AILA Needs A New Direction
by Harry DeMell
We have a new political world. We have a congress that cannot and will not take the extreme measures to grant comprehensive immigration reform and a president who has ratcheted up enforcement. We have an immigration lawyers association that is out of tune with that new world and has not won a significant victory in twenty years. It is time for the immigration bar to wake up and take a new approach.
The American Immigration Lawyers Association (AILA) can lead the way but only if it takes a new direction and has new leadership.
AILA was once a bar association that was concerned with the proper administration of the laws and sensible changes that would improve the system in a variety of ways. During those years AILA was a source for congresspersons and their staffs to contact and discuss ideas and pending legislation. AILA would provide a high degree of professionalism that the bar needed.
Then something happened.
During the early 1990s AILA quietly changed into an 'advocacy organization'. When IMMACT 90 was passed in 1990 AILA was instrumental in pushing that act to the correct places. We discussed with congressional staffers the several levels of fallout that each action would take. We were completely caught off guard, in 1996, when IRAIIRA passed. What could have happened between those dates?
During the period of the 1990s, AILA changed. It became an advocacy organization dedicated to helping aliens. Instead of advocating for a better immigration system we began to advocate for aliens. Just as the Federation for Immigration Reform (FAIR) advocated against aliens we began to advocate for aliens. We became the other side of the coin.
Before that change occurred, the National Lawyers Guild and other organizations often took strong pro-alien positions. As long as we remained more or less in the center we were in a position to advocate for changes that would improve the legal system for the American people, of which many aliens aspire to be.
Our leaders wanted to 'feel good' by advocating policies to 'help people' rather than take positions that would address the flaws in the system and create a more workable and humane system for those who would abide by our laws. I would argue that this was a selfish policy on their behalf because it replaced feeling good with real and obtainable reform. Those 'feel good' policies continue to this day and have emasculated our efforts at the meaningful improvement of the immigration, visa, and nationality system. It is getting so bad that there is talk of changing the constitution to remove birthright citizenship and all AILA can do is cry "CIR".
Had AILA been better positioned their work for the Dream Act might have been significantly more effective. Had AILA gone to congress with a package of proposals that included a dream proposal we might have gotten better results. AILA seemed to discover the Dream proposals in a serious way only when CIR was hopeless and the Dream Act was being considered by congress. We might have had a better result if we championed this idea earlier.
AILA needs change we can believe in. That change should come from old ideas and values that we have forgotten.
AILA has to redefine itself, back to its roots, as a bar association. We can decide to allow government attorneys and judges into our ranks or not, but what is clear is that we need the attention of the government in all three branches.
We need congress to know that we are a source of expertise as to what changes can benefit the system and make it more responsive. Sometimes those changes will work against certain parts of the immigrant and nonimmigrant community. Detention rules do not have to be all or nothing. As a bar association we could acknowledge the right of the government to detain aliens when necessary but push for humane standards as part of the repeal of mandatory detention.
As a bar association we can influence legislation to be reasonable by acknowledging the government's right to police the immigrant community and control our borders. We need to propose reasonable ideas to further this goal. In an effort to control our borders we might propose a variety of ideas to recognize the economic realities that attract workers and make visa issuance to them easier.
We can also encourage changes to alleviate the most outrageous excesses such as the trend to redefine crimes as aggravated felonies whenever possible.
We need to let the courts know that we do not only prepare amicus briefs that are predictably pro alien but that we concentrate on a more responses that encourage reasonable interpretations of our laws that is fair to what congress wants and to the even and prudent administration of justice, even if those interpretations sometimes limit the rights of aliens. We might establish an inter-branch committee to work with the United States Court of Appeals and the Board of Immigration Appeals to reform the BIA in an effort to stem the growing number of appeals to the Circuit Courts.
We need to let the agencies involved know that we are a voice for sanity and that at times their actions make sense. We need to encourage real prosecutorial discretion in place of the anti-alien attitudes that prevail.
We need to let the government know that we are not the enemy. The government must know that we are partners in a great system. We can only take these positions from the center, as a bar association and not as an advocacy organization.
Those in AILA who insist on AILA remaining an advocacy organization do it from selfishness. They want to take advocacy positions such as CIR in order to make them feel good as persons. In this way, the AILA leadership has become a mutual admiration society where there seems to be little diversity of opinion. Our leadership runs on platforms as to who is more pro-CIR. The result is impotence for our organization. The result is to empower anti immigrant organizations such as FAIR.
Some have argued with me that as a specialty bar association we must advocate for aliens. I disagree with that argument. Would a bankruptcy bar association argue that all debtors should be exonerated from their debts? Would a criminal bar association argue that all criminals should be pardoned?
2011 will bring in a new world where more enforcement and more gridlock can be expected. Where will we be? Will we continue to scream when no one is listening or will we change and affect less but more meaningful change?
It is almost time for those wishing to run for the AILA board of governors to begin the petition process. This writer will not personally participate, other than to vote, but I hope that a ticket emerges that can propose change that I can believe in. I would like to have a choice. Having two candidates who argue who has done more to push CIR is not a choice.
AILA is a great organization. For over six decades we have raised the standards in the legal profession. Out conferences and publications are world class but our advocacy is pathetic.
Are we to be important again or are we to remain impotent? Until we realize that our positions have not worked, we cannot make the changes needed. AILA needs a new direction and for that direction to have credibility we need new leadership.
Harry DeMell is an active member of the American Immigration Lawyers Association (AILA). He has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members. Mr. DeMell has also chaired committees for the Nassau County Bar Association and the Brooklyn Bar Association. He is a frequent speaker and a writer on important visa and immigration issues.
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