Author Archive

There’s Something Happening Here

DSC_0231I haven’t heard immigration lawyers called heroes many times before (though I know a lot who are). And I’m pretty sure it’s the first time I’ve ever heard it from a sitting member of Congress. But that’s what happened Thursday when Congressman Beto O’Rourke (D-TX) said that AILA member Dree Collopy and the other Artesia volunteer lawyers were his heroes. Congressman O’Rourke shares a cause that drives AILA: ending family detention.

In Washington, D.C., there is momentum building to accomplish something AILA members have known with every fiber of their being needs to happen. We’ve known family detention was wrong from the first days in Artesia when the only thing stopping the rapid deportation of children and their mothers back to danger seemed to be the pro bono attorneys arguing for fundamental rights to be upheld. After months in the trenches at Artesia, the battle shifted to the new facility at Dilley and the expansions of Karnes and Berks. On each battlefield, the volunteer attorneys, law students, paralegals, legal assistants, and translators were joined by mental health professionals, religious leaders, and others – volunteering their time to fight injustice no matter what barren piece of the landscape into which the Administration expanded its detention facilities.

AILA members outside of D.C. may sometimes feel like they are one step removed from the action, that the conversations here are different from those taking place anywhere else in the nation. Well, the conversation is changing here, too.

Yesterday’s press conference was a big deal. Representatives Lofgren, Gutierrez, and Roybal-Allard are long-time leading voices on immigration and detention reform. They called out the Administration for their callous disregard for the health and well-being of asylum seeking refugees. Rep. Gutierrez made it clear that his public outrage comes after having met with both the White House and DHS and gotten no result; he also committed to visiting detention facilities before Father’s Day.  The Members of Congress were joined by the incredibly brave Maria Rosa Lopez, a young mother who was detained for months and finally freed, along with her son, due to the pro bono efforts of AILA member and Director of the Immigration Law Clinic at the University of Texas Denise Gilman. Speaking from her heart, Maria shared her story, a story of the trauma and hardship that detention inflicts on the most vulnerable and the damage it did to her son, and to her own psyche.

Another AILA member, Dree Collopy, who knows a thing or two about asylum law (she wrote the book on it—literally), talked about the conditions she witnessed in her time volunteering with the family detention pro bono project. Through her words, we saw the sick children, the deteriorating health of both mothers and their kids, and the concerted effort by the Administration to rip away the chance for due process and deport as rapidly as possible, with the refrain “This must end now.”

You might ask why a press conference is important – it’s a few minutes in the grand scheme of things. But it is a vital few minutes, and combined with the press outreach, the op-eds, the editorials, the videos, and the tweets, a ripple can turn into a tidal wave.

And the wave is not just on the House side. On Friday, Senate Minority Leader Harry Reid – the leader of the Democrats in that chamber – called explicitly for an end to family detention. Opposition to family detention is becoming a gateway issue in this election cycle, too. A certain presidential contender made it part of her big immigration policy speech – and she got it exactly right: the detention of children and other vulnerable people puts their mental and physical health at risk. A few days later, another rumored presidential hopeful – former Maryland governor Martin O’Malley – came out publicly against family detention.

The Administration thought they had a way to tamp down this issue last week when they announced their plans to “enhance oversight and accountability” in family detention – you saw how well that went over with AILA and other stakeholders. The smackdown from congressional members, from NGOs, and from the public was loud and instantaneous. We need to build on that momentum.

We need all of you to help keep the tidal wave rolling. If you can’t volunteer in the trenches at one of the detention centers, make your voice heard by telling your congressional members exactly why they need to stand up for these children and mothers. More and more members of Congress speaking publicly creates more and more pressure on the President. Open their eyes to what is happening and the stain that family detention is on our country’s grand history of offering safety and security to the most vulnerable. Tell your family, your friends, your church – shout it from the rooftops that you have joined this battle. There’s no ignoring it any longer, there’s something happening here.

