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Sep 13 - The Supremes On State Police Powers

Rating: 14 votes, 5.00 average.

-----------------IMMIGRATION DAILY FROM ILW.COM------------------


September 13, 2010


http://www.ilw.com/immigrationdaily/digest/2010,0913.shtm

Contents:


Comment


7 Articles


Focus


3 News Items


11 Headlines


Classifieds: Help Wanted: Immigration Paralegal, Help Wanted:


Immigration Paralegal, Case Management Technology, PERM Services,


Immigration Law Certificate


ReadersWrite


ComingsNGoings


_________________________________________________________________


ITEMS


1. Comment: The Supremes On State Police Powers - We take a look


at our crystal ball, and the political road ahead in the 112th


Congress on state regulation over immigrants (nota bene: NOT


immigration). First a recap. Some time ago, the 9th circuit in


Chicanos por La Causa Inc v. Napolitano found in favor of the


state's police powers in Arizona, cert was granted in early


summer, the hearing will happen early in 2011, with a decision in


late spring 2011. The 3rd circuit recently took a 180-degree


opposite tack in Lozano v. Hazelton, and found that there was


substantial conflict with IRCA when local governments used their


licensing powers, appeal will likely be taken, though cert may


not be necessary since the aforementioned 9th circuit case will


be decided in the meanwhile.


While some have said that it is futile to forecast which way the


Supremes might move in a case, we believe that some reasonable


predictions are safe to make, and moreover, are necessary to make


in light of the significant, perhaps critical, role that the


immigration vote will have in the 2012 election (by immigration


vote, we mean both pro and anti). It is our opinion that


Ginsburg, Breyer, Sotomayor and Kagan will likely take the 3rd


circuit view and find pre-emption, upholding the supremacy of the


federal legislature in immigrant matters. We further believe that


Scalia, Thomas, Roberts and Alito will likely find that the


States retain their powers on licensing matters, even when


immigrants may be thus regulated, even harshly regulated. This


will leave Justice Kennedy, in his usual role of tie-breaker.


None of the above is particularly insightful, since the Court has


split on roughly the above lines for quite some time now on many


controversial topics. On this matter, we believe that Chief


Justice Roberts will likely find a way to narrow the holding in


such a way as to bring Mr. Kennedy on board with the


conservatives, thus making for a conservative majority opinion.


We believe that this is likely, and if we are correct, will have


major implications for the 112th Congress and the 2012


presidential election. The reason is plain. Once given the green


light by the Supremes, hundreds of bills and ordinances


regulating immigrants will follow in dozens of states, making


life hell for immigrants, the final chapter, in a way, of the


"attrition through enforcement" strategy. Many, many states will


likely follow Arizona down a dark road. We expect this will


happen in short order, in fall 2011, and continue into the winter


through the spring of 2012. This will bring out the nativist vote


on the right, and the Latino vote on the left. The 112th


Congress, should it tack right on immigration, will find itself


under attack from both sides - for not being hard enough on


immigrants, and for being too hard. Naturally, this will also


affect the Republican primaries, further alienating the Latino


vote from the Republican party. It may also affect the Democratic


primaries, since, should President Obama be challenged, the


Latino vote will likely be an important part of the challenger's


coalition against the President. Of course, the President will


have had nothing to do with the Supremes' decision on IRCA, but


politics sometimes moves in crooked lines, not straight ones.


To sum up: IRCA is political dynamite, and to the extent that


immigration practitioners and advocates are looking ahead at the


112th Congress and the 2012 election, they should be aware that


the Supreme Court's expected ruling on Chicanos por La Causa


early in 2011 will likely play a large part in their professional


lives next year.


2. Article: If New EOIR Inquiry Logic Used By Phone Company by


Jan H. Brown


http://www.ilw.com/articles/2010,0913-brown.shtm

3. Article: Letter to DOS About Inappropriate K Adjudications by


Paul Parsons


http://www.ilw.com/articles/2010,0913-parsons.shtm

4. Article: Rethinking Immigration: It's Always the Economy,


Stupid! by Angelo Paparelli


http://www.ilw.com/articles/2010,0913-paparelli.shtm

5. Article: MU & the PNAA by Christopher T. Musillo


http://www.ilw.com/articles/2010,0913-musillo.shtm

6. Article: Asylum: Some Progress, But Much More Needs to be Done


by Carl Shusterman


http://www.ilw.com/articles/2010,0913-shusterman.shtm

7. Article: Mexico Is Suing Arizona Over Immigration Law by


Matthew Kolken


http://www.ilw.com/articles/2010,0913-kolken.shtm

8. Article: Gay Saudi Diplomat Fears Return to His Country by


Jason Dzubow


http://www.ilw.com/articles/2010,0913-dzubow.shtm

9. News: USCIS Reminds Salvadorans to Follow Late Re-Registration


for TPS Guidance Update


http://www.ilw.com/immigrationdaily/news/2010,0913-tps.shtm

10. News: OIL Releases Immigration Consequences Of Criminal


Convictions: Padilla v. Kentucky


http://www.ilw.com/immigrationdaily/news/2010,0913-padilla.pdf

11. News: CRS Report On Unauthorized Aliens' Access To Federal


Benefits: Policy And Issues


http://www.ilw.com/immigrationdaily/news/2010,0913-crs.pdf

12. Focus: Marriage Cases


Tuesday, September 14 is the deadline for the Thursday, September


16 phone session of "Family Immigration For Experts" with


Michelle L. Lazerow (discussion leader), Jason Abrams, Marc


Ellis, Maurice Goldman, Nancy Peterson, Melvin Solomon, and


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++How to prepare for interview


