Posted by Angelo A. Paparelli on May 28, 2010

Immigration Policies -- Boldly Asserted, Implausibly Maintained

A traitorous American general hanged for aiding the British during the Revolutionary War -- one Benedict Arnold -- said rather cynically: "Law is whatever is boldly asserted and plausibly maintained." This quote came to mind in scanning the latest developments in dysfunctional immigration:

  • With a rider passed by the House to a defense appropriations bill, Congress is poised to approve the phased elimination of the U.S. military's "Don't Ask. Don't Tell" policy. House leaders champion its action as a long-overdue recognition of the civil rights of gay soldiers. Yet the civil rights of binational gay lovers -- trashed by the Defense of Marriage Act -- are ignored. And a gay student born in Iran but living in the U.S. since age 3 faces deportation to the Islamic Republic (from which gays are fleeing in fear) after his arrest in Arizona for participating in a sit-in at Sen. John McCain's office protesting the Congress's failure to pass the DREAM Act.
  • The State Department gives its web page -- www.state.gov-- a welcome facelift, announcing the change in its spiffy blog; but doesn't take steps to address or explain the technology fiasco that is its online visa application form, the DS-160.
  • U.S. Citizenship and Immigration Services commendably retreats from an ill-advised "original-signature" policy that would have added to the cost of legal services for immigration stakeholders. Yet USCIS seems to do little more than listen to public complaints on its burdensome, boilerplate requests for evidence (RFEs) practices that perpetuate the agency's vendetta against small businesses, or to fail to explain the still-unresolved problems leading up to the Summer 2007 adjustment of status "surge" and the annual waste of unused immigrant visa numbers that add far more to legal fees for represented stakeholders.
  • The Department of Labor unveils a new online tool to help employees and small businesses understand H-1B visas, but does little to accelerate case processing of its online PERM program for foreign-worker labor certifications that can now take a year or longer to complete, even in cases not requiring an audit. This is the system that was supposed to issue decisions in about a month or so, according to DOL (see p. 77328):"We anticipate an electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed." Worse than that, unlike USCIS, the Labor Department refuses to expedite its decisions in deserving cases (except when ordered to speed up a case by a court) and has failed to establish a PERM hotline for stakeholder concerns.

For a modern retort to both Benedict Arnold's cynicism and the disturbing dysfunctions of American immigration policy, look no further than a powerful video, ATTN: Mr. Democrat, included among 18 finalists in State's "Democracy Challenge" contest, a 3-minute film by Iranian writer and director, Farbod Khoshtinat. The video includes these chilling lines: "Democracy is not to play with words and to invert the truth and still discourse on freedom of speech." Similarly, all the spin that a PR flack can twirl will never be enough to invert the truth about the pervasive failings of our dysfunctional immigration system.

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Posted by Angelo A. Paparelli on May 20, 2010

Immigration Policymakers Guess Wrong(ly) on Education

Immigration lawmakers try to pick winners and losers. The problem is that just like a broken analog clock with its hands frozen in place, the timing is mostly wrong.

This brings me to one of my pet peeves. It bothers me that the immigration laws and agency regulations favor some fields of study and disfavor others. Why for example are students in the STEM subjects (Science, Technology, Engineering and Math) given 27 months of "optional practical training" -- a euphemism for work permission --- while liberal arts students get only 12 months? Do Congress and the immigration agencies think we have too many poets, philosophers, filmmakers, painters and writers? Has the Department of Labor's Bureau of Labor Statistics (BLS)sifted the data and concluded that there is a surfeit of linguists, social workers and ethicists? You wouldn't think so from BLS publications.

For that matter, how do politicians and bureaucrats know whether a bachelor's degree is the right level of education for new labor-market entrants to serve America's present and future needs? The short answer is they don't.

Thirty-one days ago, before the massive spill in the Gulf of Mexico, few would have predicted that oil-spill clean-up workers would be in high demand. Fewer still could have predicted that a silver-tongued college graduate who majored in poli-sci, the son of a Kenyan immigrant, would become the leader of the free world. American lawmakers and agency officials are simply no better than the Soviet commissars who thought, wrongly it turned out, that they could direct a planned national economy.

