Maybe it is better that I am in Geneva today at an international law conference to gain some more perspective, but I am so pleased that El Paso is the announced location for President Obama to address the controversial and nationally visceral issue of immigration reform. El Paso - right across the border from the largest immigrant visa processing post in the world for the United States, a location with multiple ports of entry and with a history of working out cooperative public/private solutions to the challenges of a bi-national border, a location with a former border patrol agent as its Representative in Congress, a place with the national Border Patrol Museum, a place with a long history of guest workers and the associated abuses from the Bracero program by the state of Texas,.... there is so much more history here on this topic. So, yes - all roads on immigration logically also lead to El Paso; in addition to that inspiring lady with her lamp in the harbor in New York, who witnessed the unimaginable destruction of the twin towers.
In 2007, I was national president of the American Immigration Lawyers Association, www.aila.org, and had a front row seat to the horrible sausage making process that failed in one of the last partially viable attempts to address immigration reform. Although what was being produced was not acceptable, the effort was certainly the farthest immigration reform activists made it down the legislative road in "recent" memory. Mr. bin Laden's treachery hijacked the Bush administration's efforts for immigration law sanity in this country along with ending how this country had previously addressed visa processing and security related issues concerning international travel. In addition, our history as a welcoming nation for immigrants has been threatened to be eclipsed in our ongoing critical fight against terrorism - not against another nation - but a cult of intolerance and oppression.
President Obama arrives here in El Paso on the heels of his administration's courageous operation to try to close at least a chapter in the book on terror with the targeted killing of Osama bin Laden. Such an action represents leadership willing to assess an security opportunity with all of its associated risks and make a swift decision understanding the potential political fall out.
The political and security challenges surrounding the issue of U.S. immigration policy/border security appear impossible. Certainly, those fighting for immigration reform, including improved security measures, have been waiting longer than the search for Mr. bin Laden for a rational solution. In the federal vacuum created by cowardice and failed leadership on the hill, we now have a proliferation of a state by state band aid approach to the immigration cancer festering in the country. I seem to be waxing a little lyrical today, but I am far from home and fed up with the criticism of the U.S. as to its immigration ineptitude.
President Obama has apparently set out on a public opinion campaign on immigration. He met with business leaders, various entertainers and media stakeholders, and the Congressional Hispanic Caucus recently among others trying to - I suppose - craft some sort of concerted effort on the political challenge of any immigration cure. His administration has, contrary to popular belief by some, failed to bring a more cohesive and consolidated policy to immigration challenges. While we did away with the alleged stepchild of the Immigration and Naturalization Service (INS) in 2003, we replaced at least some consistency in policy created by the INS with various immigration related agencies (ICE, CBP, USCIS) under the Department of Homeland Security (DHS) engaged in turf wars and funding struggles over the immigration carcass left. The only agency remaining that even has the word "immigration" in its name is US Citizenship and Immigration Services (USCIS). In 2003, it appeared that many wanted to erase the thought of immigration. The report card under this administration regarding the issue of immigration is a serious disappointment on many levels. Consider the unvarnished comments of former USCIS general counsel, Roxana Bacon, Download RoxieBaconAZAttorneyafter her departure. Some section from her article on the Arizona Lawyer:
"Legislative irresponsibility and the lack of executive leadership made people very cranky (see the 2010 midyear elections). The neglect in the field of immigration law has been so acute that most who care about that hot topic have lost hope that change could happen. 'Si se puede' now looks more like 'No me molesta.' Forget that Comprehensive Immigration Reform (CIR) died a premature death last spring. Charles Schumer and Lindsay Graham, two heavy hitters, refused even to introduce the modest CIR legislation drafted largely by DHS, because they were unable to get a single other Senator to sign on. Leadership,anyone? The White House was mostly MIA, with attention so glued to other matters that even a rousing march to the Capitol by Dream Act kids and thousands of advocates merited no real action. Indifference, anyone? And CIS stayed underground, armed with bureaucratic plans and a PR machine rather than visionary policy statments or practical directives that would move us forward. Timidity, anyone? However, not everyone stood down. CBP and ICE went into overdrive to detain more people, remove more people, and exercise less discretion than at any time in our nation's modern history."