Written by Crystal Williams, AILA Executive Director

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If you are an AILA member who wants to volunteer at a family detention center, please go to the CARA Family Detention Pro Bono Project page or feel free to contact Maheen Taqui at mtaqui@aila.org – we could really use your help.

To watch videos of the volunteers sharing their experiences, go to this playlist on AILA National’s YouTube page. To see all the blog posts about this issue select Family Detention as the category on the right side of this page.

Traitor? Not So Much.

shutterstock_171828821I was called a traitor, twice, in less than an hour today.

It’s not the first time in my role as AILA’s Executive Director that I’ve been called that, but it still offends. The fallacies about immigrants, about the undocumented, about our borders and our government’s actions continue to linger.

This time it was on C-Span’s Washington Journal. The callers were cut off when they spit out the accusation, but I tried to honestly answer their questions while inside I was yelling “HOW DARE YOU?”

I’m not a traitor when I ask our Congress to pass good immigration reform, actual legislation that would fix the broken system and address the undocumented already here.

I’m not a traitor when I acknowledge that the millions of people already in the United States, already building lives here, paying taxes and working, need a way out of the shadows, away from fear, and into the light.

I’m not a traitor when I read studies modeling the economic impact of giving work authorization to those who apply for DACA and DAPA that show it will in fact help the economy.

I’m not a traitor when I think having people come forward for DACA and DAPA will actually help our country prioritize enforcement on those who actually pose a potential risk to public safety.

I’m not a traitor when I think that a U.S. citizen child is better off with a loving, caring mother and father than to have her family torn apart and her parents deported, like Diane Guererro described.

I’m not a traitor when I believe that our country at its best will welcome those striving for the American dream, no matter their race or color, instead of spitting on them.

I’m not a traitor when I explain that a federal judge’s decision was the wrong one, based on many of the same spurious anti-immigrant claims that those callers espoused.

I’m not a traitor when I still revere what the Statue of Liberty stands for, when I acknowledge that many of my own ancestors came to this country and benefitted from our Constitution’s rights for those who reside here.

I’m not a traitor when I can put myself into someone else’s shoes, a desperate mom or a terrorized child, who seeks asylum in this land of the free.

And I’m certainly not a traitor when I agree to answer questions, honestly and with as much legal expertise as possible, to anyone who calls in on a national news channel. I just get called one then.

Written by Crystal Williams, AILA Executive Director

TODAY

Every morning I wake up and check my schedule for the day. As has happened once a year, every year for the past 12 years, on this particular morning, there was a kick in the gut when I saw the date. September 11.

I know I’m not alone. I know that the rest of America feels that kick too. And many of us see the replay in our minds—either from television or, if you lived in NY or DC at the time, the actual sights, sounds and smells of the day and its aftermath.

So I came into the office and said, we should observe this day somehow. We should never forget. But my office is AILA—the American IMMIGRATION Lawyers Association. One of the things we’ve learned in the past 12 years is that, despite the way that 9/11 was exploited for anti-immigration purposes, curtailing immigration is not the way to stop further attacks. So, perhaps AILA should not observe this day, since our speaking up might somehow imply that 9/11 was related to immigration?

But then, I thought, wait. We are the AMERICAN Immigration Lawyers Association. 9/11 is something that happened to America. To citizens, permanent residents, temporary residents, visitors, and aspiring citizens. We share this experience. We share the grief for those we lost. We share the pride in the first responders who went toward the danger, and lift up as heroes those who lost their lives as a result.

So, today, AILA salutes the heroes of 9/11, and grieves for those we lost. We stand with the rest of America to express our pride as Americans and our solidarity with all who love this country. Let us re-commit to be worthy of them all.

On Tap for Tuesday’s Hearing: Nonimmigrant Visas

After working its way through 32 amendments related to border triggers and the rest of Title I at their markup last week, the Senate Judiciary Committee is going to jump ahead on Tuesday to Title IV, which has a mixed bag of nonimmigrant provisions for business immigration.

