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Open Letter to Eleanor Pelta, AILA President

by Kenneth Rinzler

Dear Ms. Pelta,

AILA does an enormous amount of advocacy, both internally amongst the membership and externally to the government, the media, and the general public, and I think it's fair to say (and I'm choosing my words carefully here) that they center around increasing immigration by almost any means necessary, especially some form of amnesty (and I will not use euphemisms such as "path to legalization" in this memo) and a major reduction in enforcement of current laws. These efforts are, by definition, political, and are the source of an increasing amount of controversy amongst the membership, in part because they seem to color AILA as an advocacy organization principally focused on increased immigration, whatever its perceived merits, rather than as a self-help group for the immigration bar and an organization dedicated to righting egregious wrongs in our legal system (e.g., death while in ICE custody, systematic employment discrimination, etc.). This growing perception that AILA's advocacy efforts involve extremely controversial political issues is all the more important when one realizes that the organization consistently purports to speak for the entire membership, and is generally accepted as such by the recipients of such advocacy efforts. While it is to of course be recognized that no organization, especially one with 11,000 members, will ever achieve unanimity or probably even an overwhelming consensus on many issues, it should be equally acknowledged that the more controversial the issue, the more careful the organization should be in purporting to represent the membership. No one with a straight face can claim that amnesty for illegal aliens is not a controversial issue, if not the most controversial issue in the immigration field, regardless of where one stands; I think that's the one thing 100% of our members can agree on. It is thus not an issue AILA should be promoting in any way, shape, or form (whether stand-alone, part of CIR, whatever) without first polling the membership to get a better idea - any idea - of how the membership feels. This is proper, necessary, and just plain common-sense, and to my knowledge it's never been done. Yes, we elect a leadership, just like we elect a Congress, but even a Congressman occasionally asks his constituents what they think. AILA needs to do the same.

AILA's Mission Statement is as follows:

"The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members."

Now one may agree with the above objectives and how to achieve them, or one may not, but I think a plain reading of the above shows that the first three of the four stated objectives requires AILA to get involved in politics, and thus is a political organization in most respects. While AILA may not endorse specific candidates or contribute money, it acts just like those so-called independent organizations which advertise in support/opposition of a cause or particular issue. And AILA's track record is crystal clear on where it stands on any immigration matter, especially amnesty.

In addition, as a colleague has already pointed out, there is widespread disagreement over the meaning of the nebulous term "fair and reasonable"; in fact, one is guaranteed to start a political debate, if not outright fisticuffs, by one's stand on whether amnesty is "fair and reasonable". In fact, it reminds me of those old law school lectures about what constitutes a "reasonably prudent man".

(As an aside, In view of where "enhancing the professional development of its members" is on the list I would suggest that either we need to stop claiming how much we are a member-oriented organization, or maybe simply revise the Mission Statement, but that's a topic for another time.)

Whenever one visits AILA's homepage, he/she is bombarded with reports of AILA's advocacy in support of amnesty, and requests for the membership to do the same. For example, as I write this there is the nearly always present "Tired of Waiting for Reform? Tell Congress to ACT" plea for amnesty (yes, as part of CIR, but still a plea for amnesty). And under the "Just Posted" section there are often related articles.

The same can be said for AILA's Federal Tax Return (Form 990). On page 2, Part III, is Question 4:

"Describe the exempt purpose achievements for each of the organization's three largest program services by expenses."

AILA's response:

"Advocacy and Public Affairs.

Congressional Advocacy - The Association works in support of positive legislative and regulatory initiatives and to defeat restrictive efforts by working the Congress, the Administration, and Federal agencies. [Underline added]

Media Advocacy - As the general public is greatly influenced by the media, the association advocates in support of immigration with the media, and develops and disseminates pro-immigration messages to reach the public at all levels."

Thus even in its Federal tax return and desire to remain a tax-exempt organization, AILA uses questionable language at best. For example, many people don't consider the granting of amnesty to be a "positive" initiative. More importantly, however, is the re-affirmation that AILA has become primarily an advocacy organization.

(Again, as an aside, on page 6 of the return, Part VI Section B, AILA gives all sorts of what can only be described as "strange" answers for an organization composed of attorneys to a tax layman such as myself:

#10a - Does the organization have local chapters, branches or affiliates? Answer: no.
#10b - If "yes", does the organization have written policies and procedures governing [their activities] to ensure their operations are consistent with those of the organization? Answer: left blank.
#12a - Does the organization have a written conflict of interest policy? Answerˇ¨ no. #13 - Does the organization have a written whistleblower policy? Answer: no.
#14 - Does the organization have a written document retention and destruction policy? Answer: no.)

