The headline in a report on KGUN9 (a Tucson, Arizona TV station) reads:

Group of illegal immigrants shot at, 1 wounded near Rio Rico (AZ)

Apparently a group of undocumented immigrants  were shot at while walking in the desert away from the border  on Friday.   The reports indicate that two men wearing camouflage used high-powered rifles to shoot at them.   One of the five immigrants was wounded in the attack and was treated by local authorities in the hospital.  This same group also told authorities that they had passed two bodies nearby during their trek.

Another Headline in the Arizona Republic Reads:

Phoenix murder of Latino man called hate crime

The Maricopa County Attorney’s Office has alleged that the May 6 fatal shooting of a Mexican-American man in south Phoenix by a neighbor shouting racial epithets was a hate crime. The allegation was filed June 9 as one of six aggravating factors that the office raised in the case of Gary Thomas Kelley. Aggravating factors allow judges to enhance prison sentences in the event of a conviction. Kelley, 50, is charged with second-degree murder in the killing of Juan Varela, 44. He also is accused of menacing Varela’s brother Antonio with a gun. According to initial police reports, Kelley shouted, “Hurry up and go back to Mexico or you’re gonna die.” Varela, in fact, was a third-generation, native-born U.S. citizen.

George Santayana, a notable philosopher, coined the phrase, “Those who do not learn from history are doomed to repeat it.”   We have seen this type of hatred before, all starting with a belief that the majority was just trying to get people to “obey the law.”  Xenophobia has a long history in America.  Isn’t it time we got over our fear of the foreign, and embrace what our own experiment in democracy has shown:  That immigration makes us stronger!

Use as a simple example, the U.S. National Soccer Team, making a run for advancing into the next round of the world cup. The names on this team reflect a vibrant country of immigrants and acceptance of diversity:  Howard, Guzan, Spector, Hahnemann, Bocanegra, Onyewu, Cherundolo, Bornstein.  This is not a team of  ”native” Americans, but team of immigrants.  Stronger becuase of their diverse backgrounds, not weaker.

Yet, we struggle with a national debate on immigration, fueled in some part by fear, some part by racism, and some part by economics.  But, can you answer me this question:  Why do State Legislators keep spending so much time on the immigration issues, when they have other more important issues to deal with? Do state legislators really believe that if every immigrant left their state, that every other issue would disappear?  Everyone would have jobs, there would be adequate healthcare for all, there would be no shortfall in state revenues, and crime would be eliminated?  Do they really believe this?  Or are these demagogic legislators really just trying to stir up hatred, distrust and their supports for election purposes?

We all can understand the economic argument, although the facts bear out that deporting 12 million people is not only economically non-viable, but would be a 1.7 TRILLION dollar hit to our economy.  To some extent, we can understand the fear of the new, the fear of the stranger. Such fear has been around for as long as we have been a nation. That we will have to get over, and I believe that cooler heads will prevail.

What we cannot understand is the race based legislation that is being passed in places like Arizona.  You can argue that SB 1070 is not race based. BUT, the intent of the legislation is clear–chase Hispanics from Arizona.  Many other states around the US are going to try to adopt this type of legislation.  But, like legislation from prior years which targeted African Americans, and Asian Americans, and even German Americans, this legislation will be laid in the dust bin of history.  I just pray it happens before more people are killed, before more people take the hidden race baiting of laws like SB 1070, to the action stage. We do not need more deaths, we need more leadership.  Leadership that will solve this crisis and create an immigration solution that works FOR America, not against it.

It’s fair to say that no one likes price increases.  However, any price increase is far easier for a consumer to swallow if the consumer feels that he or she is getting something of value in return for the additional money paid, whether it is an improved product or more efficient service.  Would that we could rationalize the fee increases announced by USCIS today by saying that we and our clients are getting more for the money. Unfortunately, we’re not.  In fact, it seems as though we are getting far less than we ever did, in terms of efficiency, accessibility and quality of adjudications.

Yesterday, due to lower than projected fee revenues, USCIS proposed a fee increase that will amount to an average increase of  10% across the board.  USCIS will issue the formal proposal on Friday and there will be a 45 day comment period.  This, in combination with the 66% fee increase that was implemented in 2007, constitutes a tremendous hit in the pocketbook for a variety of users of immigration services. For example, an I-130 petition for an alien relative will jump from $355 to $420, under this proposal, thus impacting those who want to be reunited with family members.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also bear some of the brunt, with I-140 petitions for immigrant workers increasing over $100, premium processing going up by $225 and a brand new fee of $6,230 to establish a Regional Center under the EB-5 program. And –perhaps the coup de grace—fees for filing I-290 Notices of Appeal will increase from $585 to $630, a $45 dollar increase that will allow us to continue to file appeals that take over 2 years to adjudicate and generally conclude with either a rubber stamping of the original decision, or as in a handful of recent AAO decisions, a tortured legal analysis resulting in increasingly restrictive interpretations of the law.

