An Opinion Of President Bush's Immigration Score Sheet And Fall Musings
Editor's Note: This piece is a combination of two separate articles written by the author. Both articles were combined into one article in order to get this material to our readers in a timely fashion.
An Opinon Of President Bush's Immigration Score Sheet
As we look back on four years of the Bush Administration, Americans who have family members, employees or friends in the immigration process or are otherwise concerned about the drifting path of immigration policy towards conservatism, must decide the importance of the immigration issue to them and, if important, determine whether this Administration and its friends in Congress deserve four more years. To this writer, the Bush Administration, unfortunately, has been one of the worst for the rights of immigrants in the past 50 years. A small list of its "prized" accomplishments follows:
1. President Bush announcing his proposal in January 2004 to give temporary legal status to a large number of illegal aliens, but then not even pushing for any legislation to give flesh to his proposal. The President later further mentioned the proposal mainly in places where the words would be popular, giving credence to many earlier fears that the January announcement engineered by his chief political adviser, Karl Rove, was only done to curry favor from Hispanic-Americans for the November elections. He was, however, caught with the immigration question during his third debate with Senator John Kerry on October 13, 2004, at which time he defended his proposal as giving a "temporary worker card," emphasizing that it was not an amnesty as he stated was earlier proposed by Senator Kerry. Senator Kerry responded that the President's guest worker program by itself would not solve the immigration problem and that the country needed an earned legalization in which workers who have been here for a long time and paid their taxes among other factors could begin to move "towards full citizenship out of the shadows."
2. The Administration's stripping five judges from the Board of Immigration Appeals in March, 2003, in a blatant attempt to toss off judges who were sympathetic to immigrant rights. At the same time, the Administration encouraged the Board judges to use affirmances without opinion (AWO) - one line decisions without reasoning. In speaking of the reasonableness of this process, the First Circuit Court of Appeals in Albathani v. INS noted that the Board member who denied Albathani's administrative appeal was recorded as having decided over 50 cases on a single day, a rate of one every 10 minutes over the course of a nine hour day. The Court further observed that the Circuit Court itself had taken considerably longer than one day to review Albathani's case, and that the record of the hearing itself could not be reviewed in 10 minutes. The National Association of Immigration Judges was so incensed by Attorney General John Ashcroft's continued interference in Board affairs that it published a position paper in early 2002 urging that the immigration court be removed from the Department of Justice.
3. The Administration's calling on all local law enforcement agencies to take part in enforcing the immigration laws, thereby undercutting efforts of police departments throughout the country to gain cooperation from immigrant communities in criminal cases. Many local law enforcement officials have complained to no avail. The Republican Congress continues its efforts to pass the CLEAR Act (H.R. 2671) and its counterpart in the Senate (S. 1906) which would force all state and local police officers to become federal immigration agents by denying them access to federal funds they are already receiving if they refuse the enforcement duties.
4. The Administration's failure to push Congress to pass two popular pieces of legislation, the DREAM Act and AgJOBS, which are largely noncontroversial and backed by many legislators in both parties. The DREAM Act would give conditional permanent residence status to children who arrived in the U.S. before the age of 16, have lived in the country for five years, graduated from high school or obtained a U.S. GED certificate and are of good moral character. It has 47 co-sponsors in the Senate and 134 co-sponsors in the House. AgJOBS would legalize the status of approximately 500,000 needed farmworkers and has been supported by 63 co-sponsors in the Senate and 104 co-sponsors in the House. In point of fact, the Administration reportedly told the Senate majority leader (reported in the 7/14/04 Wall Street Journal) not to let AgJOBS come up - not that the Administration was for it or against it - just not to let it come up for a vote!
