As we count out the final hours of 2012, let's recall the highs and lows of the past year in America's dysfunctional immigration ecosphere.

Nation of Immigrators is pleased to confer its third annual IMMI Awards. (Full disclosure: As in past years, these are my personal choices. If you disagree or believe I've missed an obvious awardee, feel free to comment below or post it on Twitter with the hashtag "#2012IMMIS," and be sure to check out our previous awardees here: 2010 IMMIs & 2011 IMMIs).

 

 

The 2012 IMMI Awardees

 

Immigration Word of the Year. This year's word could well have been "omnishambles" -- "a thoroughly mismanaged situation notable for a chain of errors" -- chosen by Oxford University Press, yet aptly suited to our perversely American form of immigration regulation. British novelist, Ian McEwan, in his new book, Sweet Tooth, while explaining the problems of England's intelligence agencies in the 1970s, could well have been describing the federal and state authorities that administer and enforce America's omnishambled immigration laws when he observed:

Too many agencies, too many bureaucracies defending their corners, too many points of demarcation, insufficient centralized control.  

Instead, the IMMI goes to "self-deportation" (Mitt Romney's proposed solution to illegal immigration), a hyphenated word that (even someone as intemperate as Donald Trump recognized) contributed mightily to his self-immolation as GOP candidate for President:

[Romney] had a crazy policy of self deportation which was maniacal. . . . It sounded as bad as it was, and he lost all of the Latino vote . . . He lost the Asian vote. He lost everybody who is inspired to come into this country.

Belated Gumption.  For modest courage expressed ever so slowly, the award goes to President Obama for his authorization through the Homeland Security Department of relief for a slice of the DREAMer population with the implementation of the Deferred Action for Childhood Arrivals (DACA) program. With exit-polls showing that 57% of Americans approve of DACA, imagine how many more DACA applications could have been approved and lives restored had the President used his long established executive authority to exercise prosecutorial discretion when the concept of deferred action was proposed early in his first term. Consider also how DACA might have benefited even more minors brought or required to remain here illegally, such as DREAMer extraordinaire Jose Antonio Vargas (who, at 31.5 years old when the program rules were set up, was six months too old to receive DACA relief), had the program applied to all minors and not set stingy bright-line rules that kowtowed unduly to past DREAM Act proposals in Congress.  

Hit the Road Jack/Home-Wrecker. President Obama reprises his role as "Deporter in Chief" and, as in past years, wins another IMMI.  With over 400,000 deportations in 2012 -- an all-time high -- the President also receives the Home-Wrecker IMMI. According to recently released federal data, between July 1, 2010 and September 31, 2012, almost 205,000 deportation orders were issued for parents with U.S. citizen children, thereby destroying the lives of even more American kids.  With the recent announcement that U.S. Immigration and Customs Enforcement (ICE) will stop asking local police to turn over to ICE immigrants arrested as petty offenders, perhaps fewer deportations will result next year -- especially if Congress legislates a path to legal status and citizenship for the undocumented.  Recent statistics from the Immigration Courts, showing case closures resulting in deportation orders or grants of voluntary departure down to 56.3% from 70.2% two years ago, also support a prediction (fingers crossed) that the President will not receive another IMMI in this category.

Ignorable, Ignoble Person. The IMMI goes to nativist Tom Tancredo, former Colorado representative and gubernatorial candidate, who urged Republicans after November's election not to let strict immigration laws become the scapegoat for their loss at the polls ("while scapegoating the immigration issue was to be expected from the Republican establishment following the Romney defeat, it is sad and disappointing to see a few conservatives stampeded into endorsing suicidal proposals").  Tancredo nudged out Kris Kobach for this year's IMMI because he also mocked Sen. Michael Bennet for his leading role in developing the Colorado Compact, a balanced approach to comprehensive immigration reform.