Why do these fee increases feel like a punch in the stomach to immigration practitioners?  Because they come at a time when the quality of decision-making and the ability to correct even the simplest errors or address basic problems with USCIS are at an all-time low.  A small sampling of the problems we have all experienced with alarming increased frequency over the past few years:

• Application of new extra-regulatory standards in case adjudication. Example: The bar for L-1B eligibility has been raised to such a high level that petitioners are virtually required to demonstrate either that the beneficiary possesses extraordinary ability or that the company would fold without the services of the beneficiary.
• Adjudication of issues not within the province of USCIS:  Service Centers have issued RFE’s on I-140 immigrant visa petitions picking apart legitimate employer requirements on a labor certification that has already passed muster with DOL.
• A “pick and choose” attitude with respect to previously issued long-standing agency guidance.  Example: Service Centers are now routinely issuing RFE’s on extensions of stay in a flagrant undermining of the Yates Readjudication memo which clearly discourages readjudication except in cases of material change or clear error.
• Lack of accessibility of agency officials and decision-makers. Example: With the exception of those who pay handsomely for the privilege of premium processing adjudication, access to an adjudicator or an administrator at a USCIS Service Center has become a thing of the past. Try getting a mistake in a priority date on a notice fixed. Try communicating with a Service Center when a beneficiary with a pending adjustment has become current due to the approval of an immigrant visa in a different preference classification.  The new lockbox system –a system that in my view serves only the interests of efficiency  without inspiring confidence in the security or quality of the processing of cases– has exacerbated that problem even further. An AILA member reported sending an e mail to the lockbox support e mail address complaining about an improper rejection of a case. The response requested the receipt number. It would be funny if things like this did not happen to all of us so frequently.
• Lack of predictability in decision-making: Example: The blow-back from the Neufeld memo’s redefinition of the employer-employee relationship for H-1B purposes.  An employer who lawfully places H-1B employee at a client site over a long term can no longer tell the client whether that employee’s stay can be extended. And adjudicators are now artificially limiting periods of stay for H-1B workers based on unfounded presumptions regarding lack of future work. Another example: Service Center reliance on non-predecent AAO decision in case adjudication –to the point of parroting the language of those decisions in RFE’s and denials..
• Lack of respect for the role of counsel in various proceedings: Examples:  Practitioners report that they are sometimes not copied on RFE’s, and that district offices from time to time have barred attorneys from accompanying their clients to adjustment interviews.

On a daily basis, these problems in the adjudicatory process hurt families, hard-working individuals who are trying to engage in the appropriate legal processes in order to remain here, large businesses trying to retain talent, and small businesses that want to make a go of it in the U.S.  In one of the first stakeholder meetings he held, Director Mayorkas vowed to create a culture in which a benefit would be approved if there is no clear basis for denying it. Unfortunately in the field, the opposite seems to be occurring:  adjudicators often seem to be searching for a basis to deny an otherwise approvable case.  This has been a trend for several years—but the source of the problem is a mystery.  Director Mayorkas stated that USCIS is closely reviewing the adjudicatory process to improve consistency and quality.  But USCIS is going to have to dig deep, confront some difficult structural issues, and implement some massive, culture-changing fixes if the agency wants its products and services to be worthy of their new price tag.  Until that happens, each time I attach a check to a filing, I’m afraid I won’t be able to shake off the phrase from the classic Dire Straits song that’s been going around in my head since the fee increases were announced: “Money for Nothing. . . .”

I was at church on Sunday when a fellow parishioner decided to engage me on the Arizona anti-immigration Law.  His main point was this:  ”it is exactly like federal law.”  When I explained to him that it was not actually “exactly” like federal law and that in fact there is no federal law allowing for racial profiling and arresting people because they look “illegal,” he would not believe me (keep in mind, we are at church).

