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It's been a momentous, startling and exasperating two weeks. The Supreme Court ended the term with three blockbuster decisions, and U.S. Citizenship and Immigration Services (USCIS) held a less-noticed public engagement that knocked the socks off one important segment of the stakeholder community.
In Arizona v. United States, the Court -- notwithstanding the ludicrous claims of victory from AZ Gov. Jan Brewer -- voided most of SB1070 on federal preemption grounds, while all but inviting suits on the lone-surviving section, the vile "show-me-your-papers" provision that many fear will release a Pandora's opened box of racial and ethnic profiling.In National Federation of Independent Business v. Sebelius, a SCOTUS majority in an opinion by Chief Justice John Roberts, calling balls and strikes, upheld most of the Affordable Care Act.In American Tradition Partnership v. Bullock, a five-Justice majority threw out a century-old Montana law banning corporate campaign contributions in light of Citizens United v. Federal Election Commission.In an Engagement with Director Alejandro Mayorkas and USCIS Economists, USCIS allowed practitioners of the dismal science to heap more mud into the already opaque pool of confusion that sits atop the EB-5 employment-creation immigrant-investor green card category.
Each of these events -- though some are quite positive -- carries seeds of concern that are likely to sprout noxious weeds within the immigration ecosphere for years to come. Here, then, are what pleases and what remains lodged in my craw.
The Arizona RulingThe Court put a brake on most state laws that interfere with federal sovereignty over immigration. Now, perhaps, grandstanding politicians in state legislatures and cities will think twice before wasting precious resources defending laws that harm business and damage a state's brand, while victimizing U.S. citizens and mixed-status families.
Moreover, in prose almost resembling poetry (to my ears at least), the Court majority offered a paean to American immigration (hyperlink added):
The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.
And paraphrasing the words (bolded below) of Voltaire, Spiderman and others before them, the majority homed in on the nub of the problem, a failure of people and polity to push for comprehensive immigration reform:
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nationís meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
Still, the Court's majority should never have promoted the urban legend that immigrants are more prone to criminal conduct than the population at large. Citing a much-criticized study from a partisanly wolfish think tank wearing nonpartisan sheep's garb, the majority decision observed:
[In] the Stateís most populous county, [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).
The Health-Care DecisionThe word "immigration" came up but once in the opinion -- a comparison of Congress's comparative authority under its constitutional power to tax and to regulate commerce:
[A]lthough the breadth of Congressís power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. (Emphasis added.)
National Federation of Independent Business v. Sebelius, however, is likely to be far more important for what was left unsaid about immigration -- the scope of comparative rights to health care afforded to legal and undocumented immigrants.
Concerning health coverage for the latter group, the subject is rife with obvious controversy, typified famously by Rep. Joe Wilson's impudent "you-lie!" charge to President Obama during the 2009 State of the Union address to Congress. The President was right then when he explained that the Affordable Care Act excludes coverage for unauthorized immigrants.
In truth, however, the legislation will probably have a mixed, uncertain impact on the undocumented:
At first glance, the Affordable Care Act's implications for immigrants seem obvious. The legislation benefits legal immigrants and leaves out the undocumented. As of 2014, it provides legal immigrants with subsidies to purchase insurance, requiring them, like other Americans, to maintain coverage and offering them access to state insurance exchanges. But the law denies undocumented immigrants any subsidies or even the use of the exchanges to buy insurance with their own money.
The full story, though, is more complicated. The act leaves in place a five-year waiting period for legal immigrants to qualify for Medicaid and the Children's Health Insurance Program. As a result, though they will be able to use the exchanges to purchase subsidized coverage, many recently arrived legal immigrants with incomes below or near the poverty line are likely to remain uninsured for want of resources to pay their share of the costs. Yet because the act provides substantially increased aid to community health centers, it may help many immigrants -- both legal and undocumented -- receive medical care even without insurance.
The Montana Slap DownThis decision -- which says nothing directly about immigration -- is shocking not so much for its jurisprudence as its tone-deaf disregard of the damage caused by the tsunami of anonymously donated sums unfairly determining the outcome of countless federal and state elections in the wake of Citizens United. Immigration reform -- like every other policy decision facing post-Citizens United America -- will be derailed by the corrupting influence of secret money in politics and its foreseeable result: infinitely pliable legislators bending to the will of their unnamed masters.
The EB-5 Engagement with EconomistsHistorians of the EB-5 visa know that this benighted category has witnessed persistent government ineptitude from its inception. In its early years, a series of former immigration officials teased informal guidance letters from naÔve or inattentive occupants of the INS general counsel's office allowing all sorts of riskless forms of creative financing to serve, improperly, as qualifying $500,000 or $1 million investments. Not surprisingly, EB-5 fraud schemes flourished. That jig was up when a quartet of precedent decisions outlined a new set of EB-5 rules.
