by James A. O’Malley and Lelia Ruckenstein

Published in www.irishcentral.com, October 19, 2010


o-malley-attorneys-media-1Immigration is a divisive subject, probably even more so than health care reform.

Look at the state of Arizona, which passed its own immigration law. This is like New Jersey issuing its own passports. Sounds ridiculous but this is what happens after years of Congressional inaction.

On July 6, 2010, the Department of Justice sued in Federal court, challenging the constitutionality of Arizona’s immigration law. On July 28, 2010, a federal Judge issued a temporary injunction against the law becoming effective on July 29, 2010.

It’s clear that the federal government has to step in with real immigration law reform before more states follow suit creating legislative chaos. But even though President Obama in his speech on July 1, 2010, to the American University, outlined his plan for immigration reform, without Republican support it is unlikely that legislation will be passed.

Unfortunately, just at the mention of “immigration,” voices become shrill and tempers flare. Remember Congressman Joe Wilson’s outburst (“You lie”) during President Obama’s address to Congress when the President explained that the new health plan would not cover illegal immigrants? Lou Dobbs might be gone from CNN but the anti-immigration chorus continues to spew attacks on immigrants, spreading fear and hostility instead of pushing for constructive changes. And a group of Republicans– some of whom had vigorously supported immigration reform before they flip-flopped on the issue– are now trying to repeal the 14th Amendment to the Constitution, which grants US citizenship to children born here.

While everyone acknowledges that the system is broken, there has been little if any political will to pass necessary legislation. The urgency cannot be exaggerated. Our current immigration law is a patchwork of amendments of the Immigration and Nationality Act of 1952, which was the last major overhaul of US immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 was a botched attempt that fell short of meaningful reform and created more confusion. Comprehensive immigration reform is long overdue.

On December 15, 2009, Representative Luis Gutierrez (D-IL) introduced a comprehensive immigration reform bill, HR 4321, in the House. Because there was no comparable bill in the Senate, the Gutierrez bill has not advanced very far. On March 19, 2010, Senators Charles Schumer (D- NY) and Lindsey Graham (R-SC) announced in an editorial in “The Washington Post” the outlines of an immigration reform bill. Lindsey Graham withdrew his support for the bill saying that the health care reform bill “pretty much kill[ed] any chance of immigration reform passing this Senate this year.” Graham also now supports the repeal of the 14th amendment in an effort to show that he is not soft on illegal immigration.

On September 28, 2010, Sen. Menendez (D-NJ) and Sen. Patrick Leahy (D-VT), introduced the Comprehensive Immigration Reform Act in the Senate. Now that there are comparable bills in both houses, Congress should act and finally fix this broken system. Republicans who had supported and sponsored immigration reform bills in the past are now blocking any legislation Democrats propose and many Democrats run scared, afraid that they will lose elections if they even mention the word immigration. Both parties must end the posturing and political games and pass an overhaul of immigration law.

The Menendez bill, similar to the bipartisan outline, is a good framework. It proposes to end illegal immigration in the US by placing the burden on employers to hire only people who are legal. A verification system for all employers would be in place within five years and employers would have to verify a person’s legal status before hiring them. Non-compliant employers would face stiff fines and possible criminal prosecution. This coupled with enhanced border security and domestic enforcement would, according to the plan, dramatically reduce illegal immigration. Also under this bill, the estimated 12 million undocumented already here would be given a path to citizenship, a process that would involve security clearances, fines and paying back taxes. The bill includes humanitarian sections such as the DREAM (Development, Relief and Education for Alien Minors) Act, which grants legal status to children who have graduated from high school in the US. Most Americans would probably agree with this and many other ideas in the bill.

As a practicing immigration lawyer for more than two decades, I believe that it is time to take the anger and misinformation out of the debate and look at the stories of real people to understand how our immigration system needs to be fixed.

Take the case of Lucy Sanchez. (All clients’ names have been changed.) Lucy was brought to the United States from Ecuador illegally as a six-year-old by her parents. The Sanchez were part of the wave of foreign workers who came to the US during the economic boom of the nineties and ended up staying and working here illegally.

