Policy Watch

Immigration 101 Becoming a Citizen-Part 5 What does an American believe?

2008-08-13T15:10:13Z

Immigration 101 is a series based on my course at Hofstra Law School.

In the last installment of this series, I raised the question of whether ideas of racial or religious compatability with an idealized vision of who an American is should be considered in allowing immigrants to naturalize and become U.S. citizens. I noted that in France, a conservative Muslim woman had not been allowed to become a French citizen, in part because she did not accept gender equality.

In this installment, I want to consider whether a person needs to have a specific set of views or values that should be required before that person is allowed to naturalize.

Many of my students tell me that someone should, at least believe in the rights granted by the Constitution before they are allowed to naturalize. This view would seem to be supported by the Oath citizens swear which promisesadherence to the Constitution. But does that mean an adherence to all the values contained in the constitution, as interpreted by competent authorities, or merely adherence to non-violent political action as prescribed by the Constitution?

So, for example, should devout Catholics be denied naturalization because they may want to change the Constitution to outlaw abortion? What about immigrants who disagree with the Supreme Court's opinion that the Second Amendment protects an individual's right to own guns? Should they be banned from becoming citizens?

In the past, Congress has tried to use the immigration and naturalization laws to craft a polity in line with dominant public opinion. In a country whose First amendment protects the right of each individual to hold her own political opinion, is such political engineering really "upholding the Constitution"?

In the next installment of Immigration 101, I'll give you the answer one Supreme Court Justice gave to this question in the middle of World War II.

Here is the current list of articles in this series.

What is Immigration 101?

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Raids!

Immigration 101 ICE Storm-An on the ground look at raids

Immigration 101 Sept. 11 and immigration

Immigration 101 How the Sept. 11 Hijackers got into the United States

Immigration 101 Becoming a Citizen Pat 1

Immigration 101 Becoming a Citizen Part 2 Good Moral Character

Immigration 101 Becoming a Citizen Part 3 English

Immigration 101 Becoming a Citizen-Part 4 What is an American?

CARECEN25-Detained, Denied, Deported

2008-08-06T14:55:58Z

This series, marking the 25th Anniversary of the Central American Refugee Center (CARECEN) looks back at the early days of the immigrant rights movement on Long Island.

When I started working at CARECEN in 1983, I was a young law student at Hofstra. Although I had hoped that the recently passed Refugee Act of 1980 could be used to protect the growing Central American population on Long Island, I was quickly disabused of that notion. The Refugee Act provided for asylum for people showing that they had a well-founded fear of persecution in their home countries. It did not set a political litmus test and should presumably protect those fleeing right-wing dictatorships as well as left-wing ones.

But that was not how the law was administered. I represented refugees from El Salvador, Guatemala, and Nicaragua during the 1980s. The asylum approval rate for Salvadorans was about 2%, and for Guatemalans it was about 1%. The approval rate for Nicaraguans at times rose as high as 77%. All three had governments that engaged in human rights abuses, with Guatemala clearly being the worst. So why the big difference in approvals?

Nicaragua was ruled by the Sandinistas at the time, a leftist movement that had overthrown the Somoza dictatorship. Granting refuge to persons from Nicaragua, whatever its other merits, was part of a Reagan Administration effort to convince the world that the repressive nature of the Sandinistas was driving people out of the country. Ed Meese, the Attorney General and head of immigration during the Reagan years, referred to the Nicaraguans leaving their country as "foot-people", evoking images of the Vietnamese and Cuban "boat-people", people who risked everything to try to escape tyranny.

Unfortunately for the image Meese was trying to generate, there were even more people fleeing El Salvador and Guatemala. The refugee flows from these countries were many time that of Nicaragua. I say that this was unfortunate for the Reaganauts because tiny El Salvador was the fourth largest recipient of United States aid in the world during the 1980s, and Guatemala was so important to the Administration that the President's men developed an illegal chanel to funnel support to the military regime.

Finding that refugees from Guatemala and El Salvador faced persecution in their homelands would be tantamount to finding that the United States supported outlaw regimes that violated human rights.

Accordingly, asylum policy was set in direct controvention of the Refugee Act's non-partisan standard. Those fleeing Communist or leftist governments would be granted. Those fleeing El Salvador, Guatemala, and the U.S.-supported dictatorship in Haiti would be, in the words of a human rights report, detained, denied, and deported..

