Archive for the Immigration, security, and fear Category.

Invisible Wall

The term “invisible wall” is a well-known term among immigration attorneys. While the current administration calls for the construction of a physical wall, the administration has already erected an invisible wall which appears to reduce and discourage, not only illegal immigration, but legal immigration as well. While one of the stated goals of the administration is to reduce regulations in order to promote businesses, there is one area where the reverse appears to be taking place. In the field of skills-based immigration law, the administration’s new policies, guidelines, and rules are making it more difficult for American businesses to bring necessary talent to the United States. This is being accomplished through new bureaucratic obstacles and excessive requirements that deter American corporations from bringing engineers, software and computer specialists, and other technical personnel, to the United States. Although the administration is framing these regulations as a necessary measure to protect U.S. workers, the regulations may also reflect a political statement about the administration’s attitude toward immigrants.

The concept of protecting U.S. workers is difficult to argue against, and is a concept many want to enforce. However, one could also argue that there are times where U.S. companies may have a hard time finding available local U.S. employees for highly-skilled occupations, as the U.S. employees tend to be currently employed elsewhere. Or that, even if the talent brought from overseas is occupying a spot that otherwise could be occupied by a U.S. worker, the foreign employee could help enhance the U.S. company’s products, make the company more competitive worldwide, improve exports, help businesses remain viable, and create new innovations and jobs for U.S. workers. Such arguments would also support the concept of protecting U.S. workers.

The majority of reputable studies examining the effects and impacts of foreign workers on the U.S. economy have determined that foreign talent brought to the United States ultimately helps our economy and produces a large number of new jobs for U.S. workers. As anecdotal evidence, some of the largest U.S. entities were, and are, created by immigrants or children of immigrants, for example, Apple or Tesla. Such companies continue to hire many U.S. workers.

The issue with the potential negative consequences of the invisible wall is that its effect will not be seen for years to come, and is slow to materialize.  The administration’s new regulations and policy surrounding immigration may not have a tangible effect on the U.S economy within the next year or two, but would have an effect within a decade or two – long after those who are creating these policies could be held accountable for the decisions they are making today.

The slow materialization of the effects of the invisible wall increases the difficulty of the opposition to the invisible wall, and increases the difficulty for those who may believe the studies which reflect that immigration adds a substantial value to our society and to our economy. The only hope is that more reasonable attitudes will prevail, and the current impediments to immigration (which has been the cornerstone to our society since Independence) are temporary and that our view towards immigration will be restored to its normal, optimistic vision.

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Unjust DREAM Act Deportations Should be Suspended

In recent weeks, several students and student activists have been placed in deportation proceedings, or issued orders of deportation. The case of Ola Kaso, of Sterling Heights, Michigan, represents all that is wrong with the immigration system and should be the last of its kind. The need for passage of the DREAM Act is increasingly urgent. In the meantime, prosecutorial discretion should be exercised immediately to cease deportations of potential DREAM Act beneficiaries, including Ola.

Ola Kaso is about to graduate from high school (at the top of her class!) and start college at the University of Michigan. Strike that, she is about to graduate from high school (at the top of her class!) and be deported to Albania.

President Obama has made immigration enforcement a top priority of the Department of Homeland Security (DHS), including Immigration and Customs Enforcement (ICE). In fact, deportations and prosecutions have been occurring at a fast pace, eclipsing the statistics for enforcement under previous presidents. According to a DHS memorandum published last year, ICE is to focus on deporting non-citizens with criminal convictions, and particularly those with convictions for violent or serious crimes. On top of that, President Obama announced in August 2010, in response to pressure from DREAM Act advocates and a request by Senator Durbin, that the deportation of students with no criminal backgrounds would be suspended. In any case, ICE can exercise prosecutorial discretion in determining which cases it pursues. In the case of young adults who did not violate any laws by coming here but who were brought here as infants and children, and who have lived nearly their entire lives here, surely it makes sense to refrain from deporting them given these priorities.

Wait a second . . . Well now I’m confused. ICE just scheduled Ola and her mom, a small business owner, for immediate deportation, on the eve of Ola’s graduation. (Thankfully, it was postponed by a Federal District Judge’s order so she can attend her ceremony.) Why is someone like Ola Kaso, an excellent student with a spotless past and a bright future, being scheduled for deportation now?

Ola entered the U.S. legally with her mother, at the age of four. (Read, she was brought here.) Their asylum case was ultimately denied in 2003, but Ola and her mother had been reporting to authorities in Detroit under ICE Order of Supervision for quite some time.

What can she do? There is no form of relief from deportation available to her. No options exist for her at present to obtain legal status. Although ICE does not have to execute her deportation now, it seems to be pursuing it any way. Her only viable option, and it’s hardly viable for most, is to seek intervention on her behalf by members of Congress. Several U.S. Senators and Representatives have recently urged President Obama to again call for a suspension of deportations of potential DREAM Act beneficiaries, which he is apparently still considering. Perhaps that will persuade ICE to refrain from acting now. After all, its priority is criminals, right?

Well in case ICE does not change its course, some parting words to Ola are in order.

To Ola’s family and friends: I am sorry to say you will have to visit Ola in Albania if you want to see her anytime soon. She will not be able to return to the U.S. for at least 10 years and has little chance of returning sooner. I’m sorry, Cousino High School, you are about to lose one of your celebrated soon-to-be alumna, a role model to younger students. U of M, you are down one brilliant incoming freshman. State of Michigan, you are out an emerging leader and future doctor.