These provisions came after what seemed like eons of negotiation between labor and business, so many of them may be considered “core” to the “Gang of Eight” bill and therefore the four members of the Gang that sit on the Judiciary Committee could vote en bloc to prevent any big changes that might endanger those compromises.

So what’s in there? Here’s a small sample:

The Temporary Visa for Lesser-Skilled Workers (W visa) addresses one of the most obvious shortcomings in previous immigration reform—future flow.  One vital component is that spouses and minor children are included and are work-authorized, providing much-needed family unity for those seeking to come to the U.S. temporarily to work.  It also importantly offers flexibility for workers by allowing them to switch from one registered employer to another, and by giving them a way to apply for the merit-based lawful permanent residence program or the employment-based system.  These elements mean that workers wouldn’t be potentially “trapped” in exploitative employment.

The drafters of the legislation are taking the slow road with the W visa by starting with a 20,000 cap on W visas, rising to 75,000 visas in four years. Conceivably, the cap could increase to 200,000, depending on operation of a formula based on unemployment, job openings, number of applications, and recommendations of a newly-created federal Bureau that would track relevant statistics.  That 20,000 starting point might be too small for the employer needs we know exist.

The most mixed portion of the bag relates to H-1Bs. The bill, by providing for an increase in the H-1B quota to a floor of 110,000 and a ceiling of 180,000, reflects an understanding that foreign talent, especially those educated in our nation’s graduate schools, can and do contribute to America’s economic growth. An amendment by Senator Hatch that might come up in tomorrow’s markup would improve this provision even further.

The bill recognizes the human face of the H-1B nonimmigrant:  it provides for work authorization for their spouses on a reciprocity basis and allows for a 60-day grace period after an H-1B nonimmigrant ceases the sponsored employment, enabling the individual to maintain lawful presence during that time.

But if the bill giveth, the bill also taketh away.  Some of the H-1B provisions are troublesome, adding burdens to what is supposed to be a visa that enables American businesses to be nimble in meeting specialty skill needs.  The bill requires invention of a new internet posting recruitment system by the Department of Labor (an agency notorious for non-reality based recruitment requirements in the permanent labor certification context), substitution of government judgment for employer judgment in who should be offered these positions of specialized skill, and a highly distorted wage requirement that will result in foreign workers being paid more—sometimes considerably more—than their U.S. citizen counterparts.

So on Tuesday, expect to see another long day of amendment consideration and voting by the committee members as they work their way through a few more of the hundreds of amendments filed last week.

By taking up Title IV this early in the markup process, the committee is showing how important it is that immigration reform not only find a solution for the 11 million undocumented, but also bring our immigration system forward into the 21st century to meet the needs of American companies.

Change? Yikes!

If we don’t change direction soon, we’ll end up where we’re going.”-Professor Irwin Corey

We’ve been hearing about it for a while now.  We at first thought, oh no, what if it happens? Will everything change? Will I have to learn a new system? What among my assumptions will have to be thrown out?  “What we call ‘Progress’ is the exchange of one nuisance for another nuisance.”-HavelockEllis

Then we stopped hearing so much about it. So we thought, nah, nothing is going to change. Yes, the system is a mess, but it’s our mess. We know and have learned to live with it.

Face it, we all hate change.  We may pretend otherwise, but having to learn something new, and figure out a new set of workarounds for the inevitable issues and a new way of addressing things we haven’t thought about in years, is daunting.  We don’t want it.  “The only sense that is common in the long run, is the sense of change-and we all instinctively avoid it.”-E.B. White

But now we know it’s coming. In fact, the first piece of it is here.  It was called Transformation when it was being discussed in the abstract.  But now it’s real, and it’s called  ELIS – the Electronic Immigration System

It’s USCIS’ new system for receiving and processing applications and petitions, and it’s going to change the way we prepare and submit those filings.  It started May 22, 2012  for certain actions on an I-539 for nonimmigrants in B, F, J or M status.  Now, nonimmigrants directly, or through their attorneys, are able to apply to change or extend status in a web-based environment, upload scanned documents, submit applications, and pay on line.