Lucy excelled at the local public high school, scored astronomic numbers on the SATs, and at seventeen, was accepted with a full scholarship at one of the country’s top universities. Ostensibly, Lucy is a normal and very bright American high school student. She has no memory of her native Ecuador and was on the threshold of a great future. However, there is a problem. Lucy is an illegal alien. This came as much of a shock to her as it did to the university’s admission office. Like many illegal aliens, Lucy’s parents never explained to their daughter their precarious status in this country. Over the years, they had hoped against hope for some kind of solution or path to becoming American citizens.

Lucy could not take up her scholarship and was working a minimum wage job at a fast food restaurant, experiencing severe depression. In a few years, she could have been your or my cardiologist, or a famous scientist. There was nothing that I, as an Immigration lawyer, could do for Lucy, when I was consulted by her parents. The law simply does not provide any relief for her.

Lucy’s parents worked two jobs: her father in a factory and driving a cab at night, her mother as a nurse’s aid and cleaning offices at night. Although Lucy’s parents have held jobs that are essential to the local economy for more than eleven years, the present immigration system does not provide them and their children with any option for becoming legal. One of Lucy’s teachers was even willing to adopt Lucy if that would allow her to become an American citizen and take up her scholarship. Unfortunately, that was not an option. Even being adopted by an American citizen would not have made her an American citizen. (Only if the adopted child is under sixteen and adopted directly from a foreign country, will the child be able to claim American citizenship.)

Lucy, along with millions of other children of illegal aliens, are innocent victims. Many were brought to this country by their parents as young children, some even as infants. Most are assimilated and do not remember their native country and in some cases even the language. Approximately 65,000 students who graduated from US high schools this year are illegal aliens (according to Dream Act Portal, www.dreamact.info).

The DREAM Act, originally introduced in the US Senate in 2001 by Senator Richard Durbin (D-IL) and reintroduced by Senator Durbin and Senator Richard Lugar (R-IN) in 2009, would provide legal status for many of the children who are here illegally through no fault of their own. Children who entered the US before the age of 16 (and have lived here for at least five years) would be given a conditional residence status that could eventually lead to US citizenship. All previous versions of this bill have so far died in Congress. And on September 21, 2010, the DREAM Act, tacked onto a military spending bill, was again blocked by Republicans who argued that the bill had no relation to defense. (Senator Durbin immediately reintroduced the DREAM Act as a stand alone bill the following day.) Republicans seem bent on making sure that no immigration legislation is passed. But now is the time to stop the political games and pass the DREAM Act as part of a complete overhaul.

The knee-jerk response of opposing any immigration reform bill because it might reward illegal aliens with “amnesty” (which supposedly perpetuates and attracts more illegal immigration) misses the point. We cannot pretend that 12 million people are not here, or do not exist. Most of them, like the Sanchez, work, have families (some of whom are American citizens), and live normal lives.

Providing a path to citizenship for these millions is not only a humanitarian approach but a practical one. It will bring people out of the shadows and increase our security, and tax and social security revenue. According to Janet Napolitano, secretary of the Department of Homeland Security, which oversees immigration in the US, “in order to have fully effective law enforcement, we need Congress to create the legal foundation for bringing the millions of illegal immigrants in this country out of the shadows…. We will never have fully effective law enforcement or national security as long as so many millions remain in the shadows.” (November 13, 2009, address to the Center for American Progress).

Unlike in previous amnesties, people will have to admit that they broke the law, pay fines and any back taxes and penalties owed. They will have to learn English and get to the back of the citizenship line. Criminal background checks would identify those who should be deported. It would not only protect these immigrant workers from abuse by unscrupulous employers, but also protect American workers who would not have to compete with low or sub minimum wage labor. Once legal, workers can join unions.

The alternative—to deport these millions— is not feasible because first it is physically impossible to do this, and secondly, even if it were possible, it would be extremely costly and disruptive to our society. The state of California and the city of New York and many other metropolitan areas would suffer greatly if all the illegal immigrants who work in such local industries as restaurants, hotels, construction and homecare and childcare were taken out of the workforce. The new legislation should also include temporary visa programs based on justifiable employer needs for workers of any kind—including unskilled workers.