Now to the specifics of

  • Whether AILA should advocate as much as it does
  • If so, on what issues, with what positions, and in what manner (including whether to assert that it represents the membership's views)
  • How should AILA use such membership-generated information
  • Should AILA advocate as much as it does?

    I have been a member of AILA since 1992, although a member of the bar since 1979. From 1979 until 1987 I worked on Capitol Hill for a Democratic Congressman, and thus I remember first-hand the debate over the amnesty passed in 1986. It was not pleasant, although certainly not as vitriolic as it is now (nothing quite was in those days), but a key thing which stands out is how the proponents at the time asserted that it would be a one-time deal, would basically give us a clean slate and solve our most pressing immigration problem, and would prevent future illegal alien issues on a mass scale because of new enforcement provisions, etc. Well, we all know how that worked out. There was huge fraud by those seeking to qualify, and subsequent events have shown that it was a major factor encouraging more people to violate the law because they thought there would eventually be another amnesty in the future.

    Most estimates place the number of illegal aliens in the U.S. at about 11 million. The U.S. Census Bureau says our current total population is approximately 312 million, meaning that about 3.5% of the current population in this country is here illegally. That fact alone makes this a significant issue, and one which must be addressed. Another fact which is often overlooked in the debate, however, is that legalizing the above 11 million people would provide a huge base of new business to our profession. Now before my fellow officers of the court start shouting how cynical I am and how that potential revenue is totally irrelevant to the debate, how it revolves more around family unity, etc., I say that irrelevant or not, it is a factor which the general public considers and one in which more than one colleague has commented upon over time. Perception counts in politics, whether one likes it or not. And when it comes to the amnesty issue, AILA has a potential conflict of interest ("enhance respect for immigration law" vs. more revenue for the members) whether one wants to admit it or not.

    AILA, like any organization or person for that matter, has a finite amount of credibility. Once diminished, it is extremely difficult to get it back. I posit that AILA has squandered a great deal of its credibility with its promotion of amnesty, for it is no longer viewed as an objective organization when it comes to legislation and regulations. Rather, to paraphrase one colleague's comment, AILA is now like the NRA - one knows where it stands on any particular issue and its views are not considered reasonable by those not only on the opposite end of the spectrum, but by the majority of those in the middle. To advocate well, one must be able to convince the undecided, and AILA fails to do that because it only supports amnesty and never any enforcement provisions.

    What it thus comes down to is that on a controversial issue such as amnesty, maybe it's better for AILA to not take such an active role because it negatively affects our alleged impartiality, not to mention that AILA has no justification to claim that it speaks for the membership on such a general and complex issue, especially when it has never asked the membership for its views.

    AILA needs to reassess its vision of itself. Whatever the mission was in 1946, and however noble the purposes then and now, we are no longer a small group of attorneys who share a simple common interest. We are now 11,000 individuals, and we need to decide whether the principal purpose of this organization (regardless of what's in the official Mission Statement, etc.) is unfettered immigration, for that is how we are now essentially presenting ourselves to the world. If that's what the membership wants, fine, but let's at least be honest about it. And we don't and won't know what the membership wants if the leadership never asks.

    What issues should the membership be polled upon?

    I think that the membership should be polled upon all major and/or controversial issues whenever AILA wants to publicly take a stand and purport to speak for the membership. The primary issue, of course, is amnesty, whether as a stand-alone or as part of CIR. Another is enforcement of current laws, including deportations/prosecutorial discretion, and whether illegal alien students should be entitled to attend taxpayerfinanced state universities. A third would be the issuance of any kind of identity document, whether a national ID card, Social Security card, driver's license, etc., and its use, whether for employment, voting, or driving. These have become national immigration issues, albeit at times as part of the statesˇ¦ rights controversy, and in virtually every case AILA takes a predictable position which favors the alien over anyone else and implies that anyone (including fellow AILA members) who thinks otherwise is at best a misguided dolt and at worse - to use the phrase our immediate past president hurled at me - a "fringe restrictionist".

    There are certainly other issues, but these would seem to be the most important ones, as they all center around illegal aliens. Again, let's be honest; while AILA is rightly concerned with preventing unlawful discrimination against legal aliens, that's not what's driving the bus here.

