Greg Siskind on Immigration Law and Policy

Quick Take on the Arizona Case

It looks like a mixed bag based on my fast review of the transcript. Based on the questions and interactions, the provisions regarding the police stop provisions look like they stand a better chance than the registration and employment provisions. In essence, those provisions where Arizona police are bringing individuals to the attention of ICE seemed to concern the Justices less than those allowing Arizona to create their own immigration crimes. I'll bet that two provisions survive and two are struck. Could be a 4-4, but even some of the liberal Justices seemed skeptical on the police stop provisions. Of course, the big concern with those provisions are the possibilities for racial profiling and other civil rights abuses and litigation on those grounds are likely. But they would need to wait until the law took force.

Transcript of Supreme Court Arguments in Arizona Case Now Online

The PDF is here.

Immigrant of the Day: Tommy Emmanuel - Musician

The American Immigration Council recently released the names of the honorees for this year's American Heritage Awards. As the program will be in Nashville, it's appropriate that the honorees are all musicians.  One of those being honored is Australian guitarest Tommy Emmanuel. In 2008 and 2010, readers of Guitar Player magazine named him the best accoustical guitar player in the world.

For a treat, here is Emmanuel performing Classical Gas in concert:

 

New Poll Affirms Prior Reports of Massive Romney Hispanic Deficit

An NBC News/Wall Street Journal poll shows Romney is trailing the President 69% to 22%. That's not as bad as the 70 to 14% spread seen in last month's Fox News poll, but it's still horrendous and pretty much will kill Romney's chances in November unless there are massive changes in the more general polls.

Despite Romney's efforts to distance himself from the anti-immigration rhetoric of the primaries, he'll have a tough time. The Supreme Court hearing of Arizona v. United States today, the decision sometime in the next few months, Democrats holding hearings and dragging people like Russell Pearce to the Hill, the refusal of Kris Kobach to quietly disappear, and a lot of Romney statements on camera will give the President plenty of opportunties to remind Hispanic voters of Romney's extraordinarily stupid decision to try and run to the right of his opponents on the immigration issue. Unfortunately, he can't get the 35+ million Hispanic US citizens to self-deport.

Arizona Law Challenge to Be Heard by Supreme Court Tomorrow

Most know that the Arizona SB1070 "show me your papers" law has finally gotten to the point where it will be argued before the highest court in the land. The law was partially enjoined by a US District Court judge and that judge's decision was upheld by the Ninth Circuit Court of Appeals.

The challenge does not cover all parts of SB1070. Rather, the following four enjoined parts of the law are being reviewed:

• Section 2(B) allows police to ask for a person't immigration documents and determine if "reasonable suspicion" exists that the person is unlawfully present in the United States.
• Section 3 creates a new Arizona crime for persons who fail to carry their federal "registration" papers documenting their immigration status. The penalty is is up to 20 days in jail for a first violation and 30 days for later violations.
• Section 5(c) makes it a crime in Arizona for immigrants not authorized to work to apply for work, solicit work in a public place or actually work within Arizona. Violators can be jailed for up to six months and subject to a $2500 fine.
• Section 6 allows police officers to arrest immigrants (lawful or not) if they believe they are deportable (such as because they have committed a crime outside the state or have been previously incarcerated but not deported.

The biggest issue being considered is whether the Arizona law is preempted by existing federal immigration law. In other words, does the Arizona law interfere with the federal government's ability to carry out enforcement and administration of the country's immigration laws. A preliminary issue that will be considered is who bears the burden of proving that federal rules preempt the Arizona law - Arizona or the federal government. Who wins that argument will have a much easier time winning the overall preemption question.

Arizona will need to show that it has the inherent authority to arrest people for violating federal immigration law while the US government will try to show that this authority only exists when Congress authorizes cooperation with federal officials.

The federal government will also argue that the Arizona law disrupts the federal government's enforcement efforts by requiring it to expend resources on low priority cases such as non-criminal matters. Furthermore, the jailing of immigrants who ultimately turn out to have permission to be in the US could have negative foreign policy consequences (e.g. the jailing of Mercedes and Honda executives in Alabama could negatively impact on foreign trade). Outside immigration groups have also argued in amicus briefs that local police may not enforce federal immigration law even when their actions are consistent with federal priorities.

A couple of things to note about the case. First, not all aspects of the Arizona law are being challenged and there are other cases in the pipeline. Also, there are five other states with similar laws to Arizona, but they are not identical and each will have to be examined separately to determine what the Court's decision will mean. For example, the Alabama law's provision requiring the checking of the status of students is not in the Arizona law and not on trial. But the case will likely have a major influence on other cases where preemption is an issue.

Second, Justice Kagan has recused herself from the case presumably because of her prior role as the federal government's chief lawyer. That could mean a 4-4 decision which would result in the current injunctions standing and a Supreme Case not being able to give a green or red light to similar laws in other states.

Third, if the court rules for Arizona, this will not stop individual cases challenging the application of the law. Also, Congress could override the Court by changing the law. Remember, this case is about preemption, not the constitutionality of the Arizona law itself.

Fourth, if the Court rules against Arizona, the impact will depend on the scope of the decision. Saying the Arizona law violates preemption is important and would thwart a lot of the copycat efforts. But saying that states are Contitutionally barred from making or enforcing immigration measures - even when authorized by Congress - would have a much more dramatic effect. 

The Immigration Policy Center has an excellent FAQ regarding the case that can be found here.