Ms. Bacon was also left to face a virtual firing squad over a "leaked" memorandum of adminstrative options to apply discretion from an agency perspective under current immigration laws as a remedy to congressional timidity and inaction in the face of reelection concerns among others. The memorandum was painted with the normal scarlet "A" letter of amnesty by those who oppose any immigration reform proposal unless border security is achieved (refer to earlier blog I wrote on operational control and the vagueness of that goal). Download Administrative-alternatives-to-comprehensive-immigration-reform The proposal should not be considered as anything subversive from those who are familiar with the discretion written into immigraiton policy over our history. The memorandum is merely a compilation of potential options to the administration depending on the tolerance level for political backlash if used. Some pertinent points from the memo included the use of parole in place discretion potentially for spouses of U.S. citizens, who entered the U.S. without inspection. This possibility would allow families to stay together versus being separated by legislative bars incurred upon departure to consular process.
In April of this year the Immigration Policy Center of the American Immigraiton Council issued its second annual special report on Immigration Policy in the Obama administration. The report does not reflect a very hopeful prospect for immigration reform leadership. Please refer to the report at: http://tiny.cc/e8dxa
Prioritization?
Better on Paper than in Practice
ICE continued to issue memos that offered guidance on agency priorities, articulating more specifically than ever before that its first target was criminal aliens who posed a threat to the country. Unfortunately, that priority statement was undermined not only by overly broad definitions of criminal aliens, but by internal and external messages that lauded ICE’s record‐breaking number of removals in 2010. Many of the approximately 400,000 aliens removed did not fit into the priority categories established by ICE, indicating a double standard and a lack of implementation. One of the primary reasons for this disconnect was the heavy reliance on arrests and deportations produced through the agency’s cooperation with state and local law enforcement in the 287(g) and Secure Communities programs. These programs yielded greater numbers of arrests and deportations but include an unacceptably large number of non‐priority immigrants. The misuse of immigration detainers at the state and local level, and the slow pace of issuing detainer guidance, added to the problems with prioritization. Similarly, while worksite enforcement priorities shifted to the use of I‐9 audits to target critical infrastructure and the prosecution of employers for egregious violations, many of the employers audited did not fit these criteria.
USCIS initiated an extensive policy review that allowed the public to help identify priority issues within the agency. Key highlights of the year were a continued emphasis on supporting and expanding the role of the Office of Citizenship, a highly successful grant program to support citizenship education, and the completion of a standardized fee waiver form. Numerous complaints about the overuse of Requests for Evidence (RFEs) led to the creation of an RFE Working Group and the agency’s release of improved RFE templates for comment, but criticisms remained. The application of overly broad terrorism‐related inadmissibility grounds (TRIG), typically to refugees (who the immigration system was designed to protect), kept cases on hold and applicants in limbo. The DHS Interagency Working Group should be commended, however, for the progress made on granting several categorical waivers this past year. USCIS took numerous steps to improve the operation of E‐Verify, although its continued expansion highlighted ongoing concerns about detecting identity fraud, employer non‐compliance, and the effects of erroneous non‐confirmations on workers.
CBP quietly began to expand its role of enforcer at the gate. Due to a lack of integrated guidance and training in the field, reports of officers probing travelers beyond admissibility and instead, re‐examining their underlying visa eligibility, steadily increased. Asking questions already decided by other agencies (and to which the applicants would not necessarily know the answer) is both inefficient and troublesome for travelers who need to rely on the consistency and finality of agency decision‐making. CBP’s ongoing efforts to provide immigration law training to its officers and new plans to place immigration law experts at ports of entry will hopefully address some of these concerns.
What is needed?
Right now, we need perhaps unprecedented leadership on the issue of immigration reform. Turning a blind or fearful eye on this political hydra merely makes it worse. If only political lip service is paid to this issue, then we will continue to see nothing happen. The administration can enforce the law on the books and apply the legal authority of discretion. We need a combination of an adminstrative fix now with forceful legislative leadership and courage. So, welcome Mr. President, we here on the border know you are up to the challenge and capable of courage in the face of seemingly impossible odds.
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