Putin 2.png[Blogger’s note: Our guest blogger today is Careen Shannon, Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. Careen Shannon and Austin Fragomen blog about immigration issues at Fragomen on Immigration. She writes to offer a background on the law of asylum applied to perhaps the world’s most famous — albeit temporary — recipient, Edward Snowden, granted that international treaty protection by Russia’s Vladimir Putin.  Pundits are not sure who loses more by the grant of temporary asylum — Putin or Snowden.  Immigration lawyers are divided on whether it’s prudent to opine on asylum eligibility because usually no one on the outside can know the facts.  In this case, however, with Snowden’s leaking releasing a flood of media focus on his background, an exception is warranted — especially if it elucidates key concepts and dispels popular misconceptions, as Careen does here.]  

Edward Snowden and the Politics of Asylum

By Careen Shannon

Edward Snowden has now been granted temporary asylum in Russia, which he earlier indicated he was seeking only while he looked for a more permanent option elsewhere. Whether you think Snowden is a hero or a traitor, his quest for asylum raises interesting questions from an international law perspective. Does he actually qualify for asylum under international standards? Or would any country—including Russia—that grants him asylum really be engaging in what immigration attorney Jason Dzubnow has called the realpolitik of asylum? 

Under the principle of non-refoulement in international law, countries have a duty not to return (“refouler”) a person to a place where they would face persecution. This principle was embodied in the 1951 Convention relating to the Status of Refugees (which most countries of the world, but not the United States, signed that year) and the 1967 Protocol relating to the Status of Refugees, which expanded the 1951 convention and which the United States did sign. 

In 1980, Congress enacted the Refugee Act of 1980, which implemented the UN Protocol. Under this Act, a refugee was defined as “any person who is outside of any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” A grant of asylum can only be made to a person who fits this definition of what constitutes a refugee. This definition is now part of the U.S. Immigration and Nationality Act, and mirrors the language which most countries around the world have also adopted, including, notably, Russia, as well as Iceland, Ecuador, Bolivia and Venezuela, which have all been mentioned as possible final destinations for Snowden. 

The Department of Justice stated in a letter to the Russian Minister of Justice that Snowden would not be subject either to torture or to the death penalty were he to be returned to the United States—undermining any claim Snowden might otherwise have made under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which, unlike asylum, does not require that the fear of torture be based on one of the five enumerated grounds).  This has left Snowden with few options other than to seek asylum. 

In Snowden’s case, the question then becomes whether he can establish a claim to asylum based on one of the five enumerated grounds. Since race, religion and nationality play no part in his story, he would have to qualify either on the basis of political opinion or by virtue of being a member of a particular social group that has been singled out for persecution by the U.S. government. The Russian government has not disclosed the basis for granting temporary asylum to Snowden. Given the swiftness with which the government granted his application, which was submitted a mere two weeks ago, it would seem that pragmatic considerations—defusing the tension created by Snowden’s having been holed up in the transit area of Moscow’s Sheremetyevo International Airport for several weeks—were probably paramount. 

So let’s assume that Snowden will now attempt to use his passport-like Russian refugee document to travel to another country in order to secure a permanent grant of asylum. Eric Posner, a professor at the University of Chicago Law School, has suggested that Snowden is actually a terrible candidate for asylum. Claiming a well-founded fear of persecution based on political opinion would certainly appear to be a challenge, unless Snowden could successfully argue that his act of disclosing government secrets amounted to an expression of his political opinion. Even if Snowden can credibly paint himself as a person who has fled his country due to his dissenting political views, however, the U.S. government seeks his extradition not because of his political opinions per se, but because he violated federal law by disclosing classified information. Here, the United States can credibly draw a fairly clear distinction between prosecution and persecution. 

Snowden’s best option, as Max Fisher suggested in the Washington Post, might be to seek asylum on the ground that he has a well-founded fear of persecution based on membership in a particular social group, which in his case might require him to argue that the United States persecutes whistleblowers. This may not be as far-fetched as it sounds. According to a report by Thomas Hedges in Salon, it wouldn’t be the first time that the U.S. government has at least arguably persecuted a CIA whistleblower. John Kiriakou, a former CIA agent who revealed details of the George W. Bush administration’s torture program, claims, with substantial basis, that he was pursued by the CIA, FBI and Department of Justice for years until they finally managed to find a criminal charge that would stick and land him in prison. 

Interestingly enough, the United States has granted asylum to foreign nationals whose claims were based on having engaged in whistleblowing against government corruption. In Snowden’s case, while the information he has disclosed might be shocking to the public, it would be a stretch to characterize it as government corruption—since, whatever one thinks about the secret court and secret warrants that authorized the government action that Snowden revealed, such action was, in fact, legal under existing U.S. law. Another country, however, might have a more expansive view of whistleblowing for asylum purposes. (After all, lawfulness per se does not necessarily mean persecution has not occurred.)  On the other hand, how many countries really want to set the precedent that disclosing government secrets is a good reason to grant a person asylum? 

If Snowden cannot demonstrate a well-founded fear of persecution based on either social group or political opinion, might a nation somewhere in the world still opt to grant him permanent asylum, just as Russia has done on a temporary basis? The righteousness of Snowden’s cause has certainly been undermined by his flight to countries—China and Russia—that are themselves hardly paragons of democracy and transparency. A country that decides to offer Snowden permanent refuge notwithstanding his inability to qualify for asylum under accepted international standards would most likely be seeking to burnish its own image, damage U.S. foreign policy, and take advantage of a unique opportunity to stand up to the United States. While this might provide a country like, for example, Ecuador a certain amount of prestige among its Bolivarian neighbors in the short term, it is unclear to what extent the country—or Snowden himself, for that matter—would benefit from such a decision in the long run. 

Russia’s decision to grant Snowden asylum only temporarily indicates that it wishes to avoid creating long-term damage to its relations with the United States. As Eric Posner wrote in Slate, “[C]ountries are free to grant residence, citizenship, and other forms of protection to anyone they want, for whatever reason they want, and political reasons can play [a] role…. [But] Snowden is not the type of person you want living in your country. Countries don’t grant citizenship or permanent residence to people they know to be felons.” 

In the popular mind, asylum is typically equated with “political asylum,” which is technically inaccurate since there are four other grounds on the basis of which a country can grant an individual asylum. But asylum is inherently political in nature, and the decision to grant asylum necessarily includes an implicit rebuke against the country from which the person has fled. While the story that Snowden has to tell about secret U.S. government policies may or may not be over, his personal story—and its implications for U.S. policy, the international law of asylum and international relations as a whole—has in many ways just begun. 