    The tricky issue is how to frame a survey, for how a question is asked often determines the answer. Also, there's the classic "have you stopped beating your wife" conundrum; no matter how you answer, you're doomed, for even a "yes" answer is a tacit admission that you used to beat her.

    Fortunately technology makes this relatively easy. For starters, the membership could be asked such general questions as:

  • With regard to AILA's legislative advocacy efforts, do you think AILA does too much, too little, or just about the right amount, in terms of resources devoted and benefits received?
  • Do you feel comfortable when AILA purports to speak for the entire membership on an issue, even when that issue is a controversial one (e.g., amnesty), as compared to a non-controversial one (having CIS notices being again sent to attorneys rather than the applicant)?
  • Do you think AILA should be required to regularly poll the membership on major controversial issues, possibly by including it as part of the annual election process (e.g., on the ballot) or some other way?
  • Do you think AILA needs to amend its Mission Statement, by-laws, and/or or press releases to more accurately reflect its activities and purposes (e.g., more of a pro-immigrant advocacy organization, rather than one which exists primarily to assist its members in their law practices)?
  • Do you think guidelines, whether formal or non-binding, need to be issued to help determine the organization's legislative advocacy positions, to wit, except in emergent and/or unusual circumstances the leadership couldn't purport to speak for the membership on certain matters where there is known to be a wide divergence of views amongst the membership?
  • What do you consider to be the three most important issues facing AILA as an organization today, whether legislative/regulatory in nature or internal governance?
  • Any other comments or suggestions you wish to add about AILA's advocacy efforts?
  • Obviously there could be many other questions, or a better framing of these, but at least this is a start.

    How should AILA use such membership-generated information?

    I'm not suggesting that AILA must take a survey on every issue and/or at frequent intervals, nor am I advocating taking all decision-making authority away from the elected leadership (especially as regards internal governance), but when it comes to AILA's public face that leadership is elected to represent us accurately and honestly, and I don't think that's being done, albeit unintentionally.

    I'm also not suggesting that every press release or testimony on Capitol Hill contain AILA's latest survey results (e.g., "65.3% of our membership agrees with this position").

    What I am suggesting, however, is that the leadership make a concerted and sustained effort, for the first time as far as I can tell, to reach out to the membership, to learn how we feel on major controversial issues before they purport to speak for us. It is time for AILA to stop hiding behind the fact that we have (normally uncontested) elections (with virtually always only one candidate per office, a ballot which would have made the Soviets proud, and with the assurance that every year each person moves up one notch in the pecking order) and that because of them the leadership can justifiably claim to know what we're all thinking and can thus represent same to Congress, the media, and the general public.

    The information can be gathered anonymously and aggregated. Privacy could be protected, just as it is with election ballots. At least it's worth a try.

    It's unfortunate that the string on the Message Center, as well as some comments on the RDC listserv, turned into what it did, but there is plenty of blame to go around. You'd be amazed at the number of members who feel they have no voice in the organization, that the Message Center becomes a black hole for gripes, that the leadership is generally a popularity contest. Whether these concerns are valid or not, they are held by a significant portion of the membership, however silent they may be.

    Frankly, I don't really care what the leadership or staff of AILA thinks of me; I've seen too many presidents come and go and nothing ever really changes. You have a chance to initiate some long-overdue actions and determine where the majority of the membership stands on a variety of critical issues facing AILA, and I sincerely applaud you for making an effort. If a proper survey is conducted and the leadership takes it into account, and right now I am far from confident that will happen but at least there is hope, then it will benefit everyone regardless of the results. You can be the first president to make a real difference in this organization in many, many years.

    Yours, Kenneth Rinzler
    Attorney at Law
    3229-B Sutton Place, NW
    Washington, DC 20016-7519
    Tel. 202-363-1534
    Fax 202-363-1535

    About The Author

    Kenneth Rinzler is an immigration lawyer in Washington, DC, and a frequent visitor to consular posts, having now traveled to 40 countries. A graduate of Georgetown University and Seton Hall University School of Law, he is a member of the District of Columbia, Indiana, New Jersey, and U.S. Supreme Court Bars. In addition to authoring articles for the American Immigration Lawyers Association (AILA), he has written on immigration law for the German American Chamber of Commerce. Before specializing in immigration law, he spent nearly ten years working as a legislative assistant and counsel to a U.S. Congressman, and thus has an intimate knowledge of Federal legislative and administrative procedures.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.