Find out about CARECEN25 Dinner

Here are other articles in this series tracing the early years of the immigrant rights movement on Long Island:

CARECEN's 25th Anniversary
Teaching English/Learning about immigration
In the beginning
Refugees without recognition

Immigration 101 Becoming a Citizen-Part 3: English

2008-08-04T18:06:24Z

Immigration 101 tracks my course in Immigration Law at Hofstra University. This is the third in a series loking at the process of becoming a U.S. citizen.

Almost everyone who applies for United States Citizenship must demonstrate a knowledge of spoken English and American History and Civics. They also have to able to read and write in English. There are some limited exceptions to this rule, which I'll get into in another article. These requirements create the most confusion among immigrants and native-born alike with a lot of mis- and dis-information out there.

I often hear Americans say that since there is no "offical" language in the U.S., immigrants don't need to know English to become citizens. In all but a small percentage of cases, this is simply not true. A lot of immigrants tell me that they have not applied for citizenship because they think they need to speak English like a "native". Also not true.

On the other hand, some immigrants seem to be unaware of the English requirement. A client I was preparing for his citizenshipinterview asked me why I was speaking to him in English and wondered who his translator at his interview would be. He was surprised when I told him that the interview would be conducted entirely in English.

Being orally examined on a ten page Federal form is a test for anyone's English, and it is one of the chief ways Naturalization Officers (the folks at Homeland Security who examine citizenship applicants) ascertain whether someone knows English or not! The officers will also ask questions about the immigrant's life and job to make sure that they are not simply parroting memorized answers. But, contrary to the fears of many immigrants, their does not have to be perfect, unaccented English. What the officers are really looking for is good understanding when the officer speaks to them and a utilitarian vocabulary and grammar that shows competence in the language.

The officer will then ask the immigrant to read out loud several statements in English. My clients have rarely failed this English literacy test. Then the applicant will be asked to write some sentances as the officer dictates them. My clients ususally do alright here, but since spelling counts, I have seen folks fail this part. Those who don't make the grade are given one more chance a couple of months later. If they fail a second time, their application is rejected.

The U.S., like many countries, has a civics and history test for those who want to become citizens. What to ask is always an issue. A few years ago the Conservative government in Australia began asking sports trivia questions as part of its test. The government said that real Australians know their cricket, but critics believe that the questions were there to keep immigrants from becoming citizens and voters.

Here, too, the test is a political battlefield, with Conservatives wanting to make it harder, possibly to cut down on the number of new voters. In October, 2008 a new test is to be introduced.

The current test is already a source of great anxiety among immigrants. I always thought it was fairly easy, but several years ago I did some work on an exhibit on immigration with the Museums at Stony Brook and they set up a kiosk where museumgoers took the test on a computer. A surprisingly large number of them failed!

There are about 100 possible questions in the test. Officers typically ask ten, with six correct being needed for approval. Here is a sample test. To see how many you get right, I've put the answers at the bottom of the page.

1. Who elects the President of the United States?
2. How many changes or amendments are there to the Constitution?
3. How many representatives are there in Congress?
4. Who becomes President of the United States if the President and the vice-president should die?
5. Who is the Chief Justice of the Supreme Court?
6. Can you name ten of the thirteen original states?
7. What Immigration and Naturalization Service form is used to apply to become a naturalized citizen?
8. In what year was the Constitution written?
9. What is the introduction to the Constitution called?
10. Name the rights guaranteed by the first amendment.

Answers: 1. Electoral College, 2. 27, 3. 435, 4. Speaker of the House of Representative, 5. John Roberts, 6. Mass., N.H., Conn., R.I., N.Y., N.J., Del., Pa., Md., Vir., N.C., S.C., Geo., 7. Form N-400, Application to File Petition for Naturalization, 8. 1787, 9. The Preamble, 10. Freedom of: speech, press, religion, peaceable assembly, and requesting change of the government.

Here is the current list of articles in this series.

What is Immigration 101?

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Raids!

Immigration 101 ICE Storm-An on the ground look at raids

Immigration 101 Sept. 11 and immigration

Immigration 101 How the Sept. 11 Hijackers got into the United States

Immigration 101 Becoming a Citizen Pat 1

Immigration 101 Becoming a Citizen Part 2 Good Moral Character

Immigration 101 Becoming a Citizen Part 2-Good Moral Character

2008-07-29T20:20:22Z

Immigration 101 tracks my immigration law class at Hofstra Law School.

