My esteemed colleague Roger Algase has just written a blog that addresses some perceived concerns of what is likely to occur if the Republican challenger wins the White House this November.
In sum, Roger has listed the following predictions of potential changes in immigration policy should Romney win the election. I strongly, and respectfully disagree with both Mr. Algase's predictions, and conclusions, offering the following in response.
Prediction 1. There will be "[m]assive federal grants of money and manpower to the states in order to help them enforce their Alabama and Arizona type immigrant persecution laws"
This is already happening under Obama as he just increased the number of deportation agents by 25%.
Obama has justified this increase by stating that ICE is targeting "criminal" aliens, when the statistics actually show that far fewer criminal aliens are being deported. Moreover, the Obama administration's definition of "criminal" includes people that have never committed a crime.
Prediction 2. Romney will make "all immigration violations, even the most trivial and technical, felonies."
Since taking office President Obama has more than DOUBLED the amount of federal criminal prosecutions for "trivial" immigration related crimes. There has never been a President in the history of the United States that has targeted immigrants for criminal prosecution like the Deporter in Chief.
Prediction 3. Romney will "nullify the 14th Amendment's guarantee of birthright citizenship."
The President does not have the authority to unilaterally "nullify" any amendment of the Constitution.
This statement is hyperbole at best.
Prediction 4. Romney will put an immediate end to prosecutorial discretion.
Did it ever begin? About 2,000 cases nationwide have received a favorable exercise of prosecutorial discretion and many of those involved cases that garnered media attention. Wouldn't want any more bad publicity in an election year.
The Morton memo was nothing more than a PR stunt to placate the Hispanic electorate, and to distract people away from the fact that the vast majority of people being deported have no criminal convictions, have United States citizen spouses and children, qualify for a favorable exercise under the established criteria, and have been racially profiled by the administration for deportation.
As for increasing the annual number of deportations to 1,000,000, this is literally an impossibility, or President Obama would have already achieved it. The current Obama deportation rate is 400,000 per year. A record.
The immigration courts are so backed up with pending Obama deportations that it is common practice for immigration judges to adjourn cases for 1-2 years between hearings. In order to accommodate 1,000,000 deportations per year Romney would need, at the very least, to double the number of immigration judges nationwide, which is currently impossible due to the hiring freeze in place. Even if the freeze is ultimately lifted it would take time to hire and train the judges. This doesn't happen overnight.
In addition to overwhelmed judges, Office of Chief Counsel has been dragged away from their caseload to review hundreds and thousands of pending Obama deportations, which in 99% of the cases they ultimately move forward with deportation. If anything, Obama has wasted taxpayer resources to create the illusion that he is pro-immigrant.
Not exactly my idea of what constitutes "smart" immigration enforcement, unless you define "smart" as idiotic and wasteful.
Parenthetically, I would welcome the increase in the number of immigration judges as well as trial attorneys because due to the caseload that President Obama has forced them to accommodate, immigration judges and trial attorneys are overworked, and understaffed, which adversely impacts my clients' right to due process.
Prediction 5. Romney will create a moratorium on all further immigration.
False. Congress creates the law. This is beyond the power of the Chief Executive who may only sign or veto legislation that is placed on his desk for consideration.
Isn't this the same tired excuse offered by Obama over the last 3.5 years? That he doesn't have the power to change the law. This line has been repeatedly parroted by Obama to excuse his complete inaction on immigration reform.
It should be noted that the current draconian immigration law that has been described by most as "beyond broken" was signed by President Clinton, the last Democrat who held office. I find it tragically ironic that the current Democrat in office is utilizing the law signed by the last Democrat in office to destroy more families with deportation than at any time in history, while attempting to paint the Republican challenger as anti-immigrant.
With friends like these, who needs enemies.
I believe that the exact opposite will occur if Obama loses this election. I envision an increase in the number of H-1B visas, as well as a reallocation of employment bases visas.
There has never been a period in my career where an administration has been more hostile towards business immigration. Obama has put up barriers to obtaining the most mundane employment based visa. It is as if he has put a moratorium on immigrants coming to the United States for business purposes.
The bottom line: vote Gary Johnson for President in 2012 if you want to stand behind a man that will not lie to your face and then stab you in the back as you cast your vote in the voting booth.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).