Search results for: american exceptionalism

“It became necessary to destroy the town to save it.”

~ An unidentified U.S. major, referring to the February 7, 1968 bombing of the South Vietnamese town of Ben Tre that killed hundreds of noncombatants, as recounted by Associated Press reporter, Peter Arnett.

US 1965 Stamp Celebrating the 750-Year Anniversary of the Magna Carta

I’ll admit I foolishly allowed myself to be misled. Despite almost 40 years of practicing immigration law, I didn’t anticipate the robustly revanchist re-grabbing of lost immigration territory and status, or the truly audacious intent and breadth of the April 18, 2017 “Presidential Executive Order on Buy American and Hire American (BAHA).”  As interpreted by officers adjudicating requests for immigration benefits at U.S. Citizenship and Immigration Services (USCIS), BAHA would “Make America Great Again” by taking us back to the pre-1965 days of racial and national origin discrimination, xenophobia, and jingoism, as was then embodied in America’s immigration laws.

Reading BAHA’s scant immigration provisions last April, I viewed it then as much a brouhaha about nothing. It merely called for inter-departmental proposals outlining potential administrative and legislative changes to the H-1B visa category that would “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” and, “[consistently] with applicable law . . . [would] protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” Since none of these proposals could come into existence without new legislation or new rulemaking under the Administrative Procedure Act (requiring a lengthy period of notice and an opportunity for stakeholder comment), I surmised that nothing much would change in the short-term.

To be sure, I noted BAHA’s ominous enforcement-minded tone (“it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad”). But it seemed to me that, given the long-standing “culture of no” and gamesmanship at USCIS, BAHA was merely a ritualistic shot against the bow signaling more of the same. Boy oh boy was I wrong. BAHA has apparently awakened USCIS immigration officers as if it were a dog whistle, a silent reveille alerting them loud and clear – just like their recently “unshackled” colleagues charged with immigration enforcement – that the cuffs are off. Since BAHA was issued, USCIS immigration officers seem to view themselves as henceforth free to apply even more “innovative” and superficially plausible, if extralegal and disingenuous, reasoning to deny work visa status and employment-based green cards at whimsy and will.

Many have reported on this trend. Miriam Jordan, New York Times immigration reporter, in a recent article, “Without New Laws or Walls, Trump Presses the Brake on Legal Immigration,” offers several examples of seemingly worthy cases delayed or denied since BAHA’s release. Reuters immigration columnist, Yeganeh Torbati, offers additional examples in “Trump administration red tape tangles up visas for skilled foreigners, data shows.” Distinguished immigration lawyer and scholar, Cyrus Mehta, offers a point-by-point  technical takedown of the multi-flavored yet flawed USCIS reasoning now on display in “Stopping H-1B Carnage,” and “H-1B Entry Level Wage Blues,” as do Mareza Estevez, Justin Storch, and this blogger in “H-1B Visas: Trends, Troubles & The Look Ahead,” a webinar presented by the Council for Global immigration and (linked with permission). Not surprisingly, the pain is spreading, a trend which Stephanie Saul describes in her New York Times article,  “As Flow of Foreign Students Wanes, U.S. Universities Feel the Sting.”

Even more up close and personal, Stanford MBA graduate and lawyer, Frida Yu, offers her own disheartening perspective in “Is Anyone Good Enough for an H-1B Visa?“:

Six months ago I won the lottery — the H-1B visa processing lottery for skilled foreign workers. I called my thrilled parents and celebrated with friends. I’m from northeastern China and have an M.B.A. from Stanford, and was planning to stay in Silicon Valley to help start a company based on a promising new technology to improve the use of data. I was overjoyed because, historically, being selected in the lottery was a near guarantee that an applicant could remain in this country at least three more years.

But at the end of July, I received the dreaded Request for Further Evidence from immigration authorities. I provided the extra information that United States Citizenship and Immigration Services asked for. In September, I got another request. I complied again. Finally, on Oct. 11, half a year after my celebration, I learned I had been denied a visa.

After earning law degrees in China and at Oxford, after having worked in Hong Kong as a lawyer at a top international firm, after coming to United States three years ago for an M.B.A. and graduating and joining a start-up, I was given just 60 days to leave the country. I have 17 days left.

But who’d a thunk that adjudicators would target for denial foreign workers currently in lawful visa status applying to continue working in the same job with the same employer? After all, doesn’t BAHA’s § 1(e) define “workers in the United States” and “United States workers” as described in 8 U.S.C. § 1182(n)(4)(E), to include not only green card holders, refugees, and asylees, but also authorized immigrants? And doesn’t BAHA’s § 1(c) define “petition beneficiaries” in a future-focused way as “aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program”? (Emphasis added.)

Well I was both naïve and unimaginative, given that a new, post-BAHA USCIS policy memo has apparently stripped all currently authorized nonimmigrant workers of their status as protected “U.S. workers” under § 1(e). See, USCIS Policy Memorandum PM-602-0151, October 23, 2017 (“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status”). In this policy memo, USCIS floated the spurious claim that its earlier 2004 and 2015 guidance (requiring that officers defer and approve, except in limited circumstances, all prior approvals of work-visa status as long as the job duties and employer remain the same) somehow shifted the burden of proof away from the individual and imposed it on the agency. This burden-of-proof argument rests on shaky terrain. Apparently, the effort is simply too much for USCIS, despite ever-escalating user fees “to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.”