In the last instastallment of Immigration 101, I looked at the first requirement for becoming a U.S. citizen (USC). An immigrant first must be a Lawful Permanent Resident (LPR), in most cases for at least five years, before applying for citizenship. But that is hardly the only requirement.

The next thing that Homeland Security will look at is whether the applicant has good moral character. All immigrants applying for citizenship go through biometric identification. A background check is done to see if the applicant has ever been arrested, or is a possible security threat. Any serious criminal history will render the immigrant ineligible for citizenship.

The Naturalization Officer interviewing the immigrant will also look over the applicant's taxes for the last five years to make sure he or she is filing and does not owe any back taxes. If the immigrant has children not living with him, the officer will ask for evidence that child support is being paid.

Any immigration violations charged against the applicant will also be reviewed.

The citizenship applicant pays for these background examinations. An application for citizenship must be accompanied by a $675.00 fee for the Department of Homeland Security review as well as for FBI and CIA checks.

In the next installment, I'll finish up with the requirements to become a citizen.

Here is the current list of articles in this series.

What is Immigration 101?

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Raids!

Immigration 101 ICE Storm-An on the ground look at raids

Immigration 101 Sept. 11 and immigration

Immigration 101 How the Sept. 11 Hijackers got into the United States

Immigration 101 Becoming a Citizen Pat 1

Immigration 101 Becoming a Citizen

2008-07-24T14:59:13Z

Immigration 101 is a series based on my course on immigration law at Hofstra Law School.

When I do public speaking, it is not unusual for me to hear these sorts of remarks from the audience:

"My friend Jose has been legal for two years and he still hasn't become a citizen."

"I wouldn't be so against the illegals if they would just take the step of becoming citizens."

"Today you don't even have to know English to become a citizen".

You may have heard these things said yourself. Or you may have said them. In any event, most of us don't really think of what it takes to become a citizen, except in the context of immigration.

That is a bit strange since 90% of U.S. citizens got that status by being born here. Folks born in the U.S. get what some call "birthright" citizenship. Now there are some Republicans who want to get rid of that, but I'll address their concerns later. To get citizenship at birth you don't have to know English or pass a test on the structure of the United States government. You don't have to promise to serve in the military if drafted or swear you were never a communist. No oath of allegiance either. Just get yourself born in Mineola or Miami and you're an American.

For immigrants, however, the task of becoming an American is quite a bit rougher. In this blog I'll look at the basics, but in subsequent entries I'll go a bit deeper. Suffice to say, there is a lot of paperwork, security checks, and other bureaucratic stuff.

The first requirement to be a U.S. citizen is that an immigrant must first be a "Lawful Permanent Resident" (LPR), also known as a "green-card holder". This is, for many folks, the single most difficult requirement. I have often had well-meaning Americans call me to tell me that their Salvadoran friend should apply for citizenship because "he's been legal for seven years, speaks good English, has never been in trouble with the police, and is a great guy".

OK, I ask, but is he a Lawful Permanent Resident? Typical response is "I said he's legal".

That is not enough. There are millions of foreign-born people in the United States living here with valid legal documents who are not LPRs. They may be here on work visas, or have Temporary Protected Status. They may have lived here legally for years and paid taxes. But, sorry, these statuses are not the "first step towards citizenship" as many Americans wrongly believe. The only true "first step" is Lawful Permanent Residence.

And just being a Lawful Permanent Resident isn't enough, either. Generally you must be an LPR for five years before your application for citizenship can be granted. Time spent legally in the U.S. before becoming an LPR generally does not count towards the five year requirement.

I have many Salvadoran clients who first got legal status in 1991. They have been living and working legally in the U.S. ever since. When they were finally able to obtain Lawful Permanent Resident status a few years ago, none of the time they had lived legally in the United States previously counted towards the five year residence requirment!

Now there are a few groups of Lawful Permanent Residents who don't have to wait five years to become citizens. The two biggest groups are spouses of U.S. citizens and members of the military. Their waits are substantially less.

In the next installment of Immigration 101, I'll look at some of the other requirements for becoming a citizen.

Here is the current list of articles in this series.

What is Immigration 101?

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Raids!