Publicity Stunts.jpg[Blogger’s Note:  An earlier version of this post mistakenly suggested that the article discussed below offering the views of an immigration lawyer was written by that lawyer.  It was not; rather it was written by a reporter who quoted the lawyer.  This blogger regrets the error.]

The power of online and social media to whip up a frenzy of vituperation in the immigration ecosystem surfaced vividly once again this week. 

The first trigger event was action by nine Dreamers — six who’d been deported to Mexico and three who left the U.S. and entered Mexico willingly. Protesting the Obama Administration’s mass deportation and detention policies, the DREAM9, as these youthful activists are called, immediately approached the U.S. border and asked Customs and Border Protection officials to allow them in. 

The second trigger was an article by a reporter who interviewed a well-regarded immigration lawyer and quoted the lawyer as describing the DREAM9 action as a “publicity stunt” and “flippant” behavior, when the focus should be on enacting comprehensive immigration reform.  He also expressed doubt that the three Dreamers who left the U.S. would qualify for readmission under the asylum laws or humanitarian parole.

All sorts of nastiness ensued.  Some protested that the lawyer had no right to criticize since he is not a Dreamer, while others suggested to these critics that the lawyer, as a citizen, has a higher right to speak under the First Amendment than undocumented protesters and their equally paperless supporters.  Both sides on this spat are wrong — the First Amendment applies to everyone in the United States.  

The DREAM9 have reportedly been denied parole into the United States (the discretionary power of the government to admit individuals on a case by case basis under § 212(d)(5)(A) of the Immigration and Nationality Act for urgent humanitarian reasons or significant public benefit).  Shuttled off to the Eloy, AZ detention center as civil detainees, the DREAM9 sit in custody or solitary confinement, while they prepare to request asylum in the United States and participate in a hunger strike to protest detention conditions generally. 

As this dust-up shows, there have been collateral damage and casualties in this war of words, not the least of which are our nation’s deservedly maligned, and mostly misunderstood immigration laws, as well as our tradition of activism and civil disobedience to spur changes in law and policy.  The lawyer (whom I respect) is right to consider the fine points of immigration law, but wrong to publicly prejudge the outcome of their requests for asylum and humanitarian parole since he is not privy to the facts.

Certainly, a case can be conceived of compelling humanitarian grounds and significant public benefits upon which to grant humanitarian parole or asylum. They have lived, been educated and are like the everyday Americans among whom they grew up.  Crime in Mexico, especially kidnappings of wealthy Mexicans or American tourists or those perceived as such has been acknowledged by the U.S. Department of State (“The number of kidnappings and disappearances throughout Mexico is of particular concern. Both local and expatriate communities have been victimized. In addition, local police have been implicated in some of these incidents”).

Moreover, throughout American history our immigration laws have reflected the political sentiments of the times — from the Alien and Sedition Act, the Chinese Exclusion Act, and our modern day Immigration and Nationality Act, a McCarthy-era law focused on preventing Communists from entering the country, to the Cuban Adjustment Act and the Chinese Student Protection Act.  Immigration law and politics are inextricably bound, as these Dreamers know well, given the Obama Administration’s use of executive power to create the program known as DACA (Deferred Action for Childhood Arrivals) just in time to favorably influence the 2012 presidential election.

No less than voting, political protests and civil disobedience put pressure on the system, not just on the President. House leaders Cantor and Ryan have changed their tune to recognize a benefit for Dreamers. They now acknowledge the unfairness of depriving innocent youth who’ve lived like Americans their whole life a path to legality.

It’s way too soon to critique the methods used by the DREAM9 and their supporters when immigration policy arguments are in flux. I commend them for their bravery and for their willingness to shed light on the whole rotten detention and removal system that needs to be reformed from its core. Criticizing these kids distracts from the real targets of criticism — the dysfunctionality of the immigration laws, the prison-industrial complex and the border-focused government-contractor giveaway.

Or as another respected immigration lawyer reminded me, Frederick Douglas said:

Let me give you a word of the philosophy of reform. The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.

alien shadow 2.jpg[Blogger’s note: Today’s post comes from the prolific keyboard of Nici Kersey, a friend and colleague whom I number among the best in I-9 and E-Verify compliance issues. She writes about our shared reluctance to grow up (as I write this, I’m singing my anthem — a certain song from the musical, Peter Pan) and our mutual antipathy to phony depictions of immigration law in cinema and television. For me, my favorite immigration shows are the original Superman,My Favorite Martian, and Mork and Mindy.  As for film, I’ve blogged before on its ability to  influence the immigration debate. But enough of me.  HEEEEEEEERE’S NICI!]

When I put on a suit, I feel like I’m pretending to be a grown up.  My husband keeps reminding me that we are “getting older” (well, duh).  My friends say that my evolving taste for nonfiction (I’ve always read fiction, leaning toward young adult novels) can be attributed to my advancing age.  And I generally have no idea what my 13-year-old stepdaughter is talking about.

I’ve been married for 11 years; my ten-year college reunion was ages ago; and the lady at the cosmetics counter has started recommending anti-aging moisturizers.  My daughter will turn three in August.  I own my own business.  I still don’t feel like a “real” grown up. 

I’ve been an attorney for six years now, but I don’t feel like an attorney – or at least not the way I always imagined being an attorney might feel.  I don’t feel important; I don’t like carrying a briefcase; and I have never yelled “objection!” in court.  I am desperate to use puppets in my I-9 training.

I’ll be honest;  I feel most like an attorney when I’m watching TV.  I think “this must be what doctors feel like when they watch Grey’s Anatomy.”  (Yes, doctor friends, I think you sit around watching ER and Nurse Jackie, noting the gross inaccuracies.) 

Brothers and Sisters was, for the first several seasons, a favorite show of mine.  But then in the fourth season Sarah Walker’s French fiancée, Luc, whose visa was running out, suddenly won the green card lottery.  In the show, this meant that an envelope appeared  in the mailbox one day, and inside that envelope was a green card.  Problem solved.  “Objection!” I shouted at the television.  What crap.  He may as well have won it via a scratch-off ticket he bought on a whim at the gas station.

In Green Card, then-INS officers more-or-less stalk a couple who have committed fraud by marrying solely to obtain a green card (they, of course, fall in love “for reals” in the process).  Despite their newfound love for one another, Gerrard Depardieu’s character is deported – not because the marriage was entered into for the purpose of committing immigration fraud – but because he cannot remember the name of his wife’s face cream.  I can barely remember the name of my own (anti-aging) face cream.

One of the worst offenders is The Proposal, which boasts a cast including Sandra Bullock, Ryan Reynolds, and Betty White.  What was the most unbelievable part of this movie?  The fact that I have now seen it twice, having apparently developed amnesia after the first go-round.  In this flick, Sandra Bullock’s character forces her assistant, who has dubbed her “Satan’s Mistress,” to marry her to avoid being deported after the application to renew her visa is denied. 