Kicking the Star Out of Stardom

I wrote a few days ago about the state of arts immigration in America. The picture isn't pretty. I ran across this news item today which illustrates why many artists from around the world are simply bypassing America. And it's Americans who lose the most as a result.

Congress' Most Anti-Immigrant Congressman Could Lose Re-Election

I remember testifying in front of the House Immigration Subcommittee a couple of years ago and Steve King sat directly facing me. My topic of testimony - the need for an appeals board for consulate decisions - wasn't juicy enough for the Iowa Republican and he went after a friend testifying on an illegal immigration reform measure. At the time, I didn't know much about King, but in the years since he's clearly taken on the most vocal anti-immigration role in Congress, only rivaled by his Iowa counterpart in the Senate, Charles Grassley.

But while King has coasted to reelection in prior elections, re-districting has added a lot of independents to his district. And a high profile Democrat has decided to take him on. The race is shaping up as one of the more interesting ones in the House this year.

NY Times: Artist Applications Decline 25% in Response to Frustrations in Visa Process

I represent a lot of artists and am glad the Times is covering this topic. USCIS Director Mayorkas has been holding town hall meetings and expressing concern, but, really, little seems to be getting better.

The case of Mr. Álvarez is not an isolated one. In the decade since the attacks on the twin towers, American visa procedures for foreign artists and performers have grown increasingly labyrinthine, expensive and arbitrary, arts presenters and immigration lawyers say, making the system a serious impediment to cultural exchanges with the rest of the world.

Some foreign performers and ensembles, like the Hallé orchestra from Britain, have decided that it is no longer worth their while to play in the United States. Others have been turned down flat, including a pair of bands invited to perform at the South by Southwest festival in Austin, Tex., last month, or have ended up canceling performances because of processing delays, as was the case last month with the Tantehorse theater troupe from the Czech Republic, which was booked to perform in suburban Washington.

Overall, according to Homeland Security Department records, requests for the standard foreign performer’s visa declined by almost 25 percent between 2006 and 2010, the most recent fiscal year for which statistics are available. During the same period the number of these visa petitions rejected, though small in absolute numbers, rose by more than two-thirds.

Less Than 1% of Deportation Cases Closed Under Prosecutorial Discretion

Frustrating statistics. While it is true that the memo is being followed for people not yet in proceedings, if a person is already in deportation proceedings, the chances of getting relief through prosecutorial discretion are so far pretty bleak.

How Will Romney Reverse the Damage with Hispanic Voters?

We know Mitt Romney is in serious trouble in November due to his incredibly foolish efforts to become the most anti-immigrant major party candidate since World War II. The recent Fox News poll showing him losing by 56 points with Latino voters is the latest evidence of this and if those numbers don't shift dramatically, Romney can say goodbye to any chances of winning Colorado, New Mexico, Nevada, Florida and probably other states we're not even thinking about yet.

Winning those voters back won't be easy even for a candidate famous for flip-floppery. He promised to veto the DREAM Act, he condemned Rick Perry for showing some compassion and allowing illegally present kids access to in state tuition at Texas universities, he hired extreme anti-immigrant Kris Kobach to be his immigration advisor and he praised the Arizona immigration law as he was trolling for endorsements in that state.

How do you reverse all of that? Can you? It looks like Romney is at least going to do what he's famous for and completely erase his most recent positions and transform in to the pro-immigration Mitt. A private meeting was recently recorded where Romney told big donors that he was in trouble with Hispanics and needed to figure out a way to get their support. So get ready.

In the last few days, we've gotten a little preview of what to expect:

1. Senator Marco Rubio has been touting a DREAM Act proposal and Mitt Romney has been saying he might consider a Republican version of the DREAM Act.

2. He now claims Kris Kobach is not part of the campaign.

3. His campaign aides are now saying Romney was only praising the E-Verify portions of the Arizona law and not most of the objectionable parts.

4. He is emphasizing business immigration options.

5. Rumors abound of Romney considering bringing on a Hispanic vice presidential nominee.

To be fair, he's been pretty good on the business and employment immigration issues since the outset of his campaign and he's been more consistent than President Obama on that issue. Furthermore, even though the President's rhetoric over the last year has been good and his new emphasis on making the immigration system friendlier to entrepreneurs is welcome, the reality at USCIS, the Labor Department and the Department of State is worse than it has been in years.

On the DREAM Act, the Rubio proposal isn't bad and with some fixes Senate Republicans can probably agree on, it could be even better. The problem is that the bill has virtually no chance of passing in the Republican-controlled House of Representatives. Rather than attacking the Rubio proposal for not being good enough, Democrats would do better politically if they welcomed Rubio to the negotiating table, but made it clear that they will only take up the bill once the House either passes it or the Republican whip can produce proof that the votes are there.

But Romney may not support the Rubio bill anyway. Kris Kobach just told the Washington Post that he doesn't believe Romney will support the Rubio proposal as it amounts to an "amnesty." Kobach is also claiming his role with the campaign has not changed.

Latino voters would be wise to be skeptical of Romney at this point. And while a Latino vice presidential candidate might be in the works, the lesson of the McCain campaign may be that you can't make a group love you just by choosing someone from their ranks as a Veep candidate. 

If Romney is correct in his claim that he's now the leader of the Republican Party, let him prove it and get House Republicans to start changing their tune. Until then, there's no reason to believe Romney's done anything other than shake the etch-a-sketch.