The word in Washington is that S. 744, the Gang of Eight's immigration bill, must move to the right if it is to pass the Senate by a 70-vote, bipartisan margin, and thereby pressure the House to approve a (no doubt rightward-leaning) version of comprehensive immigration reform (CIR).  

Some Members of Congress, however, Senator John Cornyn (R. TX) among them, don't trust the Executive Branch to secure the border. The Texan has therefore proposed a 134-page amendment that, besides imposing numerous forms of Congressional micro-management, would allow most undocumented people to transition from Registered Provisional Immigrant (RPI) status to lawful permanent residency only if and when the border is proven to be essentially impregnable.

Senate Majority Leader, Harry Reid, calls the Cornyn amendment a "poison pill."  Sen. Charles Schumer (D. NY) and Sen. John McCain (R. AZ) say they'll try to work with Sen. Cornyn for an acceptable compromise that does not hold RPIs hostage for an intolerable and uncertain time beyond the 10 years already provided in S. 744.

All of this emphasis on border security is supposedly intended to fix the problem of illegal immigration once and for all.  There must be no repeat of the 1987 fiasco that is the Immigration Reform and Control Act (IRCA), an imperfect law, it is said, which allowed the undocumented population to grow by millions.  IRCA was flawed, to be sure, in not imposing a biometric system of identity and employment verification, not creating an entry-exit verification system, not making the border more secure, and not creating a legal system for the future flow of foreign workers to serve the needs of the American economy. 

Experience, however, teaches a few verities that both the Gang of Eight (G8) and Sen. Cornyn seem to ignore:

• No law will ever be so successful as to prevent determined families from reuniting even if it means crossing a heavily fortified national border illegally.
• Eliminating the "pull" factor of American jobs will not remove pressures on the border caused by the "push" of economic misery, political instability, religious intolerance, dictatorial regimes, natural catastrophes, wars and revolutions.
• E-Verify will not succeed in closing the systemic holes allowing unauthorized persons to gain employment in the U.S. until Americans are willing to accept the loss of privacy and liberty inherent in a massive national database and system requiring all native-born and naturalized citizens to pay for, obtain and proffer a fraud-proof national work-permission card in order to be hired.   
• An unrealistically low quota, such as the maximum of 200,000 visas allotted per year under the "W" category proposed in S. 744 for unskilled and low-skilled foreign workers, disregards the needs of the American economy and creates new pressures to breach the border illegally.
• If illegal entries are to be stemmed, then abuses at U.S. consular posts abroad, such as the recurrent problems of far-too-powerful, abusive, inadequately staffed, unmonitored and sometimes even criminal consular officers (like the American visa officer in Vietnam who is alleged to have sold nonimmigrant visas for up to $70,000 each) must be more vigorously policed and subject to robust review.
• Border enforcement requires a far more substantial investment in the courts than is proposed by Sen. Cornyn or the G8 (as these letters from the Judicial Conference of the United States to the Chairmen of the House and Senate Judiciary Committee underscore), and a dramatic revamping of the atrocious "system" by which "immigration justice" is meted out.
• Secret, unchecked administrative processes in the immigration system, just like the recently revealed NSA monitoring of all Americans' phone calls, must be subject to the rule of law, an expanded right to counsel and greater transparency.
• Immigration protectionism will boomerang and ultimately harm America just as much or more than trade protectionism.

The Fortress America concept of an impermeable border would devastate America's position in the global economy and hurt us far more than protect us.  Border communities are thriving precisely because the borders are permeable. Whether the border is surrounded by alligators (as President Obama jokingly suggested might be the only means to satisfy border hawks), or electrified (as Herman Cain proposed), we must never bar the door so strongly as to toss out the welcome mat. The border must be managed so that the worthy are allowed speedy ingress and the harmful are barred. 

A new concept must be developed, perhaps one taken from the fishing industry where the government must strive to promote economic benefit while minimizing environmental harm.  Consider, for example, tuna fishing.  Americans love their tuna sandwiches but they would choke if they thought that Flipper must be killed just to have a tasty lunch.  Enter Dolphin-Safe Tuna Fishing and Labeling.

Thus, Senators and Representatives, further strengthen the border if you must, but not so much as to destroy the countless benefits of comprehensive immigration reform.  Paraphrasing Sen. John McCain's "complete the danged fence," we Americans must insist that our legislators hunker down and just "pass the danged" CIR.

The usual xenophobic suspects made the usual noises after the tragic events in Boston last week.  Perhaps the most premature outcry came from electrified-border-fence proponent, Rep. Steve King, Republican from Iowa, who a day after the marathon explosions linked a report (ultimately untrue) that a Saudi national had planted the bombs with King's mission to stop comprehensive immigration reform (CIR):

We need to be ever vigilant. We need to go far deeper into our border crossings. . . . We need to take a look at the visa-waiver program and wonder what we’re doing. If we can’t background-check people that are coming from Saudi Arabia, how do we think we are going to background check the 11 to 20 million people that are here from who knows where?

Another occurred on Reddit, where an amateur sleuth named Pizzaman along with multiple Reddit contributors noted the similarity to the photos of Suspect #2 (Dzhokhar Tsarnaev) and a missing Brown University student of Indian descent, Sunil Tripathi, whose whereabouts, sadly, remain unknown. (Reddit's moderator has since apologized for this misinformation disaster to the Tripathi family (who are as American as you and I.) 