Let’s pretend for a moment that denial of the extension petition would cause deportation proceedings to begin right away (as The Proposal suggests).  What happens next is extraordinary:  the new couple (formed moments before) walks into the local USCIS office, cuts to the front of the line, and asks to file a fiancée visa petition.  It’s not possible to just walk into the USCIS office (you have to have an appointment, and you have to go through security, and then you have to wait, and wait, and wait).  It’s also kinda difficult (read: pretty much impossible) to file a fiancée visa petition while you’re in the U.S., and even more difficult to file pretty much anything in person. 

The two are immediately granted an interview with a USCIS officer.  [Objection!  Objection!  Objection!]  From there, the movie is similar to Green Card, in that the main characters fall for one another (though in this movie, the development of these new feelings is harder to believe than in Green Card).  Their newfound love develops after flying from NYC to Alaska, and the USCIS officer who interviewed them follows them and attends their (impromptu) wedding.  Ah, yes – that’s how it’s done.  (Cough.)  I’ll try not to ruin the end for anyone who still wants to see it after this glowing review, but I will say that the magic solution here is even more unbelievable than in Green Card; at least in Green Card, the guy gets deported.

The Terminal is underrated; I like this one.  And the whole premise seemed unrealistic until the past month.  A man (Tom Hanks) boards a plane to the U.S. and, while in flight, a coup in his country results in revocation of his visa and voids his passport, making it impossible for him to enter the U.S. or return to his home country.  Tom Hanks’s character ends up living in the international terminal at JFK.  Fantasy?  Well, sure, immigration officials don’t usually just let you wander out of customs  if you’re not admissible to the U.S., and security might typically take issue if you start ripping things out of electrical panels, or maybe keep you from living in part of the terminal that is under construction.  But I certainly hope that Edward Snowden studied this film before hopping a plane to Russia. 

Much could be said about the episodes at the end of the first season and beginning of the second season of Will and Grace, in which Jack (Sean Hayes) marries Karen’s housekeeper, Rosario (Shelley Morrison) to avoid her deportation.  And about Crossing Over, a movie starring Harrison Ford that includes Ray Liotta as a corrupt immigration officer who arranges to trade a green card for sex but (see a pattern?) falls for the woman in the process.  

One movie that seems to get it right is The Visitor.  If you haven’t seen it, you should.  A professor (Richard Jenkins) who keeps, but apparently rarely uses, an apartment in NYC comes into the city to find the apartment occupied by a couple who have rented it from some sort of con man.  He decides to share the space with them rather than evict them.  Once you accept that, the rest of the movie is pretty faithful to the immigration system, as one half of the couple is arrested, then detained by immigration, at which point he more-or-less disappears into the system, being moved from one facility to another without warning, then deported without notice to his family.  This is a lovely, quiet movie about the emotional toll that the system can take. 

But The Visitor is the exception to the rule, which seems to be that movies and TV shows must use immigration law badly and only as a device or an obstacle.  

Why do TV shows and movies do this?  It could be because the writers don’t know better and no one thinks to ask an attorney (or someone who has actually won the green card lottery), but it’s probably because it is rare for real immigration law to translate into good entertainment:  it’s slow, and it’s technical.  Winning the green card lottery means winning a chance to apply for a green card; the whole process can take more than a year.  When the government suspects marriage fraud, it usually starts by requesting piles of documents and conducting an interview; again, we are talking about months and years here, not weeks.  And the government doesn’t care if the relationship has grown into a “real” marriage; the question is whether the marriage was entered into for the purpose of fraud.   

The show Army Wives had a plot line a couple of years ago that mirrored a case that I was handling.  Army Wives did a better job than most of showing how immigration law works, but it had to gloss over some of the technicalities.  I talked to an immigration attorney who had consulted with Army Wives on the technical aspects of the law, and she confirmed that the show had to cut things because (1) it would take too long to show how things actually work, (2) most people wouldn’t understand it, and (3) to make people like me feel like attorneys when we watch.  Okay, I added that last one.

Real immigration law seems so poorly suited for entertainment that I couldn’t even bring myself to write a whole blog post about immigration law, asking Angelo if I could write a “junk food” version about TV and getting old.  Don’t get me wrong; I love immigration law.  I love talking about it.  I have a blast presenting I-9 training (with or without puppets).  But as much as I’d love to star (or even have a bit part) on a TV show, chances are, no one is going to make one about my job any time soon. 

And as I have gotten older, I’ve found that most people aren’t dying to hire an attorney who feels important or loves carrying a briefcase.  Most don’t want me to yell “Objection!” in court, because they’d prefer to stay out of court.  I haven’t yet had a client ask me to make or use puppets, but I have a feeling that training will be more entertaining if it is presented by a furry blue woman with googly eyes.  Instead of real (or real-ish) characters’ lives being changed by fake immigration law, I’ll use outlandish characters and apply real immigration law.  How about a mash-up of Alf, E.T., and the LGMs from Toy Story as a new, literally green employee (who may or may not try to eat the cat)?  That would give a different meaning to the box on the I-9 that says “alien authorized to work” and create opportunities to train about non-discrimination.

Everyone likes a little fantasy.  And where immigration law is concerned, fantasy is a key ingredient if you’re trying to create entertainment. 

Maybe I hold onto my own fantasy about using puppets in my training to fight the stereotypes (learned from TV and movies) about “important” attorneys and their briefcases.  Maybe it is because I am not old.  But I have to admit that when my teenage stepdaughter teared up last night at the end of The Proposal because it was “just so romantic,” I sure didn’t feel young. 

usa_circa_1955_great_lakes.jpgWill comprehensive immigration reform (CIR) die a slow and ignominious death in the House?  Will the Republican Party, whose thought leaders on the far right chant “Kill the Bill,” face a near-term visit by the Grim Reaper?

Are conservatives abandoning conservatism over immigration, as David Brooks and this blogger maintain? Are lobbyists who were “drinking brandy and smoking cigars” while writing the Senate immigration bill the cause of its apparent failure in the House?  

Will Paul Ryan outflank John Boehner and pull off a twofer (saving CIR and snatching the Speaker’s gavel)?

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Is President Obama, whose second term is seen by some as flagging, now apparently channeling Hamlet on CIR (“To travel or not to travel?  That is the question.”)? Should he stay in the background (as he reluctantly agreed during Senate action on CIR)?  Or should he go out on the hustings to drum up CIR support (as some in the Hispanic Caucus have urged)? Does he really think that a weekly address and a nifty White House White Board on the economic benefits of CIR are enough to sway the House?