Contrary to popular opinion, among the millions of the undocumented, there are many skilled, entrepreneurial, highly successful people. Consider the case of James Kaye. James came to the United States in 1995 from Europe for a short vacation. A car mechanic by trade, he was impressed by the car culture in the United States and immediately saw business opportunities that were not available to him at home. He returned to the US the following year with a definite business plan: he would set up a business importing and servicing European automobiles.

James did not immediately apply for an investment visa and although he was soon successful in his business, try as he might, he could not navigate the immigration maze. At the time he was advised that his chances of being granted an investment visa were slim because the amount of capital he was bringing to the venture would be considered too little. However, what he lacked in capital he made up for through ambition and determination. Within two years, the business was thriving with several employees and a growing customer base.

There is a catch-22 here: in order to get the appropriate business investment visa James had to first establish the business. But by then he was already an illegal alien having overstayed his visitor visa. When he came to my office in 2009, James had a flourishing business with 17 employees, and two American children, but he and his wife were illegal aliens. The law does not provide any solution for them.

Even people who do everything by the book encounter numerous obstacles and often end up defeated by the system. For example, the process by which one qualifies for lawful permanent residence of the US is burdensome and out of sync with the very aims that it was designed to further— family reunification and the US labor market.

Recently, John Smith, a UK citizen, was granted lawful permanent residence of the US based on his transfer from the UK to the US parent company of his employer. (He had been recruited for his expertise in European banking systems.) Six months later, he married his wife Joan, also a UK citizen, in London. Under current US immigration law, it will be July 2014 at the earliest (and more likely well into 2015) before Joan is granted permission to reside lawfully in the US with her husband. This is because spouses of lawful residents are subject to an annual quota, which is constantly backlogged by several years.

An alternative is to wait five years until John qualifies for US citizenship, when he can petition for Joan to join him in the US as the spouse of a US citizen. (There is no annual quota for spouses of US citizens to obtain permanent residence.) Therefore, couples like John and Joan can be separated for many years. When I explained this to John and Joan at an office consultation while Joan was in the US on a 90-day tourist stay immediately following their marriage, they were incredulous. But there is even worse news. In all likelihood, Joan will not even be allowed to come to the US as a tourist during her long wait for US residence because US Immigration law requires that a person entering the US as a tourist cannot have the intent to reside permanently in the US at any time. This did not make sense to them and I perfectly understand their reaction.

Their choices are limited: either John gives up the job he was recruited for and his US permanent residence (which was granted at the request and for the benefit of his US employer) and returns to live with his wife in the UK , or Joan remains in the US as an illegal alien until her permanent residence is granted. The other also not very satisfactory option is that they live apart (he in the US and she in the UK) until she qualifies for permanent residence based on the current law. So much for family values.

If John had married his UK fiancée before his permanent residence was granted (even one day before), she would have obtained permanent residence simultaneously with him and none of this headache would have ensued. However, marrying after his permanent residence was granted (even one day after) subjects them to this ridiculous situation. The immigration overhaul has to include family reunification legislation that treats spouses and children of permanents residents the same as those of American citizens.

Some of the changes brought about by the 1996 “IIRAIRA” bill, which amended many sections of current US immigration law or the 1952 bill, were in my opinion unintended and need to be reviewed. The “IIRAIRA” states that any crime considered an “aggravated felony” can bar a person from American citizenship and get them deported. US immigration law has always taken a dim view of criminal behavior. From the earliest days of the USA, a criminal record could bar a person from entering or residing in the country. The “aggravated felony” section of the IIRAIRA amendments drastically enlarged the category of crimes which could bar a person from the US to include any crime of violence, theft or burglary for which a possible maximum sentence of 1 year imprisonment could be imposed.

In some states, petty theft, verbal assault and even disorderly conduct —the last two classified as crimes of violence—can carry a possible maximum sentence of 1 year imprisonment. These sentences are seldom if ever imposed for these types of petty crimes which in most states are misdemeanors and not felonies at all. However, under the IIRAIRA, a person who got into a shouting match with their neighbor, was summoned to court for verbal assault and plead guilty and paid a small fine, could now be deported and barred from ever entering the US. (Verbal assault in such states as Georgia carries a maximum possible sentence of one-year imprisonment.)

