Tag Archives: President Obama

In Obama’s latest CIR proposal, observers see politics as usual

Over the weekend draft legislation to implement comprehensive immigration reform “leaked” from the White House, ostensibly tipping the hand of the recently re-inaugurated president as Congress begins to tackle a massive and massively controversial issue. Sen. Marco Rubio (R-FL) and other Republican spokespersons immediately denounced the proposal as unrealistic and partisan, but it was harder to tell what lines of distinction could be drawn between competing proposals. But some observers aren’t buying that story line and argue instead that this is just part of the political theatre needed to secure passage of CIR.

A condensed version of this theory is as follows: in the wake of the 2012 elections there is bipartisan agreement that immigration reform must move forward, but anything that appears to belong to President Obama is anathema to certain political elements on the political Right. Also while mainstream Republicans may support CIR their most conservative supporters may not tolerate a path to citizenship for those who are presently in the country without permission. Therefore the agenda of CIR can be advanced best by having the president float a proposal so these political elements can denounce it and replace it with other legislation that ultimately prevails.

It is an intriguing way to frame this discussion, and it is a theory that seems to be on the minds of some of Washington’s savviest observers. It also ascribes an impressive leadership quality to the president: that he would be willing to draw political fire on a proposal with his own name on it in order to clear the way for others to reach consensus and then propose a “middle of the road” proposal as antithesis to the president’s plan.

Overall the debate has hardly shifted: leading proposals are that, contingent on “increased border security,” a path to citizenship will be opened to some 11 million undocumented individuals by means of a combination of speeding up existing visa waits and issuing pre-Permanent Resident visas (possibly to be called Lawful Prospective Immigrant status) for a period of years. Additionally the employment-based immigration system would be overhauled to create more high-skill visas and a functioning guest worker program.

We’ll have to see how this debate unfolds. There are whispers that legislation may be on the table as early as early March.

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Filed under Comprehensive Immigration Reform, Family-Based Immigration, National News, Undocumented Immigrants

Alien smuggling could be barrier to new family unity waivers

We previously shared some initial thoughts on the “Gang of 8” U.S. Senators who unveiled a framework for comprehensive immigration reform (CIR). Most observers know that in the days since both President Obama and the House of Representatives have identified their own starting points for such a discussion. The national debate is taking shape with hearings and many major issues remain up in the air. It will be an exciting and important few months to come.

In the meantime, immigrant families and the advocates who try to shepherd them safely through a complex and often changing web of immigration laws are digesting what new policies such as Deferred Action for Childhood Arrivals (DACA) and the new Provisional Unlawful Presence Waiver (PUPW) have in store. These policies will matter in the interim and if CIR again comes up short this time around these policies will remain some of the most important tools in practitioners’ toolboxes.

One major disappointment of the Final Rule on PUPW was the administration’s decision to not permit individuals with inadmissibilty other than that arising from § 212(a)(9)(B) to utilize the new I-601A process. Our program and clients submitted two hundred comments among several thousand and advocated for consideration of waivers for other grounds of inadmissibility. This seemed fair because most waivers share the “extreme hardship” standard for overcoming § 212(a)(9)(B) or even use a lower standard of proof such as “family unity”; therefore a case that passes muster for waiving unlawful presence inadmissibility should also suffice for other problems.

It would have been understandable for USCIS to draw a line between unlawful presence (a relatively innocent inadmissibilty) and inadmissibility based on fraud or criminal convictions. But instead USCIS chose to draw a single, bold line with unlawful presence on one side and everything else on the other. Therein lies the problem.

Drawing from anecdotal experience, USCIS has recently ratcheted up its screening for an often-overlooked ground of inadmissibility: § 212(a)(6)(E) for alien smuggling. While the words “alien smuggling” smack of human traffickers and hard-nosed coyotes who help unauthorized immigrants to cross the border, the definition also includes families that travel across the border together. Here’s the statutory language:

Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

This is a very broad definition of “alien smuggling” and the only exception is for certain individuals who were in the United States in 1988, prior to the passage of the Immigration Act of 1990. There is a waiver available, however. Here’s the relevant language:
 

[The government] may, in [its] discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of [the alien smuggling rule] in the case of [certain Permanent Residents] and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

That’s quite a mouthful. Here’s what it means: if you are seeking an immediate relative visa you can also seek a waiver (with a low hardship standard) if you are inadmissible for alien smuggling and the person who you helped enter was your spouse, parent, or son/daughter.