In other words, USCIS now asserts that merely doing its job, i.e., by reviewing a nonimmigrant’s entire case history, somehow shifts the burden of proving eligibility to the agency. Not so. The statutory burden on the petitioner or applicant to establish visa eligibility remains the same. Rather the minimal duty imposed on USCIS is to retrieve the prior file and read it. If that is administratively burdensome, then a reasonable new policy would instead suggest to stakeholders that, if deference to a prior approval is desired, then the petitioning employer must include a copy of the prior submission and approval notice with each request for extension of status. Problem solved.

To tighten the screws even more, USCIS has released its 2018 regulatory agenda, which, if promulgated in final form, would apparently take steps to establish a point system to favor the most-skilled or highest-paid foreign workers, and raise the standard for eligibility as an H-1B worker in a specialty occupation – moves in step with BAHA, but entirely at odds with the H-1B provisions of the Immigration and Nationality Act and its legislative history. More draconian still are the changes to the H-1B visa category reportedly in the planning stage, possibly including restrictions on extensions of H-1B visa status beyond the standard maxout period of six years. Take a gander at “Trump considers big change to H-1B foreign tech worker visas,” as reported by the McClatchy Washington Bureau. This policy change, if true, would be the height of chutzpah because Congress enacted new exceptions to the usual six-year period of H-1B stay in the American Competitiveness in the 21st Century Act because of “lengthy adjudications” by the very same agency, USCIS, which had been unable to process its growing caseload in a timely manner (only in part due to visa-quota backlogs).

Notwithstanding these worrisome developments, and despite having been gulled before, I choose to toss cynicism to the wind, and hereby republish a few New Year resolutions for immigration officials to consider adopting:

  1. I will decide all cases based on the evidence of record after having read the file carefully and applied the immigration laws, regulations and agency policy memorandums in a spirit of fidelity to Congressional intent and just compassion for the people and businesses who will be affected by my decision.
  2. I will not issue requests for evidence merely as a means of pushing a case off my desk.
  3. I will decide cases promptly and remember that justice delayed is justice denied.
  4. I will not judge the case by the size of the company or the nationality of the applicant.
  5. I will not issue decisions that contradict settled agency policy guidance unless a new law or a novel set of facts justify such action.
  6. When I am duty bound to deny a case, I will provide a well-reasoned and detailed explanation of the grounds for my decision.

As immigration officials ponder my tender offer, I urge each of them to recall the oath of office as a federal employee. In the oath each of them did “solemnly swear (or affirm) [to] support and defend the Constitution of the United States against all enemies, foreign and domestic; . . . bear true faith and allegiance to the same; . . .  take this obligation freely, without any mental reservation or purpose of evasion; and . . . well and faithfully discharge the duties of the office on which [s/he is] about to enter.”

I thus implore immigration officials not to destroy America to save it. I ask them to recall that our cherished American heritage stems both from the rule of law, first embodied some 800-plus years ago in the Magna Carta, and from our cherished exceptionalism as a nation of immigrants. If immigration officials nevertheless persist in savaging decades of immigration law and policy, then I urge them to consider my intentionally nonviolent reference to the Urban Dictionary‘s definition of the Latin phrase, sic semper tyrannis, perhaps wrongly attributed to Brutus (but also uttered very unjustly by John Wilkes Booth):

sic semper tyrannis

Latin, translation: “Thus always to tyrants”, purportedly (but unlikely) uttered by Brutus at the assassination of Julius Caesar.

The phrase is meant to signify that tyrants will always be overthrown and removed from power.

I had intended to write again about the DREAM Act, given that it will be up for a vote during the lame duck Congress, probably within the week. Another DREAM post, to follow my many similar postings, would be more time-sensitive than ever in view of an analysis by Lamar Smith (incoming head of the House Judiciary Committee). In a recent Washington Post op-ed, Rep. Smith minimizes the impact of the Hispanic vote; thus, his track record as an immigration opponent makes the prospect of DREAM’s enactment in the next Congress chimerical, if not comical.

The brave DREAMers in this video made me want to blog on the kind of American Exceptionalism that does not come off as arrogance, the type that breeds courage in the face of impossible odds, the kind that causes innocent out-of-status youths, swept up by the mistakes of their parents and the hard-heartedness and fears of many Americans, to demand their civil rights by protesting in front of an ICE office (in Arizona, no less)! This “SLAM poem” by a DREAMer tells the story of Immigration Exceptionalism in yet another, also compelling, way.

I then planned to expand my riff on Immigration Exceptionalism by asking why French scientists and economists prefer the United States over their native land. I’d also blog about two recent items from the Wall St. Journal — one calling DREAM “A Worthy Immigration Bill,” the other reporting on a VC-funded CEO from Slovenia whom USCIS denied an extension of his work visa status and who now must run his American business from outside the U.S. — and contrast these to the 10-pointed disinformation of Sen. Jeff Session who opposes DREAM with flat-out lies and extremist views.

