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  1. Blogging: Some more thoughts on Alabama's horrendous immigration law. By Roger Algase

    There seems to be wide agreement that punitive state laws, such as the ones in Alabama, Arizona, Georgia and elsewhere, are not the answer to America's immigration problems, but are only increasing racial divisions and punishing people who present no danger to society, or actually make positive contributions to our economy. But there is also a widespread misunderstanding about the origins and significance of these laws. If we want to avoid even more of these laws, and even worse ones, we need to realize what the motivation is behind them.
    According to conventional wisdom, harsh anti-immigrant laws in the states are merely reactions to the inability of 1) the Obama administration to enforce existing immigration laws and 2) Congress to agree on immigration reform. The first proposition, as we all know, is utter nonsense. 400,000 deported people in each year of the Obama administration can attest to that.
    The second proposition is also without merit. How can Congress be expected to agree on immigration reform when the same people who are behind the punitive state laws are fighting tooth and nail to block any positive movement at the federal level? An example, which I have frequently mentioned, but is worth repeating, is the infamous House bill, H.R. 3447, that was passed in late 2005, the last time the Republicans controlled that chamber before now. That bill was, in effect, a template for criminalizing the entire immigration system and imposing draconian penalties for even the most technical immigration violations.
    As I wrote at the time in a different forum, if that bill had become law, no foreign citizen in his or her right mind would have wanted to come to the US with any kind of visa from any country, for fear of incurring a five year jail sentence for technicalities completely beyond the person's control. What possible motivation could there have been for such a horrendously punitive bill (which, fortunately. never even made it to the Democratic controlled Senate)? In 2005, the economy was booming and unemployment was low. 
    If such a bill had passed the Congress and been signed into law, there would have been no federal pre-emption argument against it. Therefore, the whole debate over whether the states have the right to pass their own immigration restrictions is, in this respect at least, beside the point. What would happen if Congress passes an anti-immigrant law that makes Alabama's look like a manifesto of immigrant rights by comparison? More to the point, what will happen if and when the Republicans take over both houses of Congress?
    In that case, we would have to look to individual states, or municipalities, as the only outposts of racial equality and human rights for immigrants left in America. Unless Americans fight against bigotry and intolerance against all minorities and the disadvantaged, including Muslims, gays, women, and African-Americans, we may soon see legislation at the federal level, and in many other states, that would send immigrants and other minorities rushing to Alabama and other current citadels of hatred for sanctuary.
  2. BIA Decision: Third-Degree Attempted Arson in New York is an Aggravated Felony

    by , 10-17-2011 at 12:35 PM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals (BIA) has ruled that attempted arson in the third degree in violation of NYPL §§ 110 and 150.10 is an aggravated felony under INA §101(a)(43)(E)(i), despite the fact that the statute lacks the jurisdictional element in the applicable Federal arson offense.  See Matter of Robert BAUTISTA, 25 I&N Dec. 616 (BIA 2011).
    The BIA used the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600 (1990), to determine if the offense of attempted arson in New York is a crime "described in" the aggravated felony provision of INA §101(a)(43)(E)(i), comparing the New York crime with the Federal crimes that Congress has designated as aggravated felonies.
    The BIA concluded that New York State arson is "described in"  INA §101(a)(43)(E)(i) because the omission of the Federal jurisdictional element in §844(i) from the State statute is not dispositive, finding that the offense in NYPL §150.10 contains all of the other substantive elements contained in §844(i), rendering it an aggravated felony.
    The BIA saw no distinction between the Federal jurisdictional element in §844(i) and the Federal jurisdictional element in §922(g)(1) reasoning that interpreting NYPL §150.10 as not being "described in" §844(i) would render the "penultimate sentence" in INA §101(a)(43) meaningless, the exception clause in INA §241(a)(4)(B)(ii) "superfluous", and State (and foreign) arson crimes would therefore not be covered by section 101(a)(43)(E)(i).
    Click here to read the BIA's decision.
  3. California - The Golden State on Immigration; By Danielle Beach-Oswald

    It looks as if California is living up to its nickname as "The Golden State" - at least in the context of immigration. While other states are passing draconian laws in an effort to crack down on illegal immigrants, California is worthy of much praise for its efforts in implementing the Dream Act.
    In July, California Governor Jerry Brown signed into law AB 130 which gave undocumented students in the state of California the ability to receive privately funded scholarships. Last week, Governor Jerry Brown signed into law AB 131 which will give 41,000 undocumented students access to $14.5 million in public funding for higher education in the state. AB 131 will give undocumented students access to surplus funds from California's educational grant program. Therefore, the state will not be reducing any aid to documented students. Given that the Dream Act failed to generate enough support in Congress, California is taking a step in the right direction to make undocumented students cohesive members of society. California was one of the first states that allowed undocumented students who graduated from a California public high school to qualify for in-state tuition rates. Immigration advocates in California are now pushing for undocumented individuals to have access to drivers licenses.
    California's efforts to incorporate undocumented students are a stark contrast to Alabama's new measure. Although the federal government is seeking to block Alabama's new law which allows school officials to check the immigration status of children in public schools, the federal government faces a long and tough road ahead.
    With the Morton Memo on Prosecutorial discretion, state immigration leaders should follow California's example. Undocumented students shouldn't face a risk of deportation and aren't going anywhere. States must realize that only by making undocumented students productive members of society will they be able to thrive as Governor Perry of Texas so clearly pointed out in the debates much to his demise politically. States have already invested thousands of dollars in the education of undocumented students. Their ability to get a college education will allow them to contribute to the country they already consider home.
    Currently it is estimated that 1.5 million undocumented students live in the United States and they have an ability to contribute to the United States. This must be cultivated, and the Dream Act should be implemented nationwide.
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  4. Letters of the Week: Oct 17 - Oct 21

    Please email your letters to or post them directly as "Comment" below.
  5. Herman Cain Wants to Electrify the Border Fence

    by , 10-16-2011 at 05:24 PM (Greg Siskind on Immigration Law and Policy)
    I used to joke that it was a matter of time before the antis started to advocate the death penalty for immigration violations. But this is pretty close to what Herman Cain, the new Republican frontrunner, just said. When he know doubt was told by advisors later that this was going too far, he backtracked and said he was joking. Wow, ha ha. Funny.
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