By Robert Cohen, AILA member

I noted with interest the recent ICE Press Release proclaiming that we have a record number of foreign students, 670,000, now studying in the United States. http://bit.ly/5EDJCN.
My immediate thought was the contrast between this number and the cap on H-1B visas each year. Of course, the reason for this comparison is that upon graduation, many of the foreign students are offered jobs and would like to remain in this country. Because our universities attract the top students from around the world, these students represent the best and brightest young minds in the world. ICE is trumpeting the fact that we have worked hard in the years following September 11 to restore the attraction for foreign students to study in the United States. However, when they graduate, and are poised to make significant contributions to our industries and economy, we slam the door and say no thank you.
Of course, not all 670,000 foreign students will graduate at the same time, nor will all of them wish to remain in the United States and work for U.S. employers. The ICE press release referenced a study released by an organization identified as Open Doors Online, so I decided to dig a little into the data and see what interesting tidbits might be available. By comparing the total number of foreign students with the number of new students in each of the last five years, I was able to determine that approximately 127,000 students complete their studies in the United States each year. Presumably, the large majority of these students graduate and enter the global workforce. If only two-thirds of them decide to remain in the United States, virtually all of the available H-1B visas will be required to accommodate this pool of talent. This leaves no margin for employers to bring professionals to the United States from other sources. However, employers hire not only recent graduates of U.S. universities, but employees from many sources overseas, which means that there are insufficient H-1B visas for the foreign student graduates of our schools. We spend significant resources attracting the best and brightest students in the world, we educate them at our universities, and then we tell them in the clear unmistakable language of Immigration Policy that they should return home and compete against our economy. We don’t want them here.

Just how far we will go to keep these students from settling in the United States becomes even more apparent when we dig a little further into the data to see the students’ countries of origin. It will not come as a surprise that the top two sending countries for foreign students in the United States are India and China, which in the last year, sent 103,000 and 98,000 students to the United States, respectively. Many of these students choose to remain in the United States and work, some temporarily, others permanently. Thus, it is also important to compare the number of foreign students from India and China to the number of immigrant visas available. While the H-1B visa provides for a trial employment period, if the students are going to make a home in the United States, ultimately, they will need immigrant visas.

The per country limit on employment based immigrant visas is 7% of the total, approximately 9,800 immigrant visas per year for both India and China. This is approximately 10% of the number of students from each of these countries that arrive to study here each year. Is it any wonder that Chuck Kuck recently calculated that an Indian student filing an EB-3 petition today can expect to wait approximately 15 years for an available immigrant visa? http://bit.ly/3UGrFx.

If we were to seek a policy that would expend resources to train the best and brightest minds in the world, then prohibit them from working in the United States in a manner that assured they would develop new industries and technology for our competition abroad, and then guarantee jobs and growth were to be forced overseas instead of the United States, we couldn’t have done better. Our policy is a loss not only for the 670,000 foreign students coming to study in the United States who may wish to remain in this country and work, but it is a very serious loss for U.S. employers seeking the talent of the best and brightest young students in the world. If we wish to remain competitive in a global economy, we will not only need to educate the top 670,000 students from around the world, but we need to be able to provide a means to employ them as well. Otherwise, we should not complain when our employers and our trained talent send jobs overseas.

The New York Times reported yesterday that the nomination of Stephanie Rose to be the U.S. Attorney for the Northern District of Iowa has fallen under criticism because of her key role in the criminal prosecution of nearly 400 undocumented Guatemalan farmers in Postville, Iowa in May 2008. http://bit.ly/3N8RrL.
To me the issue is not whether Rose should be confirmed. That is for the Senate to decide. But first she has a moral and ethical duty to publicly answer for her role in the prosecutions, and give assurances that as the chief law enforcement officer for the Northern District of Iowa, Rose will approach each criminal prosecution with a sensitivity that she seemed to lack during the Postville prosecutions. At a minimum Rose needs to fully explain her role, including,

• The May 12, 2008 press release from the U.S. District Court for the Northern District of Iowa announcing the temporary assignment of federal judges and court personnel to Waterloo, Iowa “in response to the … prosecution of numerous illegal aliens…” The press release was issued by the court before any of those arrested and charged had been found to be in the country illegally.

• The infamous “Defense Manual” that was, in reality, a guide to the conviction and deportation of the defendants.

• The use of the so-called “Fast Tracking” system, concocted by the government, which amounted to little more than a conviction/deportation assembly line that compromised the fundamental rights of the defendants in favor of expedited proceedings.