Not Especially Nimble. While the primary immigration benefits agency, U.S. Citizenship and Immigration Services (USCIS), has continued its laudable efforts in 2012 to improve transparency, public engagement and responsiveness (especially on humanitarian concerns, such as relief for foreign citizens adversely affected by Hurricane Sandy), the IMMI for lack of speed and agility on business immigration concerns nonetheless must go to this beleaguered agency. USCIS still has not released its promised rule on employment authorization for spouses of certain H-1B workers, or met its year-end deadline on stateside provisional waivers for immediate relatives of U.S. citizens, and has not issued clarifying guidance on L-1B specialized-knowledge requirements promised last January.  Other longstanding problems remain, including the lack of meaningful impact from its Entrepreneurs-in-Residence program (beyond a nifty website with comforting assurances), the persistence of an anti-entrepreneur animus at the Regional Service Centers, the need to put out for re-bid the agency's contract on its Transformation program for the online submission of immigration forms, and the issuance of a "guidance memorandum" offering seemingly helpful but still befuddling instructions on the EB-5 investor issue of "tenant occupancy" that USCIS first raised officially last February.

Constitutional Illiteracy.  The IMMI for misinterpreting the Bill of Rights goes to the 97,062+ yokels who in a petition to the White House have lambasted CNN host Piers Morgan and urged this Brit's deportation for his post-Newtown critique of America's woeful failure to regulate firearms. No one explained their illiteracy better than Pilar Marrero, author of Killing The American Dream: How anti immigration extremists are destroying the nation, who posted this on Facebook:

So people want to deport Piers Morgan because he aired anti gun views and he´s an "alien", supposedly from out of space. 2 things to remember: before the Second, there is a First amendment. And this country was built by foreigners with weird accents who were always looked at with suspicion by the previous foreigners with weird accents who came first. The only welcoming ones [were] the natives. Unfortunately for them.

Hopeful Baby Steps.  The IMMI goes to U.S. Customs and Border Protection for two recent actions.  CBP reported that it would no longer allow its agents to serve as interpreters for non-English speakers in interrogations by other law enforcement agencies.  It also announced that it would undertake a review of current agency practices in the use of force by its border agents.

No Stale Wine before its Time. This IMMI goes to the government agency which best proves the maxim "justice delayed is justice denied":  The Labor Department's Office of Foreign Labor Certification dramatically lagged from prior periods in the pace of labor certifications. Overall permanent labor certifications decreased by 15.67% between FY10 and FY11. Although the Information sector and Professional, Scientific, and Technical Services sector experienced increases, most other sectors witnessed large decreases in certifications in FY11: Educational Services (46.67%), Health Care and Social Assistance (34.23%), Retail Trade (33.19%), Wholesale Trade (21.77%), Accommodations and Food Services (60.31%), Construction (65.43%), Transportation and Warehousing (39.90%), and Arts, Entertainment, and Recreation (43.01%).

Worst Immigration Law. Although a colleague, Nolan Rappaport, has nominated the Registry provision of the Immigration and Nationality Act for the IMMI, the award goes to another nominee. Registry allows an individual who has been physically present in the U.S. for a prescribed number of years to be granted a green card despite unlawful status.  Nolan notes:

The eligibility date hasn't been updated since the Immigration Reform and Control Act of 1986 advanced it to January 1, 1972. That was more than a quarter of a century ago. It's shameful that such a useful humanitarian provision has not been updated in so many years. With the present date, the residence period has to be more than 40 years. When it was enacted in 1929, it required entry prior to June 3, 1921, which was a residence period of only 8 years.

However shameful the failure to update the waiting period for registry is, even worse is the 1996 law that created mandatory detention of immigrants without benefit of appointed counsel, as Prof. Mark Noferi of Brooklyn Law School persuasively demonstrates.

Lost in the Wilderness. The Republican party, still stinging from its election defeat and overwhelming rejection by the fast-growing Latino and Asian cohorts of the American electorate, wins the "Dr. Livingstone, I presume" IMMI. Persisting in their special brand of akrasia (weakness of will; acting in a way contrary to one's sincerely held moral values).  Despite proclamations that they will cooperate in enacting comprehensive immigration reforms, Republicans have yet to formulate a welcoming agenda on immigration and apparently can't yet fathom that immigration reform would be both good economics and good politics.  Their new leader of the House Immigration Subcommittee, Rep. Trey Gowdy, is an unabashed opponent of immigration.  Even the anti-immigration hawk, Mark Krikorian, Executive Director of the Center for Immigration Studies, knows that Gowdy's appointment bodes ill for comprehensive immigration reform, because it "suggests . . . that the House Republicans aren't going to allow themselves to be stampeded by this amnesty panic because Gowdy is pretty hawkish on immigration . . ."

