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Are Deportations More Essential Than Labor Certifications and Visas? By Roger Algase

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October 6 update:


In addition to the continuing shutdown, the specter of a government default on its Treasury bonds and other financial obligations. once considered unthinkable, is now only 11 days away. House Speaker John Boehner, evidently bullied by the Tea Party radicals who want to bring down President Obama, not only by making America ungovernable, but by using debt ceiling weapons of mass financial destruction to set off a world wide economic crisis, was reported today as saying that House Republicans will not support a "clean" raise in the debt ceiling.

Faced with the threat not only to shut down the government, but to bankrupt it as well, President Obama appears to have little choice except to play hardball in order to preserve our democracy.

What better way to do this than to impose a moratorium on all immigration arrests and deportations until the government is opened again and the debt ceiling raised (except for the very few people who may be a real danger to our country)? If the Tea Party renders America unable to pay its bills, how can the US afford to deport 11 million people?

If the Tea Party radicals detest America's first black president so much that they are willing to stop the government from working and cause an economic disaster in order to frustrate his democratically enacted health care legislation, they may have the power to do so. But then they would have to accept something that they hate most of all - de facto "amnesty" for 11 million non-white immigrants.

The following is a revised version of my original October 5 post:

George Orwell famously wrote that all animals are equal, but some are more equal than others. In the same way, it can be argued that all government employees are essential.

But during the shutdown, we are told that some government employees are more more essential than others. Who decides which functions of the government are essential and which are not?

The Tea Party radicals caused the shutdown, but should they also get to decide who gets hurt the most from it?

One might think so, if one looks compares immigration-related functions affected by the shutdown with those which are not. Based on this comparison, one has to ask whether there is any rational basis for the decisions which the administration has made so far relating to which parts of the immigration system are "essential", and therefore still up and running, and those which are "not essential" and have accordingly been shut down.

One also has to ask whether these shutdown decisions are more consistent with the president's claimed support for immigration reform, or with the Tea Party's immigrant-hating, enforcement only agenda.

If one looks at only at the functions of the USCIS, one might think that the shutdown decisions are following a pro-immigration model. Fortunately, immigration petitions and applications are still being processed by the USCIS, while E-Verify has been shut down.

However, USCIS continuing immigration benefits processing has nothing to do with whether this function is considered essential. USCIS is mainly funded by user fees and does not depend on Congressional appropriations to process immigration applications or petitions.

In contrast, the Department of Labor does depend on Congressional funding, and it is now almost entirely shut down. Therefore, Labor Certifications, on which a large number of green card applications depend, are on hold and no new ones can be filed. The same is true for Labor Condition applications (LCA's) without which no new H-1B petitions or extension petitions can be submitted.

What will happen, for example, to H-1B workers whose petition approvals are about to expire but who cannot extend them because the Labor Department is closed and cannot accept or process any LCA's? In all likelihood, they will have to leave the country.

If they do not, then fairness would dictate that they should not be deported, because the fact that they cannot renew their work permission is beyond their control.

Ah, but wait. The Obama administration has decided that deportations are "essential". See, Immigrants Can Still Be Deported, Arrested During Government Shutdown (September 30, thinkprogress.org)

True, for many people it may take even longer than usual to be deported because the shutdown will make the Immigration Court backlogs worse, but merely being under deportation proceedings can be a big obstacle to obtaining legal status or work permission.

In addition, for people who have already been ordered deported or are in detention, there is no letup in the deportation mill. But while, for many people, the shutdown will do nothing to stop them from being kicked out of the country, it will do a great deal to stop other foreign citizens from coming in.

This is because the State Department also depends on Congressional funding, and long delays are expected for issuing visas at US consular posts around the world.

This raises the question: why is kicking people out of the US more "essential" during the shutdown than letting people who need to extend their legal status stay in this country, or letting people who meet the often complex and rigorous requirements for receiving visas continue to come to the US?

The shutdown does not change the fact that the president has broad executive power over immigration, as Justice Anthony Kennedy reiterated in his majority opinion on last year's landmark Arizona v US Supreme Courtdecision. Shouldn't the president have some say in deciding which is more essential in a shutdown - letting skilled workers extend their stays in the US, and granting visas to qualified foreign citizens on the one hand, or continuing with mass deportations of 11 million immigrants on the other?

Why doesn't the Obama administration give the hard-working ICE employees employees a well-earned rest and send them home as long as the Tea Party's shutdown continues? That would let the Tea Party know that if it wants to block immigration reform, it is free to keep on trying, but it will at least have to agree to open the government up first before any more brown people will be kicked out.

There is good reason to believe that one of the reasons we are in this shutdown mess is because the Tea Party fanatics thought that President Obama was weak and would give in to the far right wing agenda in order to keep the government open.

John Dean made this argument quite forcefully three years ago in a prophetic article discussed in my October 3 post. While John Dean's article did not mention immigration, one of Obama's weakest points has been his willingness, if not pathetic eagerness, to keep the deportation mill running in order to bolster his immigration enforcement credentials.

We all now how well that strategy has worked in appeasing the Tea Party's insistence on kicking out 11 million brown people from the United States. Even without a shutdown, the president has not been able to explain with any degree of coherence what is holding him back from using his broad executive powers over immigration to halt deportations if House Republicans continue to torpedo immigration reform.

But now that the Tea Party radicals have chosen to shut down the government and cause hardship to millions of people merely as a power grab, why should the president continue to reward them by following their deport 'em all agenda?

Instead, he should keep only enough ICE agents on the job to deport serious criminals and clear security risks. Let all the others go home until the Tea Party agrees to end the shutdown.

There is also a good argument to be made that immigration reform has stalled because the president has been weak in standing up for CIR. Now that his signature health care reform law is under attack by right wing know-nothings, he is finally showing some backbone in holding firm in support of the ACA instead of giving into the Tea Party's extortion tactics.

Isn't it about time for him to show more backbone in standing up for immigration reform too? What better way is there to do this than to stop the deportations until the Tea Party agrees to let both the US government and comprehensive immigration reform move forward?

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Updated 10-06-2013 at 02:19 PM by ImmigrationLawBlogs

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