Immigration 101 ICE Storm-An on the ground look at raids

Immigration 101 Sept. 11 and immigration

Immigration 101 How the Sept. 11 Hijackers got into the United States

Immigration Reform: The Sharry Prescription

2008-07-21T16:00:24Z

In the last intallment of this twenty-part series on Immigration Reform, I looked at the analysis of Frank Sharry, one of the leaders of the national reform effort, on why the McCain Kennedy bill was defeated last year. In his much-talked-about artcile on the subject, Sharry offers a prescription for victory for the pro-immigrant movement. This prescription is gaining wide currency, but many doubt that it will work.

Before going into the emerging critique of his approach, let's look at what Sharry says needs to be done. He asks his readers what it will take to win and offers a three-part strategy:
1. A voter mobilization effort that punishes anti-immigrant politicians
2. A policy approach that excites progressive constituencies.
3. A communications effort that redefines the debate and a grassroots effort that neutralizes the loud but not large anti-immigrant forces.

Sharry the sketches out how this strategy would play itself out:

What might this look like? First and foremost, the movement needs an unprecedented citizenship promotion and voter mobilization drive. The good news is that national and local organizations such as the Service Employees International Union (SEIU), the Association of Community Organizations for Reform Now (ACORN), the National Association of Latino Elected & Appointed Officials (NALEO), the National Council of La Raza (NCLR), Democracia USA, and Center for Community Change, along with coalitions in Los Angeles, Illinois, New York and Massachusetts, as well as others, are coming together to make this happen. If they succeed, come November you may hear pundits talking about “el voto castigo” in which Latino immigrants as well as other immigrant voters came out in record numbers to punish anti-immigrant candidates, most of whom have an “R” next to their name.

Second, we need to rethink our policy approach. Of course, some things must not change. Legalizing the currently undocumented and reducing family backlogs has to be part of any immigration reform proposal aimed at modernizing our immigration system intelligently. But the old comprehensive immigration reform strategy embraced a significant increase in temporary worker visas for the “future flow” of needed workers. This element of comprehensive reform divided progressives. Especially as we enter and weather an economic downturn, a new strategy needs to consider a more limited set of “future flow” worker visas that extend permanent status rather than temporary status to new workers, with perhaps limited but reformed temporary worker programs (with more robust labor protections incorporated) targeted at agriculture and other seasonal industries.

In addition, our understanding of what constitutes the workplace enforcement component of immigration reform needs to expand beyond the drive to create a workable worker verification system. We need to include enhanced labor protections and aggressive enforcement of labor standards for all low-wage workers. For example, we need to consider expanding the Occupational Safety and Health Act, fighting wage theft by strengthening enforcement of minimum wage and overtime laws, stopping the misclassification of workers as independent contractors, improving access to job offers by all low-income workers by requiring employers to make information available to all potential applicants, protecting against discrimination in the workplace by strengthening civil rights laws and enforcement, enabling workers to join a union if they choose to, protecting workers who are displaced when their jobs are shipped overseas by improving Trade Adjustment Assistance, helping workers and their communities plan for and adjust to plant closings and mass layoffs, and modernizing the nation's unemployment insurance program.

Of course, all of these changes in strategy will have little effect as long as the anti-immigrants have their way in the media. Sharry says:

[W]e are going to need a more aggressive and assertive communications and grassroots strategy to define and drive the debate going forward. Remarkably, the right-wing xenophobes have too often presented themselves as mainstream defenders of the American way of life. In fact, they are nothing of the sort. They use high-sounding arguments to hide their low-road disdain for immigrants from Latin America. Their ugly policy goal is to drive immigrant families -- most of them Latino, some legal, some not -- out of the country. They call it “attrition through enforcement” and claim that by enforcing the laws on the books, immigrants will “humanely” self-deport. But there is nothing humane about a deliberate strategy of repression aimed at driving 12 million undocumented immigrants and their millions of U.S. citizen children and loved ones out of the country. Let's call it what it is: nothing less than a nonviolent form of ethnic cleansing.

In addition to making it clear that opponents of broad reform are extremists that have hijacked the debate, we have to make sure we win the argument that our approach to reform -- workers with rights, families that are enfranchised with all the rights and responsibilities of citizenship, and visa limits as well as labor laws sensibly enforced -- is better for workers, taxpayers and the rule of law.

Stiffening language, but will it do the trick? I'll take that up next week.

Read the introduction to the Immigration Reform Series

Free Video Seminars on immigration policy!

2008-07-15T21:04:52Z

Georgetown Law School has put its day-long immigration conference up on the web for free viewing. This is a great resource for anyone wanting the latest on developments in immigration policy and includes among its presenters some of the country's leading experts in the field.