But then erupted Cablegate, the Wikileaks release (in stages over several days) of years and years of U.S. State Department cables, and another form of Immigration Exceptionalism — State’s secrecy and arrogance in visa matters— came back to me. This Congressionally-authorized dark side of the immigration process has bothered me for all of the 30+ years I’ve practiced immigration law. A Tweet of Matt Yglesias, retweeted by the Washington Post‘s Ezra Klein, epitomized the problem:

Routinized overclassification is bound to create a brittle system vulnerable to mass leaking.

The “[r]outinized overclassification” system that turns immigration-related records held by State into government secrets is authorized by Immigration and Nationality Act § 222(f), which provides:

(f) The records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, 1a/ except that–

(1) in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such records is needed by the court in the interest of the ends of justice in a case pending before the court.

(2) the Secretary of State, in the Secretary’s discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State’s computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database–

(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or

(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.

To many a visa applicant’s shock and dismay, State has routinely used § 222(f) as a basis to deny a copy of one’s own visa applications to the applicant and his or her legal counsel. Coupled with other provisions that give U.S. consular officers arbitrary (and too-often abused) powers over the fate of visa applicants, § 222(f) has also permitted the immigration workings of State to be shrouded in darkness — a darkness that is allowed to hide ethnic prejudice. Witness one 1979 cable from the U.S. Embassy in Tehran discussing the “cultural and psychological qualities” of Iranians:

Perhaps the single dominant aspect of the Persian psyche is an overriding egoism. Its antecedents lie in the long Iranian history of instability and insecurity which put a premium on self-preservation. The practical effect of it is an almost total Persian preoccupation with self and leaves little room for understanding points of view other than one’s own. Thus, for example, it is incomprehensible to an Iranian that U.S. immigration law may prohibit issuing him a tourist visa when he has determined that he wants to live in California. [Emphasis supplied.]

In America, we’d say this is an example of the pot calling the kettle black. The Persians would phrase it differently but with the same sentiment: “The garlic said to the onion: ‘you stink!'” Malcolm X might say, were he alive today, that the “chickens [have come] home to roost.”

The point here is not that WikiLeaks should be lauded for revealing State secrets. The point instead is this: State’s form of Immigration Exceptionalism permits “routinized overclassification” of secrets and of foreign citizens. It thereby helps create a “brittle [and vulnerable] system” which denies America the benefits of the other form of Immigration Exceptionalism, the one that allows home-grown foreign youth, French scientists, Slovenian entrepreneurs and innumerable other talented people from abroad to reinvigorate, replenish and economically strengthen our nation through their striving, risk-taking and innovation.

Talented artist and good friend, Pat Benincasa, recently invited me to join her in a session of her Filled to Capacity podcast. I hope you enjoy our discussion of All Things Immigration.

QUOTES

ANGELO:  “It’s helping people who were fleeing persecution from their home country. And boy, putting together an affidavit that describes someone’s life-threatening fears is far more meaningful than drafting a contract.”

ANGELO: “… I think we’ve forgotten our history and we don’t really make the connection… I mean, the founder of Intel was an immigrant, the founder of Apple computers was an immigrant. He was the son of a refugee… and I believe at least one of the two founders of Google was an immigrant. So you just name these companies and you see the tremendous wealth creation that there has been, but you don’t see that. It doesn’t register. And why it doesn’t register is a kind of selective perception, cultural or historic amnesia.”

ANGELO: “I believe that American exceptionalism, if that term is still to be used, derives from the constant replenishment of human capital, human ideas that come from elsewhere, where people who will do anything to sacrifice for their children’s betterment and work and contribute in ways that they push it to the level of human capacity…”

Labor Day, the quaintly traditional start of the Presidential election season, arrived this year with the memory still fresh of self-mortification Republican style — the projection of Second Amendment rights squarely into their collective feet.

Rather than enjoying a customary post-convention bump in the polls, GOP candidate Mitt Romney received “easily the worst rating given to any of the last eight convention acceptance speeches.” In a different kind of bump, a bio-pic many thought tended to humanize the candidate was bumped on broadcast TV by a frizzle-haired Clint Eastwood (apparently trying to reprise his role in the 1969 film musical, Paint Your Wagon), who has moved from talking to trees to ad libbing with a chair.

The convention, however, was not without its own lyrical high note.  Former Secretary of State Condoleezza Rice, clearly repudiated the hate- and fear-filled immigration plank in the Republican platform (which, with double-bordered emphasis, urged self-deportation and ruled out any remedy for the unauthorized in our midst). In its place, she delivered a heartfelt tribute to the truest form of American exceptionalism, our tradition as a welcoming nation:

But the American ideal is indeed endangered today. There is no country, no not even a rising China, that can do more harm to us than we can do to ourselves if we fail to accomplish the tasks before us here at home.

