Nation of Immigrants

10 Things We Like About the New CIR Proposal

On April 28, Democratic Senators began circulating a 26-page comprehensive immigration reform proposal which may soon be introduced in the Senate in bill form.  Some of the ideas in this proposal are good, some bad and a few are ugly.

In this post, we discuss what we like about the proposal, in particular, some much needed reforms in the legal immigration system:

1) There would be no numerical caps in obtaining permanent residence for students with advanced STEM (science, technology, engineering or mathematics) degrees from U.S. universities who possess an offer of employment from a U.S. employer in a field related to their degree;

2) STEM F-1 student visas would be considered "dual intent";

3) Country limits for employment-based immigration would be ended.  Country limits for family-based immigration would be increased from 7% to 10%;

4) Backlogs in the family-based immigration system which currently range from 3 to over 22 years would be completely eliminated during the next 8 years; 

5) Children and spouses of lawful permanent residents would be classified as "immediate relatives" which would remove all numerical restrictions from this category;

6) All unused green cards could be recaptured in later years;

7) Both the Conrad 30 Program for physicians and the R-1 non-ministerial religious worker program would be made permanent.  It would be easier for all physicians working in medically-underserved areas to obtain green cards;

8) "Permanent partners" of U.S. citizens and permanent residents would finally qualify for green cards;

9) Refugees and asylees would be granted lawful permanent residence as soon as they qualified for refugee/asylee status; and

10) Widows and orphans of U.S. citizens would qualify for immigration benefits as would children of Filipino World War II veterans.

The American Immigration Lawyers Association (AILA) has released a summary of the proposal, known the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) proposal.  In addition, the White House has released a statement regarding the proposal.

Big Government Comes to Arizona

Senator Barry Goldwater (R-AZ) must be rolling in his grave.  The conservative Republican senator from Arizona ran for President in 1964 on a platform condemning "Big Government".  As a kid, I read Goldwater's "Conscience of a Conservative" and came away with a strong conviction that America was founded on the principle of individual freedom, and that no matter what the perceived threat was, internal or external, American citizens should beware of "trusting the government" rather than upholding our rights as individuals.

Today, the citizens of the State of Arizona are justifiably upset about the violence caused by Mexican drug cartels and coyotes who smuggle illegal immigrants into the U.S.  So upset that yesterday, the Arizona Governor signed a bill into law which would require all persons in Arizona to carry proof of their legal status in the U.S.  Police would be required to check the paperwork of persons who they suspect of being present in the U.S. unlawfully.

Why aren't the citizens of Arizona protesting in the streets of Phoenix and Tucson about Big Brother and this governmental intrusion into our individual rights? 

After all, how many of us routinely carry our U.S. passports or birth certificates every time we go to work, take our kids to school or go out to a movie?  The only time that I ever carry my passport is when I travel out of the country.  If I lose my passport, how long before I got another one?  And how much do I have to pay?  No way am I going to carry my passport with me every time I work out at the gym!

I have the feeling that most U.S. citizens in Arizona are not going to carry around their passports with them either.  Since most Americas have never bothered to get a passport, this is probably a pretty safe bet.  So, why aren't these people alarmed about the new law?

Probably because they don't have foreign accents.  If a police officer pulls them over for a speeding ticket, and in the unlikely event that they are asked for proof of their citizenship, they can smile and answer "Officer, I was born in Phoenix.  I went through school here, and I work at the local bank.  I am so American that I'm voting for J.D. Hayworth against John McCain because John is too soft on illegal aliens."  The officer will probably smile and send them on their way.

But suppose that the U.S. citizen is Hispanic or Asian or European and speaks with an accent.  Same facts as above, except that the officer is not sure if the person is a citizen.  "I was born in Mexico, but I became a naturalized U.S. citizen over ten years ago.  I would carry my Certificate of Naturalization with me, but I have it framed on the wall in my computer room.  Please let me call my wife on my cell phone, and she'll read the certificate number to you."  But he can't reach his wife because she is picking up the kids from school.  The officer responds, "I'm real sorry sir, but you know that you are legally required to carry proof of citizenship with you.  I'm afraid that I am going to have to take you down to the station."