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Has border-surge mania gone too far? Are House Republicans and Democrats, other than the Gang of Seven, meeting in stealth mode to work out a solution?  

Will John Boehner break the Hastert Rule, or will he allow the House to play house in “regular order,” or will a discharge petition dislodge the Senate bill and force a House vote (as Rachel Maddow fancies)?

These are all Beltway questions for Washington talking heads to ponder.  The answer to moving immigration reform legislation in the House can be found on Main Street, in city halls, and in state capitols. It lies in regional and state immigration solutions. 

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Some ideas, to be sure, are futuristic (like the Migration Policy Institute’s proposal to “[Leverage] “Migration and Human Capital in the U.S., Mexico, and Central America“), while others are far-fetched (check out “The Megamerge Dissolution Solution” which proposes that the U.S. create 10 new American states out of Mexico). 

Despite the focus on Washington, there’s a serious movement afoot that’s growing in rustbelt cities like Detroit, Cleveland, Pittsburgh, Dayton, Indianapolis and Lansing.  It’s about welcoming international students and foreign entrepreneurs, risk takers and job creators, and even their undocumented brothers and sisters,  who revitalize metropolitan areas, states and regions.

usa_circa_1939_statehood.jpgThe solution in the House — which either party can coopt — is devolution.  House members should espouse small government solutions that transfer the authority to the states and to regional government entities to pre-approve large allotments of visas and green cards — far more than the puny quotas of the Senate bill.  

The economies of Mississippi, Alabama, Alaska, New Mexico, the heartland states, and the Great Lakes states, are each different.  So why should there be only one federal immigration policy? Some of the federal power to select projects deserving of special-purpose employment-based visas should be conferred on the states.  Immigrants create economic opportunities for Americans  — it’s our national story.

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Republicans in the House need not take the swift boat to oblivion like a capsized generation of California Republicans in a prior decade.  If the GOP House members are unwilling to swallow “a single, massive, Obamacare-like [immigration] bill” — notwithstanding their devouring of a 600+ page farm bill (while excising food stamps for the needy) — so be it.  They can still use decentralized immigration reform to create jobs and spending in their districts and thereby gain political-risk insurance so that they are not “primaried” on their right flank.

Republicans worry about building walls but forget that walls are breached or surmounted by those with a will:

The brick walls are there for a reason. The brick walls are not there to keep us out; the brick walls are there to give us a chance to show how badly we want something. The brick walls are there to stop the people who don’t want it badly enough. They are there to stop the other people.

Those are not the words of an illegal border crosser in Arizona. (They’re actually from the late Randy Pausch and “The Last Lecture.”) Still, they could just as well be said by the immigrant strivers who would come, legally, to cities like my hometown of Detroit and other Great Lakes cities to break down the brick walls of blight, unemployment and poverty with the hammer of creatively destructive capitalism and the timeless American energy and will to make life anew for their families and communities — if only the House would allow them.

Raj 2.JPGOver the 4th of July weekend, I devoured a fascinating book and, in the course of it, learned a new synonym for “bureaucracy”  — “cutcherry” — taken from Hindi and apparently originating with the British East-India Company’s bureau office in what is now Chennai.

The book, The Professor and the Madman ~ A Tale of Murder, Insanity, and the Making of the Oxford English Dictionary, by Simon Winchester, describes the unusual literary collaboration between Professor James Murray, who led most of the 70-year effort to compile the Oxford English Dictionary, and an American, Dr. William Chester Minor, acquitted of murder by reason of insanity and held for decades in a British asylum for the mentally ill. Dr. Minor was among the most prolific and insightful contributors to the OED, as this passage shows:  

And yet as came the madness, so came the words. Many of those that fascinated him were Anglo -Indian, reflecting his birthplace: There were bhang, brinjal, catamaran, cholera, chunnam, and cutcherry. He liked brick-tea. By the time of the middle 1890s he became very active working on the letter D, and though there are some Hindustani words like dubash, dubba, and dhobi, he was interested also in what were regarded as the core words of the dictionary— and contributions of quotations are in the Oxford archives for such words as delicately, directly, dirt, disquiet, drink, duty, and dye. He was able more often than not to supply the quotation for the first use of a word— always an occasion for celebration.

For years Prof. Murray and his staff were astounded at the time and energy their contributor, Dr. Minor, devoted to the OED.  They assumed that he was retired and did not know that his abundance of effort was a daytime remedy to keep at bay the psychological demons who assailed him at night.

Often it seems that our own immigration cutcherry, U.S. Citizenship and Immigration Services (USCIS), labors with the energy and effort of a Dr. Minor and the vast army of co-contributors who helped Prof. Murray compile the OED.  Public outreach and engagements, both nationally and locally, are announced with great frequency, not just in English, but also in Mandarin, Cantonese, Vietnamese and Spanish.  

The frequency and quality of these engagements are a testament to the man who introduced them, Alejandro Mayorkas, the USCIS Director the past four years.  Director Mayorkas, himself an immigrant from Cuba, has made great strides in transforming the world’s largest immigration agency, a cutcherry so plagued when he arrived that it became apparent to him that his first order of business was to instruct his staff to compile a list of all extant immigration policies and canvass the public about which agency practices and interpretations should be reassessed first.  

An example of his leadership can be seen in two recent policy memos published last week with an invitation for the public to comment: Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) and Final Policy Memorandum: PM-602-0087 Certification of Decisions to the Administrative Appeals Office (AAO).

Director Mayorkas spoke movingly of his immigrant roots, his accomplishments and his vision for the future of USCIS at what may have been his valedictory address at the American Immigration Lawyers Association annual conference in San Francisco last month, receiving a heartfelt standing ovation, rather than the usually perfunctory applause, from a too-often jaundiced immigration bar.  On June 27, President Obama announced his attention to nominate Director Mayorkas to serve as the Deputy Secretary of Homeland Security, under Janet Napolitano, who likewise applauded the announcement.

Earlier last month, he also spoke at the annual symposium of the American Council for International Personnel, where a questioner asked how USCIS could possibly assemble the infrastructure and legions of personnel needed if comprehensive immigration reform with its innumerable changes to visa categories and a registered provisional immigrant category and prospect of citizenship for the 11 million or so unauthorized persons among us were to pass.  He responded in reasonable granularity and then ended his answer confidently with: “We will be ready!”

I’ve not always agreed with Director Mayorkas, as more than a few posts on this blog will attest. For example, while the AAO has improved in speed and quality of adjudication in recent months, it remains afflicted by antiquated processes and too often exhibits faux rather than full-fledged justice that will not be remedied by the mere issuance of two policy memos, as I’ve noted before (here, here, here, here, here, here, here and here).  See my listing of “25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services.”  (By the way, in reading the two new policy memos, I am reminded of one more reform — USCIS should allow the public to recommend non-precededent AAO decisions as the Board of Immigration Appeals has done, see, e.g., Matter of Walsh and Pollard, which the BIA designated as precedent as the request of James Stillwaggon and yours truly many years ago.)