++Marriage while in proceedings


++Fraudulent first marriage


++751's


++Filing joint 751


++Good faith waiver


++Divorce at time of filing Form-751


++NTA for not filing Form-751


++Combining with NATZ application


Tuesday, September 14 is the deadline to sign up. For more info,


including speaker bios, detailed curriculum, and registration


information, please see: Online:


http://www.ilw.com/seminars/201010.shtm. Fax form:

http://www.ilw.com/seminars/201010.pdf. Don't delay, sign up

today.


13. Headline: DREAM Act: a low-hanging fruit in the immigration


debate that can still be a reality before November 2010


http://ow.ly/2DAA5

14. Headline: Congress may look at 'birthright citizenship'


debate

http://ow.ly/2DAiQ

15. Headline: Criminal Contempt Charges Against Immigration


Counseling Service Underline a Big Problem in Texas


http://ow.ly/2DzW4

16. Headline: Gay couples seeking immigration rights:


http://ow.ly/2DzQw

17. Headline: Immigration issues hurting Obama, poll finds


http://ow.ly/2DztE

18. Headline: Nurse Immigration Book: your guide 4 preparing a


case, understanding the nursing crisis & recruiting nurses. Get


ur copy

http://ow.ly/2uLbJ

19. Headline: Politico: Dems plan for a future without Pelosi


http://ow.ly/2DlfU

20. Headline: The Immigration Compliance Book: Understand I-9


concepts, I-9 advanced topics and E-Verify. Get your copy today


at

http://ow.ly/2uLan

21. Headline: Removal Book: Learn abt removal proceedings, relief


from removal, appeals & much more. For table of contents & get


copy

http://ow.ly/2uL6J

22. Headline: What If Restaurants Stopped Hiring Undocumented


Immigrants?

http://ow.ly/2Cq8L

23. Headline: Anti-Anti Immigration: Principles to Make Migration


Work

http://ow.ly/2CpVN

To submit an Article or a news item to Immigration Daily, write


to

mailto:editor@ilw.com. Follow ILW.COM on Twitter:

http://www.twitter.com/ilwcom

_________________________________________________________________


CLASSIFIEDS


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mailto:atlantacareers@balglobal.com. Salary DOE. No phone calls

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Not accepting resumes from third party vendors or recruiters at


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To place a classifieds ad in Immigration Daily, see here


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_________________________________________________________________


ReadersWrite


1. ReadersWrite: Yesterday's Discussion


http://blogs.ilw.com/immigrationdaily/2010/09/10_hazelton_and_2012.html#comments

2. ReadersWrite: Today's Discussion


http://blogs.ilw.com/immigrationdaily/2010/09/13_the_supremes_on_state_police_powers.html#comments

To submit an Article for consideration, write to


mailto:editor@ilw.com

_________________________________________________________________


ComingsNGoings


ComingsNGoings: New Associate Winsor & Tirado, PLC is pleased to


announce that Denis DaSilva has joined the law firm as an


associate. Mr. DaSilva will focus on the intersection of criminal


and immigration law in Arizona. He joins Rafael Tirado and


Claudia P. Lopez.

www.winsorlaw.com

Readers can share professional announcements (up to 100-words at


no charge), email:

mailto:editor@ilw.com.

_________________________________________________________________


The first daily in the field of immigration. Forward this to a


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Publisher: Sam Udani Legal Editor: Michele Kim ISSN:1930-062X


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  1. Roger Algase, Esq. 's Avatar
    I do not mean to downplay the importance of upholding the doctrine of federal preemption concerning immigration, which has been the subject of recent ID comment, and which the Supreme Court is expected to rule on next year because of conflicting Circuit Court decisions on this issue. But suppose that the Supreme Court upholds the 3rd Circuit decision in Lozano v, City of Hazelton and rejects the 9th Circuit ruling in Chicanos Por La Causa, Inc. v. Napolitano giving the states power over licensing laws affecting immigrants. Would this be the prelude to final victory of the battle to uphold immigrant rights in America, in the same way that the 1954 Supreme Court decision of Brown v. Board of Education ultimately proved to be the death knell for the entire system of Jim Crow segregation and oppression of African-Americans? Or could federal preemption be a leap from the frying pan into the fire for immigrants?