Taxing Non-Solutions.  The IMMI for non-starter immigration-reform proposal goes jointly to Prof. Giovanni Peri, Alex Nowrasteh of the Cato Institute, and Microsoft. While each of these awardees is a respected and thoughtful contributor to the immigration-reform debate, each offers a variation of a proposal to impose a tax as the visa-entry fee to America. As I've noted elsewhere, taxing the right to enter the country smacks too much of "18th Century slave auctions."  There are many better ways to regulate immigration than to tax it and thereby prod our trading partners and global competitors to tax American entrepreneurs in foreign lands.

A Supreme Demonstration of Supremacy. The IMMI goes to the U.S. Supreme Court majority that vanquished virtually all of Arizona's nativist law, SB 1070.  Holding that the states must kneel to federal supremacy over immigration, the Court struck down all but one of the Arizona law's provisions, and left it to the lower courts to determine whether in practice the surviving section can pass constitutional muster.

Head in the Derriere.  This year's IMMI goes to those feckless employers throughout America who fail to recognize that -- no matter what happens on comprehensive immigration reform -- the Feds are coming to check your business's immigration papers.  Immigration audits were at their highest in history this past year.  That trend will only continue to rise.  Be forewarned and take some crumb-y advice.

* * *

Well, thats a wrap for our 2012 IMMI awardees.  The next 12 months will no doubt produce another bumper crop of candidates for the IMMI.

Meantime, as we close out the year, this blogger reverently contemplates a prayer penned by Rev. Robert L. DeMoss II of Christchurch in Montgomery, Alabama.  Although he offers it on behalf of consular officers, I would broaden the reach of his divinely-directed plea to extend blessings to all of our nation's immigration officials:

Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice ...and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Amen.

Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.  

TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:

• 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
• Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
• The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
• Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
• R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
• Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.

Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.  

[Bloggers note:  Today's guest column is co-authored by two shining stars in the immigration firmament, Roxana Bacon and Esther Olavarria, who offer four innovative proposals for immigration reform conceived by their law students at the University of Miami Law School. The post is longer than usual but well worth your time.  

The melding of  insights from the immigration professors and the students brings to my mind the formula for  success highlighted in Brain Pickings, a marvelous site run by one of the web's best curator's, Maria Popova.  Quoting An Anatomy of Inspiration by Rosamund E. M. Harding, Popova -- a woman who gets immigration -- offers one fine formulation: 

Success depends on adequate knowledge: that is, it depends on sufficient knowledge of the special subject, and a variety of extraneous knowledge to produce new and original combinations of ideas.

Here, then, is a successful blending of insider knowledge and fresh perspectives "to produce new and original combinations of ideas" on immigration reform.]

Four Fresh and Seasoned Immigration Reform Proposals

By Roxana Bacon and Esther Olavarria

 

This spring, we co-taught an immigration class with a twist at the University of Miami Law School. Under the leadership of Dean Patricia White, UM has reinforced its commitment to human rights and migration law, with a deep bench of scholars--Becky Sharpless runs the clinic, David Abraham and Irwin Stotzky are tenured faculty, Ira Kurzban is an Adjunct, Professor Alejandro Portes, Visiting from Princeton, added his expertise in issues of assimilations and estrangement within the immigrant experience.

Dr. Joseph Chamie, the lead demographer for the United Nations for many years, introduced the course with a lively overview of the cool and irrefutable demographics that compel global immigration.   Professor Rafael Fernandez de Castro, chief of the International Studies Department of Mexico’s ITAM and advisor to President Calderon on immigration matters, joined a panel with Professor Abraham comparing German, Mexican and U.S. immigration laws and policy.

Dennis Burke, a former U.S. Attorney from Arizona, explained the real-time ins and outs of state and federal enforcement approaches, and we discussed the morality (or not) of immigration with the help of philosophy professor and ethicist, Dr. James Nickel.  As the cherry on top, the noted documentary filmmakers, Shari Robertson and Michael Camerini, (whose film “Well Founded Fear” has become the  bible for most immigration courses) showed 2 of their 12-part film  series, “How Democracy Works Now”.  By exploring the efforts to pass immigration reform between 2001 and 2008, the films take the viewer inside the legislative sausage factory, with its stew of conflicting ideologies, outsized egos, re-election fears, and occasional moments of idealism and caring.  The students learned more about partisan gridlock from them than a year in a graduate program could teach.  We used no textbooks, grounded the course in as much hard data as possible, and supplemented materials from daily headlines.  In short, the students were served a vibrant buffet of experts and information that we begged, borrowed or stole from our contacts and archives.