When you go to the page, scroll down for a list of sessions available on-line for free.

ICE detention abuse

2008-07-15T20:42:22Z

The Migration Policy Institute (MPI) has a good article on problems with ICE detention condidtions. With the number of immigration detainees tripling over the last six years, the haphazard network of detention facilities have been severely strained. Particular problems have been identified in the provision of care to sick detainees. ICE has responded that it has strict detention guidelines. According to the MPI article, however, non-profits have said that "ICE often ignores these detention standards and does not work hard enough to ensure that detained immigrants have access to adequate health care."

Immigration 101 Index

2008-07-15T20:28:00Z

The Immigration 101 series was started to increase awareness of immigration issues. It tracks my course in immigration law at Hofstra University School of Law in Hempstead. It does not attempt to recreate lectures I give in the course, but instead it uses the structure of the course to organize the often disparate-seeming elements of immigration law. The series is informed by my students' comments and by the work of my deeply valued teaching partner Lauris Wren.

Here is the current list of articles in this series. More will be added weekly.

What is Immigration 101?

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Raids!

Immigration 101 ICE Storm-An on the ground look at raids

Immigration 101 Sept. 11 and immigration

Immigration 101 How the Sept. 11 Hijackers got into the United States

Immigration Reform: Elements of defeat

2008-07-15T17:31:35Z

This is the second in a twenty part series looking at immigration reform.

Frank Sharry, the former head of the National Immigration Forum, was a leading architect of the Congressional immigration reform. In a recent article on the failure of that effort he said that while the so-called Grand Compromise measure was "deeply flawed", those in the now-divided immigrant rights movement who supported the bill "held our noses in doing so". Ostensively they supported the bill because they hoped to improve it, but Sharry says they also had another motivation: "Truth be told, we were motivated as much by fear as by hope, for we worried that in the aftermath of a failed immigration reform effort, the situation for immigrant workers and families on the ground would become a living hell."

The Migration Policy Institute points out that although the Grand Compromise was "the strongest enforcement bill yet to be considered by the Senate, [yet] the public perceived it primarily as an amnesty measure. Opposition to the amnesty provision brought the bill to a halt in June when a vote to cut off debate and vote on the bill failed."

What went wrong? Sharry offers an answer in this year's most talked about article on immigration.

Frank Sharry, whom I have known for nearly twenty years as a skillful inside operator, begins by admitting his own failure: "A year ago I predicted that an admittedly flawed comprehensive immigration reform bill would clear the U.S. Senate, get improved and approved in the House of Representatives, and be signed into law. I was wrong. In June of 2007 the Senate bill crashed and burned before the House ever had a chance to take it up."

The bill was the result of a Left/Right strategy that hoped to pass the bill with impetus from Liberals and the acquiescence of Conservatives. But everything went wrong from the moment the bill was launched, says Sharry: "The so-called “grand bargain” that had been birthed in a back room by the White House and leading Republicans and Democrats in the Senate turned out to be an orphan. The right wing went nuts and mobilized in opposition to what it called an “amnesty” bill. Many in the progressive community stayed on the sidelines or actually opposed what they saw as a Bush- and business- friendly bill that was not sufficiently pro-worker and pro-immigrant."

While the Washington advocates saw room for improving the bill if it passed the Senate, immigrant rights groups around the country recoiled from its enforcement provisions: "We knew the Senate bill was deeply flawed", Sharry writes, "but we believed the legalization component for the 12 million undocumented immigrants was decent and the family reunification provisions could be fixed before final passage, and we were hopeful that if the bill passed the Senate, the House would make it more worker- and immigrant-friendly on a number of fronts."

Instead, the fight for immigration reform degenerated into one of the great legislative cock-ups of the last ten years, and a near-complete victory for the anti-immigrant side.

Here's Sharry's take on the "specific and big-picture reasons" the bill failed.

The specific reasons are twofold. First, the right-wing revolt against President George Bush and the bill intimidated all but a handful of Republicans into opposition. By way of background, the right-left legislative strategy we adopted relied on Bush, Republicans and business allies to deliver 25 to 30 Republican votes in the Senate to reach the filibuster-proof margin of 60 votes. This seemed doable when the grand bargain was first unveiled. But after the party's conservatives decided to join with the extremist anti-immigrant groups to rise up in protest, only 12 Republicans voted for a bill designed to attract their votes. Second, as a policy solution to the complex challenge of illegal immigration, the grand bargain was viewed not only as too liberal by the right, but as too conservative for the left and too unworkable for the policy experts. This combination meant that the bill, which needed to catch an updraft of support from a public wanting a solution and constituencies wanting a bill, instead met a stiff headwind of resistance.