• The inadequate provision of CJA defense counsel to the immigrant workers, including mass hearings at which defense counsel were called upon to represent as many as 17 defendants at a time in a single, brief, proceeding, with some called on to do so on multiple occasions for multiple groups of defendants.

• The denial of access to immigration counsel for lengthy periods of time during “processing” and questioning.

• The lack of any assurance that each individual charged was afforded meaningful access to counsel familiar with both criminal and immigration law.

• The required use of an “exploding” plea agreement which contained an arbitrary 7 day expiration period without sufficient time given to the defendants to assess the case facts and forms of relief under the immigration law.

• The inappropriate, and arguably unlawful, use of “judicial removal” which lead to the automatic deportation of many defendants, despite close family ties to the U.S.

Did Rose at least raise her voice privately in opposition to the government’s use of coercive prosecutorial tactics against the undocumented immigrants, most of whom were uneducated Guatemalan farmers?

If not, why not?

Since her nomination, Rose’s supporters have tried to distance her from any discretionary role in the Postville cases claiming that the prosecutions were directed by the Department of Justice in Washington, DC. But, as The Times points out, this claim flatly contradicts the testimony of former Senior Associate Deputy Attorney General Deborah Rhodes who told the House Immigration Subcommittee last summer that the Postville prosecutions were planned by the local federal authorities. At the time, Rose was the Deputy Chief of the Criminal Division in the U.S. Attorney’s Office for the Northern District of Iowa and, reportedly, third in the office chain of command.

Did Rose really have no clue that the Postville prosecutions were being planned by her colleagues? Did she really have no prior knowledge of the ICE Postville investigation or that criminal complaints and criminal arrest warrants for 697 Postville workers were being prepared and sought by her office in early April 2008? And, in light of the Supreme Court unanimous decision that the identity-theft law could not be applied to prosecute immigrants only because they used false Social Security or visa numbers, as it was in many Postville cases, does she still think use of the law as a hammer to obtain guilty pleas from the Postville defendants was appropriate?

As U.S. Attorney Stephanie Rose will serve as the chief law enforcement officer in the Northern District of Iowa and will be responsible for coordinating many investigations and prosecutions. She needs to tell the truth, the whole truth, and nothing but the truth. The public is entitled to nothing less.

Now that health care legislation has passed the House of Representatives, all eyes are on the Senate. Will the U.S. Congress send President Obama a heath care bill he can sign? Stay tuned.
But while Congress considers health care reform, including whether or not to include a “public option”, too many immigrant detainees find themselves with no health care option at all. Since 2003 a staggering 105 detainees have died while locked up by ICE. The latest fatality, Pedro Juan Tavarez, died recently at the Brigham and Women’s Hospital in Boston. The circumstances surrounding his death are, to say the least, murky. On its website, ICE reported Tavaraz’s death in cold “bureaucrat speak” as follows,

http://bit.ly/T0ap8

ICE’s carefully chosen words reveal that Tavarez, a relatively young man, was transported to the hospital only “after [ICE] medical staff suggested possible pneumonia”, but that once he reached the hospital he was diagnosed with heart and respiratory conditions “for which he was being treated”. Apparently ICE “medical staff”—it’s not clear whether the staff included a licensed physician—had no idea what was wrong with Mr. Tavarez. The phrase “for which he was being treated” suggests his heart condition was only diagnosed and treated after he left ICE detention and was examined by doctors at Brigham and Women’s Hospital.

The ICE death announcement raises troubling questions. How long had Mr. Tavarez been ill? Did he have a history of heart problems before he was taken into custody by ICE? When did he first seek medical attention from ICE? Did the ICE detention facility’s medical staff include a physician? How long did Mr. Tavarez have to wait before he was examined by a doctor? How much time passed before ICE medical staff decided to transfer him to a hospital for appropriate medical care? Could his life have been saved had his illness been properly diagnosed and treated sooner?

Mr. Tavarez’s case has received only limited media attention. But his death adds to the increasing number of immigrants who have died in ICE custody.

ICE Assistant Secretary John Morton has pledged to design an immigration detention system that truly reflects the civil nature of immigration law. Let’s hope he makes good on his promise. In the meantime, he can start by ensuring that ICE detention is not a death sentence for an immigrant who is unfortunate enough to take seriously ill while in custody.