In practice, these waivers are something of a formality. In fact, this rule seemed to have been forgotten about until recently, and we have seen a spate of cases being flagged for potential alien smuggling. Even where the case is so flagged, the hardship standard is so easy in most cases that it just adds a short delay to the overall process.

But here’s the snag — § 212(a)(6)(E) inadmissibility is not § 212(a)(9)(B) inadmissibility, and therefore individuals who entered the U.S. without permission and brought with them spouses or minor children are not eligible for the new opportunities offered by the I-601A process. In our experience this is frequently the case, and it is disappointing to explain to a client that this new opportunity — which USCIS acknowledges is intended to help families remain together throughout the process — is just out of reach because of an old, historically overlooked rule.

We will keep an eye on this issue to see if it presents in practice the headaches that it promises in theory.

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Filed under Advocacy, Enforcement, Family-Based Immigration, Undocumented Immigrants

Senators’ opening bid for Comprehensive Immigration Reform has echoes of past proposals

A day before President Barack Obama is slated to visit the Silver State and deliver a speech outlining principles for Comprehensive Immigration Reform (CIR), a group of U.S. Senators has unveiled its own set of general proposals. Although visible progress is a welcome sign to immigration advocates who thought they may have to wait until spring for any action, the details of what is being proposed are strongly reminiscent of past proposals that have not borne fruit.

Echoing all CIR proposals since 9/11, this one attempts to forge bipartisan compromise by tying any broad-based path to citizenship with “increased enforcement and border security.” Advocates of CIR have often asked in recent years what would satisfy this criterion if 400,000 deportations per year and a decade of constant year-over-year budget increases for enforcement are deemed to have not been enough.

Cheerleaders for CIR can find encouragement in the fact that the Senate is leading the way — although the political makeup of the Senate is arguably less conducive to passing a broad package of reforms, it also has higher procedural hurdles for advancing legislation. The most recent effort to pass immigration law reform — approval of the DREAM Act to offer relief to young undocumented immigrants — died in the Senate after failing to overcome a filibuster. Similarly advocates should be optimistic that broad principles are being introduced and a path to citizenship for all of the estimated 11-12 million aspiring citizens is on the table — some advocates had worried that only a piecemeal set of small reforms could pass both houses of Congress and that some groups might be left out. Finally, it is obvious that the political environment is different in 2013 than it was throughout President Obama’s first term: on this issue perhaps less so because he is a re-elected president who is seen as deserving to implement his mandate and more because the Republican Party desperately wants to make a viable bid for Latino votes in 2014 and beyond.

But the news is not all cheery when seen through a political handicappers eyes. First, the community of immigration advocates, aspiring citizens, and their families should know now that power players in Washington posturing toward a goal does not guarantee that said goal will be realized. The proposals being ballyhooed today are very similar to those put forth in prior Congresses dating back half a decade or more and changes in the electorate, where they have occurred, are arguably more stepwise than sweeping.

Some of the familiar ideas in this proposal include:

  • More border security including the use of drones to patrol the borders and a promise to provide Customs and Border Protection with the tools and resources it needs to “apprehend every unauthorized entrant;”
  • A path to Permanent Residence for aspiring citizens who pay fines and back taxes and pass a background check;
  • Expansion of high-skill work visas such as the tiny number in the H-1B category;
  • Provisions for an accelerated “alien entrepreneur” residency for job creators;
  • An improved system for employment authorization verification; and
  • Some form of guest worker program

Among the new approaches in this proposal are:

  • An explicit “enforcement-first” approach that would rely on approval from a new commission of governors rather than the usual rhetoric of “we have to secure the borders before we discuss legalization”; and
  • A new system for proactively tracking exits from the country to prevent overstays of temporary visas (one study finds that 38 to 50 percent of all unauthorized immigrants overstayed their visas).

Finally, there are a few potential poison pills in what is being proposed:

  • The enforcement-first approach is engineered to provide political cover for both sides if negotiations break down or bills fail to win approval — one political party can point to concerns over border security and the other can score political points by highlighting its rival’s intransigence;
  • We again see the notion that those currently out of status must “go to the back of the line,” but it is unclear precisely what is meant by this. For some visa categories (see the recent Visa Bulletin here) the “back of the line” is a far-flung place 16, 19, or even 23 years in the past.
  • Universal employment authorization — many observers say that to truly achieve robust, universal employment verification the U.S. would have to implement a national identification card that every authorized worker would bear. Such a proposal faces staunch opposition from civil liberties advocates from both ends of the political spectrum.
  • Ours is still a bicameral legislature, and any proposal must appeal not only to a handful of Republican Senators but also to enough Republicans in the House to make it to a vote and survive. The attitude that the Republican Party must moderate its policies if it is to survive is not one that is universally held.