Two recent articles, "Why Liberal Education Matters," by Peter Berkowitz, and "Plan B: Skip College," by Jacques Steinberg, illustrate my points.

Berkowitz, a senior fellow at Stanford's Hoover Institution and co-chair of a task force on the virtues of a free society, extols the societal contributions of liberal-arts students:

How can one think independently about what kind of life to live without acquiring familiarity with the ideas about happiness and misery, exaltation and despair, nobility and baseness that study of literature, philosophy and religion bring to life? How can one pass reasoned judgment on public policy if one is ignorant of the principles of constitutional government, the operation of the market, the impact of society on perception and belief and, not least, the competing opinions about justice to which democracy in America is heir?

How can one properly evaluate America's place in the international order without an appreciation of the history of the rise and fall of nations, and that familiarity with allies and adversaries that comes from serious study of their languages, cultures and beliefs?

Steinberg -- a New York Times education writer -- takes a different tack, suggesting that we short-change our youth, while saddling them with long-term debt, by failing to recognize that for many of them specialized training and vocational apprenticeship may be far more valuable:

The idea that four years of higher education will translate into a better job, higher earnings and a happier life — a refrain sure to be repeated this month at graduation ceremonies across the country — has been pounded into the heads of schoolchildren, parents and educators. But there’s an underside to that conventional wisdom. . . .

“It is true that we need more nanosurgeons than we did 10 to 15 years ago,” said [Economics] Professor [Richard K.] Vedder, founder of the Center for College Affordability and Productivity, a research nonprofit in Washington. “But the numbers are still relatively small compared to the numbers of nurses’ aides we’re going to need. We will need hundreds of thousands of them over the next decade.”. . .

College degrees are simply not necessary for many jobs. Of the 30 jobs projected to grow at the fastest rate over the next decade in the United States, only seven typically require a bachelor’s degree, according to the Bureau of Labor Statistics. Among the top 10 growing job categories, two require college degrees: accounting (a bachelor’s) and postsecondary teachers (a doctorate). But this growth is expected to be dwarfed by the need for registered nurses, home health aides, customer service representatives and store clerks. None of those jobs require a bachelor’s degree.

My point is not to jettison thoughtfulness when trying to fashion new immigration laws that will best suit our 21st Century needs. Rather, what a wonderful world it would be, I believe, if our lawmakers and immigration bureaucrats adopted a bit of Sam Cooke humility:

Don't know much about history

Don't know much biology

Don't know much about a science book

Don't know much about the French [we] took . . .

Don't know much about geography

Don't know much trigonometry

Don't know much about algebra

If not a wonderful world, then certainly a better nation America would be if it provided the flex in our legal system to make room in this country for bright, hard-working, well-educated or suitably-trained immigrants to serve our economic, political, cultural and societal needs in future decades.

Posted by Angelo A. Paparelli on May 14, 2010

New Rules on Real Time: David Frum Must Stop Spouting Off on Immigration

Perhaps I was naive to have expected more thoughtful analysis from conservative writer David Frum on last Friday's Real Time With Bill Maher. Maybe what lowered my guard was Frum's refreshing candor in criticizing as a failed strategy the Republicans' "just say no" approach to the health care act, and suggesting that bipartisan engagement might have produced legislation more to the GOP's liking. Maybe my manure detector was thrown off by his even more passionate critique of Republican nihilism, Rush Limbaugh and Fox News after his firing as resident scholar by the American Enterprise Institute.

Still, for a Canadian émigré who transferred from the University of Toronto to pursue a bachelors and masters at Yale and then graduate from Harvard Law School, this former foreign student and seeming intellectual truly disappointed me with the disinformation he unloaded in his exchange with Bill Maher about the "so permissive" U.S. immigration system:

Frum:

If you're concerned about them [Muslim terrorists like confessed Times Square bomber, Faisal Shahzad] being over here, this also raises the question: So why are they here? Why is America's student visa program so permissive? Why is it so easy to be naturalized? This is a failure of America's immigration and naturalization system.

Maher:

There's already millions of Muslims here. The problem is in their head. Let's talk about the psychology of this guy. He was in a [lousy] marriage, he had a dead-end job.

Frum:

Of course he was in a [lousy] marriage, he got married to get his green card.