I have heard repeatedly over the last month, from folks who may have read the Arizona law, but who have NOT read the federal law, that the Arizona law is somehow nothing more than an extension of what the Federal government already does.  Nothing could be further from the truth. In fact, the Arizona law is classic Kris Kobach.   When he worked in the Attorney General’s office under Ashcroft, he took Section 263 of the INA (written as part of the Alien Registration Act of 1940 — this law is how we put thousands of Japanese into internment camps), and turned it into “Special Registration” or NSEERS.  NSEERS was designed to have Muslim men who had come into the U.S. legally come and “register” with the then INS.   NSEERS did not require anyone who entered illegally come in and register (that is true).   The program is considered an failure, as it produced no viable evidence of anyone involved in terrorist activities.  It did lead, however, to 13,000 Muslim men being arrested, jailed and placed in removal proceedings, so perhaps Kobach did achieve his goal.

That said, and to make the argument that the Arizona law mimics federal law, Kobach has now taken Section 264(e) of the same Alien Registration Act of 1940, and included it in the new Arizona law (A.R.S. 13-1509).  Section 264(e) makes it a federal misdemeanor, punishable by 30 days in jail and/or a $100 fine, to fail to carry one’s ”certificate of alien registration or alien registration receipt car issued to him pursuant to subsection (d).”  Now subsection (d) of the INA 264 says:  ”every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this Act shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at a such time as shall be prescribed under regulations issued by the Attorney General.”   That alien registration document refers to the registration document created under the section of law that Kobach previously used to remove Muslim men from America.  However, in case you were thinking that this federal statute was actually being used, a search of court records reveals no prosecutions federally for this offense, and the last citation to the statute in an immigration appeals court case 32 years ago.  

So, while technically true that federal law does require anyone required to “register” to carry proof of that registration with them at all times, in reality, enforcement of this law has been suspended for decades for good reason–the law has not kept up with the changes in immigration law.  There are now dozens of ways to prove one’s legal status, many of which do not even include proof (e.g. Canadians who enter by showing a passport are given no proof of entry).  The law is basically unenforceable, or other words, broken.

A bigger issue, however, is the provision in the Arizona, that is causing the most outage —  the racial profiling provision found in Section 3 of HB2162, now A.R.S.  Section 11-1051. This is the big lie. This provision does NOT have any federal immigration statutory counterpart. There is a federal regulation that reads as follow:

8 CFR 287.8(b)(2)  If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.

The question becomes this.  What are “articuable facts” to a trained ICE or CBP officer of a person’s illegal presence in the United States, versus what those facts are to a Maricopa County Deputy Sheriff?   Let’s not kid ourselves, this new Arizona law will lead to racial profiling, and thus creates the strong possibility that it is unconstitutional.  Kobach knows he is pushing the envelope on constitutionality here. He has repeatedly played this game at the expense of cities and counties around the United States. His plan is clear, keep getting gullible and politically ambitious politicians to pass marginally constitutional laws, in the hopes of establishing the outer fringes of what is unconstitutional on the issue of immigration enforcement (e.g. mandatory e-verify vs. housing discrimination).

So, Section 11-1051 is an attempt to establish how much “profiling” will be allowed in Federal law.  Kobach wrote:

“[F]or any ”lawful” stop, detention or arrest (actually he wrote “contact” but then realized after passage that this would fail constitutional muster so he had the AZ folks change it) made by a law enforcement official or a law enforcement agency of this state,  . . . county, city, town . . .  in the enforcement of any other law or ordinance of a county, city or town or this state (to make sure to include housing violations and cars on blocks in the yard, because you know those are signs of  ”illegals”), where ”reasonable suspicion” exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, . . . .

Do you really believe that a statute this vague, ambiguous and downright inflammatory actually will pass constitutional muster?  I hope not, because it does not.    Now, tell me this–What does this language mean? The term “reasonable suspicion” is nowhere defined in the Immigration and Nationality Act.  So, what is “reasonable suspicion” that  someone “is an alien unlawfully present?”  Is it the clothes they wear? Their haircut? Perhaps the car they drive? The person’s accent?  Or, do you just know it when you see it, like pornography.

Perhaps the problem here is Kobach. Do we really want a man on a mission to aggrandize himself (and make a living on the lawsuits he causes to be filed by the laws he writes) to be the puppet-master behind these ambitious blinded politicians?  Isn’t a dialogue on the most effective way to curb illegal immigration, without passing unconstitutional laws denigrating entire races of people?  Surely we, as a society, are capable of agreeing on a solution that enforces our borders, punishes bad employers, secures America, AND provides compassion to people, energizes our economy, supplies needed labor and investment, and provides for an appropriate flow of immigrants and non-immigrants in the future.  I just hope we come to a solution before Kobach dreams up his next unconstitutional nightmare.