With slightly less giddy anticipation than the annual fan frenzy evoked by the Academy Awards and the Emmys, the nation awaits another hotly competitive yearly awards ceremony. Yes, Nation of Immigrators, it’s time to announce the 2014 winners and losers in dysfunctional immigration law and policy who’ve earned the coveted (or disdained) IMMI Award. Some recipients are repeats from hitherto IMMI awards of 2010, 2011, 2012 and 2013; others will take home an IMMI for the first time. The rules are the same. The IMMIs are merely this outside-the-Beltway observer’s take on the year’s highs and lows in U.S. immigration, with help from some Cool Immigration Lawyers.
Evolver in Chief. Fighting off a strong challenge by Sean Hannity who demonstrated astonishing elasticity in opposing, then supporting, then again opposing lawful status for the undocumented and a path to citizenship, President Obama earned this IMMI for his yoga-like pliancy. As itemized in the screed of a complaint filed by multiple states, the President opined at least ten times before his grant to DREAMers in 2012 of deferred action, and work and travel permits, and nine times thereafter, that he lacked unilateral authority to address America’s dysfunctional immigration policies, that is, until he announced a series of Executive Actions (not Executive Orders) in the year’s penultimate month.
Mojo Master. Barack Obama takes home this IMMI as well for bringing roughly 5 million people out of the shadows and setting an immigration trap — apparent to all — into which fractious and blustering Republicans consciously stepped. By taking executive actions on immigration (as have numerous past Commanders in Chief ), the President caused Republicans to flail about searching for a way to stop the his executive actions, including impeachment, censure, withholding an invitation to give the State of the Union speech in the House chamber, prohibiting the expenditure of funds, threatening a government shutdown, and ultimately short-funding until February the budget for the Department of Homeland Security. None of these ploys have worked. The upshot is that the President’s popularity has seen a resurgence among Latinos.
Most Flawed Legal Advice. This IMMI is awarded to that former constitutional law professor now sitting in the Oval Office who must have read and taught the seminal case of Immigration and Naturalization Service v. Chadha (declaring unconstitutional as an impermissible legislative veto an immigration statute that allowed Congress to overturn a grant of an immigration benefit by the Executive Branch). At a December 9 public forum in Nashville, President Obama said (at 21:18 on the video):
Make sure that they understand they don’t have to hire a lawyer . . . in order to pay for this [requests for deferred action]. Because what we saw during DACA [Deferred Action for Childhood Arrivals] when the young people were given this opportunity, a lot of people signed up but sometimes you’d see advertisements you know, “Come and give us $1,000 or $2,000 and we’ll help you.” You don’t have to do that.
The President also may not have read but surely officials in the Departments of Homeland Security and Justice are aware of Padilla v. Kentucky, where Justice John Paul Stevens, writing the majority opinion, stated: ”Immigration law can be complex, and it is a legal specialty of its own.” While not all applicants seeking temporary reprieve under DACA or DAPA [Deferred Action for Parental Accountability] need a lawyer if their case is straightforward and they are assisted by an Accredited Representative approved by the Board of Immigration Appeals (certainly never a notario), numerous cases will require the advice of a competent immigration lawyer. I have a ready answer when prospective clients ask me, “Why do I need a lawyer to fill out immigration forms? I tell them that “I guess I could perform surgery on myself, but it is not advisable.” Another lawyer I know, when faced with the same question, says he’s done the following:
I used to pick up a copy of the [Immigration and Nationality Act] and pick out section 203(a) and hold out the pages “these are the ways to get green cards.” I then indicate section 212(a) and hold out the pages — “These are the ways you will not be allowed to obtain a green card.” And then, do the same with what is now [section] 237(a). “And these are the ways that once you have a green card, it can be taken away. . . .” “Any questions?”
To be sure, DACA and DAPA are not as complex as the myriad ways to assemble the right evidence to qualify for, obtain, maintain or lose permanent resident status. Still, the process is sufficiently complex and the consequence of failing to qualify significant (the individual is now on the government’s radar and is subject to removal). Thus, even for those seeking deferred action, the need for a lawyer (or merely the desire to hire a lawyer to facilitate the assembly of potential evidence of physical presence in the U.S.), is obvious. Hence, the President’s advice is simply incomplete and therefore wrong. Thus, for failing to make appropriate distinctions and caution that some cases may require legal counsel, President Obama deserves the opprobrium of this IMMI.
Profile in Poltroonery. In 2014, the winner of this IMMI offered an enlightened solution to illegal immigration:
Our national and economic security depend on requiring people who are living and working here illegally to come forward and get right with the law. There will be no special path to citizenship for individuals who broke our nation’s immigration laws – that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits).