Yet I’ve long admired Director Mayorkas for his sincerity, diligence, commitment, intelligence, elocution, rhetorical flourishes and wit.  He has faced his challenges from within and without, and addressed them with his resolute energy and drive, never losing sight of his oath of office and the people his agency helps and protects.  Our consolation as immigration stakeholders is that once he leaves he’ll likely not forget his experiences at USCIS and with the larger community, and apply his learning and insight to address the even more daunting problems faced by the Homeland Security Department, of which immigration is only one component.  Godspeed, Ali Mayorkas.  We will miss you but never forget you.

India - Americans.jpgThe drums of war are pounding.  Prominent American companies, through a variety of business associations, are urging the Obama Administration and Congress to punish the Government of India for mounting hostile actions in a brewing trade war.

For its part, the Indian government cannot be pleased with the dramatically increased filing fees and restrictions to be imposed on its technology and consulting companies (which garners about $100 billion annually for its domestic economy) if S. 744, the Senate’s comprehensive immigration reform (CRI) proposal, or some comparable variant, is enacted into law.

No wonder that U.S. Secretary of State John Kerry is in New Delhi for government-to-government discussions seeking to head off a trade and immigration war that spells trouble for countless innocent parties.  Prime among the collateral-damage sufferers are American consumers who benefit from lower prices (especially in light of the falling rupee) and greater technological efficiencies spawned by the global trade-in-services and trade-in-goods business models.

Why is this war on the verge of a surge?  India is the world’s largest democracy, an English-speaking nation not known for cyber-stealing American government and business secrets, unlike China.  To be sure, Indian courts and government agencies must stop its protectionist ways, as the U.S. business associations’ letter insists:

Over the last year, the courts and policymakers in India have engaged in a persistent pattern of discrimination designed to benefit India’s business community at the expense of American jobs. The [Government of India] recently demanded that as much as 100 percent of its market for certain information technology and clean energy equipment must be satisfied by firms based domestically. Administrative and court rulings have repeatedly ignored internationally recognized rights – imposing arbitrary marketing restrictions on medical devices and denying, breaking, or revoking patents for nearly a dozen lifesaving medications.

These actions and others constitute a disturbing trend that may continue and even expand to other products, sectors, and countries. Already there are indications that other countries are considering similar measures. Such actions are completely at odds with recognized global norms and raise troubling questions about India’s compliance with its international obligations to protect ideas, brands, and inventions and to treat imported goods no less favorably than domestic products.

These actions are unacceptable for a responsible middle-income country and rising global power to treat its second-largest export trading partner. They are counterproductive to India’s stated goals to attract capital and to develop its own innovative economy. Forcing local production and seeking to profit and create jobs through the rejection of basic property rights undermines India’s ability to achieve the type of long-term foreign investment that is so essential for sustainable economic growth and job creation.

American government officials aren’t pacifist observers either, but rather aggressive combatants.  They’ve dropped bombs on India by financing U.S. border fortification with markedly higher filing fees that have fallen disproportionately on Indian companies. They’ve lobbed grenades by applying discriminatory and extra-legal interpretations to refuse Indian work-visa applicants, as shown here, here and here. Immigration and trade protectionism hurts American and foreign citizens far more than it helps. And now S. 744 would attempt to legislate out of existence India’s global business models notwithstanding that it takes two to tango, contractually, that is, an Indian sourcing firm and its American corporate customer.

My solution:  The U.S. should enact legislation granting Indian citizens eligibility for E-2 treaty investor visa classification on a reciprocal basis, just as it did a year ago with Israel.  And just like the Israeli E-2 (which remains stalled), treaty investor reciprocity should only occur when American citizens doing business in India or Israel are given equivalent work-visa privileges in each respective country.  The Indian E-2 could well be the olive branch that the warring Indian and American sides need to declare a truce and sue for peace.

War is hell.  Give peace a chance.

dolphins.jpgThe 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.

Voltaire 2.jpgFrench philosopher and aphorist, François-Marie Arouet, better known by his nom de plume, Voltaire, wrote in Italian that “Il meglio è l’inimico del bene [the perfect is the enemy of the good].”

The wisdom of this saying, championed by pragmatists everywhere, comes to mind upon reading a May 30, 2013 Policy Memorandum (PM) issued by the Department of Homeland Security component known as United States Citizenship and Immigration Services (USCIS).

The agency and its popular Director, Alejandro Mayorkas, must be commended for removing much of the entangling underbrush that has grown around the “Employment Creation” fifth preference immigrant visa category (EB-5) for an investor who places at risk either $500,000 or $1 million (depending on location) in a commercial venture projected to create at least 10 jobs for U.S. workers.

With the enthusiasm of a vigilant homeowner wielding a high-powered weed-whacker, USCIS’s PM has obliterated many ambiguities and unanswered questions that had prevented the widely popular EB-5 investor program to reach its full potential.

In one document, USCIS offered a comprehensive set of interpretations that promises to allow the EB-5 category to flourish.  Gone are most of the lingering doubts about the viability of bridge financing, and the stultifying restrictions imposed by an overly granular application of multi-digit “NAICS” codes — a numbering system known as the North American Industry Classification System that the U.S. Census Bureau uses to identify and monitor various types of business establishments.

Also welcome are clarifications concerning (a) the relative power of the states and USCIS to define Targeted Employment Areas or TEAs — rural areas and areas with unemployment at or above 150% of the national unemployment rate; (b) the specific circumstances when USCIS-designated Regional Centers (public or private entities authorized to accept EB-5 funds and allow its foreign investors to count direct and indirect job creation in reaching the 10-jobs-per-investor minimum) may or must submit amended petitions in order to change business activities or location, or when prior favorable EB-5 determinations will be given “deference,” i.e.,  binding effect; and (c) the very limited situations when a business plan that has been derailed by unforeseen changes might adversely affect the later USCIS decision whether to remove conditions on permanent residence.

Still, without striving for perfection, USCIS could have made the PM much better.  Here are my suggestions for EB-5 PM 2.0:

EB-5 Policy memoranda.PNG

The PM states: “Prior policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded.”  Why allow ambiguities to linger?  USCIS should rescind all prior guidance and incorporate all extant EB-5 policies in a single document as THE EB-5 Policy. Having taken the weasely approach of allowing prior non-conflicting EB-5 policies to survive, the new PM merely begs the question and allows agency adjudicators, regional centers, individual investors and their lawyers to argue over the “extent” to which prior policies have been superseded or supplanted.  Enough with the arguing.  Make it clear in one document.   