When Robert came to my office he was married to Emily, an American citizen, and had applied for a green card. His case, based on marriage to an American citizen, was straightforward. However, there was one little glitch. He had been arrested for stealing a packet of peanuts from a local 7 Eleven store on the campus where he was a student six years before. He never thought that this packet of peanuts would come back to haunt him and almost ruin his life. Robert had been a foreign student for 6 years, and now had a bachelors and master’s degree in computer science.

Unfortunately, he had pilfered a packet of peanuts in California, a state in which petty theft carries a possible maximum sentence of one-year imprisonment. Immigration law is bound by the actual conviction regardless of the circumstances or the seriousness of the crime. In other words, under immigration law, stealing a packet of peanuts is an “aggravated felony.”

Our only recourse was to apply to the Immigration Service for a waiver of past criminal conduct. Such a waiver is granted under certain conditions, the most important and relevant of which is establishing that the US citizen would suffer extreme hardship if their foreign-born spouse were deported and barred from living in the US. One of the arguments against granting the waiver is that the US citizen can go and live abroad with their spouse in their country. Our response was that this would force the US citizen to give up his or her birthright, the standard of living in the US and the opportunities that this country affords. The alternative is separation, and most likely divorce.

Because Immigration law will not look behind the conviction and unreasonably lumps together all kinds of crimes, the same standard of hardship is required for the waiver regardless of the nature of the crime. Neither Robert nor his wife could understand that stealing a ninety-nine cent packet of peanuts is in the same category as selling cocaine or even crimes of violence under US Immigration law. It was hard for them to understand the convoluted process of obtaining a hardship waiver for such a petty incident that had been dismissed by the criminal court.

In Robert’s case, we showed that his wife’s employment opportunities would be severely limited in Venezuela . She was a professional urban planner who specialized in eco-friendly mass transit systems in large cities. She did not speak Spanish, which is the official language of Venezuela . Also, her entire extended family lived in the US siblings, parents and cousins. Fortunately, the appeals’ office agreed with my argument that Robert’s US citizen wife would experience extreme hardship whether she lived alone in the US or went to live with Robert in Venezuela . The process took two years, a lot of stress, some tears, and much expense and time. All of this for a packet of peanuts.

Recently, on June 14, 2010 the United States Supreme Court (in Chiricuri v Attorney General) threw out the deportation order of a person who had lived in the U.S. as a lawful permanent resident since the age of five but was placed under deportation for two minor drug-related offenses: simple possession of a small amount of marijuana and possession without a prescription of one anti-anxiety tablet. The Supreme Court concluded that automatic deportation for such minor offenses is out of proportion with the crimes and is against common sense.

Clearly, this draconian law, which has been severely undermined by the country’s highest court, has to be changed as part of an immigration overhaul so that people are not punished inordinately. Which does not mean that the US should not bar criminals, but a little common sense would go a long way. The Department of Homeland Security should be able to take into consideration the severity of the crime and at least, as in the criminal cases, distinguish between real crimes and such minor ones as stealing a packet of peanuts.

Because under US Immigration law one cannot receive a tourist visa if one has any intent of residing permanently in the US, Consular officers routinely make absurd decisions. For example, a Russian woman Anna K. wanted to visit her father, an American citizen living in New York. The Consular officer refused to give her a tourist visa because he concluded that she must intend to reside permanently in the U.S. since her father was an American citizen. Even though she explained that she had a husband and two children in Moscow, it was impossible to convince the Consular officer that she had no intention of moving permanently to the US.

Incredibly, the same officer suggested that she apply for permanent residence of the US , which would allow her to visit her father. She did not want to go through the costly and time-consuming process of obtaining a permanent residence visa simply for a two-week visit. She eventually gave up trying to visit her father. The “immigrant intent law,” written generations ago, leads to absurd situations like Anna’s and Joan’s and must be reviewed.

The entire body of immigration law needs to be looked at. As illustrated by the stories above, many of the concepts, presumptions and procedures are out of date and out of sync with the modern world. Piecemeal attempts to correct years of neglect and mismanagement of immigration law are doomed to failure. Securing the borders will only work as part of a comprehensive immigration overhaul. The Menendez bill currently in the Senate is an excellent starting point and opportunity not to be missed to finally fix the system. Let’s insist that Congress and the Obama administration will confront and deal with immigration reform, for once and for all.

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