Now in its twenty-secondth year, the EB-5 program and its growing population of stakeholders still beg for publication of clear and reasonable regulations that maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.
Even the most jaundiced audience members at the June 22, 2012 engagement came away dumbfounded, however, by the breadth of the economists' pronouncements of new and extreme extralegal interpretations and requirements. As a partial transcription of the presentation and later Q & A reveals, the government's supposedly economics-based interpretation of how investments lead to job creation has taken on such a miserly cast that it will out-Scrooge Scrooge.
Truth be told, I'm no economist and I have no formal training on when a new job is "created." (In parochial school, I learned that only God can create; in public school, I learned that neither matter nor energy can be created.) But I understand the painful yet salutary principle of capitalism known as "creative destruction" espoused by economist Joseph Schumpeter, namely, that there will be winners and losers, but ultimately more innovation, prosperity and jobs will ensue. (Phrased more prosaically, I would put it that "if you want to make an omelet you need to crack a few eggs.")
Despite my lack of training in the mathematics of job creation, I understand, as the Obama administration confirms, that counting newly created jobs is not an exact science but rests on a variety of arguable presumptions and inferences. I also accept the precept that investments in America will more readily be made if the laws regulating the investment are not ever-changing, impracticable, unclear or arbitrarily applied.
Sadly, however, as commenters on the EB-5 engagement have noted, the USCIS economists' rabbit-from-the-hat proclamations have been "startling," are affected by fear and nervousness, and made it "riskier for Regional Centers to do any development type of EB-5 projects. [and] . . . [harder] for potential EB-5 investors to ascertain whether an EB-5 project complies with the EB-5 requirements."
My view, which I shared with USCIS leadership, is this:
With all respect to the economists and to your fine team, there really needs to be an engagement that discusses fundamental legal principles that take into account the law, the legislative history and the purpose of the EB-5 program. The direction the economic analysis is going -- in my view -- will destroy the program and hurt its salutary goals of investment and job creation in the United States.
* * *As you can see, it's been a long and exhausting two weeks. I need a vacation! Guest posts (well-written and edgy) are welcome.
Updated 07-16-2013 at 03:51 PM by APaparelli
[Bloggers Note: This post is authored jointly by Brandon Meyer and Angelo A. Paparelli]
Some scandals raise eyebrows; others cause real economic harm. The one we're about to reveal -- known as "tenant occupancy" -- does both. It makes the GSA's Las Vegas cavorting pale in comparison. (Immigration lawyer alert: For those with prurient interests [you know who you are], "tenant occupancy" is not legalese for the recently reported transactions involving the oldest profession as allegedly occurred with the Secret Service at the Hotel Caribe in Cartagena, Columbia.)
Readers of Nation of Immigrators are familiar with the opaque, contradictory, and frequently inane ways in which the Homeland Security Department's immigration-benefits bureau, U.S. Citizenship and Immigration Services (USCIS), has interpreted America's immigration laws. Over many years, USCIS, like the legacy Justice Department agency, the Immigration and Naturalization Service (INS), burnished its well-deserved reputation for flouting the rule of law and frequently changing legal interpretations and procedures, often without prior notice, let alone stakeholder input. As an early blog post, an open letter to the USCIS Ombudsman, noted in May, 2004, the prior “Notice and Comment” procedures set up by the Administrative Procedure Act (“APA&rdquo have typically been honored in the breach and ignored in the observance.
Stakeholders and the public just had to swallow whatever bitter vittles the U.S. immigration bureaucracy served up, even though, when the direction of the dishing is reversed and petitioners seek immigration benefits, the agency has expected immaculate hygiene and punctilious compliance with its recipes, i.e., USCIS's spare, ambiguous and outdated regulations. Under the leadership of Director Alejandro Mayorkas, however, USCIS has shown a commendable spirit of openness and engagement with the public and the stakeholder community.
Still, old habits die hard. The APA requires USCIS to publish proposed regulations after vetting by the Office of Management and Budget (OMB). Instead, the agency posts proposals on USCIS.gov. Each mode of public notice allows for stakeholder comment and engagement. But the tried-and-true APA requires the agency to publish a reasoned analysis of the commentary, whereas the USCIS's web postings only offer revisions of the posted document without detailing the identity of the commenters, the substance of their remarks and reasons why public comments have been incorporated into the revised posting or rejected.
Stakeholders might understand that minor changes could appropriately be offered through web postings seeking public response but that substantive rules involving topics of public significance should instead go through formal APA rulemaking. The public and Congress might also expect that when laws are enacted setting deadlines for the publication of formal regulations, and suspending agency authority to reject immigration petitions until the regulations are finalized, simple web bulletins are wholly inadequate.