By Eleanor Pelta, AILA First Vice President

Late yesterday, CNN announced that Lou Dobbs was stepping down from his position as “advocacy anchor” of the network in order to “seek a more activist role.” CNN announced that Dobbs would now “carry his banner of advocacy journalism elsewhere.” Although CNN’s press release described the parting as “amicable,” news reports covering Dobbs’ departure cited recent tensions between Dobbs and CNN, relating in part to Dobbs’ on-air perpetuation of the widely-discredited theories of the “Birthers,” who questioned President Obama’s U.S. citizenship. Advocacy Journalism? Advocacy, perhaps. But journalism? It was surprising that CNN actually used this term in its’ press release. What exactly is an “advocacy journalist?” Given that a common definition of journalism is writing or reporting of news or facts in a direct presentation without interpretation, and that journalists work hard to present both sides of a particular issue, isn’t “Advocacy Journalism” a contradiction in terms?

We should be proud that AILA was the first organization in the immigrant rights community to stand up to Dobbs. Initially Dobbs staffers would tape interviews with AILA spokespeople and use only snippets of the interview to support Dobbs’ own views. Then AILA made clear to Dobbs and his producers that we would not appear on his program unless it was on a live segment. Since such a segment could not be edited and manipulated, Dobbs refused. AILA’s coalition partners followed suit, with the result that over the past 22 months, Dobbs had virtually no access to real immigration expertise. As the New York Times and The Washington Post continued to run articles discrediting Dobbs, the impact of Dobbs’ lack of access to our expertise was keenly felt—it came to a head when a representative from the office of CNN’s President called AILA to find out why Dobbs wasn’t using AILA as a resource—then the “cat was out of the bag,” as it were.

Clearly CNN must have recognized that the constant ravings of an anti-immigrant demagogue can’t be good for its ratings—let alone its’ self-image as an independent news-reporting organization. Before we all breathe a collective sigh of relief, however, let’s look carefully at Dobbs’ parting words. Last night, he stated, “…[S]ome leaders in media, politics and business have been urging me to go beyond the role here at CNN and to engage in constructive problem-solving, as well as to contribute positively to a better understanding of the great issues of our day. And to continue to do so in the most honest and direct language possible.” In light of Dobbs’ beliefs and how he has already “contributed” to the immigration debate thus far, these words take on a very ominous meaning. What might Dobbs do when he is no longer constrained, even minimally, by the boundaries of a credible news organization?

To get a sense of what might happen, we need only look at the career trajectory of one of Dobbs’ spiritual predecessors—similar in style if not his radical and irresponsible spewings—Father Charles Coughlin. Father Coughlin was a Canadian-born priest serving at Royal Oak, Michigan’s National Shrine of the Little Flower Church. One of the first political leaders to reach a mass audience through radio, Father Coughlin began his radio career as a staunch Roosevelt supporter. But, like Dobbs who claims he was radicalized by the events of September 11, Coughlin became disillusioned by the New Deal in the mid-1930’s and embarked on a campaign against “money changers” and the government, which in his view was “permitting a group of private citizens to create money.” It was not long before he was preaching out-and-out anti-Semitism, claiming that the Depression was caused by an “international conspiracy of Jewish bankers,” and that Jews (including Lenin and Stalin, both of whom, according to Coughlin, were Jewish) fomented the Russian Revolution in an effort to uproot Christianity in Russia. His magazine, “Social Justice,” also published anti-Semitic material; he began to endorse some of the policies of Hitler and Mussolini, and at a 1938 rally in the Bronx, gave a Nazi salute and stated “When we get through with the Jews in America, they’ll think the treatment they received in Germany was nothing.”

At the height of his popularity, Coughlin received more mail than FDR. When Coughlin temporarily lost his radio operating permit, he raised funds among his many supporters, purchased air time, and played recordings of his speeches. When it seemed that the government might actually try Coughlin for sedition, the Roman Catholic Church forced him to retire from his “advocacy” activities.

Those who really want to preach hate and perpetuate lies will always find a venue to do so. What will “Dobbs unleashed and unplugged” do?” He will clearly find another “Bully Pulpit,” whether it is another media outlet willing to air his rants or a run for public office, perhaps financed by those who pour their money into FAIR and the Center for Immigration Studies. Maybe we can take a minute to be thankful that Dobbs is no longer on CNN, since the victories of those who fight for immigrant rights are few and far between these days. But then let’s watch—and prepare—for his next move.

On Veterans Day this year, AILA honors the service of military veterans, past and present. While honoring all veterans, the AILA leadership in particular acknowledges the contributions of those immigrants who have served in our nation’s Armed Forces.

