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  1. Reposting It is time to try a different approach to comprehensive immigration reform. By Nolan Rappaport

    • Note: I posted this article originally on May 2, 2014, but I think it is relevant to the current debate over a DACA-fix. To my knowledge, the Dems have offered border security measures and or partial funding for a wall, but they have not agreed yet to authorize funding for the entire wall that Trump wants, which would be ideally suited to revent make it more difficult to bring children into the country illegally in the future. The Diversity Visa Program isn't an issue. The Dems have included provisions to terminate it in past legislation, such as Schumer's Gang of Eight bill, S.744, and the chain migration provision could be modified. I have suggested one way, which was to transition to a merit based system that would give a preference to aliens who have family ties to citizens or LPRs.
    • Link to original post.

      Senate has passed two major immigration reform bills, and a republican majority in the House of Representatives has rejected both of them. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611,[i] with a vote of 62 yeas and 36 nays. Although the bill was bipartisan, it was opposed by 58% of the senate republicans. This cast doubt on the reception S. 2611 would get from the republican majority in the House. Only 23 republican senators voted for it; the other 32 republicans and four democrats voted against it.[ii] This is a record of the roll call votes on S. 2611:
    • The House republicans reacted with a series of hearings on the problems they thought S. 2611 would create. For instance, on July 27, 2006, the House Subcommittee on Immigration, Border Security, and Claims held a hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare.” Among other negative remarks in his opening statement, Subcommittee Chair John Hostettler pointed out that, “In the Reid-Kennedy bill, the Senate proposes to replace our current rational immigration process with a scheme to allow an unknown number of additional aliens who came here illegally to stay forever.”[iii]

    • On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. Although it was written by a bipartisan group of eight senators known as the “Gang of Eight,” it was opposed by 70% of the senate republicans. Only fourteen of the republicans voted for the bill; the other 32 voted against it.[iv] This was substantially worse than the Senate republican reaction to S. 2611 in 2006. It was a clear indication that S. 744 would not have a good reception from the republican majority in the House.
    • House Judiciary Chairman Bob Goodlatte (R-VA), made the following remarks in a press release when S. 744 was passed:
      While I congratulate the Senate for working hard to produce immigration reform legislation, I have many concerns about its bill. The bill repeats many of the same mistakes made in the 1986 immigration law, which got us into this mess in the first place. Among my many concerns, the Senate bill does not adequately address the interior enforcement of our immigration laws and allows the Executive Branch to waive many, if not most, of the bill’s requirements.[v]
      The 1986 immigration law Chairman Goodlatte was referring to is the Immigration Reform and Control Act of 1986 (IRCA), S. 1200, which established a legalization program that was used to grant lawful status to millions of undocumented aliens.[vi] IRCA was a bipartisan bill to a much greater extent than the two Senate bills discussed above. It was introduced by a republican senator, Alan K. Simpson,[vii] and signed into law by Ronald Reagan, a republican president.[viii] According to the statement President Reagan made at the signing ceremony, IRCA was --
    • The product of one of the longest and most difficult legislative undertakings of recent memory. It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.[ix]
      Despite IRCA’s strong enforcement provisions, the 2.7 million people who were legalized under its provisions in the late 1980s and early 1990s were replaced entirely by a new group of undocumented aliens by the beginning of 1997.[x] The strongest provision, the employer sanctions, was not implemented, and the border was not secured. In fact, the sanctions still are not being enforced on a large-scale, nationwide basis, and the border still is not secure. In other words, the democrats got their legalization program, and the enforcement provisions the republicans expected in return have never materialized. Chairman Goodlatte addressed this and other IRCA issues at a Judiciary Committee hearing on May 22, 2013, on, “S.744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?”[xi]

    • Notwithstanding Chairman Goodlatte’s complaints about the fact that the IRCA enforcement and border security provisions were not implemented, IRCA shows what the republicans and the democrats can achieve when they work together on comprehensive immigration reform, and the mistakes that caused the failure to implement the enforcement provisions are well understood now. They do not have to be repeated. For more of my views on this topic, see the article I wrote for LexisNexis entitled, “What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform?”[xii]

    • How was IRCA different from the Comprehensive Immigration Reform Act of 2006 and the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013?