Take for example legislation enacted in 2002 addressing such subjects of wide interest and concern as foreign investment and job creation, topics that remain important in our still frail economy during the months leading up to November's elections. In particular, we speak of the EB-5 employment-creation investor green card program. Sections 11033 and 11037 of Public Law 107-273, the 21st Century Department of Justice Appropriations Act of 2002, required INS to publish regulations within 120 days of enactment on how EB-5 regional centers (then described as "pilot program centers") could satisfy adjudicators that ten qualifying jobs would be directly or indirectly created.
Even cynical observers of immigration bureaucracy might imagine that USCIS would publish final rules by now. As will be seen, the cynics continue to have reasons aplenty to remain jaundiced. In 2011, USCIS finally published proposed regulations interpreting portions of the 2002 law without addressing rules to interpret job-creation calculations. Even the partial proposed rules, however, have not been made final.
Predictably, the failure of formal rulemaking has produced disastrous results. For several months, many new I-924 Regional Center Designation applications seemed to have disappeared into a black hole. Applicants and their attorneys following up with USCIS were met with either a wall of silence or given the run-around about the reasons for lengthy USCIS inaction on their respective Regional Center applications.
What was going on? USCIS fessed up in a January 2012 EB-5 stakeholders meeting that certain Regional Center designation applications were placed on "hold" at the headquarters level while "issues" remained to be resolved. What precipitated the hold? What were these ominous “issues?” The EB-5 stakeholder community was left to their often vivid imaginations to figure out what was happening.
Another suspenseful month passed before USCIS released a bulletin on February 17, 2012 on “Tenant Occupancy” stating:
The “tenant-occupancy” methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. USCIS continues to recognize that whether it is economically reasonable to attribute such “tenant-occupancy” jobs to the underlying EB-5 commercial real estate project is a fact-specific question. USCIS is now moving forward with the adjudication of certain pending I-924 Applications For Regional Centers under the Immigrant Investor Pilot Program that are supported by the “tenant-occupancy” economic methodology.
Our newly-hired economists and business analysts will be bringing expertise to these new adjudications, and requests for evidence will be issued to certain applicants and petitioners to address any questions or issues we have about the economic methodologies employed in their specific cases.
For readers unsteeped in immigration patois, the USCIS bulletin foretold an interpretation that new EB-5 jobs are not created when existing employees of a business are merely moved by an employer that changes worksites and reassigns existing workers to newly leased space in a building financed by EB-5 investor funds. This is presumably the new expertise that USCIS's "newly-hired economists and business analysts" would bring to the analysis of job-counting methodology.
The 2002 EB-5 legislation, however, already provides the proper analytical framework. In a Congressional note to Section 11037 (amending 8 U.S.C. § 1153 note):
A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. (Emphasis added.)
Thus, Congress dictated that "general predictions" on "jobs . . . created directly or indirectly as a result of [EB-5] capital investments" should suffice. So what did USCIS do (besides issuing a puzzling bulletin on job-creation calculations and failing to publish final regulations)?
Lawyers and petitioners who've filed Regional Center applications containing tenant-occupancy calculation methods soon found out. Their mailboxes were hit with a “blizzard of blue” Requests for Additional Evidence (“RFEs&rdquo, symbolic of both the color of RFE cover sheets and the seasonal affective disorders triggered in individuals receiving these cerulean missives this past winter.
Requiring documentary responses almost as thick as Tolstoy’s War and Peace, these RFE’s expressed concern that allowing EB-5 investors to claim job-creation credit for the employees of future building tenants was not based on the ‘reasonable methodologies” required by the regulations (as published before Public Law 107-273 was enacted), and thereby foreclosing the possibility that “verifiable detail” of the subsequent job creation could be provided. In essence, after accepting the tenant-occupancy model for over two decades, USCIS disqualified it without further folderol.
Although USCIS's RFEs do not “foreclose the possibility that [a Regional Center] might present evidence to demonstrate an economically acceptable nexus between the EB-5 investment and . . . the job creation asserted,” the agency requires evidence showing “excess demand for the specific types of tenants” envisioned in the business plan and economic analysis in order to find the required link between EB-5 investment and job creation.
The agency's RFEs also ask whether prospective tenants (as if the Regional Center operator can predict that far into the future) are “constrained” in their current space or cannot expand their business because of a lack of “specialized business space.” The economic illiteracy of the RFEs is on full display in their requests for evidence of “congestion externalities as demonstrated by a low vacancy-unemployment ratio pursuant to specific space and businesses seeking to expand.” Also, evidence is sought showing “upward wage and rental pressure in specific regional sectors that are likely to be attracted to the proposed project space.”
These categories of evidence presumably advocated by USCIS’s newly hired economists and business analysts show little understanding of basic economic theory and private-sector operations. Excess demand for rental space and upward wage pressures are generally only found in tight job markets, economic booms, or in periods of high inflation. Given that the whole point of the Regional Center program is to encourage job creation in high-unemployment or rural areas, requiring proof of “excess demand” or “upward wage pressures” in these areas as a precondition for construction projects is akin to preventing asthmatics from carrying inhalers until they prove they can function without them.