More than at any other time in history — the ability to mobilize the creativity and ambition of human beings forms the foundation of greatness. We have always done that better than any country in the world. People have come here from all over because they believed in our creed — of opportunity and limitless horizons. They have come from the world’s most impoverished nations to make five dollars not fifty cents — and they have come from the world’s advanced societies as engineers and scientists to help fuel the knowledge based revolution in the Silicon Valley of California; the research triangle of North Carolina; in Austin, Texas; along Route 128 in Massachusetts – and across our country.

We must continue to welcome the world’s most ambitious people to be a part of us. In that way we stay perpetually young and optimistic and determined. We need immigration laws that protect our borders; meet our economic needs; and yet show that we are a compassionate people.

It’s not that other convention speakers ignored immigration. Many waxed rhapsodic about their immigrant forebears who endured every form of privation so that their children might have a chance at freedom and prosperity in America.  As Sen. Mark Rubio offered, his father — a Cuban émigré — worked the bar at the back of the room so that his son “one day . . . could stand behind a podium in the front of a room.”

Perhaps even more moving were the refugee sagas of George Romney, Mitt’s father, and his father-in-law, both of whom fled revolution in Mexico for safety, succor and eventual success in America, as tearfully re-told by George’s grandson, Craig. Other Republican speakers — Nikki Haley, Mia Love, John Thune — also regaled the crowd with their immigrant ancestors’ sentimental journeys to America.  

While Marathon Man Paul Ryan’s whopper of a speech did not touch on immigration, it could well have encompassed the subject in these stirring words:  

Our different faiths [Ryan’s Catholicism and Romney’s Mormonism] come together in the same moral creed. We believe that in every life there is goodness; for every person, there is hope. Each one of us was made for a reason, bearing the image and likeness of the Lord of Life.

We have responsibilities, one to another – we do not each face the world alone. And the greatest of all responsibilities, is that of the strong to protect the weak. The truest measure of any society is how it treats those who cannot defend or care for themselves.

Apparently, however, given Ryan’s decidedly anti-immigrant stance, for every undocumented person, hope begins only after self-deportation.  The GOP’s muddled message on immigration is not the way to win the Presidency or capture control of Congress.  

Republicans seemingly prefer their immigration under glass, viewed from the hermetically sealed distance of generations long extinct, observed through the prism of anodyne nostalgia.  With this profoundly dumb policy (read: insensate or, demographically speaking, just plain stupid, as you prefer), will they wake up after Election Day to consider their shared fate with the party’s long extinct mascot — no, not the Mastodon, but rather the Dodo Bird?

mad-men_l.jpgWith the dog days of an election year producing little more than frothy pundits regurgitating banal analyses of the day’s non-events, and seeing no near-term prospect of comprehensive immigration reform, I temporarily turned aside my wonkish ways.

While publishing two posts by guest authors, I time-shifted back to the supposedly halcyon years of my youth, the late 50s and early 60s. For the last three weeks, I’ve watched the backward-looking hit TV series, Mad Men, from Season 1, Episode 1 through the final episode of Season 4. The show — now in its fifth year — depicts a presumably “golden era” of prosperity, tarnished only by crass capitalism on resplendent display at a Madison Avenue ad agency.  As Mad Men teaches, things were great back then as long as you ignored the blatant sexism, objectification of women, abuse of alcohol and tobacco, racism, gay-bashing and other societal mortifications.

These so-called good old days are thoroughly debunked by Frank Rich, one of my favorite authors, in a recent New York Magazine piece (“Mayberry R.I.P.[:] Declinist panic. Hysterical nostalgia. America may not be over, but it is certainly in thrall to the idea.“).  As he reminds us, our best days are not necessarily behind us, though we pine for a mythical past featuring all the realism of a doctored Instagram photo.

Rich is right. As a country, America has always faced daunting problems, which we often tried our darnedest to overlook.  Mayberry as a notion may have salved our escapist needs. Mayberry as a prototypically homey and welcoming Southern city, however, was a lie (notwithstanding that it once welcomed some homespun Italian immigrants).  Similarly, as Rich notes, “American exceptionalism” is not some quintessential trait lauded by Alexis de Tocqueville but a sneering coinage bandied by one Communist, Joseph Stalin, to another.

Witness the latest “America-is-wonderful” distortions.  Mitt Romney tells audiences that, unlike President Obama, he will never apologize for America.  For his part, the President claims he took a calculated political risk in bailing out the American auto industry because he was betting on the American worker and U.S. industry. While auto workers deserve credit, the industry was saved — in my view — by the purgative of a forced bankruptcy, the injection of billions of taxpayer dollars, the shedding of unaffordable pensions, and Detroit’s belated adoption of manufacturing efficiencies introduced years earlier by Germans, Koreans, Japanese and Italians.

I’m not saying we lack admirable traits, but rather that our “secret sauce” has always been our comparatively more welcoming immigration policies, as I told the Los Angeles Daily Journal recently:

[The] cornerstone of our exceptionalism is our willingness to accept immigrants as equal human beings and allow them to contribute and become citizens and achieve the American dream while they help us to achieve the American dream.