Sharry then sketches out the big picture reasons for defeat:

We were defeated because:
1. We ended up on the wrong side of the globalization/economic anxiety debate and the legitimate concerns of American workers and taxpayers.
2. We were not prepared to effectively counter the culturally charged and increasingly racialized debate.
3. Our field and media efforts were insufficient to counter the intensity and framing of our opponents.
4. Most importantly, we did not have enough electoral might -- meaning identified voters for whom immigration reform is a defining issue -- to strike fear in the hearts of policy makers who were frightened by a more vigorous opposition.

Next week I'll discuss Frank Sharry's analysis, as well as his prescription for getting immigration reform back on track.

e-verify and discrimination

2008-05-21T14:53:30Z

This is the concluding installment in a three-part series on e-verify.

With Steve Levy trying make the voluntary Federal e-verify system mandantory for 16,000 Suffolk employers, it is important to look at the flaws in the underlying Federal program.

The leading Latino civil rights group, MALDEF, has warned that "forcing a deeply flawed system upon an unstable economy" will "increase discrimination against Latinos and other national origin minorities, present burdensome costs to businesses, and threaten the jobs of ...native born Americans...".

To understand why discrimination will increase against Latinos and Asians, it is important to return to the Congressional testimony of Mitchell Laird of the U.S. Chamber of Commerce. Laird said:

In our experience, there is a tremendous disparity between the initial E-Verify
results for U.S. citizens versus the initial results for resident aliens. Only 3.2% of U.S.
citizens received an initial response other than “employment authorized,” while almost
75% of resident aliens received an initial response other than “employment authorized.”14
Because of the additional costs under E-Verify of an initial response that is not
“employment authorized,” in our experience, resident aliens are more expensive to
employ than U.S. citizens. Consistent with our experience, an independent study of the
web-based Basic Pilot Program, which DHS refers to as E-Verify, concluded that
foreign-born employees were thirty (30) times more likely to receive a false tentative
nonconfirmation as were U.S.-born employees.

Another disparity between the treatment of U.S. citizens and resident aliens is that
only resident aliens are subject to the photo comparison tool in E-Verify. If a permanent
resident alien submits his or her resident alien card as a “List A” document for proof of
identification and work authorization, then the employer must compare a copy of the
resident alien card to a photo from the Department of Homeland Security database.
Employers are required to retain a copy of the resident alien card with the employee’s I-9.
This creates another level of liability exposure for employers because the E-Verify
manual is clear that the two photographs must be exact. That can be difficult to
determine, especially if the employer is looking at a photocopy of the resident alien card.
The copy of the card is then retained and the employer is subject to the possibility that
Immigration and Customs Enforcement (ICE) or some other agency will second-guess
the employer’s determination that the two photographs were an exact match. If the
employer is not certain that the photographs match exactly, then that serves as a tentative
nonconfirmation, which means extra work and costs for the employer, the employee, and
DHS. The employee must go to DHS to resolve the issue, and the employer has an
additional E-Verify case to monitor.

In MCL Enterprises’ experience, only ten out of thirty-nine queries on resident aliens resulted in an
initial response of “employment authorized.” Sometimes more than one query is run on a single employee.

Information may be entered incorrectly when running E-Verify. When this happens, the employer must
“resolve” the query by indicating that it was an “invalid” query. The employer then runs a new initial query on that employee and gets a new initial response. In our experience, invalid queries are much more likely to come from persons with compound surnames, who are much more likely to be resident aliens. If
we assume that all the invalid queries on resident aliens resulted in duplicate queries on a single employee,
then a little over two-thirds of all resident alien employees (21 out of 31) had an initial result other than
“employment authorized.”

Because of the disparity in cost and the disparity in liability exposure between
applicants who are U.S. citizens and those who are resident aliens, I believe the current
E-Verify system puts pressure on employers to give preference to applicants who look
like they will check the box on the I-9 indicating that they are a U.S. citizen.

Other blogs in this series:

Part 1: What is e-verify?

Part 2: Negative impacts of e-verify

Also, Immigration 101 blog on how employer sanctions laws have encouraged discrimination in the past.

e-verify: Overwhelming, Inaccurate, Discriminatory

2008-05-20T21:14:36Z

This is the second in a three part series on e-verify.