    • In an article that appeared in the Washington Post, IRCA cosponsors Representative Romano L. Mazzoli (D-KY) and Senator Simpson explain that IRCA was developed with assistance from the bipartisan Commission on Immigration Reform and unprecedented joint House-Senate hearings — not just in Washington but also all over the country. We heard from all sides and considered all points of view. We concluded that if immigration reform was to work and be fair it had to be a "three-legged stool." Leg one was intended to improve border security to prevent illegal crossings at the border with Mexico; and, to improve the effectiveness of interior enforcement of the immigration laws, we established penalties for employers who knowingly hire undocumented alien employees. Leg two was an H-2A temporary worker program for agricultural workers,[xiii] which included wage and workplace protections to prevent it from becoming another exploitative Bracero Program.[xiv] Leg three was a legalization program to permit some, but not all, of the undocumented aliens already living and working in the United States to regularize their unlawful status and begin a lengthy process to earn temporary residency and, if they chose to continue, to earn permanent residency and citizenship.[xv]

    • Summary of IRCA’s provisions.

    • Title I: Control of Illegal Immigration
      Employment. Makes it unlawful to hire, recruit, continue to employ, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work; or to continue to employ an alien knowing of such person's unauthorized work status.
      Establishes an employment verification system. Requires the employer to attest, on a form developed by the Attorney General, that the employee's work status has been verified by examination of certain types of documentation. Requires the worker to similarly attest that he is a U.S. citizen or national, or an authorized alien.
      Limited Enforcement Use of Employment Authorization documents. The verification system or any required identification document can be used only to enforce the IRCA and 18 U.S.C. §§ 1001, 1028, 1546, and 1621.
      National Identification Card. Nothing in this Act shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards.
      Preemption. The employer sanction provisions preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
      Discrimination. It is an unfair immigration-related employment practice for an employer of three or more persons to discriminate against any individual (other than an unauthorized alien) with respect to hiring, recruitment, firing, or referral for fee, because of such individual's origin or citizenship status. It is not an unfair immigration-related employment practice to hire a U.S. citizen or national over an equally qualified alien.
      Essential Elements. Increased enforcement and administrative activities of the Border Patrol, the INS, and other appropriate federal agencies are essential.
      Vigorous Enforcement. Expresses the sense of the Congress that the immigration laws of the United States should be vigorously enforced, while taking care to protect the rights and safety of U.S. citizens and aliens.
      Title II: Legalization
      Undocumented Aliens Who Entered Before 1982. Temporary Resident Status.
      Provides temporary resident status for aliens who establish that they entered the United States before January 1, 1982, have resided here continuously in an unlawful status since then, and are otherwise admissible. Prohibits the legalization of persons convicted of a felony or three or more misdemeanors in the United States, or who have taken part in persecution.
      Undocumented Aliens Who Entered Before 1982. Adjustment to Permanent Resident Status. Provides for adjusting the status of temporary resident aliens to permanent residents if they apply during the one-year period beginning with the nineteenth month following the grant of temporary resident status; have established continuous residence in the United States since the grant of temporary resident status; are otherwise admissible; and have not been convicted of a felony or three or more misdemeanors committed in the United States.
      Criminal Sanctions for False Statements on Applications. Establishes criminal penalties for false statements on an application.
      Waivers. Waives numerical limitations, labor certification, and specified entry violations for legalization applicants. Permits the waiver of other grounds for exclusion (except criminal, most drug-related, and security grounds) to assure family unity or when otherwise in the national interest.
      Ineligible for Federal Financial Assistance Programs. Makes legalized aliens (other than Cuban/Haitian entrants) ineligible for federal financial assistance, Medicaid (with certain exceptions), and food stamps for five years following a grant of temporary resident status and another five years following a grant of permanent resident status (permits aid to the aged, blind, or disabled).
      Legalization for Cuban and Haitian Entrants. Establishes procedures for the adjustment to permanent resident status for certain Cuban and Haitian entrants who arrived in the United States before 1982.
      Legalization for Undocumented Aliens Who Entered Before 1972. Updates the registry provision from June 30, 1948, to January 1, 1972, to provide LPR status for qualified applicants who entered the United States before January 1, 1972.12
      Title III: Reform of Legal Immigration
      H-2A Visa (Temporary Agricultural Workers). Separates temporary agricultural labor from other temporary labor for purposes of nonimmigrant (H-2 visa) worker provisions. Requires an employer filing an H-2A visa petition to certify that there are not enough local U.S. workers for the job and that similarly employed U.S. workers' wages and working conditions will not be affected adversely. Prohibits approval of that petition if the job is open because of a strike or lockout; if the employer has violated temporary worker admissions terms; or if the employer has not made appropriate regional recruitment efforts.
      Legalization for Agricultural Workers. Establishes a special agricultural worker adjustment program. Provides permanent resident status for aliens who apply during a specified period; have performed at least ninety man-days of seasonal agricultural work during the twelve-month period ending May 1, 1986; and are admissible as immigrants.
      Waivers for Agricultural Workers. Permits waiver of exclusion grounds (except for specified grounds) for humanitarian or family purposes, or when in the national interest.
      Visa Waiver Pilot Program. Authorizes a three-year pilot visa waiver program (since expanded and made permanent).[xvi]
    • The path forward.