We seem to have forgotten this lesson of our history. Instead, we allow our politicians to mouth unwavering commitments to comprehensive immigration reform with fingers crossed.  We hope we can trust a President who ignored his pledge to push for reform during his first year in office. And we want to believe a Romney surrogate (Mr. “Noun. Verb. And 9/11,” no less), when he says it is “very possible” that the candidate who took advice from Kris Kobach, and called for self-deportation would pass comprehensive immigration reform (albeit only if the GOP controls the next Congress).

We should stop ignoring the scientific method and at last accept Einstein’s definition of insanity. We must stop “doing the same thing over and over again and expecting different results.” We must stop being “amnesiac, hypocritical, outraged [and] just plain apathetic . . .” Otherwise, we inhabitants of this “Nation of Immigrators” are Immigration’s real-life “Mad Men [and Women].“

cuffs.jpgAn essay in today’s New York Times, “Unexceptionalism:  A Primer,” by the novelist, E. L. Doctorow, describes in four “phases” how America can take steps to become unexceptional, that is, “indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world.” 

Phase one begins with Bush v. Gore, a ruling that “ignore[s] the first sacrament of a democracy and suspend[s] the counting of ballots in a presidential election.” 

Phase four ends with a naked power grab: 

If you’re a justice of the Supreme Court, decide that the police of any and all cities and towns and villages have the absolute authority to strip-search any person whom they, for whatever reason, put under arrest.

In phase three, Doctorow turns to immigration — the form of authentic American exceptionalism to which this blog is dedicated — and says (ironically, to my law-trained mind):  

When possible, treat immigrants as criminals.  

He apparently assumes that exceptionalism declines when the foreign-born among us are locked away for trivial or modest immigration violations, even when they pose no threat of escape or of harm to society. He might also be suggesting that by separating them from their U.S. citizen relatives after their right to be in the U.S. has been tested and denied in removal (deportation) proceedings too often threatens American families with poverty and a life of needless suffering. 

In this he is right.  Immigrant detention — promoted by a smart “ALEC” in retreat — has become a huge business, an industry so successful that it lacks adequate facilities to house immigrant detainees, one where even children as young as eight are placed in “emergency” quarters on military bases.

If Doctorow instead meant to refer to the treatment of suspected wrongdoers under either the immigration or the criminal laws, this otherwise brilliant author is flat wrong. 

Criminal suspects are guaranteed rights that people charged with violating the immigration laws can only envy. Defendants in criminal trials in most cases enjoy the right to a trial by jury. Their guilt must be established by proof beyond a reasonable doubt. Under the Ex Post Facto Clause of the U.S. Constitution, they may only be convicted for conduct that Congress made illegal before the forbidden act occurred. Indigent criminal defendants are entitled to appointed defense counsel at government expense.

Whether rich or poor or in between, criminal suspects have Constitutionally endowed Miranda rights (the warning that anything they say to police can and will be used against them in a court of law). They have a right to examine any exculpatory evidence in the government’s possession, and the right to confront the witnesses against them and insist that the court exclude purely hearsay evidence. The judges who preside in criminal cases are subject to the canons of judicial ethics. Criminal proceedings are transcribed by court reporters so as to establish an accurate record and make sure that the right to appeal a conviction is preserved.

Because of the legal charade that removal proceedings are “civil” and not “criminal” in nature, that deportation is not “punishment,” foreign citizens whose immigration status is challenged at a removal hearing before an immigration judge enjoy no such rights.

Although not treated as punishment under the immigration laws, removal (or its virtual twin, inadmissibility) hurts no less.  A former Attorney General might just as well have been talking about removal rather than inadmissibility in Matter of S- and B-C, 9 I & N Dec. 436, at 447 (BIA 1960; A.G. 1961), when he said:

Shutting off the opportunity to come to the United States [or, as I would also put it, forcing someone to leave] actually is a crushing deprivation to many prospective [and current] immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.

If America treated immigrants in removal proceedings as if they were criminal defendants, the foreign-born whose status is at risk would enjoy significantly greater rights, and the harsh rule of immigration law would be tempered with justice.  At present, however, respondents in immigration proceedings are at greater likelihood of being found at fault than criminal defendants. Here’s why:

  • No presumption of innocence but proof “beyond doubt.” An applicant for admission to the U.S. as well as a so-called “arriving alien” is not presumed innocent.  Rather s/he must prove “clearly and beyond doubt [that s/he is] entitled to be admitted and is not inadmissible. . . .” The “clearly and beyond doubt” burden of proof imposed on the foreign citizen is even more difficult to establish than the duty imposed on prosecutors to prove a criminal defendant’s guilt “beyond a reasonable doubt.”  Even for foreigners who have already been granted admission, the noncitizen (whose alienage the government has proven) must establish by clear and convincing evidence that he or she is in the U.S. based on a lawful admission.  Only then is the government required to prove by clear and convincing evidence that the respondent is deportable.
  • No Jury. Respondents in removal proceedings have no right to a jury trial.
  • No government-paid legal counsel for the indigent or incapacitated. Unlike criminal defendants, respondents facing removal (even minors and the mentally impaired) who cannot afford a lawyer have no right to legal counsel at government expense.
  • Late advisal of right to avoid self-incrimination. Immigrant respondents are only given Miranda warnings (by regulation rather than Constitutional guarantee) after a Notice to Appear before an immigration judge is served upon them.
  • “Loosey-Goosey” rules of evidence. Hearsay evidence may be used against respondents in removal proceedings at the discretion of the immigration judge.
  • Limited access to exculpatory evidence. Immigrant respondents are not automatically given access to evidence that may establish their innocence of the charges against them or their eligibility for relief from removal.  They must file Freedom of Information Act (FOIA) requests or request the immigration judge’s permission to subpoena documents or witnesses. Even if such evidence is not made available to the respondent, the immigration judge can find the person removable and ineligible for various types of discretionary relief.
  • In-person proceedings with court reporters transcribing every word not allowed. Immigration court cases are conducted without court reporters.  Instead, they are audio- or video-recorded. Too often this denies them justice.  Audio recorders are often turned on and off at the sometimes hasty flick of an immigration judge’s finger — at times thereby leaving out crucial factual information or legal argument. At other times, the recordings are garbled, incomprehensible or defective. This is usually discovered months or years later on appeal, thus requiring a remand to the immigration judge for rehearing.  Live video recording — which occurs with detained immigrants — often interferes with the effective representation of counsel or prevents a clear understanding of the proceedings by the person most affected, the respondent.
  • Retroactive culpability. Immigrants can be removed from the U.S. for conduct that would not have warranted deportation when the act was committed.  This is because Congress can and often does change the grounds for immigration removal retroactively.  There is no Ex Post Facto rule prohibiting deportation for past non-culpable conduct.
  • Immigration judges not subject to canons of judicial ethics. Although proposals to impose a judicial ethics code on immigration judges have been suggested, they are not yet final. In criminal courts, however, judges are subject to ethical canons, patterned after the American Bar Association’s Model Code of Judicial Conduct.

The civil-not-criminal distinction in removal proceedings may soon be meaningless.  If, as the prognosticators suggest, the Supreme Court upholds Section 3 of Arizona’s S.B. 1070, which creates the crimes of being unlawfully present in the U.S. and of failing to register with the federal government, we may learn in a future case whether the lack of criminal defendants’ rights in immigration proceedings can withstand Constitutional challenge. 

I’d rather see our leaders deservedly stake claim to the notion of American Exceptionalism and distinguish our nation “from the impoverished, traditionally undemocratic, brutal or catatonic countries in the world,” by, whenever possible, granting immigrants the same legal rights as we give to criminal defendants. 

A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely.  It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers.  These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.”  She wrote: 

[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011.  One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer.  We have always felt pride in our nation’s ways, and pride isn’t all bad.  But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.

Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of “American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet).  The construct of the federal courts that I’m about to describe rests on tottering and false assumptions.  These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation. 

(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion.  Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president.  Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.) 

The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous.  As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous.  Thus, the courts are under orders to let the agencies call the shots. 

So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws?  My 30-plus years as an immigration lawyer compel me to shout a “NO” answer. 

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Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA).  The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws.  DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS).  The converse is also true, as USCIS readily admits. 

Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws.  Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization.  These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]). 

As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies.  Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies. 

Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws. 

These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law.  They are an affront to Congressional power and a testament to legislative lassitude over immigration.  Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere.  As Peggy Noonan concluded in her op-ed: 

The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.

And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them. 

We have work to do at home, on our culture and in our country. 

The “phantasmagoric politics” of Washington DC often produce hallucinatory effects:

[A]lmost every time I travel there . . . something comes over me. Inside the Beltway, talk can give off the illusion of action. The mouthing of words, however powerful on the printed page or eloquent when spoken, is seen . . . as equivalent to progress.

During my latest trip, however, a hopeful, reality-based euphoria replaced the usual “illusion of action,” as I attended a National Strategy Session on comprehensive immigration reform (CIR) held Dec. 4 and 5 and sponsored by ForgingConsensus.org.  For the first time in ages, conservatives and progressives joined together in candid and helpful conversation.  

Representatives from national religious organizations, law enforcement and commerce (“Bibles, Badges and Business“) spoke eloquently about the urgency to enact CIR and offered common-sense wisdom that acknowledged just how surreal our immigration policies have become.  As Jim Wallis, CEO of Sojourners — “a national Christian organization committed to faith in action for social justice” — remarked, our system causes people to be “stuck between ‘No Trespass’ and ‘Help Wanted’ signs.”

The National Strategy Session, organized by the National Immigration Forum, is available for online viewing. The press conference offers the key points:

 

ForgingConsensus.org also arranged a full day of visits to Republican and Democratic lawmakers and their staffs.  I joined a group that included Mark Shurtleff, Utah’s Republican Attorney General, Dr. Richard Land, President of the Southern Baptist Convention Ethics and Religious Liberty Commission, and Robert Gittelson, a business executive and founder of Conservatives for Comprehensive Immigration Reform.

The meetings offered many new insights beyond merely the post-election recognition by the GOP that now is the time for Congress to reform our immigration laws.  One staffer, counsel for a senior Republican, offered a play-by-play, inside-baseball forecast of alternative scenarios but concluded glumly (as I paraphrase):

No matter what the Republicans do, they will not win.  If CIR passes, the Democrats will get most of the credit.  If it fails, the Republicans will be blamed.