  • Republish the policy as a proposed or interim final rule in the Federal Register and allow notice and public comment.  The new PM says:

SCOPE: This PM is applicable to, and is binding on, all USCIS employees. * * *

VII. Use

This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

If USCIS were to pursue the admittedly slow procedure envisioned under the Administrative Procedure Act for publishing notice of a rule and the opportunity for the public to comment, none of the quoted verbiage, wiggle words no doubt drafted by the USCIS Office of Chief Counsel, would be necessary.  As welcome as the new PM is, and although it was preceded by a draft version on which the public was allowed to comment, USCIS never published the comments in the Federal Register (as would occur with a proposed or interim rule) and never explained why some comments were adopted and others eschewed.  Instead, the public and the courts are left to guess at whether the PM will actually be applied and be something on which the stakeholder community may rely.

  • Make sure economists are not EB-5 adjudicators.  Last week at a public forum, Director Mayorkas waxed lyrical over a supposed innovation he heralded. Henceforth, EB-5 adjudications would be made not by Immigration Officers but by newly hired economists who, he surmises, are better equipped by education to tackle the complex business and economic issues that arise in EB-5 petitions.  From now on, USCIS would no longer adopt the “hire to train” approach, whereby an indivdual is brought into the agency without experience and then trained in adjudicating a variety of immigration-benefits petitions and applications.  Rather, here on out in the EB-5 context, according to Director Mayorkas,  the agency will pursue a “hire to the skill” strategy, one that means that the successful job applicant at USCIS will only be hired if s/he already possesses the requisite skill — an approach much like that of private industry. While the “hire to the skill” concept has much to commend it, the particular skill USCIS requires is not that of an economist.  No, the skill in question is possessed by those with a legal education.  At bottom, the EB-5 — although containing elements of economic theory — is ultimately a legal determination made by the application of facts to law.  USCIS should instead offer positions at a level of GS-13 and above to persons with at least a juris doctorate, preferably with bar admission and the ethical testing that entails.  This is not forging a new path; rather, it is merely replicating the reorganization of an adjudication function as occurred when the USCIS Asylum Office was reconstituted with lawyers in place of multi-function general adjudicators.  Economists can be advisors but should never be USCIS adjudicators.
  • Follow existing USCIS regulations in determining when a restructuring or reorganization creates a new EB-5 commercial enterprise. The EB-5 requires investment in a “new commercial enterprise” created, restructured or reorganized after the effective date of the law, November 29, 1990. On this point, the new PM states: 

The immigrant investor can invest in an existing business, regardless of when that business was first created, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. 8 C.F.R. § 204.6(h)(2). The facts of Matter of Soffici — where an investor purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel— were not sufficient to establish a qualifying restructuring or reorganization. 22 I&N Dec. 158, 166 (Assoc. Comm’r 1998) (“A few cosmetic changes to the decor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change in ownership.”). On the other hand, examples that could qualify as restructurings or reorganizations include a plan that converts a restaurant into a nightclub, or a plan that adds substantial crop production to an existing livestock farm.

The PM too narrowly defines a corporate restructuring or reorganization as only encompassing a change in the business model or plan. Instead, USCIS should adopt a customary corporate or tax law determination of when a reorganization or restructuring occurs as it did in its I-9 (employment-eligibility verification) rules at 8 C.F.R. § 274a.2(b)(1)(vii).  In that USCIS regulation an employer has the option of treating an individual as either a continuing or a newly hired employee if the worker “continues his or her employment with a related, successor, or reorganized employer” and the “employer . . . continues to employ some or all of a previous employer’s workforce in cases involving a corporate reorganization, merger, or sale of stock or assets . . .”  Thus, whenever a predecessor entity undergoes a change involving a corporate reorganization, merger, or sale of stock or assets, then the successor entity thereby created should be treated at the employer’s option as a new commercial entity for EB-5 purposes.  If the “simple change in ownership” dictum of the legacy agency in Matter of Soffici is to the contrary, then USCIS should overrule it.  Sauce for the goose is sauce for the gander.

  • No EB-5 adjudication without representation.  USCIS must allow every party in the EB-5 ecosystem with a valid legal interest to protect the right to counsel at no expense to the government in proceedings before the agency.  USCIS must not persist in perpetuating conflicts of interest (real or really possible) by barring the attorney for the regional center or the pooled-investment enterprise to advocate for the validity of his or her client’s position when a foreign citizen submits a petition for EB-5 classification on Form I-526 or a petition for removal of conditions on Form I-829. Regional centers and pooled investment entities have their businesses and brands at stake with every I-526 and I-829 submitted, yet USCIS muzzles them and expects the investor-chosen lawyer to carry their water.  The SEC would never require businesses to risk their assets or reputations by relying on the investors’ counsel to argue their interests.  Neither should USCIS.
  • No unsigned EB-5 adjudications.  The new PM goes a long way toward greater transparency, but not quite far enough.  The history of the EB-5 program has been pock-marked by policy reversals and arbitrary rulings.  One measure of transparency is accountability.  A decisionmaker becomes accountable when adjudicator puts on one’s product his or her name (or nom de plum, in recognition of the need for personal and/or homeland security).  There must be a way for the government (outside of USCIS), the public and the EB-5 stakeholder community to hold accountable any adjudicator who repeatedly flouts USCIS’s EB-5 policy.  If it worked for Voltaire (née François-Marie Arouet), it should also work for USCIS adjudicators.
  • It’s time for Expedited Adjudication.  Quite a while back, USCIS indicated that it would adopt Premium Processing expedited service for at least some EB-5 adjudications. With the hiring rate still barely keeping up with population growth, the time for quick decisions across all categories of EB-5 petitions is NOW.
  • It’s time for coupling. There is no reason why the new PM did not announce a benefit that is presaged in S. 744, the comprehensive immigration reform bill awaiting floor debate in the Senate.  That bill, as amended by a change Senator Leahy proposed, would allow foreign citizens who submit EB-5 petitions to file, concurrently, corresponding applications for adjustment of status to conditional permanent resident.  Concurrent petition and adjustment filing has long been allowed by USCIS — without the need for enabling legislation — in the first three employment-based green card categories. USCIS should extend the same privilege to EB-5 petitioners and their immediate family members.  

* * *

The USCIS should be applauded for issuing a comprehensible and almost comprehensive PM.  The huzzahs will be louder still if and when it adopts additional measures, suggested above and by others, that would create conditions for the EB-5 program to blossom even more prodigiously in the years ahead.

[Blogger’s Note:  Our guest blogger today is Careen Shannon, who is Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. This is an updated and condensed version of an article Careen wrote for the online magazine Salon.com. Careen Shannon and Austin Fragomen blog about immigration issues at Fragomen on Immigration.] 