5. The Administration's panicking and splitting the INS into three separate agencies, U.S. Citizenship and Immigration Services (U.S.C.I.S.), U.S. Immigration and Customs Enforcement (U.S.I.C.E.), and Customs and Border Protection (C.B.P.) in March 2003, based on the flimsy excuse that a flight school received confirmation copies of two of the 9/11 hijackers' approvals six months after their changes of status to F-1 student were actually approved. The confirmation copies were sent out by contractors and not INS personnel in a job that was largely ministerial. The upheaval, meanwhile, has caused much confusion to personnel and the public, contributed to massive backlogs of the agency, and not perceptibly improved efficiency and service. As of September 30, 2003, the number of pending cases at the U.S.C.I.S. stood at a record 6 million plus, and in the latest debacle of the Department of Homeland Security, entry was denied on terror related grounds to Yusuf Islam, formerly known as the famous 1970's folk-rock singer Cat Stevens, (best known for his song "Peace Train") and Tariq Ramadan of Switzerland, a moderate Muslim scholar offered a teaching post by Notre Dame University, while entry was reportedly allowed to 3 convicted and controversially pardoned individuals who attempted to assassinate Fidel Castro, Cuba's leader, with 33 lbs. of explosives at the Ibero-American Conference in Panama in November 2000. ("Narrow Borders," am New York, pg. 9, 10/1-3/04).
6. The Administration's alienation of Muslim communities in the United States by instituting the National Security Entry/Exit Registration System (NSEERS) special call-in registration program in September 2002, under which most males 16 and over from 25 countries were ordered to register at local immigration offices ostensibly to improve homeland security by interviewing them to determine whether they or any of their family members or acquaintances were threats. That, however, was not what finally transpired as hundreds were detained, thousands humiliated, and the fruits of the efforts from September 2002 to September 2003 after 290,526 registrations (83,519 call-ins and 207,007 port of entries) was a government statement that 11 had links to terrorism - even though none were charged with terror related grounds of inadmissibility or removability. The Administration proudly stated at the end of the program that it had placed 13,799 registrants into removal proceedings. This fact, however, should not be held up as a badge of honor, but as a mark of shame. It should be noted that DHS officers for the most part ignored the fact that the individuals were not threats and that many had applications for immigration relief pending with the U.S.C.I.S.. The ostensible goal of security gave way to detentions for illegals, deportations, and fleeing of many Muslims to the Canadian border. The end result has been deep distrust of the government by Muslims here and further reason for hatred from abroad.
7. The Administration's scaring away many tourists and students from coming to this country, a blow to the national economy. With its current ingrained culture of "no", this Administration has sacrificed part of the economic well-being of the country by putting up a series of barriers to make visitors and students feel less welcome while other countries are rolling out the welcome mat. Encouraging consular and immigration officers to say "no" to visa applicants and entrants at ports of entry respectively, and lengthening the visa process to unreasonable time limits because of many times ineptly handled security clearances has made the United States a less attractive place to visit and study in. The Social Security Administration in a recent foreign student regulation basically told students that it could care less whether they could drive a car, lease an apartment, or obtain many of the goods and services needed to live independently during the time of schooling. The U.S.C.I.S. with its new non-refundable SEVIS student fee of $100 to even obtain an I-20 student form will further discourage the entry of foreign students, as the student visa is not guaranteed and $100 is much money in most of the world. In the meanwhile, the CBP through its multiple confusing deadlines for machine readable passports, participation in U.S. VISIT, and biometric passports (in which our current biometric requirements do not match international standards) has many times discouraged and frustrated potential visitors to the States. The U.S. Department of Commerce has estimated that visitor spending dropped from $82.4 billion in 2000 to $65.1 billion in 2003 and the number of foreign students dropped by 8.5% between 2001 and 2003.
8. The Administration's seeming fixation with detaining and deporting those entering the country through means other than legal inspection without right to a hearing before an immigration judge or federal court (summary removal proceedings) while at the same time not adequately funding port inspections, a huge hole in our national security in which terrorists could bring in a suitcase nuclear device. Currently less than 5% of containers are inspected. The Administration in April 2003 announced that persons coming in by sea would be detained during the entire period of their proceedings; and further announced in August 2004 that illegal aliens caught within 100 miles of the Mexican border would be placed in summary removal proceedings unless they could prove that they were present in the U.S. for at least 14 days. Now it is attempting to pass legislation to extend the reach of summary removal proceedings to persons sneaking into the U.S. unless they can prove that they have been here for at least five years. In the meantime, the Administration has announced plans to go forward with development of a battlefield nuclear weapon which will penetrate deep bunkers in the earth despite cries of many that the money would be better spent to improve port security.