Our goal was to encourage a small group of 3Ls and LLMs who had already completed basic immigration course/clinic work to think outside the U.S. framework, studying natural and political influences on human migration globally before turning their analysis to U.S. immigration problems.  Their final required them to design a reform element within an identified larger area of U.S. immigration, explaining what they would reform, why, and how.  Each then presented their reform analysis and conclusions in a 90-minute class session, and then edited it based on class feedback as their final written paper.

We gave them ample latitude, assigning each team of 4 students one of 4 topics:

1. Southern Border Enforcement;

2. Labor-based Immigration;

3. Interior Enforcement;

4. Forced Migration.

We were worried that the class was too amorphous, that the 30,000’ level overview would be too lofty for presentations that had to work at the 3 foot level, that the panoply of experts and views and materials too diffuse for the students to manage in a 3 unit course.  Not to worry.  The students were spectacular.  Each Team presented a solid idea for reform that was innovative as well as doable.  Each team demonstrated a mature understanding of the gridlock plaguing Congress and the Administration on all matters dealing with immigration except enforcement, and each advanced novel strategies to pass their proposals.  Most important, each team walked away wiser, but not more cynical, about the possibility of reform, eager to take on the decades-long stalemate to achieve a fair and transparent system that works for the long term national good.  Their ideas are worth our attention.

Team 1 was assigned the general topic of Southern Border Enforcement.  Having heard the concerns of Dr. Fernandez de Castro that Mexico’s immigration law and policy are not in better shape than ours, albeit for different reasons, and recognizing the intense CBP and ICE emphasis on expedited return for those apprehended at the Border, the team made a strategic decision to focus on an issue that occurs solely within U.S. jurisdiction, but away from the immediacy of the Border.  The problem they chose is rape of undocumented migrants in U.S. drop houses. The magnitude of the problem is shocking; more than half of all women, including very young children, seeking to enter the U.S. without documents are raped. It is considered part of the price of migration, so prevalent that coyotes often require a contraception injection to avoid rape-based pregnancies.  The problem is growing; the NY Times article on May 28, 2012 documents the horror and the spread of these “houses of hell” as they move from the border to interior cities and subdivisions.

Team 1’s reform proposal is to establish a new protocol for rape victims or suspected rape victims when encountered in drop houses.  The team would require that drop house enforcement teams include a First Response Team, staffed by professionals, including therapists, who are experts in rape.  The FRT would follow the same protocol widely adopted by state and local police that treats rape victims as victims first, rather than participants in any wrongdoing, whether criminal or civil.   It is a brilliant reform idea.  No political party can disparage or dispute treating rape victims as violent crime victims without courting the wrath of women and men everywhere; indeed, being indifferent to these rapes is tantamount to being “for” drop house rape, and in turn that is tantamount to being “for” human trafficking, the genesis of the drop house problem in the first place. Further, rethinking and improving treatment of drop house rape victims conforms to the spirit of VAWA and T and U visas.  It also leverages existing state and local law enforcement experience and priorities so that little if any controversy or additional cost would be incurred.  Last, it complements existing social service resources and current thinking about the most effective treatment of domestic violence victims, i.e. rape of those in a dependent relationship.

The FRT would be required to handle all suspected rape victims in any drop house or other holding center for undocumented persons.  Currently there is no uniform protocol for treating such victims, and the outcome of any particular case is idiosyncratic, devoid of predictability or transparency.  Victims identified by medical and social service experts would be granted interim protection while their medical and emotional conditions stabilize.  That treatment would not be dependent upon their ability to identify their trafficker/smuggler, but rather on their physical and emotional conditions. They would not be incarcerated; if supervision were required, ATDs would be used.  Finally, the length and type of treatment would be set not by ICE but by the therapist who would be chosen from a rotating list.  Service on an FRT would be pro bono but would satisfy the mental/medical health professional’s continuing education requirements.  The team recommends using Arizona for beta testing, and having The O’Conner House, a centralized anti-trafficking initiative jointly established by the former Justice and Arizona State University, serve as coordinator.