We note at the outset that one of the military members killed in the Fort Hood massacre last week was a former immigrant from Mexico who had risen to the rank of Major in the Army National Guard. In a classic immigrant success story, Libardo Eduardo Caraveo, age 52, had come to the US as a teenager, learned English, obtained a Ph.D., and eventually joined the US military more than a decade ago. He was assigned to an Army National Guard medical unit when he was murdered at Fort Hood. Another of the Fort Hood victims was Private First Class Kham Xiong, who came to America from Thailand as a child. Private Xiong had also volunteered to serve in our Nation’s Armed Forces. Contrary to some Internet postings, Army Major Nidal Malik Hasan, the perpetrator of the Fort Hood crimes, was a native-born American citizen and not an immigrant. We honor Major Caraveo’s and Private Xiong’s service and mourn all of the Fort Hood victims. In their memory, American flags are flying at half-staff around our Nation.

That at least two of the Fort Hood dead had immigrated to the United States is not surprising; large numbers of immigrants and naturalized citizens serve in our Nation’s Armed Forces. The Immigration Policy Center released a report this week spotlighting the contributions of immigrants to the US Armed Forces. According to the Report, foreign-born members of our armed forces are almost eight percent of the 1.4 million military personnel on active duty. More than 119 immigrant members of the military have lost their lives in combat in Iraq or Afghanistan since September 11, 2001.

This month was marked by two notable events relating to immigrants in the military:

On November 6, 2009, the President signed a law proclaiming that Casimir Pulaski, a famous Polish immigrant hero of the American Revolution, is now an honorary posthumous citizen of the United States. This proclamation led to mild joking amongst immigration attorneys (“That is the longest pending naturalization case that I have heard about”) but the passage of this law emphases an important point about American history: Immigrants have been key to America’s success on the battlefield since the dawn of the Republic, and continue to be a vital asset today.

The large numbers of immigrants in the military and the worldwide deployment of US military personnel help explain why immigration issues affect military readiness. Immigrants in the US military seek to naturalize or to bring families members to the US or adjust their status here. Many military members who are not immigrants themselves are married to immigrants or have other immigrant family members. Like everyone else in the US, these military members and their families are affected by the dysfunction of our Nation’s broken immigration system. Military families often face hardship, separation, stress, and fear as they attempt to negotiate the US immigration system.

AILA members frequently represent military members, veterans, and their families through their immigration law practices. Additionally, AILA offers its members a unique opportunity to assist military members, veterans, and their families through the pro bono AILA Military Assistance Program (MAP). AILA MAP is a collaborative effort between AILA and military legal assistance offices. Military Legal Assistance Offices provide free assistance to soldiers and their families, but they have been inundated with complex immigration legal questions. To resolve these cases successfully, they often need the assistance and experience of seasoned immigration attorneys. AILA MAP volunteers to date have helped more than 350 military members, veterans, and their families with immigration-related issues. More than two hundred AILA members are AILA MAP volunteers.

In a positive development for many AILA MAP cases, this week marked the introduction of the Military Families Act, S. 2757, a bill designed to help thousands of military family members who have been hurt by immigration law dysfunction. The bill would adjust the status of the immediate family members of persons who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts. Many potential beneficiaries of the bill are AILA MAP clients. The bill was introduced by Senator Robert Menendez (D-NJ) and has five co-sponsors to date. We will be watching the progress of the bill in coming months, and look for a companion bill to be introduced in the House.

As we celebrate Veterans’ Day, let us not forget that AILA itself also has many members who are military veterans; a few of these are veterans who work as private practice immigration attorneys while at the same time they continue to serve in the US Armed Forces as members of the Reserve or National Guard. Today as we mark another Veteran’s Day, we also salute our AILA members who are veterans and thank them for their service.

Related Links:

President Obama’s speech at Fort Hood http://bit.ly/3DQlnM

IPC Report http://bit.ly/xJIvS

AILA MAP link http://bit.ly/1L9I7s

Military Families Act http://bit.ly/1Ds1a9

Casimir Pulaski Bill http://bit.ly/2alB1k

Dear Assistant Secretary Morton:

Your assumption of the reins at U.S. Immigration and Customs Enforcement earlier this year has brought optimism. You seem to bring a much needed fresh perspective to the enforcement arm of the Department of Homeland Security. In particular your observation that since immigration law is largely civil its enforcement should reflect its civil nature gives many hope that brighter days lay ahead. In the absence of comprehensive immigration reform there is hope that with the change in leadership at DHS common sense and humane enforcement priorities will prevail.