9. This Administration's unwillingness during its four years to ask Congress to roll back any of the harsh measures of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) including amending the definition of "aggravated felony" to include only serious offenses (currently the term can be applied to shoplifting offenses or other seemingly small crimes and trips up many returning lawful permanent residents at U.S. ports of entry who committed the offenses in the distant past when they were not considered aggravated felonies), repealing the 3 and 10 year bars against entry for most individuals who have been illegal in the U.S. for 180 days or one year respectively after April 1, 1997, and repealing the bar against judicial review of many immigration decisions ( INS was widely recognized as the worst agency in the federal government, and its successor should not enjoy immunity from a federal court's review of the reasonableness of its decisions).
10. The Administration's inability to deal effectively with its right wing House congressional elements as illustrated by October 2004's controversial H.R.10, the 9/11 Recommendations Implementation Act, to the effect that, even when the Administration voices support for removing anti-immigration provisions from such important legislation as asked for by the 9/11 Commission itself, the House Republicans have as of the date of this writing refused to compromise. They turned their 667 page bill into an omnibus wish list fulfillment package for the U.S.C.I.S. and U.S.I.C.E. incorporating many anti-immigrant provisions removing immigrant rights such as raising the bar to gain political asylum, making it easier to deport persons in the U.S. here for a long period of time, and even specifically targeting our successful Second Circuit decision of Firstland International in which the Second Circuit Court of Appeals held that there was no statutory authority for the government to revoke our client's immigrant visa petition once he had embarked on his journey to the United States unless a prior notice of revocation was given.
This is but a short list (which could undoubtedly go on ad infinitum) of the various ways that this Administration and its friends in Congress have hurt immigrant rights. In the House, the most virulently anti-immigration spokesmen up for reelection are Representatives Hastert (R-Illinois), DeLay (R-Texas), Tom Davis (R-Virginia), Sensenbrenner (R-Wisconsin), Hostettler (R-Indiana), and Hyde (R-Illinois). On the Senate side, the chief anti-immigration spokesmen up for re-election are Senators Grassley (R-Iowa), Frist (R-Tennessee), Kyl (R-Arizona), and Sessions (R-Alabama). When you Americans who are concerned with the country's immigration issues line up before the ballot box on November 2nd, you should consider whether you would like to have four more years of this Administration's policies.
A Brief Fall Roundup
1. Congress is back in session, but the two parties do not appear to be interested in passing anything substantial -- only in scoring political points over the other party. Electioneering appears to be the issue, not the welfare of the American people, and certainly not the welfare of immigrants. AgJobs, the Dream Act, and legalization proposals and plans all appear to have fallen by the wayside of political wrangling. On immigration legislation as well as the ban on automatic firearms, the Bush Administration has been two-faced in saying that the president would sign AgJobs and the ban if the legislation reached him, but has taken steps to ensure that the bills never arrive at the White House. Congress is set to adjourn for the elections sometime in the first two weeks of October, but it appears a distinct possibility that a lame-duck session of Congress will be held after the elections. If so, serious consideration should be given to these deserving pieces of legislation at that time.
2. I have been urging individuals to begin permanent residence cases based on employment as soon as possible if the persons were qualified because of the huge amounts of unadjudicated adjustment of status cases still being held by U.S.C.I.S. service centers, and their potential to seriously backlog the immigrant visa categories. The Department of State is now warning of this looming situation in its October 2004 visa bulletin in which it states that it expects little forward movement in the family based categories for fiscal year 2005 (October 1, 2004-Sept. 30, 2005), and that cut-offs in the employment based third preference category can come as early as January 2005. In its warning, the Department acknowledged the heavy demand for visa numbers as the U.S.C.I.S. has begun to address its backlogs and finalize actions on its adjustment of status cases. It also wrote that the increasing CIS use of numbers is likely to require the establishment of cutoff dates in one or more employment categories during the fiscal year.