Still another erupted, quite expectedly, from one of Ann Coulter's Twitter posts after the death of Suspect #1 (Tamerlan Tsarnaev) in which she mocked G8 member, Sen. Marco Rubio: "It's too bad Suspect # 1 won't be able to be legalized by Marco Rubio, now."

Similarly, long-time jingoist, Pat Buchanan suggested three days after the bombing that the focus should only be on border security.  Apparently forgetting that the Brothers Tsarnaev entered the U.S. legally, with the older having become a permanent resident and the younger a citizen, Buchanan slammed undocumented immigrants who aspire to become Americans:

Why do you have to do anything? What is this nonsense that ‘they’re in the shadows’? With due respect, they ought to be in the shadows! They’ve broken the law to get into the country…. Do nothing!… You [the Republican party] don’t have [to] bribe, you don’t have to give up your principled positions… in order to get Barack Obama to do his duty and defend the border!

Fortunately, CIR proponents on the right and left in Congress and elsewhere gave forth with rapid responses:

• Republican point man on immigration in the House, Rep. Mario Diaz-Balart, disagreed with Sen. Grassley: "[E]very crime that is committed right now is under the current immigration system. So what does that lead me to believe? We need to fix the current immigration system, if in fact there is any connection between immigration at all."
• A spokesman for Sen. Marco Rubio (R. FL) issued this statement:  “There are legitimate policy questions to ask and answer about what role our immigration system played, if any, in what happened . . . Regardless of the circumstances in Boston, immigration reform that strengthens our borders and gives us a better accounting of who is in our country and why will improve our national security. Americans will reject any attempt to tie the losers responsible for the attacks in Boston with the millions of law-abiding immigrants currently living in the US and those hoping to immigrate here in the future.”
• Republican Senators John McCain and Lindsey Graham released a joint statement: “Some have already suggested that the circumstances of this terrible tragedy are justification for delaying or stopping entirely the effort. . . In fact, the opposite is true: Immigration reform will strengthen our nation’s security by helping us identify exactly who has entered our country and who has left.”
• Democrats, Chuck Schumer and Dick Durbin, also rejected the flawed reasoning which would link CIR to the bombings.  Sen. Schumer warned against the temptation to "“jump to conclusions” and “conflate” the Boston tragedy with immigration reform. Sen. Durbin noted that CIR would enhance our security: "[E]veryone, the 11 million people who were basically living in the shadows in America, [has] to come forward, register with the government, go through a criminal background check. That will make us safer.”  I made the same point when the Christmas-time underwear bomber succeeded in nothing more than scorching his private parts. See "Using Immigration to Stem the Terror Threat," (Dec. 30, 2009).
• The New York Times Editorial Board observed that CIR's opponents are desperate and that CIR would make finding wrongdoers easier: "Until the bombing came along, the antis were running out of arguments. They cannot rail against 'illegals,' since the bill is all about making things legal and upright, with registration, fines and fees. They cannot argue seriously that reform is bad for business: turning a shadow population of anonymous, underpaid laborers into on-the-books employees and taxpayers, with papers and workplace protections, will only help the economy grow. About all they have left is scary aliens. . . .There is a better way to be safer: pass an immigration bill. If terrorists, drug traffickers and gangbangers are sharp needles in the immigrant haystack, then shrink the haystack. Get 11 million people on the books. Find out who they are."
• Matthew Iglesias of Slate suggested seemingly counterintuitive but spot-on points that doing nothing will only encourage illegal immigration and let more terrorists and killers in and that the proposed 20,000-to-200,000 W visas for lesser-skilled workers likewise may be insufficient to stem illegal border crossings -- the precise point I made on April 18 to Abigail Rubenstein of Law360 Employment ("[That] the U.S. Chamber and the AFL-CIO reached a consensus on a lesser-skilled worker visa is wonderful, but the numbers make the program illusory").
• The General Counsel of the American Immigration Lawyers Association, David Leopold, persuasively explained, in essence, that immigration adjudicators are not soothsayers and that no one can foresee how an immigrant's life will turn, as reported in The Atlantic: "At the time that the Tsarnaevs applied for asylum, Tamerlan and Dzhokhar were very young. There was almost certainly nothing in their background that would have raised any red flags; apparently, there was nothing in the father's either. Here, Leopold made a key point: 'You can't predict future behavior.' For any democratic country that wants to participate in international society, Leopold pointed out, you have to assume some level of risk. Despite that, 'the systems they have in place,' meaning those security screenings, are 'doing the job.'"

Despite CIR proponents' quick retorts, the Boston bombings will likely make enactment all the more difficult.  Unlike an esteemed colleague who predicts a less than 50% chance, I'm still optimistic that CIR will be enacted.  If anything, Boston made the price of doing nothing simply too high.  Still, with background checks on gun sales a non-starter in the Senate despite 90% support among the American people, nothing can be taken for granted.