But yesterday ICE refused to halt the deportation of Sam Mejia-Reyes and Elida Perez who have lived in the U.S. since 1992 after fleeing from Guatemala with their infant son. If ever there was a case that cried out for executive intervention to stop a deportation, this was it. Here is how the San Francisco Chronicle described the case in an editorial published yesterday morning:

Sam Mejia-Reyes and Elida Perez offer a case study on why this nation needs immigration reform. They have lived and worked in the United States since they fled Guatemala with an infant son in 1992. They saved up enough money to buy a house in Novato several years ago. Neither Sam and Elida nor their children – two of whom were born in the United States – has been in even a whiff of trouble.

Yet today the couple will be escorted on a plane for deportation to Guatemala. Immigration and Customs Enforcement sent notice Tuesday that their appeals had been exhausted. They will leave with their 4-year-old daughter, Dulce, a U.S. citizen by birthright. They will leave behind their 13-year-old daughter Helen, also a citizen and thriving in high school, along with their 18-year-old son, Gilbert, who is fighting deportation proceedings of his own.

* * *

In the cruelest twist of all, the family came on the radar of immigration officials only because of mistaken identity: On March 7, 2007, armed federal officers stormed into their house looking for a suspect who was neither a relative nor acquaintance. The U.S. government nonetheless initiated deportation proceedings against the three noncitizens in the family.

An estimated 12 million residents of the United States have come here illegally. For those who work and avoid trouble, enforcement is just a game of chance. Unfortunately, two hard-working Novato parents are paying the price for an immigration policy that is not aligned with reality or the nation’s best interest.

http://tinyurl.com/yzrgzx4

Assistant Secretary Morton, previous ICE policy directives require ICE to prioritize enforcement, placing national security and public safety at the top of the list. These directives gave you ample power to keep the Mejia-Reyes family together.

But you did not.

So, tell me, is our country more safe now that Sam Mejia-Reyes and Elida Perez have been deported? Are our citizens better protected? Have ICE enforcement priorities been served?

I, for one, am at a loss to understand what policy objective was met by the removal of two honest, hard working people. What grand national interest has been served by the destruction of yet another family?

Everyone agrees our immigration system is badly broken. That is why until Congress rolls up its sleeves and gets to the hard work of fixing it, we need people like you, who are charged with enforcing the law, to enforce it in a manner which protects the nation and gives folks like Sam Mejia-Reyes and Elida Perez, who are sadly caught in the web of immigration dysfunction, a fighting chance to eventually earn their place in the American Dream.

Round-Up of Immigration Related Legislation (Sept-Oct 2009)
Cite as “AILA InfoNet Doc. No. 09110264 (posted Nov. 2, 2009)”

The following immigration-related bills were introduced into the House of Representatives and the Senate in September and October:

New IDEA (Illegal Deduction Elimination Act) (H.R. 3580)Introduced by Rep. King (R-IA) on 9/16/09. Summary: To amend the Internal Revenue Code of 1986 to clarify that wages paid to unauthorized aliens may not be deducted from gross income, and for other purposes.

Improving Methods to Promote Regular Occurrences of the Verification of Employability Status Act of 2009 (H.R. 3676)Introduced by Rep. Broun (R-GA) on 9/30/09. Summary: To amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to make permanent the E-Verify Program, and for other purposes.

H.R. 3687 Introduced by Rep. Issa (R-CA) on 10/1/09. Summary: To amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an
advanced degree in the United States

Dairy and Sheep H-2A Visa Enhancement Act (H.R. 3744)Introduced by Rep. Arcuri (D-NY) on 10/7/09. Summary: To amend the Immigration and Nationality Act to provide a special rule for the period of admission of H-2A nonimmigrants employed as dairy workers and sheepherders, and for other purposes.

Fairness in Representation Act (H.R. 3797)Introduced by Rep. Foxx (R-NC) on 10/13/09. Summary: To prevent congressional reapportionment distortions by requiring that, in the questionnaires used in the taking of any decennial census of population, a checkbox or other similar option be included for respondents to indicate citizenship status or lawful presence in the United States.

Every Person Counts Act (H.R. 3855)Introduced by Rep. Baca (D-CA) on 10/20/09. Summary: To amend Title 13, United States Code, to make clear that each decennial census, as required for the apportionment of Representatives in Congress among the several States, shall tabulate the total number of persons in each State, and to provide that no information regarding United States citizenship or immigration status may be elicited in any such census.

Note: Each week hundreds of bills are introduced into the House and Senate, and the likelihood of any particular bill moving is usually very small. The bills posted on this page represent all immigration-related legislation introduced this week, not legislation AILA believes is important or likely to succeed.