Maher:

His house was under water. If that's not an American, I don't know what is.

Frum:

. . . I don't know how you talk about terrorism on these shores without saying that the immigration system needs to be more restrictive. Somebody cannot be excluded, it is illegal to exclude someone from this country -- even for a visa, never mind citizenship, even if you have evidence that the person has all kinds of radical views. The law says unless there is an overt act, unless the person belongs to a proscribed group, or has committed a crime, that the visa officer in the foreign embassy [presumably he means the American consular officer at a U.S. consulate or embassy abroad] cannot exclude him from the country.

Maher:

Let's talk about this on a more psychological level. That's all well and good, but you can't make laws about what's going on inside someone's mind.

Frum apparently doesn't need a law "about what's going on inside someone's mind" because he can read minds. Many terrible accusations can be made about Faisal Shahzad, but the charge of marriage-fraud is contradicted by the evidence: two children born of the marriage to Huma Anif Mian; a mortgage the couple held together; and a marriage that apparently remains intact after six years.

Of more importance, however, are Frum's legally flawed accusations about U.S. immigration laws. Frum neglects to mention or plainly misstates several restrictive elements of the Immigration and Nationality Act, a McCarthy-era statute, made even more restrictive by successive amendments over several years and by regulations interpreting the statute. Here is where Frum is dead wrong:

  1. The student visa system. Far from being permissive, student visa holders in F-1, M-1 and J-1 visa status are monitored more closely than all other nonimmigrants to the United States. If a foreign student or exchange visitor fails to report to campus, fails to take a full course load, receives failing grades or otherwise fails to maintain status, U.S. Immigration and Customs Enforcement requires school officials to report the immigration violation in real time through the SEVIS (the Student Exchange Visitor Information System) database or else lose the highly lucrative authority to admit foreign students.
  2. The naturalization process. Becoming a naturalized U.S. citizen is not easy. The wait to apply is from three to five years in most cases, the oral examination has been made harder, trips abroad are scrutinized, security and criminal-law screenings are conducted, and naturalization examiners can reject the application if the individual lacks the nebulous "eye of the beholder" quality of "good moral character."
  3. The power of visa officers. Consular officers are authorized to exclude individuals from this country on multiple grounds. Their factual determinations (most of the grounds for visa refusal turn on questions of fact rather than of law) cannot be overturned by the State Department or the courts under the principle of consular nonreviewability. An overt prohibited act, a criminal conviction, or membership in a proscribed group are not the only grounds for exclusion. The consular officer and the inspecting officer at the port of entry each have independent power to exclude the applicant if either has "reasonable ground to believe, [that the person] seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . illegal activity." [8 U.S. Code § 1182(a)(3)(A)(ii).] Furthermore, the law puts the burden on the individual to prove eligibility for a visa, not by the usual civil standard of a preponderance of the evidence, but rather to "the satisfaction of" the officer, and neither the consul nor the border inspector is required to reveal the underlying basis for the belief that the person will, even if only incidentally, engage in any illegal activity in the U.S. [8 U.S. Code § 1182(b)(3).] As an even stronger safeguard, even if a consular officer decides to grant the visa, the Homeland Security Department can override the decision and deny the visa. Furthermore, even if a visa is somehow issued, it can be revoked by the consular officer or the State Department under 8 U.S. Code § 1201(i) before or after the visaholder enters the U.S., thereby making those admitted instantly deportable under 8 U.S. Code § 1227(a)(1)(B).

Frum never said what he would do to make the immigration system "more restrictive." Perhaps he would require that all visa applicants be administered Sodium Pentothol and attached to a polygraph during multiple visa interviews. Or perhaps he would merely shut down the visa system and refuse entry to all foreign citizens, including Canadians (who, by the way, in most instances, are visa-exempt). Maher is right that the government cannot pass a law "about what's going on inside someone's mind." The U.S. should also not engage in such "shoot-oneself-in-the-foot" behavior by making it ridiculously tougher than the law already is on foreign students seeking to enter the United States.

What the media can do is to challenge Frum and others of his ilk when they make broad and unfounded assertions about the immigration laws. They should check with media-savvy immigration lawyers, like Victor Nieblas, a candidate for national Secretary of the American Immigration Lawyers Association whom I heartily endorse.