One prominent religious leader has likened the new Arizona law to "German Nazi and Russian Communist techniques".  In my opinion, that's a bit over the top.

However, no one can deny that the new law forces us, for the first time, to carry around documents proving our citizenship or immigration status.  If this isn't a government power-grab, I don't know what is.

If the average person felt personally threatened by the new law, the Arizona legislature never would have passed it and the governor would not have signed it.  Fortunately, the law really doesn't apply to you or me, but only to the "other guy".

Shame on all of us for not standing up for traditional American freedoms.  Arizona's Governor should formally apologize to Senator Barry Goldwater.

This is a sad day for America. 

Padilla - Bring Back the JRAD?

Thanks to a healthy dose of jet lag (My wife and I just returned from walking on the Great Wall of China a few days ago!), I finally found the time to read the Supreme's new decision in Kentucky v. Padilla.

Although I was impressed that Justice Stevens, in the majority opinion, found that criminal defendants who are not U.S. citizens have a 6th Amendment right to be informed by their criminal counsel as to the immigration consequences of pleading guilty to a particular crime, it struck me that the most likely effect of this decision may be for criminal attorneys to have each client sign a statement saying something like "I understand that by agreeing to plead guilty (or nolo contendre) to the above offense, I may be exposing myself to removal from the United States."

Of course, the majority did differentiate between convictions where the deportation consequences are "clear" and where they are "unclear or uncertain".  Here's the key quote:

"Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward...a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear."  

Of course, reasonable minds may disagree as to what is "clear" or "truly clear" and what is "unclear or uncertain". Can you imagine a criminal attorney having to discuss the "categorical" approach versus the "modified categorical" approach with an immigrant client, perhaps in Spanish or Chinese?  Most immigration attorneys have trouble discussing such issues in English!

How about contrasting "removability" with "inadmissibility" and "212(c)" with "cancellation of removal"? 

Isn't there going to be a lot of people with 20-year-old convictions filing habeas petitions?

Fortunately, Justice Stevens reminded me of something that hadn't crossed my mind in decades: the JRAD.  For those of you who think that JRAD was a character in the first Star Wars trilogy, please allow me to explain that it is actually a  "Judicial Recommendation Against Deportation".  I had forgotten about it since my INS Trial Attorney days in the early 1980s.  Armed with a JRAD by a state or federal judge, a person could not be ordered deported because of a criminal conviction.

Seems to make a lot of sense to me.  The Trial Judge is the person who knows about the defendant and his culpability.  If he issued a JRAD, then the IJ doesn't have to concern himself or herself with any "modified" or "unmodified" mumbo-jumbo.

This, however, is only one man's opinion.

 

Good News For Filipinos

May 2010 promises to be a very good month for persons born in the Philippines who wish to immigrate to the U.S. through their relatives.

Of course, when you are born in a country with some of the longest waiting times in the world for family-based immigration, "good" is a relative term.  Want to immigrate through your parents who are U.S. citizens?  The waiting times range from 15 to over 17 years depending on whether you are single or married.  How about through your U.S. citizen brother or sister?  The wait is a staggering 22 years!

If you were born in any other country in the world (except Mexico which also has long waiting times), the wait would be more than cut in half. Is this fair? Probably not. Is it the law?  You betcha!

So what's the good news?

According to the State Department's May 2010 Visa Bulletin, each of the family-based categories for Filipinos is scheduled to advance between two and eight months at the beginning of next month.  This may not sound like much, but for some of our clients, May 1st will be a very important day in their lives.  We are busy preparing applications for adjustment of status through section 245(i).

Oh, and by the way, we are preparing to submit our legal brief next week which argues very persuasively (in my opinion) that the government is misinterpreting the "automatic conversion" clause of the Child Status Protection Act in a way which separates parents from their sons and daugthers.  We will post our brief online as soon as it is filed with the U.S. Court of Appeals for the 9th Circuit.

If we are successful, many thousands of "aged-out" sons and daughters will be able to immigrate together with their parents rather than waiting 10-20 years to do so.