Here's what CIR's proponents must do now:

•  Urge the Senate to adjust the balance of funding in the Senate proposal, the "Border Security, Economic Opportunity, and Immigration Modernization Act’’ (or, "BESSIE MAE," as a prominent immigration editor has dubbed it) between border security (proposed at an overly generous and likely somewhat wasteful $6.5 billion) and the measly, wholly inadequate amount ($10 million) authorized for the integration of immigrants into American society. Whenever a refugee or any other immigrant comes to America, we want to provide the environment to prosper like Google founder Sergey Brin, a refugee from the Soviet Union, and not turn sociopathic as apparently happened with bombing suspect Dzhokhar Tsarnaev.  Meantime, until CIR is passed, kudos to U.S. Citizenship and Immigration Services for its recently announced Citizenship and Integration Grant Program, which will offer almost $10 million in funding during the grant period.
• Remind Republicans that the November 2012 election was a watershed. Republicans will continue to be the party of old white men, unless they take the politically smart and courageous act to pass CIR. Doing nothing is not an option if the GOP is to survive.
• Humanize the immigration debate. Point out that among those killed in the bombings was Lu Lingzi, an only child and Boston University graduate student majoring in Mathematics and Statistics -- precisely the type of STEM student we want here -- whose death her father described as like a "dagger in our hearts."
• Point to history.  We didn't stop immigration after the Puritans (themselves religious refugees) conducted their deadly Salem Witch Trials. Indeed, had America closed the door to English refugees, there'd be far fewer Anglos who oppose CIR.
• Make the point that Bostonians and the police got it right. Show that the post-bombing resilient spirit of Boston, and the close collaboration of federal and state law enforcement personnel (who cooperated superbly in speedily identifying and neutralizing the suspects), demonstrate that we've grown up as a country and a government since 9/11.  No virulent backlash against foreigners has sprung up since Monday's bombing, save for the vicious hate spewing from a few, notably, Fox News contributor Erik Rush, who tweeted "Let's kill all of them (Muslims)" and then backed down quickly after he was confronted, claiming that he was merely engaging in sarcasm.  Here, unlike 9/11 there was no inter-agency withholding of information and no governmental failure to connect the dots.  Indeed, the immigration system, insofar as it was involved, worked, given that USCIS held off on the naturalization application of Tamerlan Tsarnaev based on information derived from the FBI's investigation into his background.
• Make sure that CIR clearly puts the burden on the immigration agencies to publish implementing regulations on strict deadlines or face a loss of funding, and that Congress conducts regular public oversight hearings after enactment during the implementation phase.  If the events of last week proved anything -- no, not the bombing, but rather the Texas fertilizer plant explosion that killed at least 14 people -- it is that government agencies must be held accountable and be funded properly (see my first bullet above about rational allocation of immigration budgets). User fee funding as the primary financial source for CIR implementation, which the G8s' proposal envisions, simply won't do.

The last time America was hit on its soil -- September 11, 2001 -- a different, far more modest immigration reform, known as Section 245(i), fell victim to the understandable Congressional blowback, even though that provision would have helped numerous undocumented immigrants who had nothing to do with terrorism.  Well that was then.  This time it's different.  America has matured.  CIR will pass, unless its supporters fail at the ground game of persuasively mobilizing public opinion and holding our legislators' feet to the fire.  Let's not get all weak-kneed and wobbly when vigilance and community organizing like never before is what's required.  And we should recognize that eight-year-old bombing victim, Martin Richards, could just as well have been describing why we need immigration reform when he wrote these words on his poster:  "Let's stop hurting people. Peace."

"U.S. immigration law is like stratified rock, revealing layer on layer of Congressional accretions laid down over many years, with the superstructure upended in tectonic shifts triggered by the baffling and contradictory interpretations of multiple agencies and courts." 

Nothing of substance has changed since I offered that post last August, save for a groundbreaking election that reversed years of Republican opposition and Democratic indifference, leading to a bipartisan effort to reform the immigration laws comprehensively. 

While federal legislators and the Obama Administration are putting in place new scaffolding for immigration reform, the foundation remains broken and shaky. A path to citizenship, enhanced border security, disincentives to illegal entry and employment, and adequate future flows of legal workers are all well and good.  But the superstructure of the new immigration system will topple and the temptation to enter illegally or overstay will return if the basic approach to justice, fairness and due process is not dramatically transformed.

Reforms of the immigration justice system could conceivably be narrow or wide-ranging.  A necessary, if partial, solution -- just a first step -- would reform the appellate process within U.S. Citizenship and Immigration Services (USCIS).   This agency countenances a woefully unjust appellate body, the Administrative Appeals Office (AAO), that reviews decisions of USCIS field offices and regional service centers denying requests for immigration benefits submitted by American and foreign citizens and U.S. employers.

As I've noted recently, the AAO “is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.” The AAO, however, is only part of the problem; reforms to the system of administrative justice at USCIS must be holistic and comprehensive. 

Administrative reform (which Congress should enact into law rather than trust the agency to promulgate) must begin with a change to the USCIS rules which now limit the types of parties (a) who are permitted to appear before the agency and (b) the even smaller population of persons and organizations allowed to appeal an adverse decision. Moreover, the initial decision by a USCIS adjudicator must include an articulation of the evidence submitted and a detailed ruling on each of the legal issues raised.

In all, I offer "25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services," and welcome reader commentary.  These suggestions, if adopted, would improve the system of immigration justice, but they only nip at solutions. 

Real justice reforms in the immigration arena would produce efficiencies, cost savings, improved access to justice, and beneficial changes to the way binding legal precedents are decided.  As detailed at length in a February 27, 2013 New York Law Journal article, "Appealing Alternatives: Immigration Justice System Re-Imagined," by Ted J. Chiappari and me, Congress should establish a single Federal Immigration Court with full powers under Article I of the Constitution to hear appeals of all immigration-related administrative decisions rendered by the several agencies and departments in Washington. 

Such reforms would also upgrade the professionalism and commitment to zealous advocacy of the immigration bar (whether in private practice or government service), while making the law more understandable and accessible to the public and the growing numbers of lawyers whose substantive expertise is other than immigration but who laudably engage in providing pro bono immigration legal services to individuals and non-profits. 

Modeled after the Federal Bankruptcy Court, the proposed Federal Immigration Court would allow judges to develop the necessary expertise in all areas of immigration law.  It would also preclude the announcement by the federal agencies and departments of policy by administrative ruling rather than by the promulgation of proposed rules under the Administrative Procedure Act, which offers the public prior notice and the opportunity to comment before any immigration regulation would be made final.

So let's cut to the chase.  Here is the essential kernel of thought to digest from the introduction and conclusion of the cited New York Law Journal article:

If, as author Robert Sherrill maintained in his 1970 book, Military Justice is to Justice as Military Music is to Music, then immigration justice in 21st Century America is as melodious as an atonal, off-pitch cacophony.  The forms and forums for truth-seeking and dispute resolution under the U.S. immigration system are wide-ranging, largely counter-intuitive and often too dysfunctional to mete out true justice. . . .

[I]mmigration justice today is unmelodious and painful to sit through.  With a new Immigration Court as orchestral director, however, the several administrative agencies and immigration stakeholders sitting in musicians’ chairs could render a tour de force ensemble production, a command performance to delight Lady Justice and all citizens, foreign and domestic alike, who care deeply for her continued health and well-being.

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.

“ And there took place . . . [in the U.S. Senate] so many “extended discussions” of measures to keep them from coming to a vote that the device got a name, “filibuster,” from the Dutch word vrijbuiter, which means “freebooter” or “pirate,” and which passed into the Spanish as filibustero, because the sleek, swift ship used by Caribbean pirates was called a filibote, and into legislative parlance because the device was, after all, a pirating, or hijacking, of the very heart of the legislative process. ...”

Master of the Senate: The Years of Lyndon Johnson, [Vol.] III, by Robert A. Caro

The fight to end the pirating of legislative progress, the effort by Sen. Harry Reid (Democratic Majority Leader), and supported by President Obama, to soften the rough edges of the filibuster, is the talk of Washington and the media.   If Reid's proposals were as drastic as Sen. Mitch McConnell (GOP Minority Leader) asserts, this alleged wielding of the "nuclear option" -- the cutting off of otherwise unlimited debate in the Senate --  might threaten the precious checks and balances of constitutional government.  But McConnell weeps alligator tears.

Reid proposes only to modify but not eliminate filibusters of the type memorialized by Jimmy Stewart in Mr. Smith Goes to Washington, where a steadfast minority of senators speak from the well and address the "World's Greatest Deliberative Body" without respite.  Majority Leader Reid would merely reverse the more recent relaxation of the filibuster that allows a senator to express the intention to filibuster, thereby requiring a 60-vote majority to invoke cloture (a call to vote on a pending bill).  Reid would make changes that -- as Washington Post reporter, Ezra Klein, notes -- are "not dramatic":

[Sen. Reid] wants to be able to make the motion to debate a bill -- but not the vote to pass it -- immune to the filibuster; he wants the time it would take to break a filibuster to be shorter; and he wants whoever is filibustering to have to hold the floor of the Senate and talk.

Klein also suggests:

None of these changes would alter the basic reality of the modern U.S. Senate, which is that it takes 60 votes to get almost anything done. In my view, that means they wouldn’t do much to fix the Senate at all. (Emphasis in original.)

His assessment is too pessimistic. With just a bit more tweaking of the filibuster, say, by ending debate on a vote of 57 senators, gridlock would be reduced.  Furthermore, with such a change, the sway of the swing vote -- just as in the Supreme Court where Justice Anthony Kennedy carries great clout -- would minimize polarization.  It would also promote greater compromise and empower moderates of the minority party and independents. 

We no longer live in the time of Lincoln when robust Senate debate was witnessed merely by the eyeballs in the Gallery or readers of limited-circulation newspapers. Social media spreads audio, video and text of Senate proceedings in real-time around the globe.  Consider, for example, the favorable reaction to Sen. Bernie Sanders' "The American People are Angry" speech railing against income inequality in 2010 that quickly went viral.

Consider also the role that popular outrage at the endorsement of such inhumane policies as self-deportation and "attrition through enforcement" played in marginalizing the GOP and the anti-immigration fringe in the last election.  Just as wide publication of these anti-immigration sentiments led growing numbers of Latino and minority voters to feel disrespected and to reflect their displeasure in the voting booth, xenophobic oratory by senators droning on for hours, while their views and videos are tweeted in real time, will cause public opinion to register support for comprehensive immigration reform (CIR).

Without a softening of the filibuster rules, we're likely to witness, as we already have seen, the resuscitation of previous small-bore CIR proposals that merely traded legalization with a path to citizenship and modest future flows of temporary workers for greater border and worksite enforcement.  While these measures are necessary in any CIR bill, they don't go nearly far enough to address America's 21st Century needs. As NAFSA, the Association of International Educators, recently noted:

In the acrimonious political debate about immigration reform, we lose our way by embracing a mistaken, zero-sum approach to permanent immigration. Proposals like H.R. 6429 [providing expedited green cards for students with STEM degrees but eliminating the Diversity Visa lottery -- a measure opposed by the President ] in this context appear guided by the fear of doing anything that increases the number of people who may immigrate to the United States. There is no reason to regard the current annual limit on the number of green cards as sacrosanct law.

At a time when Republicans are trying to cut out the Diversity Visa lottery and its 55,000 annual green cards, America faces the lowest birth rate on record and an aging population.  Cities like Detroit face bankruptcy unless infusions of new immigrants with their innovations and investments are welcomed through reforms of the immigration laws.  Skilled immigrants matter. So do "Immigration Entrepreneurs." But America's outmoded visa quotas, pulled from thin air rather than derived through empirical evidence, demoralize and dissuade intending immigrants.  Just as pressing, cross-border families deserve the most important of family values, the right to live together, free of heartless, quota-induced separations.

Republicans are searching the wilderness in three camps seeking a principled immigration policy.  One group remains full-throatedly opposed, like Mark Krikorian, dubbed an "anti-immigration scholar/kook" by Salon's Alex Pareene; another proposes miserly, piecemeal reforms like the Achieve Act, which would be a stricter DREAM Act with no path to citizenship (other than the second class variety); and a growing number favor CIR.

An improved set of filibuster reforms, while still protecting minority rights, might just peel off enough moderate Republicans to enact America-friendly CIR.  Go Harry Go!  

As Republicans join Democrats in contemplating reform of the nation's dysfunctional immigration system, the final line of the Pledge of Allegiance ("with liberty and justice for all") is the best place to start. 

Revitalizing our broken and outdated 20th Century immigration laws to respond to the needs of 21st Century America will turn in large part on how we face the challenge of persuading desirable foreign citizens to make our country their home. Coveted immigrants now enjoy an array of choice locales; they are lured by the wealth, opportunity and blandishments of competitor nations throughout the developed and developing world. 

While the U.S. has long been the most preferred destination, our national rose seems to have lost much of its bloom. For too many foreigners possessing the attributes and skills we need, America may be tempting but just too risky.  We have posted a "road closed" sign when we should be cleaning off the welcome mat. 

Why would any intelligent person or family take a chance on America if it means that every critical step along the way raises the prospect of disrespect, insult, suspicion, delay and rejection? Those are the sorry results of our archaic and unwelcoming Immigration and Nationality Act, passed as the law of the land in the 1950s McCarthy era, modestly refreshed in 1990, but then made more draconian in 1996, and since at least the turn of the century, administered by bureaucrats who've too often espoused an inhospitable "culture of no."  

America would be wise to transform our immigration laws in tangible ways that make manifest the Pledge's promise of justice and liberty for all.  Here, then, are several suggested reforms to the immigration laws (with more to follow in future posts) that would serve us well by serving the needs of desirable immigrants:

Be more respectful and stop treating visa applicants like suspects and liars. Eliminate the presumption in current law which says that every applicant for a nonimmigrant visa is presumed to want to remain in America permanently unless s/he proves otherwise to the satisfaction of a consular officer. The presumption is jingoistic and haughty, too often counter-factual, and in any case unhelpful in that it breeds ill will among would-be entrants.  Establish clear visa-eligibility requirements that must be proven by a preponderance of the evidence (a more likely than not standard), and maintain very strict security-clearance procedures.  In addition, videotaping all visa applicants while recording the voice of the consular officer would by itself enhance our security while likely improving the behavior and courtesy of interviewing officers.  Just as Mitt Romney learned that disrespectful urgings about self-deportation insulted the Latino community, "Ugly American" consular behaviors are a turn-off to those whom we would welcome.

Eliminate consular absolutism. No one -- not even someone as admired until recently as General David Petraeus -- is infallible.  Yet current law says that no government official, not the President or the Secretary of State or the Attorney General or any federal judge, can correct mistaken findings of fact made by a consular officer when deciding to refuse a visa application.  Justice for all means due process for all and it means that no one, not even consular officers, are above the law.  Congress should create a means of challenging consular visa refusals and visa revocations, especially where the rights of American companies and families are adversely affected.  The review process can begin with a pilot program covering all immigrant visas and nonimmigrant visas for investors and work-visa applicants, and then be expanded to cover additional categories.

Establish Due Process border protections. U.S. border inspectors at ports of entry possess extraordinary authority, including the power of expedited removal without judicial oversight, and the power to deny foreign applicants for admission, including permanent residents, all access to legal representation.  When the interests at risk in a refusal of admission are significant, and an unjust refusal adversely affects the rights of American citizens and businesses, the unregulated "third-degree" style of border enforcement must give way to the rule of law and enhanced due process protections.

Create Additional Immigration Checks and Balances. The current system of immigration justice too often fails to provide prompt and legally correct decisions.  Probably the worst offender is the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS), a faux-"tribunal" that has failed to fulfill its professed mission.  It is staffed by too many non-lawyers, issuing too many legally dubious and inordinately delayed decisions, without rules of court, from within the same agency (USCIS) that issued the initial decision, while denying many parties with legal interests in the outcome an opportunity to be heard or affording a means to preserve the status quo (e.g., uninterrupted employment authorization) when an appeal remains pending.  It should be moved out of the Department of Homeland Security and perhaps into the Justice Department, say to the Office of the Chief Administrative Hearing Officer (OCAHO) where other administrative claims under the legal immigration system are heard. 

Better yet, Congress should create a new Federal Immigration Court (FIC), styled after the Federal Bankruptcy Court and the Tax Court, to be staffed by judges appointed under Article III of the Constitution, possessing jurisdiction over all immigration law issues, in place of not just the AAO, but also the Board of Immigration Appeals, the Department of Labor's Administrative Law Judges and Administrative Review Board, and the Federal District Courts. The FIC could also assume jurisdiction over appeals of consular visa refusals under the pilot program suggested above.

Other immigration checks and balances would entail enhancing the power of (a) the Office of the USCIS Ombudsman, by giving it the authority to overrule legally erroneous actions of USCIS, and (b) the Department of Homeland Security's Office for Civil Rights and Civil Liberties, by expanding beyond its authority to advise the DHS Secretary on policy changes and authorizing it to investigate and penalize violations of civil rights, civil liberties and due process.

Reassign Agency Roles.  The Fraud Detection and National Security Directorate (FDNS) of USCIS has no place in an agency charged with conferring immigration benefits on deserving petitioners and applicants.  FDNS should be moved into U.S. Customs and Immigration Enforcement (ICE) because the missions of FDNS and ICE are hand-in-glove aligned and ICE has established a variety of due process protections which, alas, FDNS now routinely ignores (like prior notice to counsel of client site visits). Similarly, the Department of Labor's Employment and Training Administration should be ordered by Congress to cease its wasteful and duplicitous labor market testing process known as "labor certification."  Instead, the Bureau of Labor Statistics should be instructed to publish lists of shortage occupations based on data collected nationally, and prospective employers should be allowed to petition for foreign workers based on the shortage lists.  Employers should also be allowed to petition for inclusion of new or omitted occupations on the lists based on a regulations proposed for public comment and finalized under the Administrative Procedure Act.

Expand or Eliminate Work- and Investor-Visa Quotas. Numerous studies have shown that employment-based immigration promotes economic growth and opportunity in the importing nation and -- through remittances sent back home -- in the exporting nation as well.  Why then should there be a quota on economic growth?  The only conceivable situation is where growth creates tangible problems that are proven to override the economic benefits of employment-based immigration.  Our current immigration system, however, pulls quota numbers out of thin air, without regard to any published financial or demographic metrics.  Take for example the H-1B visa quota which is now set at 85,000 but has ranged from 65,000 to close to 200,000 since its imposition in 1990, and it is Swiss-cheesed with exemptions for Chileans, Singaporeans, Australians and other privileged classes.  The history of the program has shown that the quota is inadequate when market demand for foreign workers is high and unnecessary when demand is low.  So, why have a quota on "smart people" (as business leader and philanthropist Bill Gates has asked)?

Establish uniform privileges across all work visa categories.  There is no reason why spouses of E, J-1 and L-1 visa holders are allowed to work and spouses of other visa holders are prohibited.  If promoting dual-career households is a public good, then make the opportunity available uniformly for all work visa categories.  There is likewise no reason why H-1B, H-4, L-1 and L-2 visa holders can travel abroad and reenter on their visas without being deemed to have abandoned their green-card applications, while applicants in other visa categories applying for green cards must re-apply if they leave and return.  Nor is it logical that H-1B visa holders have "portability" of benefits when they change employers and can extend their cumulative stay beyond the usual multi-year maximum if they pursue a green card but other work visa holders are denied these privileges.  And the mother of all illogical immigration notions -- the presumed intent of a nonimmigrant visa applicant to immigrate unless the contrary is proven -- should be just as inapplicable to all visa categories as it is to a few (such as the H-1B, L-1 and O-1 visas).

Promote Immigration Transparency and Accountability. The immigration stakeholder community has no way to identify adjudicators who consistently misinterpret the law, misunderstand basic business concepts, defy headquarters directives or ignore judicial precedents.  Unlike Immigration Judges whose patterns of decisions are trackable, immigration decision-makers do not affix their name or a tracking number to their decisions. These bad apples taint the rest of the produce in the barrel and bring disrepute on the system.  Personnel laws administered behind the scenes are not enough to deter incompetence or insubordination.  Congress should mandate a system of transparency and accountability that allows the public to monitor and protest malfeasant and miscreant behaviors among immigration adjudicators. 

Promote entrepreneurship and investment.  Congress should promote economic pragmatism and eliminate the current bars that prevent working owners, entrepreneurs and investors from immigrating to the United States. It should allow a greater measure of "free-agency" for talented foreign nationals rather than permit pre-arranged employer sponsorship as the sole or primary vehicle for business-related immigration benefits.  It should also streamline the EB-5 program so that adjudicators are not allowed to demand rail-car loads of irrelevant paper based on ever-changing and novel interpretations of legal requirements.  It should allow for the creation of a Founders or Start-Up Visa.  It should confer immigration benefits on investors in residential or commercial real estate.  It should establish a race-to-the-top competition which would confer to states proposing innovative commercial, business, artistic or scientific projects the right to grant a share of work visas and green cards to the most promising foreign applicants. And it should foster worthy pilot immigration projects targeted to solving big problems.

* * *

These suggestions for a more welcoming immigration system receive little attention from the press and politicians who focus on border and interior enforcement, a path to citizenship for the undocumented and future flows of immigrant workers. 

While the problems the politicos and pundits identify require a solution, America will still fail to create a 21st Century immigration system unless it takes aggressive steps to welcome the world's most desirable immigrants.

[Blogger's note: 

Dear Readers: I promise that this post is indeed about immigration and the quadrennial election on Tuesday.   Please read to the end, beyond the meandering yet relevant introduction, to see the connection.]

Just over four years ago, David Foster Wallace, a gifted, troubled writer of wide acclaim, took his life. Fans of his writing, myself included, have marveled at his intelligence, wit and humanity.  Reading Foster Wallace is an exercise in mental gymnastics and focused attention that pays bountiful dividends. 

Thirty-seven years ago, another writer and deep thinker, Rod Serling, who gave us the Twilight Zone television series, lost his life to heart failure while likewise still in his prime.  Gene Roddenberry, futurist and creator of Star Trek, could have been describing Foster Wallace when he lauded Serling thusly: "No one could know Serling, or view or read his work, without recognizing his deep affection for humanity . . . and his determination to enlarge our horizons by giving us a better understanding of ourselves."

Serling's introduction to his show -- epitomizing the man himself -- is forever a part of American culture:  

You are about to enter another dimension, a dimension not only of sight and sound but of mind. A journey into a wondrous land of imagination. Next stop, the Twilight Zone!

I thought about the parallels between the two writers this week when I stumbled on a Twitter post that led me to Foster Wallace's 2005 commencement address at Kenyon College. Here are excerpts from his talk about the real value of a college education, the ability to distinguish, depending on the degree of our committment to "attention" (Foster Wallace's take) or "imagination" (Serling's formulation), the autonomic from the conscious thoughts that come to mind while experiencing life's prosaic events. 

Foster Wallace illustrates his point as he describes a mundane, seemingly "boring" wait at a grocery checkout line, disrupted by the outburst of a frazzled mother yelling at her boisterous child:

[If] you're aware enough to give yourself a choice, you can choose to look differently at this fat, dead-eyed, over-made-up lady who just screamed at her kid in the checkout line. Maybe she's not usually like this. Maybe she's been up three straight nights holding the hand of a husband who is dying of bone cancer. Or maybe this very lady is the low-wage clerk at the motor vehicle department, who just yesterday helped your spouse resolve a horrific, infuriating, red-tape problem through some small act of bureaucratic kindness. . . .

[The] so-called real world will not discourage you from operating on your default settings, because the so-called real world of men and money and power hums merrily along in a pool of fear and anger and frustration and craving and worship of self. Our own present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom. The freedom all to be lords of our tiny skull-sized kingdoms, alone at the center of all creation. This kind of freedom has much to recommend it. But of course there are all different kinds of freedom, and the kind that is most precious you will not hear much talk about . . . in the great outside world of wanting and achieving. . . . The really important kind of freedom involves attention and awareness and discipline, and being able truly to care about other people and to sacrifice for them over and over in myriad petty, unsexy ways every day.

That is real freedom. That is being educated, and understanding how to think. The alternative is unconsciousness, the default setting, the rat race, the constant gnawing sense of having had, and lost, some infinite thing. . . .

[If] you really learn how to pay attention, then you will know there are other options. It will actually be within your power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down.

Just as serendipity triggered by social media led me to think of Foster Wallace, and then to Serling, it led me to my friend and immigration-law colleague, Paul Parsons, who this week offered an inspiring Facebook post to show "why being a U.S. immigration lawyer can be the greatest job in the world":

Last Friday we received our first two Deferred Action for Childhood Arrivals (DACA) approvals, and one of those clients sent this uplifting message today:

I just wanted to take another opportunity to thank you all for your help. I do not think I will ever be able to explain with words or emotions how immensely happy and grateful I am. For the first time in my life, I have a sense of belonging in the country that has raised me. My life has not been easy. I have had my fair shares of bumps and bruises along the way, but [life] is not supposed to be easy.

I know you all take pride in the work you do, because there are not many people that can say their job involves giving people the opportunity for a better future. You give hope to those who might have felt hopeless. You all can go home with the satisfaction of knowing you helped somebody, in many cases an entire family.

There are memories of things, events, and people that I will never forget, some good and some bad. Now I have one more good memory to add and you all will be part of it. Keep up the good work because there are many others like me waiting for the same opportunity.

. . . You are in the business of changing [lives] for the better, thank you again for making my life one of those. There is a saying that goes “Before you have a story you need to have a storm”. Well the storm has just past and the story is now only beginning.

As Americans vote for our leaders this week, I hope that we use both our attention and our imagination; that we remember our origin as a nation of immigrants; that we recall the wonders of immigrant innovation and the resulting benefits we enjoy; and that we call to mind our "power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down."  

I hope as we enter the "other . . . dimension" of the voting booth, "a dimension not only of sight and sound but of mind," that we are not entranced into reflexive thinking about "the so-called real world of men and money and power [which] hums merrily along in a pool of fear and anger and frustration and craving and worship of self." Although our "present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom," I hope we remember that elections trigger consequences, and that precious lives and futures depend on our choices.

I also hope we acknowledge that America needs people, and more people, like Paul Parson's client, as well as the remarkable contributors whose lives are poignantly revealed in Green Card Stories, just as much as we need dedicated public servants who help "resolve horrific, infuriating, red-tape problem[s] through some small act of bureaucratic kindness." 

In short, I hope we choose leaders who are likely to welcome rather than reject our nation's courageous and deserving immigrants.

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.  

The Democratic Convention in Charlotte ended last week. The media has now turned to measuring and marveling at President Obama's post-convention bounce despite weak Labor Department data revealing persistent joblessness.

The inevitable comparisons of the two parties' convention performances give the edge to the Democrats' oratory, production values, crowd enthusiasm and diversity.  On immigration policy, the Dems offered more substantive messaging, while the GOP stressed photogenic speakers with ancestral memories of arrivals long ago. 

An historic moment occurred with a convention address in Charlotte by an undocumented immigrant, Benita Veliz, class valedictorian and DREAMer extraordinaire, whose brief remarks Dan Stein of the anti-immigration hate group, FAIR, predictably assailed as “nothing more than a celebration of lawlessness.”

Commentators contrasted Republican Marco Rubio and Democrat Julian Castro (“To Mr. Rubio, Hispanics are refugees from foreign oppression, who want government to let them alone. . . . In contrast, . . . Mr. Castro . . . sees government as an essential enabler of ethnic assimilation and success”). And insiders, perhaps unwittingly, assured full employment for dentists by their vigorous teeth-gnashing over the irreconcilable differences between the parties on immigration policy. The only item of apparent common ground is the issuance of quick green cards for STEM graduates. (See Immigration Impact's platform analysis here, and AILA's take on the same topic here [AILA InfoNet Doc. No. 12090541, membership required].)

Given the parties' chasmic differences, is comprehensive immigration reform (CIR) still a bridge to nowhere?  Perhaps not. A convention segment last week on POTUS (Politics of the United States), the satellite radio station, entitled "Hispanic Voices," offered a plausible route to CIR:  

• Latino voters turn out in large numbers; 
• Obama is reelected, but one Congressional chamber remains under GOP control; 
• Some Republicans -- at last seeing a desolate future because the demographic tide has washed away so much of their base -- want the contentious issue of immigration behind them; 
• Obama offers the GOP a choice of legislative compromise or more executive orders on immigration that whittle down the undocumented population by creating administrative avenues for relief; 
• This time a deal is struck.

Central to the success of this prediction is heavy Latino turnout, something to be swallowed with a sizable chunk of salt. Many of his supporters are still smarting from the broken campaign promise to address CIR in his first year as President, as well as his Guinness-record reputation as Deporter-in-Chief. Others perhaps view jobs and the economy as more important than immigration. Still others fear that Obama may cave on CIR as he reportedly did in 2007 when casting an "Aye" vote on a killer amendment to limit the guest-worker program to five years, a move that derailed the Kennedy-Kyl CIR compromise, or question Democratic resolve to pursue immigration reforms that fundamentally help people or merely curry favor and votes.

Even if Latinos flock to the polls, and the "Hispanic-Voices" scenario begins to materialize, CIR will be no cakewalk.  

Democratic versions of CIR have favored more exacting worker protections in the H-1B and L-1 categories and more frequent audits of employers than the business community may be willing to tolerate. The allocation of visa quotas for H-1B jobs and family-versus-business green cards -- with family unity getting the lion's share over employment-based slots -- may create fissures in the CIR coalition.  There remains contention over the Draconian 1996 smack-downs of due-process protections for immigrants, a bone of T-Rex proportions in an era where even the protection of abused immigrant women is the sticking point in the current fight over renewing the Violence Against Women Act. And almost no one is talking about sweeping changes that would make the system more user-friendly, rational and simple -- a task that would require a kind of robust country-first statesmanship that, alas, has been AWOL for many years.

Maybe the parties can start building compromises on the business-immigration side, with solid assurances that other key elements of CIR will get their due as negotiations succeed on the low-hanging fruit; or maybe not.  

Until November's outcome reshakes the political Etch-A-Sketch, the future foretells more DREAMers like Benita Veliz stirring our hearts with DACA-spawned inspiration while immigration opponents remain intransigent and hateful like the GOP's Steve King of Iowa who still claims to have complimented immigrants by comparing them to dogs.