 No Longer Illegal, But Still An Alien

By Careen Shannon

 

liveth.jpg

When I lived in Japan in the early 1980s, they called me a gaijin: literally, an outside (gai) person (jin). While adults in the small town in which I initially resided generally satisfied themselves with staring at me wordlessly as I passed by, small children would often feign fear and yell “gaijin!” and then run away from me, screaming. I moved to Tokyo just when the film E.T. was released in Japan—which teenaged boys took as license to yell “E.T.!” when they saw me on the street. They tended to say it with a certain swaggering bravado, as if they were so above calling me gaijin like their country bumpkin cousins had done. But the implication in their clever pop culture association made my position in society clear, if it hadn’t been already: I wasn’t just a foreigner, an outsider. I was an alien. I might as well have been from outer space.

As Angelo has already reported here, and as I wrote recently in an article on Salon.com entitled “Stop Calling People Aliens,” the use of the word “illegal” to describe non-citizens who are present in the United States without authorization is finally beginning to die a well-deserved death, at least in the mainstream press. The announcement by the Associated Press in April that it would no longer use the word “illegal” to describe a person, only a status or an action, was quickly followed by a number of other major newspapers, including the New York Times, the Los Angeles Times and the Denver Post.

Despite this trend, the term “alien” remains not only in popular use, but also in the federal statute that regulates immigration to the United States, the Immigration and Nationality Act, which defines “alien” as “any person not a citizen or national of the United States.” The text of the comprehensive immigration reform bill recently approved by the Senate Judiciary Committee does nothing to upset this long-standing practice. Like the Japanese word gaijin, the word “alien” serves to exclude those upon whom it is bestowed. While it is true that Black’s Law Dictionary defines “alien” rather dispassionately as “[a] person who resides within the borders of a country but is not a citizen or subject of that country,” the colloquial use of the term is closer to its “regular” dictionary definition: “strange” or “repugnant” or “in science fiction, a being in or from outer space and not native to the Earth; extraterrestrial.”

Some may say that calling immigrants “aliens” doesn’t really matter, especially when the word is embodied in our law as a term of art. But I think it does matter, and I am not alone in this belief. When I was called “E.T.” in Japan many years ago, I could laugh it off because I knew that I would be returning to the United States once my graduate fellowship was complete. The epithet did not have any long-lasting impact on how I perceived myself as a human being. For immigrants to the United States, however, whether they are here without authorization or have immigrated through statutorily sanctioned channels, the lingering after-effects of the designation are undoubtedly harder to shake off.

As Professor Kevin R. Johnson, Dean of the University of California at Davis School of Law, has put it, “[t]he concept of the alien has … subtle social consequences…. [I]t helps to reinforce and strengthen nativist sentiment toward members of new immigrant groups, which in turn influences U.S. responses to immigration and human rights issues.” Keith Cunningham-Parmeter, an Associate Professor of Law at Willamette University College of Law, wrote a fascinating article for the Fordham Law Review in 2011 called “Alien Language: Immigration Metaphors and The Jurisprudence of Otherness.” In it, he applied research in cognitive linguistics to critically evaluate the metaphoric constructions of immigrants in U.S. law. He found that the three conceptual immigration metaphors that dominate legal texts—immigrants are aliens, immigration is a flood, and immigration is an invasion—influence not only judicial outcomes, but also social discourse and the broader debate over immigration reform.

A quick look at the history and etymology of the word “alien” in English is instructive. The word “alien” is thought to have entered the English language sometime between 1300 and 1350 from the Latin. The Latin word aliēnus derived from the earlier alius, meaning “other” or “else.” So an “alien” is, essentially, someone who comes from somewhere else. The Oxford English Dictionary (OED) cites the first legal usage as dating from 1522, in a law enacted under the reign of Henry VIII. Fast forward to early American jurisprudence, and the U.S. Constitution gives Congress the power “[t]o establish an uniform Rule of Naturalization.” The Naturalization Act of 1790—the first American law touching at all on the subject of immigration—provided the first such set of rules, allowing Congress to naturalize “any Alien being a free White person,” so long as such person met certain residence requirements, established that he or she was a person of good moral character, and took an oath or affirmation to support the Constitution of the United States. And thus was the word “alien” enshrined in U.S. immigration law.

What does outer space have to do with any of this? As it turns out, the use of the word “alien” to refer to creatures from outer space is much more recent than one might imagine. The earliest uses of “alien” as a noun to refer to extraterrestrials date from the early twentieth century. In 1935, Earl Binder wrote of a “Robot Alien” in the pulp science fiction magazine, Wonder Stories. In 1931, Nat Schachner & Arthur Leo Zagat wrote about “ten-foot tall aliens” in Venus Mines. And in 1912, Edgar Rice Burroughs (best known for his Tarzan stories) had a Martian character in A Princess of Mars call earthling John Carter “an alien.” This means that we had already been calling foreigners aliens for centuries before we started using the word to refer to extraterrestrials.

The surprising conclusion this leads to is that it’s not that we think foreigners resemble Martians, it’s that we think Martians resemble foreigners. Put another way: it is not the case that, the first time we saw a foreigner, he reminded us of an imaginary space creature. Rather, when we in the English-speaking world first conceived of the possibility (or at least first started writing about the notion) that there might be Martians (green skin and all that), the only image we could bring to mind was of a foreigner—and therefore the only word we could think of using was one that we already used to describe odd, strange, foreign beings. The fact that we appear to have named extraterrestrials after foreigners, rather than the other way around, reveals both the fear and the nativism at the heart of the immigration debate, and we ignore this at our peril.

Dismissing objections to calling immigrants “aliens” as political correctness run amok misses the point. The fact is that language has power. Changes in how language is used can lead to changes in how power is wielded. For example, nowadays, it is socially unacceptable for a white man to call a black man “boy,” but for years this was accepted practice in polite society—and, it is now commonly understood, not only reflected white society’s racism, but served to perpetuate the oppression of African-American men. Calling a grown woman a “girl” has a similarly belittling effect, and the fact that the practice has not yet been universally repudiated tells us something important about the continued inequality of women in American society.

As Professor Catherine MacKinnon of the University of Michigan Law School has written, “Social inequality is substantially created and enforced—that is, done—through words and images.” Referring to immigrants as “aliens,” when “alien” is commonly understood to be derogatory (whether because it means foreign, or strange, or brings images of extraterrestrial space creatures to mind), not only reflects immigrants’ place in American society, but in a very real way it enforces it. And be honest, now: which of the following is closer to what comes to mind when you hear the term “illegal alien” or “undocumented alien”—a German graduate student who has overstayed her visa, or a Mexican laborer who has illegally crossed our southern border? I think it’s a safe bet that, whatever your political persuasion, you were more likely to think of the Mexican.