That’s ok, though, Ola. Think about it. If you were to remain in the U.S. and graduate from U of M, likely with excellent grades, you would have to turn down all the offers of employment anyway. Just like the hundreds of thousands of other college students and graduates who have lived here nearly their entire lives. U.S. law does not allow you to obtain lawful employment while out of status and, as already noted, no options exist for you to correct your status at this time. (Too bad Congress still has not passed the DREAM Act, which would fix this oversight.)

So maybe it’s just as well. It should be no problem for you to return to Albania, where you lived for your entire . . . infancy. Well, as long as you speak Albanian fluently, I’m sure you will feel right at home there. The standard of living is probably just like ours here. Ok, so it’s nothing like living in the U.S. and generally has a very low standard of living. And if you don’t speak Albanian, oh boy – you can forget about going to college there, let alone becoming a doctor.

Tough luck, Ola. Well done on striving to reach your full potential and congratulations on achieving that goal. By all accounts, you are a remarkable young woman. The thing is, there simply is not enough room for you and your mother in the U.S. Michigan, in particular, is bursting at the seams with its population. Moreover, the U.S. just is not interested in keeping ambitious, talented students like you, or hard-working small business-owners like your mom for that matter. I’m sorry if you got the wrong impression from complying for so long with all requirements placed on you by ICE.

It’s true, we are a country of immigrants . . . just not immigrants like you. Right?

Maybe I’m wrong about this, and I hope I am. Maybe your case will outrage other Americans, like it has me. Maybe your story will be the one to make people send an email and make a phone call. Maybe because of you, President Obama call for a moratorium on deportations of youth like you, will press in earnest for reform, and Congress will finally pass the DREAM Act. This is the only reasonable course of action, and quite frankly, you deserve it.

Posted in DREAM Act, Immigration, security, and fear, Inadmissibility & Deportation, Recent Posts, Reform, The undocumented | Leave a comment

U.S. Immigration Law and Morton’s Fork

A client filing for a hardship waiver has obtained letters of support from friends and family for the Immigration Judge, asking that discretion be exercised to grant the waiver. A common theme pinpointed in all of the letters was that denial of the waiver would give the U.S. citizen family members of the waiver applicant two undesirable choices that would each result in undesirable outcomes. This situation is known as Morton’s Fork.

The term comes from the tax collections carried out by Lord Morton, of England, in the late 1480s. He reasoned that someone who lived modestly could clearly afford to pay high taxes and someone who lived in poverty must have savings so they too could afford high taxes. The people were to be taxed at a high rate, no matter what they did.

In some cases, a non-citizen placed in removal proceedings may be eligible for a waiver that would prevent his or her deportation if granted. Such waivers are discretionary and may be granted only if the applicant can show that his U.S. citizen spouse or parents (and in some cases children) would suffer “extreme hardship” if he or she were to be deported from the U.S. What qualifies as “extreme hardship” varies from case-to-case, but generally must require a showing of more than simply financial or emotional hardship. The Immigration Courts have said that anyone facing separation from a loved one would likely face financial or emotional hardship, thereby making them, so goes the logic of the Immigration Courts, unextreme hardships. What makes hardship “extreme” can be a number of factors that might not meet the threshold separately, but taken together amount to an extreme hardship overall.

The two aspects of removal proceedings generally, and hardship waivers in particular, that have struck me most over time is that U.S. Immigration Law offers U.S. citizens Morton’s Fork by design, and that the vast majority of U.S. citizens are, or appear to be, completely unaware of this.

Making the case for extreme hardship underscores the gravity of deportation and the U.S. approach to it as established in a complicated and harsh body of law. As written and interpreted, U.S. Immigration Law puts every U.S. citizen family of someone being deported in the position of choosing between a rock and a hard place. And it is done with incredible non-chalance. Every day, U.S. citizens are effectively told, by the U.S. Government, ‘You can either accompany your loved one (spouse, parent, child, etc) to [his or her home country], or you can continue to live in the U.S. without him or her (spouse, parent, child, etc.).’ Simple. Right?

What this dilemma (and it is a dilemma more than a “choice”) can mean is as devastating as the U.S. is diverse. In many cases, it means U.S. citizens must consider living with their loved one in an impoverished country, where English is not spoken and whose language the citizen does not speak, where perhaps for women there are limited career opportunities, or for children there are limited educational institutions. For the elderly, transplanting to a foreign country after living nearly an entire lifetime in the U.S., the obstacles may be even greater. Conversely, the option would be to remain in the U.S., where all is familiar and a life is already established, without the deported non-citizen. To so many, this simply is no option at all. The idea of living separated from a spouse, raising a child without a parent or letting a child raise him- or herself, or spending the last days of one’s life without their children sitting bedside – this can seem even more unbearable.

The feeling of disbelief captured in these support letters written by U.S. citizens is nearly ubiquitous among the U.S. Citizens I have met who are experiencing the harsh nature of U.S. Immigration Law for the first time. The shock that their own U.S. citizen family and friends could find themselves in such a situation, be put in such a situation, by the U.S. Government is palpable. ‘How can they make this choice?’ and ‘Are they to choose between one child and another,?’ are questions that commonly appear throughout these support letters. Unfortunately, the answer is yes.

Yes, U.S. Immigration Law largely does not stand for the preservation of families. Yes, U.S. citizens are made to choose between separation from their own country and life, or separation from their beloved family member being deported. Yes, the results are equally implausible. Yes, this is harsh and unfair.

Yes. It can be changed.

Posted in Immigration, security, and fear, Inadmissibility & Deportation, Recent Posts, Reform | Leave a comment