The system does not have an interface with popular immigration forms processing and case management systems–yet; USCIS wants to get the platform stable and working before releasing code to software vendors and developers. However, this initial release does have a number of features that look friendly to attorneys and their clients, including the ability to send notifications to both attorney and client at separate email addresses. USCIS is looking for customer feedback on this first release in order to make adjustments and improvements, and they are committed to an agile development plan that targets the release of new form types in four-to-six month cycles.

Obviously, if the system works, it will have an incredible impact on the way that we practice immigration law, and can lead to costs savings and efficiencies that result from a move from a paper-based system to a fully electronic system.  The only way we’re going to figure out whether it works, where it has kinks and glitches, where it needs tweaks, and what practitioners need to do to transform the way that we practice, is to use it.  USCIS wants to hear your feedback, and so does AILA.  When you send comments to USCIS at uscis-elis-feedback@uscis.dhs.gov, let AILA know as well by copying reports@aila.org.

Change is the constant, the signal for rebirth, the egg of the phoenix.”-Christina Baldwin

We might even like this.

 

Jumping Over Facts to Conclusions

Sometimes you read an article and think “something doesn’t quite follow here.”  An April 7, 2012 article in the Fort Worth Star-Telegram titled “Fort Worth engineer who got Obama’s attention still doesn’t have a job” is one such article.

The article lays out a tale with which one can readily sympathize: an engineer loses his job in the midst of the Great Recession, and remains out of work three years later.  He receives expressions of interest from companies and recruiters all over the country, but cannot pursue them because a custody agreement requires he stay in the area where he now lives. It’s an impossibly tough dilemma: wedded by a vitally overarching family commitment to a geographic location where your skills are not in demand, and unable to pursue opportunities in places where demand for your skills does exist.

But the article fills in some more information. The engineer’s job loss was being used by immigration opponents to argue that H-1B specialty occupation professionals should not be allowed into the United States because here is an engineer who needs a job.  This was raised with no less than the President of the United States in a video chat.

This chat exchange received considerable publicity, and immediately the engineer was being contacted by potential employers from all over the country.  Alas, none of these employers were in the North Texas area.  And the engineer couldn’t leave the area.  So the calls have stopped and the engineer stays unemployed.

But here’s what doesn’t follow.  The article goes on to quote Senator Grassley and the engineer’s wife as saying that the engineer is out of work because of  foreign nationals on H-1B visas.  The fact that the engineer cannot go where the jobs are does not seem to be considered a factor.  Leaping over barrels of  facts to a conclusion that doesn’t follow from the facts, the fault is placed at the feet of  foreign-born professionals who will go where the jobs are.

In those leapt-over barrels is the acknowledged fact that employers all over the country were beating down this engineer’s door.  Why would they do that unless there are jobs available in some fields and employers wanting to fill them with U.S. workers who have the right skills?  But these employers cannot pull up entire operations (and lay off their existing workforce) in order to move to the locale of a single person; the person needs to move to the job. If the person cannot move to the job because of a family obligation, that is to be respected.

But no one should blame “the foreigners” for it.

Silly in Alabama

This week a federal judge in Alabama enjoined key sections of that state’s radical “make life miserable for the undocumented and so what if others get caught up in it too” law. However, she let stand some other provisions of the statute, including the “papers please” provision for traffic stops and the requirement that schools check the immigration status of schoolchildren and their parents.

I will leave for the constitutional scholars the legal analysis of the judge’s decision. Instead, I’d like to focus on the utter silliness of the provision requiring a check of children’s immigration status.

How is it silly? Let me count the ways:

First, the cost. At a time when school budgets are being slashed, impacting the quality of education, schools all over Alabama are being asked to set up a bureaucracy to check all its students’ papers and maintain elaborate recordkeeping of what they find.