If fact-based adjudications matter, economists and business analysts should know that the leading reason businesses go through the time, effort, and expense of relocating to a new facility is because employment growth is constrained by current space. Thus, if USCIS’ new tenant-occupancy theories take root, the agency will be responsible for preventing job creation by artificially limiting the number of new construction projects that can be developed using EB-5 capital. (Ironically, by limiting construction projects, USCIS will then be responsible for creating the ‘excess demand’ and ‘upward wage pressures’ that it is now demanding.)
USCIS’ efforts to regulate “excess demand” in the EB-5 program is gross government interference by web fiat. No entrepreneur sets out to develop anything if she believes that there will be insufficient demand for the contemplated project. The tenant-occupancy stratagem is just another example of how USCIS’s constant moving of the goalposts in the EB-5 game does nothing but create unease and uncertainty. Worse yet, the new demands ignore the Obama Administration's own statements acknowledging that counting jobs is not an exact science but instead requires "crude" measures that involve admittedly inexact presumptions. See, e.g., "Estimates of Job Creation from the American Recovery and Reinvestment Act of 2009," Executive Office of The President Council Of Economic Advisers, May, 2009.
The opaque and secretive nature of how USCIS came to this decision is anything but a confidence-building measure. How will USCIS handle the indignation that is expected on the tenant-occupancy issue during the May 1, 2012 EB-5 stakeholders meeting? Presumably, the agency will have already reviewed the critical reactions of the American Immigration Lawyers Association (AILA) and the Association to Invest in the USA (IIUSA).
Will USCIS announce its intention, as the 2002 legislation requires, to publish a proposed regulation on job-creation calculations (and meantime refrain from denying EB-5 petitions)? Will the OMB step in to police these USCIS shenanigans? Will the DHS Office of Inspector General investigate USCIS's lawless disregard of its rulemaking duties under Public Law 107-273 (as the GSA's OIG has done of that agency's Vegas escapades)? Will this USCIS scandal form the plot for The Hangover (Part III)? Apparently, AILA and the IIUSA must hire the GSA's mind reader to find out.
Last week I ventured into an alternate reality. Like the child, Alice, descending through the rabbit hole, I engaged on immigration with Executive-Branch officials, immigration lawyers, members of Congress, including the indefatigable champion of immigration reform, Rep. Luis Gutierrez, their staffs, and a group of 7th and 8th graders advocating on the Hill for passage of the DREAM Act.
At the same time, bloggers, Tweeple and cable-TV bloviators could not stop talking about the separate comments of a current member of the Supreme Court and of a former judge.
The sitting jurist is Justice Anthony Kennedy, whose enigmatic notions of liberty will likely spell the fate of President Obama's signature measure, the Affordable Care Act, including its provision of medical coverage to uninsured children.
The ex-judge, once a Virginia magistrate, is Robert Zimmerman, father of the man who slayed 17-year-old, Skittles-armed Trayvon Martin. Magistrate Zimmerman enraged many by observing, implausibly, that he is tired of "all the hate" coming from President Obama, apparently referring to the pitch-perfect, hate-free and only remarks of the President on Trayvon's death. As the Washington Post reported, President Obama said:
I can only imagine what these parents are going through . . . And I think every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this, and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened . . . If I had a son, he’d look like Trayvon . . . When I think about this boy, I think about my own kids.
Also last week, the Director of USCIS, Alejandro Mayorkas, spoke poignantly (even more intimately than in his earlier writings) of the losses and sacrifices his parents endured as they gave their children unimagined opportunities in America. He recalled an indomitable father who lost his livelihood and property in Castro's Cuba and yet built a new business in faraway California. He remembered a loyal, loving mother who came here as a refugee but would not rest until his brothers joined them in America.
Out on the campaign trail, concern for children was also the topic of the week. Rick Santorum -- ever solicitous of keeping children on the straight and hetero path -- warned a young boy not to use a pink bowling ball. Meantime, supporters of Mitt Romney, seeking to reveal his tender side, coaxed him into telling the moving story of how at Bain Capital he closed the shop one day and with his employees went searching for a 15-year-old girl who'd gone missing in Manhattan.
Love of children, however, only goes so far within the Beltway. Children raised in America but born on the wrong side of an arbitrary, human-drawn boundary are not recipients of otherwise bountiful political love. As several child lobbyists (U.S. citizens all), mustering arguments for the DREAM Act, told legislators and staffers alike last week, "it's the moral thing to do." These under-age advocates, however, didn't rely solely on the heart and soul. Citing a RAND study, they also pitched arguments to the head, noting that the economic benefits of giving DREAMers legal status would be a net economic plus for America.
Their petitions, though politely received, seemed mostly to fall on deaf ears. The Capital cognoscenti all acknowledge that there is no chance for a vote on the DREAM Act before November's election.