Team 2 was assigned employment-based immigration issues as its general topic.  Again, the students demonstrated a deep understanding of the art of the possible; using Florida as the beta site, they crafted a new visa category, H-2C, geared to identifying undocumented persons in Florida who qualify to fill vacancies in the state’s hospitality industry.  The proposed H-2C category is unique in that it (a) targets the largest portion of Florida’s undocumented population to solve a chronic shortage of workers in the industry most vital to the state’s economy; (2) provides immediate benefit to Florida’s economy by bringing that group of undocumenteds into the state and federal tax system; and (3) allows Florida, a politically powerful state with a history of sympathy to some immigration issues, to assume a major positive role in advancing innovations in federal immigration law and policy.

Protection of U.S. workers is ensured not by the tedious labor certification process that has never been proven to be effective but by a payroll tax incentive for employers who hire a citizen or permanent resident rather than the H-2C migrant.  The incentive would also include a $1,000 annual tax credit for any U.S. worker who is retained for at least a year of uninterrupted employment.  These hard dollar incentives should be much more effective than the paper chase of labor certification, and the tax revenue “lost” would be recovered by the H-2C workers who join the tax system as regular tax-payers.  An eventual path to full resident status would be available to the H-2C workers through an expansion of the quotas for essential workers, a reform that could be expanded to include hospitality workers nationally if the Florida pilot program is successful.

The Team also outlined a strategy for passing the pilot program that is built on demonstrating the economic benefits of the H-2C category.  Each stake-holder—the industry’s employers, the unions, the associations that promote Florida’s tourism, the politicians in key “destination” cities, the immigrant communities’ advocates—would enjoy an immediate return on their H-2C investment.  More profit from more tourists is the obvious outcome of a reliable, legitimate work force in the hospitality industry, and more public tax income is the obvious by-product from booming tourism.

Team 3 chose a topic, interior enforcement, that is perhaps the most polarizing of the assignments.  It brings into clear focus the tensions created by a civil immigration law whose enforcement is modeled almost exclusively on criminal law—we arrest, we interrogate, we jail and we sentence, but we do so without any of the Constitutional protections applicable to the criminal counterparts.  We do “enforcement heavy” but “rights light”.   Team 3 did not seek to reverse any existing interior enforcement infrastructure or priorities, but rather to implement them as written.  Their program, SMART (“Securing Migrants & Americans Rights & Trust Act”) simply imposes the intent of Secure Communities, and of 287(g), by limiting local law enforcement participation in immigration to only those immigrants, whether documented or not, who have been convicted of the crimes that are the most dangerous to public safety.  The list is short, and does not turn on complex INA definitions (“agg felonies”, for instance), but rather on crimes that anyone would agree are egregious, and are the same priorities set by local law enforcement agencies for their populations generally.  But the biggest difference is that no local law enforcement would be involved in the immigration process until after a conviction.  The list of crimes that would invoke local law enforcement participation with ICE is:

a. National security crimes, including terrorism;

b. Homicide/Murder;

c. Aggravated sexual offenses;

d. Armed robbery/burglary;

e. Domestic violence that involves physical assault or battery or severe mental or emotional assault or battery, and both must result in injury.

Under 287 (g), or any state law authorizing non-federal participation in immigration enforcement, the state agencies’ role is restricted to enforcing only these serious crimes, and only post conviction.  The Team relied heavily on the fact that ICE’s fingerprint identification system (IDENT) is expanding at an annual rate of 20 million new prints, a growth that ICE has financed by increasing that part of its budget from $23.5M in 2003 to $690M in 2011.  Leveraging ICE’s own information is a smart use of SMART, and allows the local law enforcement agencies’ to concentrate on their own communities’ priorities while simultaneously supporting immigration enforcement.

Its creators repeatedly have informed Congress and the public that Secure Communities is intended to identify, apprehend and remove “the worst of the worst” immigrants.  SMART simply gives that goal more teeth, removes ambiguities that have proven difficult to surmount under the current SC memos, and allows local and federal law enforcement agencies to focus on their own lanes, with a defined area of immigration enforcement overlap.  Logically and structurally all the stakeholders should embrace it.  If not, it turns a spotlight on whatever reasons other than law enforcement or public fiscal efficiency are behind the continued use of local enforcement agencies to detain non-priority migrants.