The “get right with the law“ reference may have fooled you. This IMMI goes not to President Obama but to House Speaker John Boehner who included the foregoing in a set of “Republican Standards for Immigration Reform.” Prioritizing retention of his post over the welfare of the country, the Speaker emphatically refused to bring the Senate’s comprehensive immigration reform bill, S. 744, to a vote in the House, knowing full well that it would pass with bipartisan support, while failing to fulfill his promise that the House would pass a series of immigration bills.
Profile in Machiavellian Buffoonery. Rep. Steve King takes the IMMI for doubling down this year on his absurd, fact-free statement in 2013 about DREAMers that “[for] everyone who’s a valedictorian, there’s another 100 out there that weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.” While Rep. Jared Polis teased King about a recent trip to the U.S.-Mexico border where no unusual calves were on display, King’s over-the-top rhetoric is carefully calculated and a clear and present danger to the cause of immigration reform. Sadly, he is only one of many propagating myths about immigrants and immigration.
Lemmings over the Cliff. This IMMI goes to the sitting and defeated Senators who for naught urged the President to delay executive action on immigration until after the November election. To the surprise of few in the advocacy community, this “too clever by half” strategy nonetheless led to a GOP rout.
All about Love. Jeb Bush, the first 2016 candidate for the presidency, earned an IMMI for his recognition of the prime reason why the undocumented take the risk of dying in the desert. With Fox News in attendance, Mr. Bush commemorated the 25th anniversary of his dad’s presidency, offering these honest words:
The way I look at this is someone who comes to our country because they couldn’t come legally, they come to our country because their families — the dad who loved their children — was worried that their children didn’t have food on the table. And they wanted to make sure their family was intact, and they crossed the border because they had no other means to work to be able to provide for their family. Yes, they broke the law, but it’s not a felony. It’s an act of love. It’s an act of commitment to your family. I honestly think that that is a different kind of crime that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families.
Bordering on the Absurd and Heartless. U.S. Customs and Border Protection takes this double-faceted IMMI for its two-faced demeanor in 2014. One face promotes Jolly St. Nick who learns that only Global Entry will allow this North Pole alien to speed through immigration inspection. The other face reveals how CBP shakes down and abuses immigrants by relieving them of their meager possessions before removing them, while also subjecting them to coldly harsh conditions before their ouster.
Talk is Cheap. 2014 saw USCIS make ever greater strides in public engagement and in the EB-5 immigrant investor arena, while its earnest new Director has sounded all the right themes. Still, the agency wins this IMMI for its long and prolonged list of unfinished business on business immigration. The reasons for this IMMI are numerous: Ungovernable adjudicators still issue too many requests for additional evidence, highfalutin promises of expanded use of the National Interest Waiver for entrepreneurs never materialize, oft-stated assurances to publish a final rule on employment authorization for H-4 spouses and updated L-1B guidance remain unfulfilled, the agency’s de facto reliance in determining degree equivalency solely on the EDGE database despite a contrary claim to a Member of Congress, and the buggy and insufficiently tested ELIS program which can’t handle simple applications to change status and surely is unready for complex EB-5 filings.
No Bonding of Kids and Moms. It’s no surprise that U.S. Immigration and Customs Enforcement (ICE) is rated by the Partnership for Public Service in its 2014 Best Places to Work in the Federal Government® rankings as the second-worst place to work out of 315 sub-agencies. Ever the enforcers, ICE officers through their union have chafed over the Administration’s prosecutorial discretion and deferred action policies. Perhaps part of their angst originates with their duty to arrest and detain immigrant children and mothers apprehended at the border. The IMMI goes to ICE for its “no-bond” policy requiring the incarceration of refugee families fleeing unrest in their countries of origin, with special mention going to ICE officials Philip Miller and Traci Lembke for their affidavits that have been included as ICE’s centerpiece exhibits in opposing bond and release for ALL moms and children in family detention.
We Read Nothing. This IMMI goes to the State Department’s Bureau of Consular Affairs — an agency that places unreasonable mandates on consular officers to adjudicate far too many visa applications in too short a time frame. The upshot is that consulates, such as the busiest blanket L-1 post in Chennai, will no longer read substantive correspondence from companies seeking to hire tech workers and instead requires all the facts to come solely from the mouth of the visa applicant during the brief consular interview.
Best Manual on Surviving Secondary Inspection. The IMMI goes to the Central Intelligence Agency for its interesting and thorough “Surviving Secondary Screening at Airports While Maintaining Cover.” In words that might apply to ordinary people applying for admission at a U.S. port of entry, the CIA notes: “Secondary screening—a potentially lengthy and detailed look by airport officials at passengers not passing initial scrutiny—can significantly stress the identities of operational travelers.” The cover wins an IMMI for best government cover page as well. Check it out at p. 2.