All in all, we have this week signs of progress but nothing upon which to make firm plans or even friendly bets. President Obama will weigh in when he visits Las Vegas tomorrow and we will continue to keep an eye on these developments.

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Filed under Advocacy, Enforcement, Immigrant Rights, Legalization Process, National News, Uncategorized, Undocumented Immigrants

As election draws near, DREAMers watch anxiously

One week from today — assuming the election is not so close and contested as it was in 2000 and therefore ends up being refereed by the Supreme Court — we will know who will be in the White House from January 2013 until January 2017. For many DREAMers who are contemplating filing for Deferred Action for Childhood Arrivals (DACA) the outcome of this election is a major factor in making that decision.

It feels like this election cycle has been churning along for well over two years as a result of the lengthy Republican primary process as well as a near standstill of bipartisan compromise since the 2010 midterm elections. Yet in all this time the issue of immigration has scarcely come up.

Both presidential candidates promise to address the issue in the 2013-2017 term of office, and neither man has a squeaky-clean record to run on. Governor Mitt Romney positioned himself on the right flank of the Republican party during the primaries, pledging not to permit any kind of “amnesty” that would legalize the estimated 11.2 million undocumented immigrants in the country presently and offering only a watered-down version of the DREAM Act that would be based solely upon military service. When President Barack Obama announced a new Deferred Action policy on June 15 of this year Gov. Romney criticized it and pledged to end the policy of shielding young undocumented immigrants from deportation if he wins the election. In the second presidential debate Gov. Romney pledged to address immigration reform but took a stand both against “amnesty” and against a massive “round-up” of the undocumented population, leaving questions as to how he would accomplish this. To the extent that Gov. Romney has articulated an immigration policy it has largely been to encourage “self-deportation” by making life as an undocumented worker increasingly unbearable.

For his part, President Obama is vulnerable to the criticism that he has promised much and delivered little. He poured most of his political capital into passing the Affordable Care Act in March 2009, and the only significant movement of immigration legislation was the passage of the DREAM Act by the House of Representatives…but the legislation failed to secure the 60 votes required to overcome a fillibuster in the Senate, and the dream died. President Obama also makes much political hay about his attempts to target immigration enforcement on high-priority cases — ramped-up use of the Secure Communities program has turned most jail facilities in the United States into immigration screening points. Individuals arrested on criminal charges — irrespective of their guilt or innocence and mostly irrespective of the severity of the crime — are routinely flagged by immigration enforcement, interviewed by ICE officers, and either detained by ICE or pressured into signing stipulated orders for deportation. Averaging about 400,000 removals per year, the Obama Administration now has a legacy of over one million deportations. President Obama argues that Secure Communities has allowed his administration to focus on “dangerous criminal aliens” and thereby show mercy to long-time law-abiding immigrants with family ties to the U.S., but the statistics reveal that 30 percent of those removed through the program had no previous criminal history and 60 percent had only minor convictions or clean criminal records.

Ultimately President Obama commands a strong level of support among Latino voters and he is widely seen as being the better advocate among the two candidates for addressing immigration reform in a way that is favorable to the nation’s current undocumented population. He is likely to continue the Deferred Action for Childhood Arrivals process and ultimately parlay that arrangement into the DREAM Act or even a more sweeping reform of the immigration laws.

Gov. Romney has indicated that he would no longer accept new DACA applications after taking office, but he stated that he would not rescind previous grants of deferred action on the principle that he does not want to “take away something [applicants] purchased.” What is unclear is if this principle applies to pending applications at the time he (theoretically) takes office. Those applicants have also paid for fair consideration of their applications, but to date Gov. Romney has not made it entirely clear what would be fate of these applications.

In light of all this, DREAMers are watching anxiously as the election draws near. Will the current president show himself to be the champion they had hoped for four years ago? If he is unseated will it be by the harsh Gov. Romney from the primaries in early 2012 or will it be the kinder, gentler, consensus-seeking Gov. Romney campaigning in the general election? With so much in the air and so much at stake, DREAMers are watching with open eyes.

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Filed under Deferred Action for Childhood Arrivals (DACA), National News, Uncategorized, Undocumented Immigrants