Finally, under SMART, the default ICE position on detention would be electronic monitors or other ATDs.  Actual incarcerations would require ICE to “show cause” why physical detention is necessary for public safety or to avoid the migrant’s flight.  This hearing would be like a reverse bond hearing where the government would bear the burden of proving beyond a reasonable doubt that no ATD will suffice to protect the public.  It would not replace the actual bond hearing (although some issues and facts would resurface) in that even once incarceration is shown to be necessary, the migrant could advance mitigating factors to argue for release on bond or other ATD.

Team 4 was charged with advocating a reform in the area of forced migration that took into account the global scope of the course’s materials.  They stepped up to the challenge with a novel take on demographics, global climate change, the scarcity of potable water and the hunger in the U.S. for capital.

Recommending the creation of an EB-6(a) category for water scarcity entrepreneurs, and an EB-6(b) category for watery scarcity researchers, the Team adopted a practical approach to an inevitability: much of the globe’s midsection will be subject to increasing drought, causing the movement of hundreds of millions of people to countries unable, and in some cases unwilling, to absorb them.   

In the most obvious scenarios, political stability in nations that have nuclear capacity (Pakistan, China, India) is threatened by water scarcity.

The problem is not just migration across national borders; 1,100 counties in the U.S. are already identified as suffering from or at risk for water scarcity, many in the Midwestern states that have traditionally been the U.S.’ prime agricultural region.  Developing answers to drought-related food and water scarcities is a critical goal of the U.S. now ($9.2 billion spent on water sector and sanitation initiatives outside the U.S., and another $41.8 million to U.N. programs addressing the same issues), with the problem only growing to tsunami size in the future.

Team 4 found that the U.S. is woefully unprepared to wage war for water.  The expertise needed to develop new water sources, better distribution systems, drought-resistant crops, more efficient storage, consumer conservation techniques, etc. depend on two fundamentals: capital and expertise.  Capital is obvious; it costs big money to redirect cities, consumers, industry and agriculture away from water-intensive habits.  Expertise is also obvious; the U.S. produces far fewer engineers and scientists than we need to address the water issues.  As 80% of the professional workforce associated with public wastewater and water retire over the next 10 years, we do not have enough replacements just to stay even.  Since the number of environmental jobs is expected to increase by over 50% in the next 10 years, the talent deficit grows ever bigger.   China and India both produce over 9 times more engineers each year than the U.S. (over a million to our 10,000), and that disparity increases each year even as competition for that talent becomes fiercer.

The EB-6(a) category would grant permanent residence to a discrete category of entrepreneurs in the field of water scarcity (desalination, purification, distribution, etc.) and/or food-related research (drought-resistant crops, waste-water crops, consumer conservation, etc.).  The entrepreneurs would themselves have to have graduate degrees in a STEM field directly related to their business proposal, and, in a flip on the current EB-5 program, could only be employed in their own start-up.  Direct involvement in their investment is required.

The investment would be much more modest; $100K initially, but with 5 employees, not related to the investor, in new jobs within 2 years.  Further, the business must have raised $500K in investment or generated $500K in gross revenue within 2 years.   To avoid the EB-5 problems, the science part of the investment proposal would be reviewed by scientists in the field, selected by the NSF, and if approved, would be sent to the Treasury Department to review the applicant and the proposal’s financial fitness.  DHS’ role would be limited to a review of the Act’s excludability factors.

The EB6(b) category is reserved for persons currently in the U.S., or who come in the future, to undertake and complete a graduate level degree in a STEM discipline at an accredited U.S. school who:

a. commit to work in the field of water/food scarcity (defined generously) for 3 years;

b. receive a letter from their employer(s) verifying a 3 year commitment (not enforceable as a private contract, but a statement of intent that can be investigated without cause);

c. if they do not have a letter, demonstration that they have assets sufficient to maintain themselves in the U.S. for up to one year while they look for qualifying employment;

d. become eligible to apply for permanent residence if employment in the field continues for 5 years.