Second, the so-called reasoning. Alabama maintains that this is to gauge the cost of educating the undocumented (or the children of undocumented—their line gets fuzzy). But there is an assumption here that makes this whole premise ridiculous. They are counting only costs, but not counting the immigrants’ contributions. Overlooked is the fact that Alabama schools are funded by property and sales taxes. Everyone but the homeless pay property taxes, either directly or as part of their rental payments to landlords who in turn pay the taxes. And, anyone who buys anything pays sales tax. So how is Alabama going to tally how much immigrants are paying into the system?

Third, the inaccuracy of the figures this process will collect. Because of the way the law is written, if the documentation or information about status is not forthcoming, the student will be presumed to be undocumented. Anyone who has ever dealt with American citizens being asked for immigration status documents can tell you that many are outraged at the very idea of producing papers:  “Isn’t is apparent that I’m American?” Not to mention, the outright unfairness of the law is compounded immeasurably when you consider that Alabama is home to many military families. It’s not hard to imagine a child who was born outside the U.S. registering for school. Nor is it difficult to imagine an Alabama child who has one U.S. citizen parent (perhaps even a military parent) and one undocumented parent. So, many citizens will simply shrug off these demands, resulting in a much higher count of undocumented than is the reality.

Fourth, the impact on the children. Demands for immigration papers are intimidating to undocumented or mixed families. The temptation for some in the school to “turn them in” will be great, and even if families are aware of the law’s prohibitions against this, they will know about that temptation. Children will be taken out of school by their parents for the protection of the family. This will result in citizens (since the U.S. citizen children of undocumented parents are covered) and residents of the U.S. lacking education. Plus, if English is not spoken at home, these children will grow up unassimilated, as they will be denied the setting where English is learned most rapidly.

Fifth, the impact on society. The whole point of this provision is to discourage getting certain children educated. An uneducated populace hurts us all. That is why people like me, with no children, have willingly paid all these years to have other people’s children educated. We all benefit in the end.

But, in the end, Alabama loses here. Unfortunately, so does the rest of America.

MSU* on Steroids

In an announcement of a report released today, the Center for Immigration Studies (CIS) declares that “[n]early 200,000 children are estimated to have been born to women lawfully admitted as temporary visitors from all over the world in 2009.”  The report then goes on to suggest that these children may grow up to be terrorist threats.  Hmmmm.

First, let’s look at the actual report to see what CIS has done to concoct its numbers:  they calculated the number of births from foreign visitors by figuring out how many admissions to the U.S. were of women of child-bearing age that enter as visitors and stay for more than three months, and enter as longer-term nonimmigrants and stay for more than six months.   In the latter category, CIS acknowledges that multiple admissions of one person are common, so cuts the number in half (not sure why they don’t find that the case with the visitors).  CIS then assigns them an average fertility rate and assumes that they are producing children at that rate in the United States.

Even assuming that their estimates of the number of women of child-bearing age who visit the U.S. are correct—a doubtful proposition in and of itself—they reach the odd conclusion that an average of  5 to 10% of these female visitors are having babies while they’re here.

Really?  That would mean that one in twenty 18-year-old au pairs has a baby in the U.S.  Or that shopping malls, national parks and amusement parks would be hotbeds of foreign national births, since according to USA Today, the top two activities of foreign visitors are shopping and going to parks, both man-made and natural.  Clearly, that’s not happening.  I mean when was the last time you saw a foreigner having a baby while shopping at Nordstrom or visiting “Old Faithful”?

Could there possibly be something wrong with CIS’ numbers?  Perhaps that they were extrapolated out of thin air to scare the American public?

But the numbers part of the “study”  is actually the least cartoonish part of it.  The rest befits some extremist website lurking in the far corners of the internet and prone to espousing myths and half truths in support of some outlandish theory.