In her seminal book, Language and Woman’s Place, linguist Robin Lakoff declared that “[l]inguistic imbalances are worthy of study because they bring into sharper focus real-world imbalances and inequities. They are clues that some external situation needs changing….” While she was specifically discussing terms she considered demeaning to women, her point is equally relevant to terms that are demeaning to immigrants. Lakoff has also said that “linguistic and social change go hand in hand: one cannot, purely by changing language use, change social status.” It is, however, sometimes difficult to tease out what is cause and what is effect. Does social change create language change, or does language change create social change?

My article in Salon generated a lot of comments, most of which were unpleasant and aggressive, to put it mildly. One person even went to the trouble to track down my email address, and sent me a lovely piece of hate mail. This all just proves the point that the term “alien” is loaded with prejudice. While changing the language won’t eliminate the prejudice, sometimes the best thing one can do is to shine a light on a problem. The responses to my article certainly indicate that I hit a nerve.

According to Lakoff, “[A]t best, language change influences changes in attitudes slowly and indirectly, and these changes in attitudes will not be reflected in social change unless society is receptive already.” As a member of a community of lawyers, scholars, advocates and others who work with, and care deeply about the plight of, immigrants in this country, I feel that we have a duty to do what we can to make society receptive already. So let’s stop calling non-citizens aliens. Let’s just call them people.

Man with files.jpgImmigration law and tax law, although at first glance strikingly different, share much in common.  Each rivals the other in complexity.  Each permeates every nook and cranny of human behavior — from commerce and criminality to love and divorce, from mental illness to extraordinary brilliance, from birth to death and everything in between. Though each is a distinct legal discipline, they are but variant species within the general fields of administrative law, litigation and appellate law, public and private international law, family law, estates and trusts, criminal law, and of course constitutional law.  The sting of taxes — forever coupled with death as life’s two unavoidable realities — likewise is yoked to our all-pervasive immigration laws in ways both subtle and obvious.

Yet Americans are outraged when tax laws and revenue agents bite them, but seem scantly or not at all troubled when our immigration laws and their bureaucratic enforcers devour people and property rights.  No doubt this disparity of concern proves the maxim that it all depends on whether your own or your neighbor’s ox is gored.

Thus, amnesty generates nary a peep if granted to tax cheats, but stands as an outrageous transgression against the rule of law if leniency and pragmatism are offered to aspiring Americans who lack legal status.  So too with the terabytes of digital ink spilled over the recent revelation that IRS agents in Cincinnati probed more searchingly applicants for non-profit designation of the Tea Party persuasion than supplicants on the left. 

A scandal to be sure, but why is the public not similarly incensed when immigration agents cross the line and behave not as neutral technocrats but as political actors?

Consider the recent action of the federal union representing the officers of U.S. Citizenship and Immigration Services (USCIS) who announced in a press release that it had signed on to a letter issued by another government union, the National Immigration and Customs Enforcement Council, which represents officers of a different immigration component of the Department of Homeland Security (DHS), U.S. Customs & Immigration Enforcement (ICE). 

As The New York Times observed in a recent editorial, “Leaders of [the ICE and USCIS] unions have joined antireform hard-liners in trying to kill the [comprehensive immigration reform (CIR) bill that just passed the Senate Judiciary Committee], showing an unbending hostility to its goals.”  The unions, sounding like health care workers forced to engage in practices that violate their collective conscience, and a bit like erstwhile presidential candidate, Rudy Giuliani, offer a scurrilous letter that resurrects all too familiar bogeymen as punching bags: “illegal aliens,” “gangs,” and “9/11.”  Sadly, however, as The Times observes, “[what] any of these false charges has to do with the work of immigration agents — which is to enforce the immigration laws as written — is beyond us.” Indeed, there is a “certain piquancy” when “conservative” Republicans opposing CIR scurry to become bedfellows with federal labor unions, clearly miffed at not being consulted by the Gang of Eight. 

Where is the popular outrage over the scandalous behavior of immigration officers that is just as abhorrent as the misadventures of errant IRS officials?  The actions of the IRS involved comparatively few agents in an understaffed local office, whereas the union leaders’ letter is offered as the shared belief of 7,000 ICE agents and 12,000 USCIS employees.

To immigration lawyers, the letter and press release are shocking not so much for their contents as the brazenness displayed in their publication.  With far more visibility than Luther’s famous nailing of his views on the Wittenberg church door, these unions are throwing down the passive-aggressive gauntlet to Congress, the Obama administration, and the leadership of DHS. They declare, in essence, “pass what you will, but watch how we interpret, apply and enforce the law!”

The unions raise hobgoblins over the discretion that the Senate bill, S. 744, would give to “political appointees” who allegedly prevent these oath-bound officers from administering the strictest letter of the law. Yet they fail to recognize that the absence of discretion in enforcement created the pickle we are in.  A nation that will not tolerate and cannot pay for the mass deportation of 11 million people must grant our only nationally elected leader, the President, and his chosen team, the power to be strict with those who threaten our safety and lenient with those who do us no material harm.

The immigration unions’ power play has unmasked their insubordination for all to see.  They do not want merely to apply the law as written but to pick and choose the laws they will enforce and be the rulers themselves.  No government should tolerate this flouting of legislative will and executive authority.

Congress should recognize its mistake when, in passing the Homeland Security Act, it moved USCIS, the immigration benefits agency, from the Justice Department, where that function had historically resided, and co-mingled it irreconcilably with immigration enforcement at DHS.  CIR should put USCIS back into DOJ.  The legislation should also abolish USCIS’s Fraud Detection and National Security Directorate, and reaffirm that the immigration enforcers’ power to nab fraudsters, terrorists and other lawbreakers is a shared but exclusive function of the interior and border immigration police, respectively, ICE and U.S. Customs and Border Enforcement. Congress must also recognize its failure of immigration oversight that allowed the types of immigration scandals reflected by the unions’ power grab to occur.

The President and the DHS leadership team must also grow spines.  Discipline and pink slips are the proper responses to insubordination.  The wrong way to go would be to give the unions more power to fashion law in their image, as President Obama reportedly did in 2009 when signing an “an executive order to allow the [IRS] union to have pre-decisional involvement in all IRS workplace matters.”

In the final analysis, taxation and immigration — and their associated scandals — illustrate the same problem.  It arises when career bureaucrats are allowed to trample the rule of law in fits of partisan excess, and elected leaders, failing in timely oversight, are outraged only when the spotlight of media attention leads to enough public discontent that tenure in office and the prospects for reelection are threatened.