3. As I write this, I look at the approvals which we have been receiving for recent cases, and have noted the decreasing number of Referrals for Further Evidence (RFEs) from the U.S.C.I.S.. This is as per C.I.S. Associate Director for Operations William Yates' memo of May 4, 2004, discouraging adjudicating officers from issuing RFEs where the record is complete. (In the Yates memo, CIS officers can issue denials without RFEs where there is evidence of clear ineligibility, where the record is complete and CIS believes the applicant has not met the burden to establish eligibility for the benefit; and RFE issuance is discretionary where the evidence raises questions concerning eligibility or does not fully establish eligibility). My initial reaction was one of happiness until I remembered that denials take longer to write than approvals. Now I am nervously sitting back and waiting to see whether I will be getting back denials instead of RFEs for cases which have already exceeded the CIS timelines for adjudication.
4. Readers should note that the U.S.C.I.S. has been rapidly changing its forms during this past year and that, unlike changes in other years, is no longer accepting the older forms in most cases. Whether the agency continues accepting old forms depends upon the legend on the bottom of the form on the right-hand side. Some legends say that prior forms can be used to a certain date, and others just have the legend "Y" or "N". The "Y" means that old forms are acceptable while the "N" designation means that they are not. Recently the CIS stated that I-134 (Affidavit of Support), I-485A (Supplement A to Form I-485 Application to Register Permanent Residence) and I-824 (Application for Action on an Approved Application or Petition) are being replaced and the older forms will not be accepted after September 30, 2004.
5. With the current rate of usage of H-1B numbers for fiscal year 2005, I will be greatly surprised if the 58,200 H-1B cap numbers along with the remnants of the 6800 Singapore/Chile Free Trade Agreement numbers are not yet exhausted by the time that you are reading this article. The U.S.C.I.S. informed the American Immigration Lawyers Association around September 20, 2004, that the H-1B quota was likely to stay open for "several" more weeks because of the recapture process for unused Singapore/Chile Free Trade numbers. With the current rates of usage (approximately 6000 per week for two weeks ending August 18, 2004), the 58,200 would most likely be exhausted by September 30th and the unused Singapore/Chile numbers within the first seven days of October (Singapore/Chile numbers can only be used in the first 45 days of the new fiscal year). It appears clear that no action to increase the H-1B cap quota will come before the presidential elections as neither political party wishes to be perceived in favor of admitting more aliens to the United States when the economic job forecast is still murky for many Americans -- however, the parties should agree to act to increase the cap quota (formerly 195,000) after the political season is over as H-1 cap limitations ultimately hurt U.S. businesses' ability to gain needed skilled workers and increase business, while at the same time promoting the flight of jobs to overseas locations.
6. The Social Security Administration has recently issued a final rule that F-1 students can only obtain Social Security numbers now if they either hold employment authorization documents (EAD) from the U.S.C.I.S.; are authorized to work by their schools pursuant to curriculum practical training (CPT), or have evidence that they have been authorized to work by the school and have either secured employment or a promise of employment. So if this is the case, how are F-1 students supposed to drive in a state like New York which now seems to require a valid Social Security card in order to grant a license? Currently the New York State Department of Motor Vehicles is threatening to suspend as many as 250,000 licenses for lack of valid social security numbers. The Social Security Administration while acknowledging the difficulties that foreign students could have in leasing apartments, opening bank accounts, negotiating utility services or driving pointed out dubious alternatives and stated that the primary purpose of the social security number was for the Social Security Administration to track earnings over workers' lifetimes and that the agency could not control the types of information that private businesses request of their customers. Have we become Fortress America - un- inviting to persons of other lands thinking about studying here that we risk losing over $12 billion in foreign student revenue to the U.S. along with the goodwill of those foreign students who would normally return to their homelands and relate their favorable impressions of their stays in the U.S.? There must be a balancing of interests in this country and not just an inflexible knee-jerk reaction every time someone utters the words "homeland security". A balancing of risk and reward by multiple governmental agencies should be made before such decisions with far reaching consequences are implemented.
