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  1. In Defense of the Lottery

    by , 05-20-2011 at 06:58 AM (Greg Siskind on Immigration Law and Policy)
    I've always had mixed feelings about the annual green card lottery. On the one hand, shouldn't our green card numbers be going to high priority family and employment categories that are backlogged as opposed to people who randomly are selected and may have few skills to offer and aren't reuniting with family here? 
    Political scientist Yascha Mounk makes the case for keeping the lottery, however, in an opinion piece in today's New York Times.
  2. Bloggings: How safe is the 14th Amendment's guarantee of birthright US citizenship from attack by the far right? Roger Algase

    W.D.  Reasoner's attack on the 14th Amendment's guarantee of birthright US citizenship for any child born in the US (except for children of foreign diplomats) in the May 19 issue of ID is long on the all too familiar right wing scare tactics of hundreds of millions of Mexican women descending on the US to have US citizen babies who will then somehow all morph, as in a grade D horror movie, into a Yemeni terrorist holding a US passport. But his article is short on any explanation of how his proposed "conversation" about how to go about stripping millions of American citizen babies of their birthright US citizenship because of their parents' immigration status, or lack of it, or because of fears that a particular baby might become a terrorist 20 years down the road, can withstand the plain language of the 14th Amendment.
    As Reasoner points out himself, in what is virtually the only part of his article that is based on reason rather than trying to exploit fears of a US takeover by Mexicans and Muslims, birthright US citizenship is "enshrined" in the 14th Amendment. If so, what is the use of complaining about it? No reasonable person would give the 14th Amendment any more chance of being amended or repealed than Bin Laden would have of coming back to life. (It may be worth pointing out, incidentally, that Bin Laden was not a US citizen, just in case Fox News or some other right wing propaganda outlet ever tries in the future to sow confusion on this point. Once respect for the truth goes out the window, as it did in the case of the late, but not lamented, "birther" scam involving President Barack Obama's citizenship, anything might be possible.)
    But would it really take repeal of the 14th Amendment in order to bring about Reasoner's nighmare fantasy of an America with a permanent underclass, in which most American-born white children would automatically be citizens at birth, since their parents would be either US citizens or foreign citizens considered to have permanent ties with the US (as most Europeans are regarded by the general public, rightly or wrongly, to have); while millions of Latino, Asian, Middle Eastern, African and Caribbean children might become either outcasts, or wind up in a kind of limbo between second class rights of residence and completely illegal status, similar to Koreans in present day Japan or only barely tolerated minorities in some other countries? Or is the 14th Amendment a less than totally secure fortress that could conceivably be undermined and overthrown from within?   
    The problem, at least for those of us who believe in America as we know it, a country in which each person is judged on his or her own merit, and not on the real or supposed immigration "sins" of his or her parents, or on profiling at birth to predict whether he or she might become a terrorist two decades later on, is that the 14th Amendment guarantee of birthright citizenship is not as unassailable or immune from attack as many people would like to think. Rather, it rests on what could turn out to be the rather slender thread of the US Supreme Court decision in the 1898 case of US v. Wong Kim Ark (169 US 649).
    I will discuss this landmark decision in more detail in Part 2 of this two-part comment, to appear in the near future.  But for the moment, at the risk of giving aid and comfort to those who would like to turn America into a two-class society, or even worse, to take this country back to the days of the Dred Scott decision, when an entire race of people was barred from US citizenship through birth in this country solely because of their ancestry, I will make only two points about the Wong Kim Ark decision. First, by its own terms, that decision only held that a US born child of foreign citizen parents who had been living in the US permanently, and legally, for many years was an American citizen at birth. It did not deal with the citizenship rights of children whose parents were in this country illegally or as short term visitors. That issue was not before the court.
    Second, the court's holding that (almost) all children born in the US were US citizens by birth was based on the propositions that a) the framers of the 14th Amendment intended to adopt the English Common Law doctrine that all persons born in the kingdom were automatically English subjects, and that b) the above was in fact the doctrine of the English Common Law. Both of these propositions, as I will show in Part 2, are open to serious question.
    As I will also show in Part 2,  the Wong Kim Ark decision would have been on much more secure grounds if it had been based only on a dicusssion of Roman law, especially ancient Roman concepts of jurisdiction, which are so central to the language of the 14th Amendment. But instead of relying on this concept exclusively, the Wong Kim Ark decision went off the track and into areas where its reasoning is much harder to justify. I will leave further discussion for Part 2. Stay tuned.
  3. DHS Inspector to Investigate Secure Communities Program