Even more dispiriting, the much-heralded Obama-Administration palliative of interim relief through the exercise of prosecutorial discretion (PD) is working, at best, in feeble fits and starts. Judging from the comments I heard in DC, PD -- as implemented by ICE and apparently not at all by USCIS -- looks to be a disingenuous ploy to assuage the left and an administrative convenience to clear the backlog of cases pending in the immigration courts, including those with strong grounds for relief from removal.
Trying to put lipstick on this homely pig, a senior ICE official claimed at a bar gathering last week that the PD program, though in its infancy, is proving successful. I challenged him, noting that none of the members of ICE's union, constituting the bulk of ICE's 7000-person workforce -- have taken PD training. Another lawyer agreed, recounting the words of an ICE officer who told her, "I'm a deportation officer, not a discretion officer." Undaunted, the senior ICE official responded that, though the union members make the arrests, ICE supervisors and managers decide on grants or refusals of PD. Still, the fact remains, as ICE admits, that only 1% of detained immigrants and 8% of those in removal proceedings have been given PD.
Worse yet, PD by itself, without a companion grant of deferred action status (which offers a path to a work permit), is no more protective of a DREAMer's well being than snake oil. A PD grant without deferred action status allows the grantee one hard-hearted benefit -- the opportunity to vegetate in America, like a bromeliad, on thin air.
Administration defenders of the PD-only policy say that deferred action is the most precious form of PD, requiring multi-level signoff within ICE. Similarly, at USCIS deferred action can only be granted on the recommendation of a Field Office Director and the approval of a Regional Director. Astonishingly, according to Congressional staff and agency insiders, the USCIS units that decide the vast majority of applications for immigration benefits (the Regional Service Centers in Vermont, Texas, California and Nebraska) have no authority to grant deferred action.
If President Obama really cares deeply about children, he must do more than applaud his Justice Department for its proper decision to investigate the senseless killing of Trayvon Martin. He must also explain what "every parent in America should be able to understand" and show "why it is absolutely imperative" that we not waste our DREAMers' young lives.
As I explained to CBS radio recently, he should make sure ICE focuses on removing really dangerous felons like the Vietnamese ex-con who'd been ordered removed in 2006 and now is alleged to have killed five people in San Francisco.
The President should also order ICE and USCIS to grant deferred action status generously, with less reliance on time-consuming case-by-case analysis and instead on an approach that is more quick and predictable. Perhaps, the method for determining deferred-action eligibility could be a presumptive yes-or-no decision based on a point system whereby values or demerits are calculated in alignment with the positive and negative factors identified in the June, 2011 Morton Memorandum. The point system should feature a two-way override. ICE should have discretion where warranted to overturn a presumptive "yes," and the person seeking deferred-action should be allowed to present evidence and seek to reverse a presumptive "no." This presupposes that we eliminate the charade that deferred action cannot be requested but merely is something that dawns on an immigration officer once s/he has stumbled upon facts warranting this act of administrative grace and convenience.
The case-by-case, PD-only policy has failed. At best, it has helped a tiny number of people to try and live as air plants in America. USCIS (and ICE, for those in immigration proceedings) should charge a filing fee to cover the cost of considering applicant-generated requests for deferred action. In these times of budgetary constraint, this is the only way to resolve the problem of large numbers of unauthorized persons with positive traits and abiding ties to this country who present no danger and are too numerous to deport at an affordable cost.
* * *
As my week in Washington ended, I couldn't help but note the plentiful examples of our nation's founding, an action based on the same moral principles of "life, liberty and the pursuit of happiness" as cited by the junior high students who last week urged passage of the DREAM Act. America's seminal document, the Declaration of Independence, as Alex Nowrasteh of the Competitive Enterprise Institute, noted last week ("The Founders' Immigration Policy"), remains alive today. Our forebears, in announcing their separation from England, explained that severance of common citizenship with the British was necessary because the American colonists had "appealed to [the British people's] native justice and magnanimity" to reverse the "usurpations" of King George III, but nonetheless they "have been deaf to the voice of justice."
Oh son of a Kenyan and son of Cubans, be not deaf to the voice of justice. If you could adopt more children, they should look like our DREAMers.
Last week marked the end of the second annual National Coming out of the Shadows Week, a rite of passage for undocumented youth -- Americans in all but the eyes of the law -- who support enactment of the DREAM Act.
Publicly proclaiming one's unauthorized immigration status is clearly a courageous act. As the National Immigrant Youth Alliance explains in its "Guide to ‘Coming Out’ for Undocumented Youth," revealing to others that you live in this country without legal status can range from "easy to very hard" depending on the way it's done. An act in defiance of governmental authority, "coming out" can trigger serious repercussions under the immigration laws, including arrest, detention and deportation.