7. U.S.C.I.S.'s new e-filing system is again in the news, but not for the reasons that the agency would like to see. One paralegal complained on ILW.COM, the immigration law website, that he/she had been charged multiple times for the same I-90 (Application to Replace Permanent Resident Card) e-mail filing and that the agency would not give back the overcharges. In the paralegal's encounter, he/she had typed the application, and hit the finish button. However, no confirmation receipt appeared. Neither did the application forms for the firm's client to bring to the Application Support Center (ASC) so that the C.I.S. could take the necessary biometric information. He/she thereupon hit the finish button two more times, but nothing came out. The credit card was charged each time that the finish button was pushed and the CIS refused to delete or refund the charges on grounds that with each click the button had produced a completed application on C.I.S.' end. This is apparently an unforgiving system, and experiences as related here will cause many potential users to shun the e-filing process in favor of submitting paper applications the old-fashioned way. The U.S.C.I.S. obviously has a long way to go to improve customer relations where e-filing is concerned. The agency just released further instructions, "Avoiding Common E-Filing Mistakes", attempting to clarify common mistakes including submitting an application more than once, but not relenting in saying that "Every time you successfully submit an e-mail filing application, your credit card or bank account is charged for that application fee. U.S.C.I.S. is NOT able to refund payments caused by customer error." The instructional is by and large confusing in itself and the solutions presented so time-delayed that individuals who e-file because of narrow deadlines (one of the reasons suggested by U.S.C.I.S. for using the e-filing system) would be caught in a quandary of sending a paper application by FedEx or other express mail service if there is still sufficient time for refilling to ensure that the deadline is met or pressing the finish button again. These are certainly not appealing solutions. The U.S.C.I.S. should, as the wronged paralegal suggested, have a mechanism for canceling an application when the forms are not generated or for a refund of multiple fees when it is brought to C.I.S.' attention. This is simple logic if the agency wishes increased use of its e-filing system.
8. The Senate missed an opportunity on September 23, 2004, to benefit the asylee class through allowing vote on an amendment which was to be introduced to eliminate backlogs in applying for permanent asylum, and adjustment of status to permanent residence from permanent asylum. Asylees who qualify through a well-founded fear of persecution or past persecution through family planning policies of their home countries are given conditional asylum status. The annual quota to move from conditional asylum to permanent asylum is capped at 1000 per year. Currently only those who received conditional asylum on or before April 19, 2000, and whose identity, background, and security checks have been updated and cleared have moved on to permanent asylum. As of September, 2003, the Executive Office of Immigration Review stated that there were more than 7000 conditional asylees on the waiting list. That of course translates out to a seven year wait. Permanent asylees must wait one year in that status before being allowed to submit applications for permanent residence. A 10,000 per year cap is placed upon adjustment of status to permanent residence from asylee status. The U.S.C.I.S. estimated that as of March 1, 2004, approximately 160,000 asylee adjustment applications were pending, and that applications filed between August 5, 2003-December 8, 2003 would be processed between October 1, 2014-September 30, 2015. Currently only those asylees who applied for adjustment of status by November 16, 1999, and have had all their security checks completed are able to move forward to permanent residence. Senator Sam Brownback (R-KS) was prepared to introduce an amendment to the Foreign Operations Bill on September 23, 2004, that would have eliminated the backlogs in the above situations. However, he was forced to reconsider his action under threat of Republican Senate Judiciary Committee members Orrin Hatch (R-UT), Chuck Grassley (R-IA), Jon Kyl (R-AZ), Jeff Sessions (R-AL), Saxbe Chambliss (R-Ga), and John Cornyn (R-TX) that they would add provisions to heighten the burden of proof for asylees to win their cases; narrow the period of time from one year to 90 days during which individuals would be able to file for asylum after entering the United States, and eliminate the ability of applicants claiming asylum based on mixed motives to gain relief. It is difficult to ascertain the reasoning behind keeping such a restrictive backlog system as it is unfair to keep asylees in limbo status for as long as they are waiting now and as forecast for the future. The extended waiting periods obviously have nothing to do with national security as the asylees' security clearances do not require long periods of time to complete and they are already in the United States amongst us anyway.