A female Member of Congress — a Democrat — posed the challenge this way (I’m still paraphrasing): 

I try to start every negotiation by trying to think like the other side. The only way CIR will pass is if Democrats figure out what the Republicans want. They need to show their constituents that the bill that passes promotes conservative values.

A newish GOP lawmaker suggested several core values he believes his fellow conservative legislators and constituents could embrace (again I paraphrase):

We would support small-government immigration solutions, family values, entrepreneurship, innovation, and power sharing on immigration between the federal and state governments (perhaps a pilot program in which the feds continue to do the security screening, border protection and administering of the immigration system but states get to experiment with block grants of authority to issue temporary-worker and green-card visas based on local conditions and needs).

The two days of strategizing with out-of-towners and engaging with Beltway insiders convinced me that CIR — whether in a grand bargain or in a series of coordinated, interlocking votes on pieces of connected legislation — enjoys its best prospects for near-term passage in several years.

The undocumented population, though shrinking from 12 million to 11.1 million between 2007 and 2011 according to recent census data, consists mostly of “mixed-status” families that include U.S. citizens and permanent residents, many of whom are children.  This population will not go away by self-deportation; they will remain together with or without new laws. Other than hate-spewing nativists like Ann Coulter and Tom Tancredo, Republicans recognize that the undocumented are human beings, not a “plague of locust[s].” The consensus of economists (other than Karl Marx) is that widening the entryway to our borders will foster prosperity. An “Immigration Hawk,” Jim DeMint, is leaving the Senate. A new “Gang of Eight” on immigration has formed in the Senate (Democratic Sens. Chuck Schumer of New York, Dick Durbin of Illinois, Michael Bennet of Colorado, Bob Menendez of New Jersey, and Republican Sens. John McCain of Arizona, Lindsey Graham of South Carolina, Mike Lee of Utah and Sen.-elect Jeff Flake of Arizona).  The House is meeting in small groups behind closed doors — both leading lights and new faces.

As Utah AG Mark Shurtleff told the audience at the National Strategy Session, now is a “kairos moment” for immigration reform, or as Wikipedia would say, “a moment of indeterminate time in which something special happens.”  Kairos, he noted, also carries a religious significance in that kairos time should be treated as a providential call to action.  

This trip to Washington — probably because Americans from out of town and from diverse walks of life joined in — was different.  Boots on the town seem to have displaced partisan positioning and lofty rhetoric divorced from action. 

For immigration reform, this kairos call to action, at this auspicious moment, must involve people of good will and sincere motivation, acting inclusively, with country before party, to promote our shared core values — economic strength, family unity, worker protection, freedom of expression, and religion (or of no religion), border integrity, the rule of law, and human dignity. 

I feel better about the city, and more hopeful for the country.

idea light bulb.jpgWriting for The Hill, pundit Kathy Kemper just published a thoughtful piece on “Debt and immigration.”  In it she contrasts American policy-makers’ obsession with the financial Sword of Damocles, set to behead us on August 2, with Norway’s all-consuming focus on the aftermath of a xenophobic madman’s gutless acts of murder and mayhem. 

Americans, it seems, can think only of financial insecurity (apparently because Casey Anthony remains in hiding), while Norwegians grapple with societal insecurities and aspirations, and ultimately, the proper response to racial and religious hatred.

Kemper reasons that security is about more than fiscal rectitude and the age-old debate over spending on guns versus butter:   

In reality, defending the homeland requires a continuous flow of the world’s best: individuals who understand the changing constellation of threats to our nation; discern which among those will grow more important in the years to come; and design “hard” systems and “soft” policies to respond to them dynamically.

There are at least two other reasons why immigration is so crucial:

(1) ‪It keeps our nation young. Indeed, if — and it’s a big if — we’re able to sustain our immigrant inflow, we should be able to avoid the demographic challenges that beset the EU and ‬Japan (and which, within another decade or two, will begin to take a toll on China).

(2) America, above all, is an idea, perhaps the most important component of which is openness: openness to people, to ideas, to risk taking. An America that closes itself off will guarantee its decline. Harvard University’s Joe Nye has argued that “the greatest danger to America is not debt, political paralysis or China; it is parochialism, turning away from the openness that is the source of its strength and resting on its laurels.”

If, as Kemper rightly posits, America is an idea, then to keep our mental synapses firing, we as a nation need many more immigration thought leaders. 

In the immigration sphere, thought leaders are not likely or often found in the halls of Congress.  Rather, they are all around us — in our schools, coffee shops, law offices, think tanks and foundations.  They are Tweeters, bloggers, artists, activists, journalists and especially, DREAMers.  While they can be sighted in many places across the country, their numbers are insufficient to turn the tide of anti-immigrant hate speech, jingoism and Fortress-America messaging that passes as the “fair and balanced” offering of competing ideas. 

Immigration thought leadership is about speaking truth to power, about setting aside any pretense of faux objectivity, as Paul Krugman opined today in “The Centrist Cop-Out“:

Some of us have long complained about the cult of “balance,” the insistence on portraying both parties as equally wrong and equally at fault on any issue, never mind the facts.