    • I can sympathize with the democrats who still support S. 744, but that bill was opposed by 70% of the republicans in the Senate, and the House is controlled by a republican majority that clearly has no interest in moving it through the legislative process in the House -- or in putting it on the floor directly for a vote. This situation does not offer many promising alternatives. One possibility would be to wait for a future in which the democrats have majorities in the Senate and the House and a president in the White House, but that could be a very long wait. Another is to wait for the House republicans to pass an immigration reform bill and try to persuade them to agree to a conference on the House bill and S. 744, but there is little, if any, reason to expect the House republicans to agree to such a conference. On the other hand, the House republicans probably would agree to an informal, off-the-record conference with the Senate to discuss a new bill that could meet the political needs of both parties, particularly if the Senate indicates a willingness to put S. 744 aside if the meetings are fruitful. The main challenge would be to find a way to address the republican fear of giving the democrats another legalization program in return for enforcement measures that will not materialize this time either.

      [i] The Comprehensive Immigration Reform Act of 2006, S.2611.
      [ii] U.S. Senate Roll Call Votes 109th Congress - 2nd Session (May 25, 2006).
      [iii] House Subcommittee on Immigration, Border Security, and Claims hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare” (July 27, 2006).
      [iv] U.S. Senate Roll Call Votes 113th Congress - 1st Session (June 27, 2013).
      [v] Chairman Goodlatte statement on passage of Senate immigration bill (June 27, 2013).
      [vi] The Immigration Reform and Control Act of 1986.
      [vii] Senator Alan K. Simpson.
      [viii] President Ronald Reagan (1981-1989).
      [ix] President Ronald Reagan’s Statement on Signing the Immigration Reform and Control Act of 1986 is available at
      [x] Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 (January 2003).
      [xi] Committee on the Judiciary, Hearing on, “S.744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?” (May 22, 2013).
      [xii] For more information on IRCA, see Nolan Rappaport, “What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform?” (Feb. 8, 2013).
      [xiii] H-2A Temporary Agricultural Workers.
      [xiv] The Bracero Program.
      [xv] Romano L. Mazzoli and Alan K. Simpson, “Enacting Immigration Reform, Again” (Sept. 15, 2006).
      [xvi] Taken from Congressional Research Service summary.
      This post originally appeared on ... Reprinted with permission.

      About The Author

      Nolan Rappaport was an immigration counsel on the House Judiciary Committee for seven years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice at Steptoe & Johnson. He is retired now, but he welcomes temporary and part time work.

      The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Updated 02-14-2018 at 02:49 PM by ImmigrationLawBlogs

  2. Trump Goes Full Racist and Authoritarian; Threatens to Veto DACA Bill if it Doesn't Cut Back on Non-White Legal Immigration. Roger Algase

    Update: February 14, 12:01 pm

    The Washington Post reports on February 14 that Trump has reiterated his refusal to accept any Congressional solution to DACA that does not include his demand for huge cuts in non-white legal immigration. See:

    Trump backs GOP immigration plan, rejects limited approach on dreamers

    (Sorry - I do not have a link- please go to Google to access this story.)

    On Trump's latest inflexible statement as opposed to Congressional bipartisan efforts to reach a reasonable compromise which would not destroy a major part of America's current legal immigration system, see also:

    My earlier comment follows:

    In a statement more typical of a dictatorship than a democracy, The Hill reports that a Trump administration official has threatened that Trump will veto any Congressional bill granting relief to DACA recipients unless the bill includes Trump's demand to abolish the diversity visa lottery and eliminate all family immigration outside the immediate nuclear family - actions which would have a major impact on legal immigration from non-white parts of the world.

    This announcement, along with a companion statement by Trump's Senate ally and co-author of the RAISE Act which would also accomplish the same goals, Senator Tom Cotton (R-Ark), that Trump's proposal is a final offer, not a negotiating point, makes a mockery of the legislative process. It means that no matter what results come from the debate and immigration discussion that is expected to take place in Congress shortly, Trump is ready to start deporting Dreamers if his demands for drastic cuts in legal immigration from all parts of the world outside of Europe are not agreed to.