9. The Republican Congress introduced its bill to fulfill the recommendations of the 9/11 Commission on how to best protect the country, H.R.10, the 9/11 Recommendations Implementation Act, on September 24th. Unfortunately the Republicans have turned their 542 page bill into an omnibus wish list fulfillment package for the U.S.C.I.S. and I.C.E. Its immigration provisions would subject all persons entering the U.S. without inspection to the expedited removal procedure unless they could prove that they were present in the U.S. for more than five years. In an expedited removal procedure, no relief can be given except asylum or persecution based reliefs of withholding of removal and the Convention Against Torture with higher standards for grant - however, current rules dictate that asylum requests must be made less than one year from date of entry and the legislation and does not speak of the latter two persecution related reliefs. H.R.10 would heighten the need for corroboration in immigration cases and provide that federal courts could not reverse an immigration court's finding on the availability of corroborating evidence unless the court found that a reasonable adjudicator was compelled to conclude that corroborating evidence was unavailable. The bill would allow the Department of State to revoke a visa once the individual is in the United States -- currently the Department has no authority once an individual has reached the shores of this country. It would further allow the Department of Homeland Security to revoke an immigrant visa petition even if no previous notice was given to the individual before embarking on a journey to the U.S. -- a specific targeting of our successful Firstland International case in which the Second Circuit Court of Appeals held on August 2, 2004, that there was no statutory authority for the government to revoke an immigrant visa petition once an individual had embarked on his/her journey to this country unless prior notice of revocation was given. H.R.10 further eliminates the right of habeas corpus review of immigration decisions for criminal aliens, a repudiation of the Supreme Court's decision in INS v. St. Cyr that the writ of habeas corpus cannot be suspended in these cases unless there is specific language in a statute by Congress so stating. For cases in the federal courts, H.R.10 also provides that stays of deportation can only be granted in extraordinary cases where aliens are able to prove by clear and convincing evidence that the entry or execution of the removal order is prohibited as a matter of law, leading to the abysmal probability that the government will attempt to deport most individuals in the future while their cases are pending. These provisions have little if anything to do with national security and represent an all-out effort by anti-immigration legislators to further crackdown on immigration to this country despite an acknowledged need for large-scale immigration to meet the future needs of the country as recently expounded upon in Federal Reserve Chairman Alan Greenspan's speech in August, 2004, at a Federal Reserve Bank symposium that "...to fully offset the effects of the decline in fertility, immigration would have to be much larger than almost all current projections assume. " Readers are urged to contact their congressmen and senators to express opposition to this piece of legislation.
10. With due respect to border security, I again point now this country's need for friends in the world and to favorably influence young minds that will one day play leading roles in their countries. In an article that I wrote shortly after the attacks of 9/11, "Immigration and the Economy -- Where Do We Go From Here?", I warned of the dangers of ham- fisted attempts to restrict the numbers of students coming to this country -- that our universities and colleges have come to depend upon foreign students as a needed source of funds to keep the schools running in the black and that, in the academic year 1999-2000, 500,000 international students and their dependents contributed an estimated $12.3 billion to the U.S. economy. This amount exceeded the annual budgets of at least four agencies of the federal government. Besides the Social Security Administration's attempt to make it harder for students to live here decently in the time they are here, a hardening attitude against foreign students is perceived in long waiting times at the consulates for visas, the uncertainty of obtaining such visas, escalation of denial rates, and difficulties in returning to the U.S. from trips abroad by such students. These along with a common perception among many foreign countries that the U.S. is now a warmongering nation are all contributing to the idea that America is not the country in which to study. Adding to the factors is the feeling of insult that the governments of foreign countries feel at having their citizens forced to pay the $100 non-refundable SEVIS fee to even obtain an I-20 or DS-2019 school acceptance form to begin the process of applying to study in the States. $100 is a lot of money to persons in most countries of the world, and the Department of State was so afraid of the diplomatic repercussions that it refused to be the conduit through which SEVIS fees could be paid. To make this country the leader again in attracting foreign students, we should make the SEVIS fee refundable if applicants cannot obtain their desired visas and take other steps to make the foreign students feel more welcome once they are here. If the 9/11 attacks have turned us so defensive that our economy will suffer and we will lose the opportunity to favorably influence future leaders of foreign lands, the terrorists will already have won.
About The Author
Alan Lee, Esq. is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was given two awards by the Taiwan government for his work protecting human rights in 1985. Readers may visit Mr. Lee's website at http://www.alanleelaw.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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