I’ve thought quite a bit about the scarcity of immigration thought leadership (especially when my muse escapes me on any given Saturday as I scrounge for a fresh topic to post on dysfunctionality in our visa and entry policies).  Recently, Martindale-Connected, the social media site for lawyers, offered me the chance to ruminate on thought leadership via podcast (available here) and in writing here: “5 Steps to Go From Thoughtful Lawyer to Thought Leader on Social Media Sites (and Other Places).”

The five steps I described apply to any form of thought leadership, but especially to immigration and to budding thought leaders with no “Esq.” after their names:

  1. Thought Leadership Requires a Provocative and Enduring Topic. Blogging and article writing often serve as the centerpiece of many a thought-leadership strategy. More than a few lawyers who blog or write law-related articles, however, make the mistake of using the medium as merely a way of reporting on key cases and new statutes in order to demonstrate expertise in the subject. Thought leadership demands more. Thought leaders do not merely report new legal developments; they shed light on fundamental problems, offer critical analysis, discuss practical implications in the real world, and suggest solutions. Thought leaders are never boring. They take adverse possession from other lawyers over a particular area of law and own it by developing a voice and overcoming the fear of being too controversial. They select a topic that interests them (so that their passion remains on display), and a subject with legs that will generate eyeballs. One way to do this is by focusing on the actions of the government, federal or state, executive, legislative or judicial. As my blog www.NationOfImmigrators.com, illustrates, government officials are always doing something controversial that upsets someone. A controversial topic is one that readers naturally want to understand. The thought leader’s writings help them, over time, to understand the controversy and make up their own minds. Thought leaders are not afraid of controversy, but they always remember that they need not become the controversy.
  2. Thought Leaders Are Remarkable and Grow a Tribe. Seth Godin is a maven of thought leadership. Among many of Seth’s suggestions, two stand out: A) Be remarkable; and B) Build a tribe. Thought leaders generate conversations. They are worthy of discussion among existing and prospective clients, colleagues, government officials and adversaries. They are remarkable. They are never boring or lackluster, and are not afraid of tooting their individual horns tastefully, for unless they do, they know that there might not be any music. Given these characteristics, thought leaders necessarily draw people to them. They form a tribe around their chosen topic, a community of interest, not necessarily all of like mind, that wants to know and learn more. Ask yourself, Attorney: Is your writing dull and soporific? Do you reflect your passion in your posts? Do you offer a point of view? Do you go outside your comfort zone in expressing yourself in visible ways? Are you operating from a Rolodex of disconnected people or have you built a network of thoughtful and interested members who see you as a thought leader? Do you share with your tribe the interesting thoughts of others? Do you connect tribe members with each other?
  3. Thought Leaders Understand and Use Leverage. Thought leaders do not write single articles. They mount visibility campaigns around each and every article they author. Thought leaders know (no matter what a publisher says) to keep the copyright on their writings so that they can be repurposed in other publications, perhaps with an updated or tailored introduction to suit the new audience, or perhaps not. They Tweet and post status updates in Facebook and LinkedIn about every one of their articles, speeches, case victories (with client consent) or significant activities, offering link-backs to their analytical writings and their online profiles. They also regularly post links to new government announcements, new cases and statutes and the writings of others, usually also with a link to their own analysis of the latest development and its impact, and suggested strategies. They join and actively participate in Martindale Connected. They post articles on Google Knol and search for article directories to find additional opportunities and venues through which to post.
  4. Thought Leaders are Disciplined and Reliable. No flash in the pan, thought leaders understand that consistent messaging, over time, with predictable regularity, is the only way to gain visibility and mindshare. Rain or shine, they write, post, update, Tweet and repeat the cycle, over and over. Too many lawyers think that one article every six months is enough to produce results. It is not. Thought leaders recognize that building a tribe means being responsible to your community. It is less a job than a calling. Nothing is worse for one’s reputation as a thought leader than a blog with a stale posting, months old, or the occasional posting, months apart.
  5. Thought Leaders are Ethical and Responsible. Publicity without propriety does not a thought leader make. Thought leaders respect the rules of professional responsibility, refrain from misrepresenting the truth or engaging in personal attacks, label their writings as “attorney advertising” where required by state ethics rules, and do not take public positions that conflict with the interests of their clients. Thought leaders are not empty suits. They provide excellent client service and zealous advocacy, for these attributes are not only inherently important but also create the environment from which new insights and thoughts with which to exhibit leadership sprout.

thought leaders.jpgIf we Americans are to maintain our unhaughty claim of Exceptionalism, that is, our heritage as a perpetually vibrant and constantly replenished nation of immigrants, then we must produce many more thought leaders who can win what Kemper describes as the “debate over immigration [which] gets to who we are and, more importantly, who we will be.” The growing ranks of immigration thought leaders, however, must not, as Krugman warns, make “nebulous calls for centrism, [the] big cop-out. . . that only encourages more bad behavior.”  Rather, in my view, they must call out extremism wherever it surfaces and help direct our people to embrace the nation’s true saving grace — more enlightened and just immigration policies.