    To be sure, Europe would also be negatively affected by Trump's immigration Framework and the RAISE Act (and a similar though not identical House bill sponsored by Rep. Bob Goodlatte - R. VA) but European legal immigration would be reduced to a lesser extent percentage-wise than immigration from Asia, Africa and Latin America.

    Immigration from black and Hispanic parts of the world would be reduced by almost twice as much as immigration from Europe on terms of percentages under these proposals according to recent studies.

    See also:

    Center for American Progress:

    The White House's Immigration Framework Would Eviscerate Immigration from Latin America, Africa and Asia

    (February 12 - sorry, I do not have a reliable link; please go to Google)

    Meanwhile, the president continues his demagogic attacks on family immigration and the diversity visa as alleged "security threats" without a shred of evidence to support this attempt to demonize millions of mainly non-European immigrants who have come to the US legally and contributed to our economy over the past few decades though the current immigration system.

    And these attempts to stigmatize millions of mainly non-white legal immigrants as somehow being dangerous to the United States are not confined to the hostile late-night or early morning tweets which some of Trump's defenders are attempting to downplay or explain away as not being official policy statements.

    They are also appearing in official statements of administration immigration policy on the White House website. See:

    What does this latest White House Diktakt on DACA, "chain migration" and the visa lottery mean?

    It means that Trump is so anxious to cut off immigration from non-European parts of the world that he is willing to reject the will of the American people, as expressed through their elected representatives in Congress, unless Congress accepts his white supremacist immigration agenda.

    This agenda includes, not only gutting the family immigration system which has been at the heart of American immigration for the past 50 years, but also reducing refugee admissions to the lowest levels in many decades at a time of heightened need, persisting with his Muslim ban orders which so many federal courts have rejected or limited, and attacking H-1B and other skilled immigration visas through his "Hire American" executive order.

    The only possible conclusion is that Donald Trump wants no more, or as few as possible, legal immigrants to come to the United States in the future unless they are from "Countries like Norway."

    This give a whole new meaning to the term "White House". And to make a bad pun, it would not be inaccurate to say that Trump is dividing the entire world into two different classes for immigration purposes.

    The first group is made up of countries like Norway, from which, in Trump's view, immigrants are acceptable. The other group is made up of countries whose citizens Trump is in No Way willing to admit to the US.

    Roger Algase
    Attorney at Law

    Updated 02-15-2018 at 12:23 PM by ImmigrationLawBlogs

  3. Trump tweet claims that the Democrats don't really want to help the DREAMERs.

    In a tweet he issued on Saturday, President Trump said:

    Donald J. Trump

    Republicans want to fix DACA far more than the Democrats do. The Dems had all three branches of government back in 2008-2011, and they decided not to do anything about DACA. They only want to use it as a campaign issue. Vote Republican!

    The details are off, but the basic message is true. As I said in my article, "If Dreamers get a deal, it will be because of Trump, not Schumer,"

    Trump may be right that the Democrats don’t want to make a deal.

    They could have passed a DREAM Act during Barack Obama’s administration. From January 2009 to January 2011, they had a large majority in the House, and until Scott Brown’s special election in 2010, they had a supermajority in the Senate. They passed the Patient Protection and Affordable Care Act (ObamaCare) without a single Republican vote in the House or the Senate. [Note. A supermajority means they had enough votes to end a Republican filibuster.]

    I hope Trump and I are wrong. If we are right, the Democrats will just make a show of trying to make a deal to help the DACA participants but refuse to accept any Republican offer, so they claim when the next elections come up that they did their best but the Republicans refused to be reasonable.

    Nolan Rappaport

    Updated 02-11-2018 at 11:59 PM by ImmigrationLawBlogs

  4. Female genital mutilation is a crime in the US — so why is it rarely prosecuted? By Nolan Rappaport

    © Getty

    According to the World Health Organization (WHO), more than 200 million females alive today have been subjected to female genital mutilation (FGM). Aliens from the 30 countries where this practice is concentrated are immigrating to the United States, and a serious effort is not being made to prevent them from practicing FGM here.

    UNICEF says that FGM is “concentrated in a swath of countries from the Atlantic Coast to the Horn of Africa...”

    A map on page 26 of UNICEF’s statistical overview of Female Genital Mutilation/Cutting shows the percentage of females 15 to 49 years of age who have undergone FGM in each country that has substantial FGM activity, but it also is performed on much younger females.

    For instance, an Ethiopian woman had her external genitalia removed and her vagina sewn up when she was only seven days old. In the Ethiopian desert region of Afar, 90 percent of the females are subjected to FGM, many before their first birthday.

    WHO has designated four different FGM classifications:
    Type 1: Partial or total removal of the ********;


    Published originally on The Hill.

    About author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

  5. Trump Says He Would "Love" Another Shutdown if Congress Refuses Drastic Cuts in Nonwhite Legal Immigration. Roger Algase

    Update February 8, at 11:40 am:

    In a reminder that immigration is not (or should not be) a partisan issue; and that there are responsible leaders of good will in both parties who believe that immigrants are part of America and should be welcomed, not demonized and scapegoated based on where they come from, their religion or the color of their skins, former president George W. Bush stated on February 7 that, with regard to immigrants:

    "We ought to say thank you and welcome them."

    Bush also said, concerning DACA recipients, that:

    " America's their home."

    This is welcome reminder that there are ways to develop rational immigration policies that serve the interests of the American people and promote our deepest values of the dignity and equality of everyone, rather than basing these policies on exclusion and bigotry against immigrants from places that our current president regards as "shithole countries", while trying to overturn fifty years of tolerance and acceptance of non-European immigrants by destroying the family immigration and diversity lottery systems which are at the heart of our immigration system now.

    See my original comments below:

    On February 6, Trump escalated his obsession with eliminating critically important legal visas which have enabled some 30 for 40 million Asian, African, Latin American and other non-white immigrants to come to the United States in the past few decades and have, according to all expert opinion, reduced the white population of America as a total percentage of the overall ethnic makeup of the nation.

    In a White House meeting, Trump told Congressional figures present that he would "love" to see another government shutdown if his demand to eliminate the diversity visa lottery, and family reunification green cards for parents, siblings and adult children of US citizens are not agreed to by Congress.

    This takes Trump's previous demands, which were to trade relief for DACA immigrants in return for border wall funding and elimination of the above legal visas, to a new level. The Democrats and other immigration supporters in Congress have agreed to separate DACA from the issue of government funding, so Trump can no longer blame the Dreamers, or their supporters, for that impasse.

    Instead, Trump has made his demands for these huge cutbacks in nonwhite immigration, which most serious analysts agree would be the result of eliminating the above two visa proposals, the condition - not for DACA relief, which is now no longer part of shutdown negotiations - but for keeping the entire federal government open.

    Why is Trump so strenuously opposed to family reunification green cards, also known by his pejorative term "chain migration" which he called "horrible" in a December 29, 2017 tweet? Why does he want to eliminate the diversity visa lottery, which he called "ridiculous" in the same tweet.

    The answer is that both family reunification and the green card lottery (initially called the "AA-1" lottery) were originally enacted in the belief that they would boost white, European immigration to make up for the fact that the 1965 immigration law had abolished the 1924 "national origins" immigration act which favored northern Europe, and replaced it with a system that was open to the the entire world. I have discussed this in more detail in previous comments.

    However, neither family reunification nor the current visa lottery system, dating from 1995, had the expected effect of maintaining or bolstering the dominance of white immigrants. Instead, they led to large increases in non-European immigration which had a profound change on the ethnic makeup of America, making the country less white than before, and leading to a future in which the white population could one day become a minority.
    As the San Francisco Chronicle reports:

    If Trump's plan is not implemented, the white share of the population is expected to fall from above 60 per cent in 2018 to below 45 percent in 2060. The Post's lower estimate of the impact of Trump's proposal show whites staying the majority group until 2046."

    In other words, Trump wants to cut back in legal immigration in order to keep, or make, America whiter.

    Trump's program for a whiter America could also be looked in broader terms as consisting of three stages. The first stage, which dominated his first year in office, was an expanding of deportation and incarceration to affect non-criminal unauthorized immigrants, in a major reversal of President Obama's (ostensible) policies.

    Now, in this second year of the Trump Era, the focus is on gutting the family and diversity lottery-based legal immigration system, in order cut back in non-European immigration. (Immigration from "countries like Norway" will also be impacted too, but not nearly as much, as immigration from what Trump has called the "shithole" countries where people have darker skins.)

    What could happen in the third and fourth years of Donald Trump's America? It would not be far fetched to look for a push to nullify the 14th amendment to the Constitution by taking away US citizenship from millions of Latino, Asian and black American-born children based on the immigration status of their parents. This was also a major part of Trump's campaign.

    With Donald Trump, no matter how grim the picture may seem at the present for immigration in America, we have to look ahead to the future. It can always get worse. If immigration advocates, the American public, and their elected representatives do not stand up against Trump's vision of Making America White Again, it is very likely to become worse.

    Roger Algase
    Attorney at Law

    Updated 02-08-2018 at 02:37 PM by ImmigrationLawBlogs

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