    by , 05-19-2011 at 02:06 PM (Greg Siskind on Immigration Law and Policy)
    Acting on a request for House Immigration Subcommittee Ranking Democrat Zoe Lofgren, DHS' Office of Inspector General will launch an investigation of the Secure Communities program.
    [Note: Apologies to readers for inadvertantly initially noting the 287(g) program was being investigated. Secure Communities is similar to 287(g) in terms of DHS entering in to agreements with state and local law enforcement. Secure Communities is largely about information sharing between the agencies while 287(g) allows local law enforcement to carry out arrests and detention of immigrants. The programs are often discussed jointly and both have come under criticism, but as a few readers have correctly noted, they are different.]
  4. Ecuador Cracks Down on Alien Smuggling to the U.S.

    Not long ago, the Washington Post reported on one of my clients from Eritrea, who was smuggled through a dozen countries before entering the U.S. and gaining asylum.  The article states that my client's "epic trip underscores the challenge of protecting U.S. borders in the face of agile networks of smugglers, corrupt officials who arrange travel documents and desperate immigrants willing to pay thousands of dollars for the journey."  These networks worry U.S. officials:
    "While the majority of aliens smuggled into the U.S. probably do not pose a risk to national security, the problem is terrorists could exploit these smuggling travel networks," said James C. Spero, deputy assistant director of the Immigration and Customs Enforcement agency, which enforces immigration laws. "It is a major concern for us."
    Recently, there seems to have been some progress in combating the smuggling networks.  The Ecuadoran newspaper El Universo reports that on March 10, a joint Ecuadoran and Columbian raid captured Yaee Dawit Tadese, a/k/a Jack Flora, an Eritrean smuggler, and 66 other individuals from Asia, Africa, and the Middle East.  Mr. Tadese managed a network that trafficked migrants from Africa to the United States, using two routes running through either Ecuador or Venezuela.  According to the website, Mr. Tadese was deported to the U.S. on March 12, where he faces terrorism, and drug and human trafficking charges (the article also reports on a rumor that Mr. Tadese is Osama bin Laden's cousin, but that seems a bit far fetched).
    Yaee Dawit Tadese: Osama bin Laden's long lost cousin?
    It remains to be seen how much these arrests will impact the flow of illegal migrants to the U.S., but I imagine it will have an effect-at least for a while.
    In related news, a change in the visa requirements in Ecuador might also reduce the number of migrants passing through that country en route to the United States.  In 2008, Ecuador eliminated visa requirements for most countries.  Since that time, according to, the country has "seen the growth of Colombian, Russian, and Chinese organized crime groups operating within its borders."  Ecuador's "lax visa policies may have also increased the smuggling of Asian and African migrants from the Andean nation to the U.S."
    Late last year, "Ecuador created visa requirements for nine countries: Afghanistan, Bangladesh, Eritrea, Ethiopia, Kenya, Nepal, Nigeria, Pakistan and Somalia."  This change may also reduce the number of migrants passing through Ecuador on their way to the U.S. 
    Given that it takes several months for people to travel from Ecuador through Central America and Mexico to the U.S., I suspect we will begin to see the effects of Mr. Tadese's arrest and the new visa requirements in the near future.  Will these developments reduce the number of people arriving illegally at the U.S.-Mexican border, or will they simply cause the migrants to seek out alternative routes?  We will know soon enough.
    Originally posted on the Asylumist: 
  5. H-1B Usage Still Weak

    by , 05-18-2011 at 07:41 AM (Greg Siskind on Immigration Law and Policy)
    Those thinking the H-1B program is about cheap labor might have difficulty explaining why so few H-1Bs are being requested by businesses. After all, if H-1Bs are a way to save labor costs, wouldn't employers be firing their US workers like crazy in order to take advantage?
    The demand for the new fiscal year's allotment of H-1B visas is lighter than it has been for many years - even less than during the height of the recession. As of yesterday, only 11,200 H-1Bs had been claimed and week to week demand since the quota opened up on April 1st has been 1000 to 1200. At this pace, numbers could last until next summer (compared to running out in January of this year).
    The real story is that H-1Bs are expensive for employers. They must pay lawyer costs, significant government filing fees and deal with a host of compliance rules including meeting minimum prevailing wage requirements. While the antis will point to anecdotal evidence of abuse here and there, the bigger picture is that employers tend to use H-1Bs when the labor supply is particularly tight and they have little choice. The proof of this is the actual H-1B usage numbers which skyrocket when unemployment plunges and plummet when there are plenty of US workers available. That's why I've been filing a lot more physician H-1B applications than programmer petitions over the last few years.
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