Team 4 included extensive research documenting the statistics on U.S. engineering numbers, the growing need for more engineers and related skills in the field of water resources that only deepen our engineering talent deficit, and the need for rapid and prolific innovation in this area of the type best done in small start-ups.

Conclusion

We were delighted with the results of the Teams’ work, and hope some of you will be, also.  Each Team demonstrated an understanding of the intense anti-immigrant sentiment that is currently stopping reform, and they were wise in their selection of pieces of U.S. policy and law that could yield big dividends.  Most important, they recognized the almost impenetrable maze of political barriers to change, and in each case sought to build on existing law and policy, moving it ahead without burning bridges, but by building new, and natural, ones with partners whose  histories suggest they should be willing to sign on.  All 16 students (all 3Ls or LLMs) were smart, diligent and engaged, all remain interested in immigration law as a career, and not all have employment.  Upon request, we are happy to pass their names on to anyone who might be interested in following up with them, or with us, for each Team’s full submission.

[Roxana and Esther can be reached at: roxie.bacon@gmail.com]

President Obama had a macho moment this week when he suggested, rhetorically, a poll of ghosts. "Ask Osama Bin Laden" and the "22 out of 30 top al-Qaeda leaders who've been taken off the field," he proposed, "whether I engage in appeasement."  The storied bugaboo of foreign-policy appeasement, best typified by the flaccidity of British Prime Minister Neville Chamberlain in the face of Nazi aggression, was the GOP charge that the President debunked so handily.

 

Would that he were so forceful against Republicans on the immigration front, where a foreign policy challenge morphs into a domestic concern, one that starts at both the water's edge and the nation's earthly boundary.  This time his use of drones and boots on the ground to fortify and defend America's borders successfully has produced nothing but a failed effort at GOP appeasement. 

The President probably won't ask the 80 or so U.S. citizens held illegally from a day to four years in just two immigration detention centers if he engages in appeasement.  He'd probably also decline to float a survey of the statisticians who count border crossings, for they would say that illegal inbound migration is at its lowest in over four decades. The rhetorical flourish this time won't work because he knows these responders would surely say "yes" to the appeasement charge. No poll is necessary because he already knows the answer. He told us so last summer: "Maybe [the Republicans will] need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics."

Presidential swagger would be more impressive if he used his clout to circumvent GOP-erected gridlock in Congress.  Imagine if he decided to eschew drones and troops and went low tech.  Imagine if he looked back among the weapons of his and every American boy's childhood and pulled out his lowly pea shooter.  Rather than appease, he could shoot peas -- fresh green orbs of power in the form of executive orders that he alone propels from the White House. 

No more appeasement but fusillades of executive (made-to-) order peas that would sprout the jobs he so desperately needs created pronto to save his presidency. 

Some might argue that he's already begun the effort by authorizing ICE and USCIS to exercise prosecutorial discretion (PD) more frequently in favor of leniency for low level immigration violators. But that effort has yet to fire off enough salvos to hit the target. It would be better to accelerate PD reviews, expand them to include all the unauthorized among us rather than the current triage of only 300,000 deportation cases, begun as a timid six-week pilot project in Denver.  Moreover, he should order the agencies to grant the formal status of "deferred action" (which includes the right to a work permit) rather than just PD (which merely prolongs the individual's agony by preventing them from progressing in their lives and pursuits, but only allowing them to wait to the unknown day when the grim deporter returns for them).

He could also aim his shots at the legal immigration system.  Nothing but his own policy of GOP immigration-appeasement prevents him.  He seems to understand the concept, as his "We Can't Wait" campaign addresses housing, student loans, energy efficiency and health care. There are gobs of jobs he could create if he turned his sights to tweaking the employment-based immigration laws, as I suggest in this post, "Executive Craftsmanship: Job Creation through Existing Immigration Laws," and video:

Why is President Obama so un-macho on immigration?  Alas, maybe he's just too wim-pea.

Our government leaders often ignore elementary rules of ecology and economics when trying to grapple with America’s immigration problems.

Ecology teaches that a system cannot thrive or long function if inputs far outnumber outputs. When rainwater enters the Mississippi in a volume that exceeds the river’s carrying capacity, levees are breached, adjacent lands are flooded, and people are devastated.

