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Sep 13 - The Supremes On State Police Powers

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

September 13, 2010,0913.shtm



7 Articles


3 News Items

11 Headlines

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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,0913-brown.shtm

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

Paul Parsons,0913-parsons.shtm

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

Stupid! by Angelo Paparelli,0913-paparelli.shtm

5. Article: MU & the PNAA by Christopher T. Musillo,0913-musillo.shtm

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

by Carl Shusterman,0913-shusterman.shtm

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

Matthew Kolken,0913-kolken.shtm

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

Jason Dzubow,0913-dzubow.shtm

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

for TPS Guidance Update,0913-tps.shtm

10. News: OIL Releases Immigration Consequences Of Criminal

Convictions: Padilla v. Kentucky,0913-padilla.pdf

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

Benefits: Policy And Issues,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

Parastoo Zahedi. The curriculum is as follows:

++Bona fide marriage

++How to prepare for interview

++Marriage while in proceedings

++Fraudulent first marriage


++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: Fax form: Don't delay, sign up


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

debate that can still be a reality before November 2010

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


15. Headline: Criminal Contempt Charges Against Immigration

Counseling Service Underline a Big Problem in Texas

16. Headline: Gay couples seeking immigration rights:

17. Headline: Immigration issues hurting Obama, poll finds

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

case, understanding the nursing crisis & recruiting nurses. Get

ur copy

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

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

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


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

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


22. Headline: What If Restaurants Stopped Hiring Undocumented


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


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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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