On the other hand, this form of self-revelation can be cathartic and possibly beneficial. Counterintuitively, the first step from darkness could also set the stage for actions under current law that may well lead the federal government to grant legal benefits and protections unavailable to other DREAMers who remain in the shadows. Some of these avenues are described in a useful 73-page online resource, "The Life after College Guide for Undocumented Students," published by the nonprofit, Educators for Fair Consideration (E4FC).
Funded in part by benefactors from Silicon Valley, E4FC suggests, for example, the possibility of seeking employer sponsorship for an H-1B visa (for Specialty Occupation Workers), traveling abroad and applying for a "D3" waiver under Immigration and Nationality Act (INA) § 212(d)(3). This is a risky proposition. It requires throwing oneself on the mercy of both a U.S. consular officer (who must recommend the D3 waiver) and the Department of Homeland Security's Admissibility Review Office -- a unit of U.S. Customs and Border Protection -- which must approve it. If the waiver is not granted, a DREAMer who'd entered illegally or been in the U.S. in unlawful presence after age 18 would be subject in most cases to a ten-year bar on reentry to the United States.
The E4FC guide also discusses various legal ways of earning a living in the U.S. notwithstanding undocumented status, such as qualifying as an independent contractor, either as a sole proprietor or an incorporated entity. Although E4FC does not cite legal authority, it exists in some situations under Bhakta v. INS, 667 F.2d 771 (1981); Lauvik v. INS, 910 F.2d 658 (1990); and Konishi v. INS, 661 F.2d 818 (1981), cases holding that management of a business which will likely create jobs for American workers does not constitute unauthorized employment under the immigration laws.
The guide, quite correctly however, cautions DREAMers:
It is your responsibility to determine whether you may legally pursue these options based on your immigration status. Be sure to consult with an experienced immigration lawyer first.
The E4FC, also laudably, provides links to a free, online service for DREAMers to obtain a preliminary assessment of whether legal remedies may exist in a particular individual's unique situation, while offering the admonition:
This service should only be used for a preliminary analysis of your possible immigration remedies. We urge you to consult with a reliable immigration attorney for a comprehensive analysis.
I echo the same cautionary note as E4FC with a disclaimer here, and a reminder that what I am about to suggest is made available for educational purposes only, not to provide specific legal advice. For legal advice in each individual's case, DREAMers should consult a competent immigration lawyer, as urged by U.S.Citizenship and Immigration Services (USCIS) here and as explained by the American Immigration Lawyers Association in this FAQ.
With the foregoing very large caveat, here are some additional tips, possible options and information for further research with and through your immigration lawyer that may be helpful and suitable in a given case (yet may fail miserably in other cases).
Build Your Tribe. No DREAMer should face the federal government alone. Besides a competent immigration lawyer, your tribe of supporters and resource providers should include, whenever possible, family, friends, fellow students, community activists, faith-based groups working for social justice, wealthy benefactors, an employer willing to sponsor you for a work visa, social media mavens and sympathetic journalists to tell your story to the public and follow you through the immigration process. Though government officials may deny that publicity has any effect on their actions, publicity helps. Paraphrasing Hillary Clinton (even if she didn't say it first or quite this way), "it takes a village to raise a [DREAM] child."
Qualify for family-based, employer-based or self-sponsored immigrant visa classification, and apply for permanent residence (a green card) through adjustment of status by invoking the law's forgiveness provisions. The immigration laws allow foreign citizens to obtain "immigrant visa classification" in many different ways. It can be obtained through certain forms of family or marital sponsorship, or through the employment-based visa categories, including a current or prospective employer's labor certification, as well as through self-sponsorship options under the "Extraordinary Ability" and "National Interest Waiver" avenues. It can even be obtained by way of the EB-5 employment-creation investor category (say, if a wealthy benefactor provides a lawful gift, or a venture capitalist provides funds for investment by purchasing a DREAMer's intellectual property, valued at least at a half million dollars). Immigrant visa classification can be converted into a green card through the adjustment of status (AOS) process without ever departing the United States. As an initial prerequisite, AOS requires that the applicant have been inspected and "admitted or paroled." Thus, a DREAMer who entered on a visa but overstayed satisfies this preliminary threshold. If the DREAMer is an EWI (someone who entered without inspection), s/he would need to ask USCIS to grant Parole In Place to satisfy this first step for AOS eligibility. Ordinarily, however, AOS is not available to someone who violated status or worked without permission. Fortunately, there are two exceptions (forgiveness clauses) under which USCIS can still grant AOS: (1) If the violation of status was for "technical reasons;" or (2) if it was other than through the fault of the applicant. See my co-authored article, "Imagining the Improbable: Extraordinary Immigration Solutions for the Hapless and Hopeless." ("Imagining the Improbable"). With the help of an experienced immigration lawyer, more than a few talented and accomplished DREAMers can conceivably present a well-proven case showing that their violation of immigration status was proximately caused by the person(s) who brought them here, or through "technical reasons," e.g., their inability as minors under law to have the legal capacity or capability to take steps to seek some form of lawful status or discretionary relief under law.