Steve Levy wants to make e-verify mandantory in Suffolk County. But there is a growing outcry nationally against it being used at all.

Hearings on e-verify earlier this month prompted a New York Times editorial to warn that the burdens imposed by the new system threaten to overwhelm the Social Security Adminstation at a time when it has a backlog of over half-a-million cases. The paper also reminded readers that programs like Steve Levy's would require the firing of known U.S. citizens if the database indicated they were not work authorized!

The Atlanta Journal Constitution opposes e-verify because the program will have a disproportionate impact on women. If a woman changes her name through marriage or upon divorce and the change is not properly indicated in the system's database, her employer will receive a notice that she is not authorized to work.

Testimony a few weeks ago from the Government Accountability Office (GAO) provides glimpses of the problems associated with the program.

The e-verify system relies on a database of persons authorized to work in the U.S. created and maintained by the Social Security Administration. It is used to enforce laws within the jurisdiction of the Department of Homeland Security. But it has some major holes, largely arising from the inefficiency of Homeland Security. For example, when a permanent resident becomes a U.S. citizen, Homeland Security updates its database to reflect this, but it does not transfer this information to Social Security. The employer of the U.S citizen might receive a "tentative non-confirmation" notice indicating that the employee was not work authorized. Similarly, people who change their names due to marriage or divorce might also be issued "tentative nonconfirmations".

The GAO also found that some employers engaged in illegal discrimination against employees who had received tentative nonconfirmations. These actions included "restricting work assignments, reducing pay, or requiring employees to work longer hours or in poor conditions" while they contested tentative nonconfirmations. The GAO also reported that some employers used e-verify to pre-screen job applicants, even though this is prohibited under e-verify procedures.

Mitchell Laird testified on behalf of the U.S. Chamber of Commerce. He addressed a situation similar to that in which Steve Levy wants to place Suffolk businesses. The State of Arizona has a statute like the one Levy is considering that makes e-verify mandantory. According to Laird, Arizona, "by creating a new and devastating penalty for violation of immigration laws, the Arizona legislature is creating tremendous pressure on Arizona employers to discriminate against prospective employees because of their appearance, nationality, or language skils." So even without foulups, e-verify encourages discrimination.

And foulups do occur and they tend to heighten discrimiantion against Latinos legally in the United States.

In the final anysis, you just have to ask yourself, how much do you trust the Federal government to maintain an error-free database trustworthy enough to stake your job on?

Read the final article in this series

Immigration 101 September 11 and Immigration

2008-05-19T14:27:51Z

Immigration 101 tracks my course in Immigration Law at Hofstra Law School.

There has been much discussion of what actually happened on September 11, 2001, and who was behind the attacks in Washington and New York. Misunderstandings and purposeful lies have abounded. These range from the claim that Jews received a pre-warning of the impending disaster, a canard widely circulated in the Middle East to the history changing charge that Iraq was involved. Through all of the distortions, the Report of The National Commission on Terrorist Attacks Upon the United States, popularly known as the 9-11 Commission, as well as the Commission's staff reports on selected topics, remains the first source anyone should consult on the attacks.

The work of the 9-11 Commission has been accurately criticized in Philip Shenon's new book The Commission, and elsewhere. In particular, the Commission's executive director, a close friend of Secretary Rice, may have delayed some aspects of the investigation into the Bush administration's behavior in the months before September 11. But, for my purposes, to look at the immigration-related aspects of the terrorist acts, the Commission provides a fine source.

The 9-11 attacks have been used ceaselessly by anti-immigrant groups to promote their restrictionist cause. Early in 2008 I did a debate with a representative from one of the best-funded anti-immigrant goups, a fellow who regualrly appears on FOX on immigration issues. The debate topic was "How communities can deal with immigrant day laborers". In his fifteen minute opening statement he must have talked about terrorism and the World Trade Center a dozen times. I joked that if he thought that Osama was going to infiltrate terrorists into the United States and then have them stand on a street corner to get jobs mowing lawns, we may have to rethink the whole notion of terrorist funding.

One thing that anti-immigrant groups learned from President Bush is that constantly invoking the phrases" terrorism" and "9-11" can make a certain percentage of the American people abandon their critical faculties.

In the next installment of Immigration 101, I'll look at how the terrorists came to the United States and what the immigration implications are.