What the Administration and Congress can do to protect us is to video-record all applicants as they are interviewed by consular officers and provide sufficient resources so that the interviews last longer and are more fair, probing and thoughtful than allowed now under the current process, with each interview lasting only about five minutes. Come to think of it, a longer and more thoughtful Q and A might just have an additional benefit. Even applicants refused a visa might leave the experience feeling better that, at least, they were fairly considered as an individual by a not-so-aesthetically-challenged officer under America's clearly restrictive immigration system.

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Posted by Angelo A. Paparelli on May 07, 2010

Tinker Bell's Immigration Solution

Ever the optimist and trying her best to think happy thoughts, Tinker Bell, the world's most famous faerie, has been flying over Washington this week. She soared into town, lifted up by throngs of May Day marchers who believed popular revulsion to Arizona's "Papers, please" law would finally jolt politicians into enacting comprehensive immigration reform.

Hailing from the country of Neverland, Tinker flew in solidarity with the marchers, alarmed that she had entered the country without inspection and without papers, and that all she had in her pocket was faerie dust. Then she plummeted, almost to the ground, as she saw Capitol Police arrest Rep. Luis Gutierrez and several others, each wearing T-shirts bearing the plea: "Arrest me, not my family." She rose to a bit higher altitude on Sunday, watching the brave Luis G. on Face the Nation debate that Hookish Hayworth fellow:

My arrest was part of a response to what I consider the immorality of our broken immigration system. We were protesting the fact that hundreds of thousands of immigrant families have been destroyed, husbands losing their wives. There are 4 million American citizen children whose parents have either been deported or under threat of deportation. It's time to make family sacrosanct once again and to fix our immigration system. So I was arrested yesterday because it was time, I thought, to escalate and to elevate the level of awareness and consciousness for all those who try to reach our shores and can't because our system is broken.

The work week began, and again Tinker hovered low to the ground, as one politician after another threw cold water on what seemed the hottest recent prospects for reform, creating only steam. In need of a break, she repaired to the White house grounds and slept deeply -- just above Michele Obama's luscious vegetables -- only to be awakened by festive music. A crowd of Cinco de Mayo celebrants had come to hear President Obama, with Michele at his side, speak again about the need for comprehensive immigration reform:

I want to say it again, just in case anybody is confused. The way to fix our broken immigration system is through common-sense, comprehensive immigration reform. That means responsibility from government to secure our borders, something we have done and will continue to do. It means responsibility from businesses that break the law by undermining American workers and exploiting undocumented workers -— they’ve got to be held accountable. It means responsibility from people who are living here illegally. They’ve got to admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship.

Comprehensive reform —- that’s how we’re going to solve this problem. And I know there’s been some commentary over the last week since I talked about this difficult issue: Well, is this politically smart to do? Can you get Republican votes? Look, of course, it’s going to be tough. That’s the truth. Anybody who tells you it’s going to be easy or I can wave a magic wand and make it happen hasn’t been paying attention how this town works. We need bipartisan support. But it can be done. And it needs to be done. So I was pleased to see a strong proposal for comprehensive reform presented in the Senate last week —- and I was pleased that it was based on a bipartisan framework. I want to begin work this year, and I want Democrats and Republicans to work with me -- because we’ve got to stay true to who we are, a nation of laws and a nation of immigrants.

Tinker Belle's wings stopped fluttering. She fell to the ground, angrily muttering to herself:

What's this about "begin work this year" coming from the candidate who promised to tackle the immigration challenge in his first year as President? This from the same man who just last week told University of Michigan graduates that "The point is, politics has never been for the thin-skinned or the faint-of-heart, and if you enter the arena, you should expect to get roughed up." I can't take it anymore!

Mustering all her strength, Tinker flew past the Secret Service with even more stealth than party crashers at a White House dinner. She didn't stop flying until arriving like a hummingbird just at the President's left ear. As he walked into the West Wing, she shouted to get his attention, but he could hardly hear her because his left side had become benumbed. She shouted even louder "YES WE CAN!" At last the young boy from Hawaii who grew up to wear ties in July heard and recognized her. The President told his retinue that he needed to be alone. Tinker faced Barack and said:

What's this about not having a "magic wand" to wave around? You're the President of the United States! You have more than just a bully pulpit. Have you forgotten the Constitutional Law you taught students at the University of Chicago? You don't need Ben Nelson. You don't need Lindsey Graham. You can sign an Executive Order and fix a large part of the country's immigration problems, and neither Republicans, Democrats, Tea Partiers nor pundits can do anything about it.