Seek Lawful Nonimmigrant Status without leaving the United States. Just as the green card AOS procedure contains forgiveness clauses, so too do the nonimmigrant visa categories. As explained in Imagining the Improbable, someone who entered on a visa but overstayed or fell out of status, but who did not work without permission and who is not in removal proceedings, may be restored to the same or a different nonimmigrant visa status if "extraordinary circumstances" can be established. Extraordinary circumstances are decided on a case-by-case basis. As Imagining the Improbable also explains, it may be possible, in addition, to rely on a principle of law known as "equitable tolling" to extend the deadline for filing an extension or change of status. Even a person who came into the U.S. as an EWI may qualify if USCIS can first be persuaded to grant Parole In Place. INS (and USCIS still today) have exercised authority to convert parole status into H-1B status on the strength of a March 25, 2000 Headquarters policy memorandum. Thus, conceptually there is no apparent reason why parole-conversion-to-nonimmigrant-status could not also apply to other nonimmigrant categories once Parole In Place is granted.
Apply to USCIS for employment authorization, while presenting evidence of eligibility for "deferred action" status. Grants of prosecutorial discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) have been abysmally low. According to a March 9, 2012 email sent to Congress, ICE has found only 1% of detained foreign citizens and 8% of immigrants in Immigration Court proceedings "provisionally amenable" to a grant of PD. If a DREAMer is not before the Immigration Court (i.e., has never been served with a Notice to Appear), s/he may nonetheless be eligible for a grant of "deferred action," also sometimes known as "deferred departure," according to Leon Wildes, the lawyer who, in successfully representing ex-Beatle John Lennon, discovered through a Freedom of Information Act request, the existence of a secret procedure then known as the "Non-Priority Program." Although the Operations Instructions (OIs) of USCIS's predecessor, the Immigration and Naturalization Service, have been superseded, "deferred action" status still exists at 8 CFR § 274a.12(c)(14), which provides that a foreign national may apply for employment authorization if s/he "has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment." Here, from the old superseded OIs, is the INS rationale for granting deferred action status and the factors to be considered for this form of relief:
The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered:
(A) the likelihood of ultimately removing the alien, including:
(1) the likelihood that the alien will depart without formal proceedings (e.g., minor child who will accompany deportable parents);
(2) the age or physical condition affecting ability to travel;
(3) the likelihood that another country will accept the alien;
(4) the likelihood that the aliens will be able to qualify for some form of relief which would prevent or indefinitely delay deportation;
(B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases;
(C)] the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions (emphasis added);
(D) whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority (e.g., dangerous criminals, large-scale alien smugglers, narcotic drug traffickers, terrorists, war criminals, habitual immigration violators).
* * *
To be sure, some seasoned immigration lawyers might react to my suggestions with skepticism. So be it. My purpose is not to suggest that the immigration benefits available under current law through these strategies are easily won.
Rather, this is where your tribe and the tribes of all the DREAMers must spring into action. Mount a campaign to persuade USCIS to embrace these approaches in individual cases. Present the most worthy and compelling cases first. Refrain from filing cases with little hope for success. Publicize the outcomes of the successes and failures. Put USCIS (and the Obama Administration as it courts Hispanic-Americans and other hyphenated citizens for votes in November) to the task of explaining why such existing remedies under law are not embraced with gusto and granted with compassionate neutrality.
The DREAMers, after all, are the innocents. They landed here without asking for a life full of challenge and hardship. They deserve a chance to be brought into the law's good graces under remedial provisions that past administrations have created.
If large numbers of self-outed DREAMers were to ask for immigration benefits under current law, the bureaucrats managing and administering the immigration laws would be forced to take the flood of well-publicized filings into account and resolve them. Just like the plea-bargaining that takes place in every court of the land, where it would crash the system if every defendant exercised the right to a trial, it would shake the unresponsive immigration system into action were the DREAMers -- in large numbers -- to ask for what the law clearly allows.
So DREAMers (after consulting with your immigration lawyers and acting only on advice of counsel), stop playing hide and seek. Instead, come out, come out, wherever you are.
Stop the Immigration Profiling
Surprising as it may be to Italian-American youth of today, with a Cuomo as governor of New York and a Scalia and an Alito as Supreme Court justices, this kid of 1950s' Detroit hated his Italian name and resented his father for having conferred it. "Angelo Alfredo Paparelli" was too much ethnicity to bear.
I'm not named "Angelo" because of my father's fondness for heavenly creatures, nor was I given the middle moniker "Alfredo" for his love of a certain pasta sauce. Under the Italian naming tradition of primogenitore, my name was predestined. The first-born male would take the first name of the paternal grandfather and the middle name of the father, and that was that.