CIS claims, apparently seriously, that the Constitutional grant of citizenship to children born on American soil creates citizen terrorists.  Citing two accused terrorists as examples, CIS leaps to the conclusion, without citation to any credible study, that Constitutional citizenship is somehow a threat to America.  Of course, it does not bother to explain how these children, by virtue of being born to visitors, somehow pose a greater threat or are more likely to resort to violence than a Timothy McVeigh, Eric Rudolph, Ted Kaczinski, or Jose Padilla, all of whom were born to U.S. citizens.  Nor does it explain many thousands more of children born to non-U.S. citizens (including visitors) who have gone on to put their lives on the line defending the U.S. in the military, become community leaders, found businesses and create jobs, cure diseases, or invent shiny new toys for Americans to play with.

CIS, it’s time to stop *Making Stuff Up.

Really? You’re Proud of That?

Today, in front of the Senate Judiciary Committee, DHS Secretary Napolitano answered a query from Senator Grassley to the effect that this administration granted fewer deferred actions in the past year than the Bush administration did in its last year.  Deferred action:  that would be the legal amelioration of harsh results that is in the agency’s and administration’s discretion for many deserving cases.

Seems she was proud of this stinginess.  Just like the pride DHS takes in removing more people than did the Bush administration.

For a member of the cabinet of a President who has touted comprehensive immigration reform and spoken eloquently of the contributions of immigrants in American history and culture, these seem like strange accomplishments in which to take pride.

Does the administration think that tougher-than-thou will win over the hearts and minds of the “enforcement first” crowd to the importance of positive reform?  Surely they’ve learned otherwise by now.  That it will win the hearts and minds of the vast American middle?  Polls show that the middle is already there and supports the key elements of positive reform.  As a means to reform, none of this makes sense.

By the administration’s actions, and lack of action, many are concluding that expansive enforcement/little compassion are what this administration really thinks about immigration.  If that’s not the administration’s view, it is time for the administration to find the will and backbone to bring about change through means the law provides, and to generously and without embarrassment grant administrative relief to those who are deserving and eligible.  If it is their view that expanded enforcement and little compassion is the answer to America’s immigration questions, then come clean and just say so and we can all respond appropriately from there.  But this trying to placate the non-placate-able is no way to run an immigration policy.

USCIS: You Can Help the Economy

Ten Americans kept their jobs today in spite of USCIS, which seemed intent on ensuring that those jobs go overseas or just go away.

What happened? USCIS had refused to extend the L-1 status of a multinational manager, who had opened a new office and employed ten U.S. workers, finding that a small company could not possibly need a manager. Faced with this decision, the company had four choices: move to another country (and take those ten jobs with it); close down altogether (extinguishing those ten jobs altogether); appeal (which, given the nearly two years that that process takes, effectively would be one of the first two choices); or go through the costly, duplicative and time-consuming process of obtaining an E visa from the U.S. consulate in his home country. Though tempted to take the first option, this business leader was not ready to give up on the U.S., and instead took the fourth option. And the State Department did what USCIS would not: ensured the future of those jobs by granting the visa.

Money that could have been invested in further building the business was instead invested in preparing the E visa and traveling abroad for the interview to obtain it. While the AILA member who represented him was happy to have the fees, he’d rather have had a sensible adjudication of the L-1 extension.

This is not an economy in which we can afford to throw away jobs. And, while our immigration laws need fixing in many fundamental ways, there is a fair amount of sense in some of the rules, including those that have long governed the migration of multinational managers. But those rules need to be followed. Certainly, adjudicators are only human, and are undoubtedly responding to unemployment figures and concerns. But those responses overlook the macro-economics of immigration: it’s not a zero sum of immigrant equals job loss. Quite the opposite: study after study has shown that immigrants contribute to the economy. This is not counter-intuitive: this one L-1 plainly equaled ten U.S. jobs. There’s thousands more like him.

But where is USCIS? Senator Grassley has made a fuss about agency “whistleblowers” who decry the agency’s leadership urging a bit more generosity in adjudications. And certainly that generosity has not been forthcoming: if anything, adjudications continue to reflect a growth-killing stinginess. Is the problem entrenched biases? Lack of training? Lack of clear guidance? Some combination of all these factors? Whatever the problem, it needs to end here and now.

America cannot afford it any longer.