Here are some other installments in the Immigration 101 series

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Raids!

Immigration 101 ICE Storm-An on the ground look at raids

Immigration 101-Raid!

2008-05-07T15:50:52Z

Immigration 101 tracks my Immigration Law class at Hofstra.

Most immigrants who wind up being deported are either caught at the border, or transferred to Immigration and Customs Enforcement (ICE) when they are arrested for a crime. But what gets the headlines are the raids.

In 2007, a week-long series of raids on Long Island made national headlines. The behavior of ICE agents was so outrageous that Nassau County Executive Tom Suozzi filed a protest with the Department of Homeland Security. The Long Island raids and similar actions around the country led to Congressional investigations into ICE and multiple lawsuits. The impact of the raids on children caught up in the capture of their parents has caused widespread revulsion.

Raids really are not a very good way to halt illegal immigration, if that is your goal. The raids on Long Island drew on dozens of ICE officers, involved transporting them from as far away as Texas and housing them at government expense in New York, and keeping them away from other work for more than a week. All to nab fewer than 200 immigrants.

The same group of officers could have been deployed along the border and captured many times that number.

So why ICE's scarce resources being used in these spectacularly headline grabbing raids?

Well, precisely because the raids are headline grabbing.

The Department of Homeland Security was set up after the 9-11 terror attacks to grab headlines. The creation of the new agency did little to enhance security. Its most well-publicized intitiative before the raids was Tom Ridge's eminently stupid system of color-coded terror warnings. Similarly, the raids are not carried out to reduce the number of undocumented immigrants, but rather to appease a public demanding that "something must be done".

Think about it. Between 80,000 and 100,000 undocumented immigrants live on Long Island. The big raids captured less than 200 people, leaving between 79,800 and 99,800 "illegal immigrants" living here. But the newspapers were full of the story and Steve Levy hailed the raids as the dawning of a new era.

It wasn't.

So, when you hear of big, headline grabbing raids, rest assured that while the diversion of resources may have allowed many more undocumented to enter the United States, the publicity around the sweep allows your neighbors to sleep the sleep of those who know that the homeland is secure.

In the next installment, I'll look at how a raid works.

Here are some other installments in the Immigration 101 series

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1

Immigration 101 Free Speech Part 2

Immigration 101 Keeping the Chinese Out Part 1

Immigration 101 The Chinese Exclusion Act Cases Part 2

Immigration 101 Employer Sanctions Part 1 Introduction

Immigration 101 Employer Sanctions Part 2 How employers evade the law

Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants

Immigration 101 Deportation

Immigration 101 Deportations

2008-05-05T00:05:36Z

The Immigration 101 series tracks my course at Hofstra Law School.

The United States has, over the last twenty-two years taken two basic approaches to reducing the number of undocumented immigrants. First is deportations. Second is employer sanctions. Enforcement of sanctions against employers has declined over the years, while deportations have steadily risen.

It is a commonplace to hear that the U.S. has stopped deporting undocumented immigrants and that we need to go back to some magical time, usually people cite the Reagan administration on this one, when "we enforced the law".

Actually, deportations were much rarer during the Reagan and George H. W. Bush administration. Even during the early years of the Clinton presidency, only 51,000 people were deported in an average year. That had changed dramatically by Clinton's second term. Annual deportations (now called "removals") had quadrupled. In fact, deportations set a record in Clinton's last year in office, reaching 272,000 formal and expedited removals. Deportations declined at first during George W. Bush's presidency, but by 2005 they had set a new record of 281,000. Since then, thenumbers have only grown.

Most deportees fit into one of three groups: 1. Persons caught near the border; 2. Persons arrested for crimes by state and local police who are then turned over to Homeland Security; and 3. Persons who were previously ordered to leave the U.S., but who failed to do so. There is now a fourth and growing group, immigrants who are caught up in raids directed against individuals in the third group.

In our next installment, we'll look at how the raids work, and how they have changed in ways that are terrifying to the Latino community.

Here are some other installments in the Immigration 101 series

Immigration 101 Overview of the Immigration System

Immigration 101 Employment Based

Immigration 101 Family Based Immigration

Immigration 101 So what makes up a family

Immigration 101 History We need a new Ellis Island

Immigration 101 NonImmigrants

Immigration 101 Coming to the U.S.

Immigration 101 Stopping 'em at the border

Immigration 101 Don't Give Me Your Poor

Immigration 101 Free Speech Part 1