I hated my name, not for any dislike of Italy, but because I yearned to be accepted as an American, just like the Nelsons and Cleavers on TV. My supposed TV role model, alas, was Private Dino Paparelli of the depressingly-titled You'll Never Get Rich series (later known as The Phil Silvers Show), with the dim-witted Dino as one member of a crew of conniving Army motor-pool conscripts who regularly hoodwinked their WASPish officers.
I remember precisely when my name went from personal abhorrence to appreciation. The scene: Cass Tech High School, near Downtown Detroit, during auditions for The Solid Gold Cadillac. When the director called my name to audition, a beautiful blonde senior named Barbara exclaimed: "Angelo Paparelli! What a wonderful name!"
I didn't get the part, but I had a more valuable epiphany. My name could be Ishkabibble or Geronimo -- it didn't matter. I was just as American as former Michigan Governor G. Mennen Williams, who had a house in Grosse Pointe, and the Boyd and Williams families of Black Americans in my neighborhood; no more or less American than the Poles of Hamtramck, the Mexicans who lived near Briggs (now Tiger) Stadium, the Jews of Oak Park, the Arabs of Dearborn, or the lesbians who frequented the bar around the corner. This epiphany probably had something, at least subliminally, to do with my becoming an immigration lawyer.
Once ensconced in my chosen vocation, I learned, however, that immigration law is not ecumenical. I discovered that until 1952, non-whites could never become citizens (although native-born Blacks were Americans from day one under the 14th Amendment's birthright citizenship clause). As my colleague Prof. Kevin R. Johnson notes in "THE 'NEW' CIVIL RIGHTS: IS THE 'NEW' BIRMINGHAM THE SAME AS THE 'OLD' BIRMINGHAM?," a paper he'll discuss with me at a Chapman University Sociology conference next week:
During the post-Civil War period, the largest groups of immigrants affected by the whiteness prerequisite for citizenship came from Asia. Asian immigrants perpetually were denied the opportunity to naturalize and become U.S. citizens (and thus were perpetually disenfranchised from the political process). [FN]
[FN] See, e.g., Ozawa v. United States, 260 U.S. 178, 190 (1922) (finding that Japanese immigrant was not eligible for naturalization); United States v. Thind, 261 U.S. 204 (1923) (same for immigrant from India).
Indeed, it was not until 1965 that the National Origins Formula, which effectively barred Asians from immigrating, was abolished with the passage of the Hart-Celler Act.
Over the years, I've seen the immigration color and national-origin barriers resurface repeatedly. If you're a Cuban and arrive at Florida's shores, we release you to family, let you stay and give you a green card under the Cuban Adjustment Act; not so, if you're a Haitian.
In the late 1980s, if you sought an L-1B work visa from the UK or France to work for a car company, you were in like a swoosh; but if you hailed from Japan and were destined for a job in the auto industry, the U.S. Consulate in Osaka persuaded INS that an extralegal moratorium on L-1B issuance was necessary.
Today, if you were born in Mexico, China or India, you face decades of waiting for your date with immigration destiny -- your green card priority date. Although this may change with enactment of a bill enjoying bipartisan support -- The Fairness for High Skilled Immigrants Act -- nothing will happen to eliminate this disparate treatment by place of birth until a certain senator from the Cornhusker State lifts his hold on the legislation. And Osaka Redux: The U.S. consular posts in India and the latter-day INS, USCIS, now have been unmasked as inexplicably denying a much larger percentage of L-1B visas and petitions for Indian citizens, while those from Europe sail through.
Even though Congress remains in suspended animation until November's elections, immediate corrections are nevertheless possible. The Obama Administration can help eliminate these unlawful barriers. A simple but emphatic executive order would do the trick.
The President should declare that -- unless affirmatively mandated by law -- the federal immigration agencies shall:
Judge people seeking immigration benefits or relief from removal as individuals, based on the merit or demerit of their factual and legal circumstances.
Refrain from profiling people by color or national origin.
Apply neutrally phrased legislation even-handedly, without regard to any personal agenda of the adjudicator to serve as an unappointed line of defense against an influx of applicants from a particular country or with a certain complexion.
The President's order should require the Secretaries of State, Labor, Justice and DHS to produce a formal plan in 90 days to investigate and eliminate racial and national-origin profiling, discipline or dismiss any immigration officials who are found to have engaged in prohibited profiling, and publish periodic progress reports. Under the order, claims of racial or national-origin profiling should be jointly investigated and violations enforced by the DHS Office of Civil Rights and Civil Liberties and the Justice department's Civil Rights Division.
As I write this blog, urging one more measure to make America a truly welcoming country, I sense my father is smiling from the grave. He (very likely) and I (absolutely) are chuckling as we recall Mark Twain's wisdom:
When I was a boy of fourteen, my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished at how much the old man had learned in seven years.
By the way, for those of you who've met me and are wondering why I have Americanized the pronunciation of my name, sounding out the letter "a" like the "BAA" of bleating sheep, just ask Antonio Mendoza in this classic Saturday Night Live sketch: