[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;
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.
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: firstname.lastname@example.org]