(Mostly) Courtly Behavior. This IMMI goes to the Supreme Court (for its refusal to hear Arizona Governor Jan Brewer’s claims, and thus allowing the issuance of driver’s licenses to the state’s undocumented population), to Judge Juan Osuna, Director of EOIR, the Executive Office for Immigration Review (for urging immigration judges to deal compassionately with the flood of undocumented refugee families), and to Federal District Court Judge Beryl A. Howell for refusing to issue a preliminary injunction and finding that Sheriff Joe Arpaio lacks standing to complain of President Obama’s exercise of executive authority in the field of immigration. Sadly, however, the IMMI is tarnished by another federal judge, Arthur J. Schwab, who went out of his way in a criminal case to rule as unconstitutional the civil immigration remedies announced by the President, while inexplicably suggesting that a criminal defendant who pled guilty to illegal reentry after removal may withdraw his plea and pursue the Administration’s executive actions. The IMMI is also tainted by the non-transparency of EOIR in refusing a Freedom of Information Act request by the American Immigration Lawyers Association (AILA) seeking to identify immigration judges against whom 767 complaints have been lodged and declining to reveal the resolution of these complaints.
A Credit to the Profession. Multiple IMMIs go to the 330+ lawyers and three bar groups for their selfless pro bono efforts in 2014. Many helped the flood of unaccompanied children (including some citizens) fleeing oppression and crossing into the U.S. from Mexico. These awardees include Stephen Manning, Laura Lichter, volunteer attorneys who represented kids at the Artesia, New Mexico detention center; AILA and the American Bar Association for resolutely supporting the cause; the Bronx Defenders and their New York Immigrant Family Unity Project, the first institutionally-provided, free public defender program in the country for immigrants facing deportation; attorneys such as immigration author and editor Dan Kowalski (who alerted the American people to ICE’s no-bond policy), my Seyfarth Shaw colleague, Loren Locke who won the GAIN (Georgia Asylum and Immigration Network) pro bono volunteer attorney of the year award, and Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington (who worked on cutting-edge issues and cases, warned the community and country of notario fraud and helped promote a change in state law that expanded the class of Special Immigrant Juveniles); as well as so many other worthy lawyers too numerous to mention.
In-Their-Face Activists. Again, a slew of IMMIs go out to individuals and groups who pushed the boundaries of traditional movement politics and refused to allow the President and members of Congress to ignore the need for compassionate immigration relief, including Jose Antonio Vargas, Erika Andiola, Prerna Lal, the National Day Laborer Organizer Network (and their #NotOneMoreDeportation campaign), to name but a few.
Chroniclers, Filmmakers, Quantifiers, Litigators and Proponents. Still more IMMIs go to those who made a difference in asserting the case for comprehensive immigration reform. They include: J.M. Rieger for his powerful video, ”Stalemate: How an Immigration Rewrite Died in the 113th Congress“; the Weather Channel for its searing documentary, “The Real Death Valley“; Jose Antonio Vargas for his autobiographical documentary, “Documented“; the Pew Charitable Trusts, NAFSA: Association of International Educators and TRAC Immigration for their compelling sets of immigration metrics, including, e.g., respectively, “Immigrants slow population decline in many counties,” “The International Student Economic Value Tool,” and ”Prosecutor Discretion: Immigration Court Cases Closed Based on Prosecutorial Discretion“; the American Immigration Council’s Immigration Policy Center and its powerful blog, “Immigration Impact” and AIC’s Legal Action Center for its frequent resort to the courts, most recently in defense of the President’s executive actions; Cato Institute’s Alex Nowrasteh for his prolific and persuasive writings espousing increased legal immigration; venture capitalist Paul Graham for his exuberant call for dramatically greater importation of tech workers; and the American people who consistently support comprehensive immigration reform and a path to citizenship for the undocumented.
Best Immigration Quiz. Two lawyers are awarded IMMIs for great brainteasers, Donna Becker for her U.S. Nonimmigrant Quiz, and Liam Schwartz for his Consular Corner Quiz. I venture that few of the Nation of Immigrators will score 100% on each.
Jokesters and Satirists. Lastly, a trio of cable denizens win IMMI’s because they brought us laughter’s tears over the sorry state of immigration in 2014: Stephen Colbert (“Bats**t Serious – Child Immigrant Intrigue,” ”Waiting Forever for Immigration Reform,” ”Obama’s Immigration Plan – Esteban Colberto,” and “Questionable Compassion for Child Immigrants“), Jon Stewart (“No Country for Little Kids“ and “Guardian of the Amnesty“) and John Oliver (“John Oliver Takes on Our Broken Immigration System“).
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Well, that’s it for this year’s IMMIs. The Nation of Immigrators must wait till December 2015 for the next annual IMMI Awards. Meantime, Tweet me your nominees as you witness them.