Tinker threw pixie dust in the air and a scroll appeared. She unfurled it and began to read aloud:

Executive Order

-- Providing for a System of Registration of Undocumented Immigrants to Protect National Security and for the Early Acceptance of Applications for Adjustment of Status to Permanent Resident Status by Individuals with Long-Backlogged Priority Dates.

Section 1. By the authority vested in me as President by the Constitution and the laws of the United States of America, I declare an Immigration Emergency.

The said Immigration Emergency has arisen because:

  1. Over 10 million individuals of foreign origin are living illegally in the United States, many with American citizen children, but nevertheless generally contributing to the economic prosperity of the country and otherwise abiding our laws;
  2. The Federal Government lacks the economic resources and practical ability to remove these individuals from this country consistent with due process of law and has not ascertained the identities of most of these individuals, thereby undermining the safety and security of the nation from external and internal threats;
  3. The Congress and prior administrations have tried repeatedly but failed to enact comprehensive immigration reforms that would protect national security or honor our traditions as a nation of immigrants;
  4. Frustrated at the inaction of Congress and unwilling to pay for the unfunded burdens of a dysfunctional federal immigration policy, several states have enacted laws that interfere with, contradict and attempt to supplant the Federal Government's preeminent authority over immigration law and policy;
  5. The most recent state legislation, enacted by the Arizona legislature and signed by its Governor, has raised serious civil rights and Constitutional concerns and poses risks to public safety since otherwise law-abiding persons illegally present in the country are unwilling to cooperate with the police in helping to stop crime and identify terrorist threats to public safety;
  6. Children and young adults who lack legal immigration status have been educated by our schools and colleges but are unable to begin careers or enroll in our military because of the lack of legal status and a work permit;
  7. Foreign students who have graduated from U.S. educational institutions and other lawfully present nonimmigrants who have obtained a labor certification or are otherwise eligible for sponsorship and approval of an employment-based or family-based immigrant visa are pressured to leave the U.S. and offer their energy and talents to our country's competitor nations because of outdated agency interpretations, needlessly inflexible regulations and backlogged immigrant visa quotas that have been exacerbated by the failure of administrative agencies over several years to administer the immigrant visa quota system properly and avoid the loss and waste of such visas in each year's allotments;
  8. Federal agencies charged with enforcement of the immigration laws have poorly prioritized their responsibilities by focusing to a greater extent than prudent on the arrest and deportation of persons whose only legal violations are entry without inspection or overstaying of one's visas, thereby depleting enforcement resources that are better dedicated to anti-terrorism and serious criminal law violations;
  9. Federal enforcement agencies have largely failed to exercise the prosecutorial discretion to grant deferred action to foreign citizens who have strong ties in the U.S. and no serious criminal law history.

Section 2. The Secretary of Homeland Security and the Attorney General shall -- on an expedited basis -- promulgate regulations and use their discretionary authority under law in order to:

  1. Establish a system of registration and national-security screening of illegally present foreign citizens who are to be encouraged to enroll in the registration system by the grant of deferred action and employment authorization to all registrants who pass security screening, prove that they have paid or otherwise arranged for payment of all federal income taxes owed, acknowledge their violations of immigration laws under oath, pay a civil fine of not more than $2,500, and pay user fees to cover the full cost of the registration system; and
  2. Allow the immediate submission of applications for adjustment of status under Section 245 of the Immigration and Nationality Act by persons who have obtained an immigrant visa priority date based on a non-frivolous filing with the Department of Labor of an application for Alien Labor Certification, or on an immigrant visa petition with the U.S. Citizenship and Immigration Services, that has a reasonable basis in law and fact.

BARACK OBAMA

THE WHITE HOUSE, May __, 2010

Tinker Bell picked up a pen from the Oval Office desk and handed it to the President, waiting hopefully that he would display courage and exercise leadership by signing the Executive Order.

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