    One possible way to answer this question would be to take a look back five years to H.R. 4437, passed by the House of Representatives in 2005, the last time the Republicans were in control. While this bill never became law, it could be an indication of what kind of legislative proposals might be in store for immigrants at the federal level if, as expected, the Republicans take back at least one house of Congress this fall. In some respects, H.R. 4437 was even harsher against immigrants than anything contained in Arizona's S.B. 1070 law. Before discussing these provisions, let us look at some legislative history.

    H.R 4437 was passed by the House at a time when the political climate was far more favorable to immigration than it is now. Officially, unemployment is at 9.6 per cent now. In 2005, it was around 5.4 per cent. Leading Republicans such as Senator John McCain, were willing to work with Democrats such as Senator Edward Kennedy to try to reach a compromise on comprehensive immigration reform then. Now, Senator McCain only wants to build the "danged fence" along the Mexican border. In those days, President George W. Bush was saying loudly and clearly, though of course without any pretensions of eloquence, that we cannot kick 12 million people out of the US. In contrast, we now have elaborate equivocations from President Obama, who talks about immigrant rights, even as deportations carried out by his administration rise to an all time high. Therefore, one might have expected that any immigration proposal coming out of one of the Houses of Congress five years ago would have been more balanced and friendly toward immigrants than a law passed by a Arizona in 2010, a year when anti-immigrant fever is at a higher and more virulent level than in 2005. Right?

    Wrong. H.R. 4437, Section 203, would have made it a felony punishable by up to 5 years in prison, to be "present in the United States in violation of the immigration laws or the regulations prescribed thereunder". Nothing could possibly be more sweeping than this, It would not be an exaggeration to say that this one sentence would have come close to being a de facto moratorium on all immigration, because which immigrant in his or her right mind would have wanted even to set foot in the US, knowing that he or she could have been jailed for even the most technical or unintentional violation of any part of one of the most complex laws to be found anywhere in the entire US code? A green card holder who walked out of his or her home to the nearest street corner to buy a newspaper without carrying the green card could have gone to jail for five years. Same for someone missing an immigration filing deadline because the application was mailed in on a version of a form that USCIS had suddenly declared obsolete, or to an address that had been changed on short notice. Ditto for an F-1 student who, though no fault on his or her part, fell below the minimum number of school hours required to maintain status.

    Or, how about an H-1B employee who reported to work one morning, only to be told that the company could no longer afford him or her and that the desk must be cleaned out by 5:00 pm? Well, at least there would have been a grace period to call a travel agent to book a flight home, cancel a lease or sell a house, close a bank account, take children out of school, or otherwise prepare for departure before becoming a felon subject to five years imprisonment. Oops! Sorry. This is H-1B. There is no grace period for an H-1B employee who leaves work for any reason before the term of the H-1B petition approval has expired. The examples are almost endless.

    However, just in case anyone missed the point that the federal government (and I am not talking here about a rogue state such as Arizona, or a rogue city such as Hazelton, Pennsylvania) no longer welcomed any foreign citizens, even as casual visitors, H. R. 4437 would also have made any violation of the immigration laws, again, no matter how technical or unintentional, into an aggravated felony under Section 201. But at least Americans would have been protected. Didn't we already have too many immigrants in this country? Wasn't it time to do something for US citizens? Well, here is what H. R. 4437 would have done for Americans:

    Under section 202(1)(C), Whoever "assists, encourages, directs or induces a person to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States" would have been guilty of a felony punishable by up to 5 years in prison. This incredibly broad language might not only have made it a crime for a lawyer to give advice to an immigration client, but might have done the same in the case of a doctor providing medical treatment to anyone lacking the right immigration papers, or even someone giving a tip to a waiter with a foreign accent.

    The above examples should be enough to make the point that upholding federal preemption is not an automatic solution to this country's immigration problem, because even the Arizona law, while not lacking in its own harsh criminal penalties, does not go as far as H.R. 4437 in trying to shut America's gates against unwanted immigrants. What are the implications? First, we should not automatically assume that Congress will make the immigration system better if it would only take action. It might make immigration even worse. Second, upholding federal preemption is not a panacea.

    Immigration advocates should be doing two things. First,we should be looking for stronger Constitutional grounds, such as the equal protection or due process clauses, in order to strike down egregious anti-immigrant measures at any level of government. Second, we must recognize that immigration is not a federal versus state or local government problem, as much as it is a political tug of war between one major party, which has made clear beyond any doubt that it is basing its strategy on attacking, not only immigrants, but other racial and religious minorities as well, and a second major party which has yet to show enough courage to stand up against appeals to bigotry and prejudice that may one day lead our immigration policy directly to Ground Zero.

    At the same time, I do not wish to appear too pessimistic. From a different perspective, maybe there is good reason to cheer. After all, the 2010 Arizona law may be more "liberal" than the 2005 House bill. Maybe the states can be trusted to be more "tolerant" toward immigrants than the federal government. Will America's only hope for rational immigration laws reside in the sanctuary cities sometime soon?
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