possible solutions. AILA commends this reflection of the pursuit of the rule of law and the willingness of USCIS' leadership to take up this thorough examination.

"We have in the past seen many attempts to scour the law to find justification for draconian, and ultimately unhelpful, ways to make immigrants' lives miserable," said AILA president David Leopold. "This draft document tries to think through ways to make the legal immigration system work in support of sensible law enforcement. It respects the law and respects the people who must deal with the law. For that, the administration is to be congratulated, even if none of the proposals is ever carried out."

"However," continued Leopold, "many of these proposals should be carried out. Long-needed regulations to help children and crime victims caught in the system should be published. Men and women fighting for America in the U.S. military should have the comfort of knowing that their families are safe from being deported. Immigration policies that encourage investment in America and creation of jobs should be emphasized and expanded. These are but a few of several excellent proposals in this document."

"We will never effectively address illegal immigration until we develop a legal immigration system that actually works and that offers people a realistic alternative to illegality," added AILA Executive Director Crystal Williams. "Congress has thus far refused to act. Administration officials at least are trying to find ways to help fill this vacuum," Williams stated.

"Good for them."

Ohio S.B. 238: Political Grandstanding at the Expense of Public Policy

Today the Ohio Senate Insurance, Commerce, and Labor Committee held a final hearing on S.B. 238, a bill that prohibits undocumented foreign nationals from receiving workers compensation benefits.  The proposal is the brain child of Senator Bill Seitz (R-Cincinnati) and squarely aimed at Ohio’s most vulnerable population; undocumented immigrants. But, S.B. 238 is an unnecessary and mean spirited bill which will do nothing to fix the broken immigration system which plagues Ohio and the rest of the nation.  In fact, if it becomes law, it will make things worse.

To start with, it appears that neither Senator Seitz nor his co-sponsors did their homework before introducing S.B. 238. No one knows how many unauthorized foreign workers have recovered workers compensation in Ohio and, therefore, whether such legislation is even necessary.  The Pew Hispanic Center estimates that only 1.1% of Ohio’s workforce is undocumented, making it highly unlikely that there is even much of a problem that needs fixing.  Wouldn’t it have made more sense to have first commissioned a study to determine whether a problem exits?

How would S.B. 238 work in practice?  Under the immigration law an employer is not required to test the authenticity of employment authorization documents and can accept them from an employee as long as they are not obviously fake.  Thus, under S.B. 238 an employer could conveniently look the other way when hiring an unauthorized immigrant and “learn” of his unauthorized status only after the employee is injured on the job.  S.B. 238 then burdens the employee with the daunting task of proving in a court of law that the employer knew he or she was an unauthorized immigrant when she was employed.  The law essentially rewards employers for suddenly “discovering” that a worker is unauthorized after a catastrophic injury.

Or suppose an undocumented employee is the victim of an unscrupulous employer who hired her knowing she was unauthorized to work, paid her sweat shop wages, and placed her in an unsafe work environment where she was badly injured.  Under these circumstances S.B. 238 permits her to sue her employer, but includes a strong disincentive to do so.  Does anyone really expect an undocumented immigrant to file a lawsuit against her unscrupulous employer under the threat of removal from the U.S.?  True, she may have no legal right to be here, but her undocumented status doesn’t justify creating a legal structure which effectively encourages her abuse.

What’s more, echoing the recently enacted anti-immigration law in Arizona, S.B. 238 arguably runs afoul of the federal immigration statute which provides for the protection of victims of human trafficking, violent crime, and domestic violence.  Many such victims have entered the country illegally but are nevertheless entitled to protection under the law, including the right to work in the US.  But S.B. 238 prohibits such victims from receiving workers compensation by excluding them from coverage as "illegal aliens".

Nor is it clear that S.B. 238 will save Ohio taxpayers money as a result of reduced workers compensation insurance premiums.  The bill creates a burden on the Ohio Bureau of Workers Compensation and will likely generate other costs that will more than offset any savings in reduced workers compensation premiums.

Ohio and the rest of the nation need a functional, orderly, and fair immigration system designed to meet the needs of American business and families. Bills like S.B. 238 do nothing of the sort.  They merely create a climate of fear designed to intimidate a vulnerable population.  Unfortunately, Washington’s failure to enact comprehensive immigration reform has left a void which cynical politicians are all too willing to fill.  Their actions are an appalling symptom of a broken immigration system.  As responsible citizens we must demand that the Obama Administration and Congress get to the hard work of enacting comprehensive immigration reform.

In the meantime we deserve better from state and local government.

"Do I look Illegal?" A question for Arizona