Economics teaches that because we live in a world of scarce and finite resources, a more or less functioning system of resource allocation will perforce arise. Not every one of the world’s inhabitants can sport a watch made of gold when this precious metal breaches the $1,500 per ounce price point, as has occurred recently. Thus, some mode of gold-watch allocation (be it capitalism, communism, despotism or another form of wealth transfer) will inevitably surface. The same or a similar system inevitably develops to allocate food, water, clean air and the real necessities of life.

Consider then the interplay of ecology and economics as the Federal Government tries, but mostly fails, to deport foreign citizens whom Congress has declared, in a very long list, are undesirable. The process is broken and dysfunctional because ecology is ignored (many more persons are brought before immigration judges and ordered deported than actually forced to leave) and economics is given short shrift (deportation resources are not targeted to first remove the most dangerous or vile offenders).

Deportation system breakdown, like success, has multiple fathers:

 

• A multitude of reasons to require leaving. The grounds for deportation (or "removal," as it is technically known) range widely. Included are evildoers (such as terrorists and human predators), economic migrants (if they are without proper papers), and the unlucky or merely careless (the unfortunate, if capable, souls who are fired from a job for which a work visa had been issued; those who’ve unwittingly exceeded their required departure date by even just a day or a week; or, persons whose request for permission to stay longer than initially planned has been denied). 
• Too many ticket printers. Multiple officials within various units of the Department of Homeland Security (DHS) exercise authority to start the deportation process by issuing a Notice to Appear (NTA) at a removal hearing before an immigration judge (IJ). These include the Border Patrol, within Customs and Border Protection (CBP), adjudicators employed by U.S. Citizenship and Immigration Services (USCIS), and the deportation police at Immigration and Customs Enforcement (ICE). Surprisingly, with CBP, USCIS and ICE all issuing NTAs, there are no published statistics, by issuing authority, on the numbers or percentage of newly opened immigration cases destined to appear before the immigration courts. This is a case of the left hand, the right hand and the other right hand not knowing what their counterparts are doing.
• No bouncers. DHS has not established an orderly and intelligently-designed system to determine the integrity and propriety of each NTA that has been issued.  No designated official systematically decides which NTAs should or must be filed with the immigration court, and which ought be held in abeyance or disposed of in one of several non-judicial ways. (Almost every NTA, although styled as a "notice to appear" before a judge, contains no courtroom and date certain for the convening of a removal hearing. Instead, the document states factual allegations and legal grounds for removal and tells the person receiving it that the date and place of hearing will be announced in a future notice.) The system as presently operated requires no formal screening of NTAs to determine whether each is legally justified and sufficiently serious to warrant a hearing before a judge, potential incarceration, appellate review, and actually-enforced removal from this country. Clearly, some NTAs should be rejected. Why schedule an IJ hearing for a more-than-six-months, less-than-a-year overstay who can avoid the blotch of removal and a three-year-bar to reentry by complying with an administrative order of voluntary departure? Why waste an IJ’s time if the obvious resolution is to let time pass and await the individual’s turn in the green-card queue?
• No ushers. Only a finite number of NTAs can be processed to the point of actually removing the person to his or her country of origin. This is not just an example of the theoretical principle of prosecutorial discretion. It is a rational system of ecological management (refraining from flooding the system beyond its carrying capacity) and economic realism (allocating scarce resources of money, time and energy to process only the most compelling cases for actual removal). 
• Too few referees with too little power. Without appointing more IJs (and providing other required resources, like courtrooms, detention facilities, interpreters, law clerks, etc.) the over-issuance and over-filing of NTAs with the courts create the reality of assembly-line (in)justice and the illusion that the removal laws are carried out. Either the IJs should be given more authority to terminate proceedings where NTAs are improvidently issued or grounds for relief from removal are best handled outside the immigration courts, or, Congress must allocate sufficient judicial resources to accommodate the flood of NTAs.

* * *

Our federal lawmakers and the Obama Administration need to be told by Progressives, Tea Partiers, frugal independents and traditional partisans that the innumerable NTAs and outstanding but unfulfilled orders of removal flooding our deportation system mock both the duty to make and execute the laws faithfully, and proven principles of ecology and economics. We simply cannot and should not deport everyone for whom a technical ground of deportation can be cited. Some we should allow to stay, because they exemplify our values and their presence enriches us. Others who are really bad must go. A wise polity knows and acts on the difference.