guest blog by Charles Kuck

I was driving to court recently down a highway in Atlanta when I drove past a toll booth with a HUGE sign on it. The sign read “AMNESTY.” I thought, “wait a second!” “Amnesty” is a dirty word, literally unmentionable in polite company. How could there be an “Amnesty?”

On my way back to the office, I passed the toll booth again. Again, the sign was there. This time I slowed down (a little), and noticed it was a “Toll Amnesty.” This toll “Amnesty” is apparently a regular event in Georgia. I explored a little more about this “Amnesty,” trying to understand how a toll “Amnesty,” turning illegal drivers into legal ones is permitted, but an “Amnesty” that would turn “illegal” people into legal people is not. I dug around a little on the Internet and found some information about the reason for and the goal of this toll “Amnesty:”

What is the toll violation amnesty program?

Normally, the State Road and Tollway Authority (SRTA) charges a $25 administrative fee, as provided by Georgia law, each time someone fails to pay the toll to travel on the tolled section of Georgia 400. During the limited time of this amnesty program, SRTA is willing to reduce a portion of the $25 administrative fee to $15 per violation. During amnesty, the Customer will be responsible for the $15 administrative fee plus the toll per violation.

Why is SRTA offering its customers an opportunity to compromise their violations?

SRTA’s primary goal is to collect all tolls due. We believe one way we can accelerate the collection of unpaid tolls is to offer a temporary financial incentive to our customers – namely, a partial waiver of the normal $25 per violation administrative fee-if the tolls are voluntarily paid now.

So, the toll “Amnesty” is designed to FORGIVE people for breaking law (a misdemeanor in Georgia), bring people out of the shadows if illegality, and, as an incentive to do so, have people pay LESS of a fine than if the agents of the state went out and rounded up everyone who is a toll violator. Does the State of Georgia know who these “illegals” are? Sure they do! If you fail to pay a toll, a photo of your car and license plate is taken, so the State of Georgia knows exactly who broke the law and where they live! If only those Utah state employees lived here, they could have put their “hit” list out for the Georgia State Patrol to go out and arrest these illegal drivers.

Let’s compare a proposed national “Amnesty” (or for those of you with sensitive ears–legalization) with this Georgia “Amnesty.” An immigration “Amnesty” would FORGIVE people for breaking the law (a misdemeanor if they came in illegally and a civil violation if they overstayed their visas), bring people out of the shadows and into our mainstream economy, and lessen the penalties currently in place (a 10 year bar in the home country) to encourage people to come forward right away and become “legal.”

Wow, that is the same rationale for both programs. One run effectively by the State of Georgia and one denied a chance at being effective by national politicians and local demagogues. Why can we do one and not the other? Why can we give “amnesty” to illegal drivers but not to “illegal” people? Simple–a lack of political leadership and a lack of political courage.

Once we can convince our national political leadership that immigration reform is GOOD for America (and it would be very good for America) and that the example set by the Georgia State Road and Tollway Authority is a good one to follow, can end this divisive debate over immigration, calm racial tensions in America and get back to work fixing our economy. My only question is — which national politician has the courage to stand up and lead on this key issue?

Yesterday, I looked down at my speedometer to see that I was driving at 55 mph in a 40 mph zone. I clearly was in violation of traffic laws.

I came home to notice my neighbor firing up a barbeque grill on his balcony–a definite violation of the city fire code.

I then read about how a list of supposed “illegal immigrants” was assembled and circulated in Utah, a probable violation of a host of laws, particularly if, as accused, it was state government employees behind the list.

Yet no one calls me or the millions like me an illegal driver. No one would think to call my neighbor an illegal griller. And has anyone called the Utah culprits illegal list-makers? Not to mention, would anyone dream of converting the adjective into a noun and calling us all “illegals”? Yet, we are all just as “illegal” as the people who are in the U.S. in violation of the immigration laws. (And, yes, the grilling and, in the jurisdiction it happened, the speeding are civil, not criminal, violations. But so is being unlawfully present in the U.S.)

Every time I speak publicly about immigration, I get the predictable crop of sloganeering and hate emails, with the former usually saying “what part of illegal don’t you understand?”

So, let me answer.  People who have come to the U.S. to pick our crops, clean our tables, maintain our yards and take care of our children or grandparents are referred to as “illegals,” as though they are somehow heinous people, and yet those of us who put ourselves and others at risk of potentially fatal car wrecks or fires, or those who have put others at risk of identity theft, vengeful violence, and sheer privacy invasion, are not heatedly condemned.

That is the part of illegal that I don’t understand.

guest blog by Charles Kuck

There is no surprise in the Obama Administration’s lawsuit to stop enforcement of Arizona’s immigration law–SB 1070. President Obama must defend federal authority to act exclusively on immigration law. The Supreme Court has long held that states cannot impinge on federal authority, unless those state laws are “consistent” with Federal law. Arizona’s SB 1070 is not consistent with federal law, despite protestations to the contrary. SB 1070 goes far beyond that 1940 law on which it claims to be based and which was designed to round up Japanese, German and other “enemies“ in a time of war.

Everyone understands the frustrations associated with undocumented immigration. But the Obama Administration (nor any Administration) cannot tolerate 50 different states passing 50 different state laws on a federal issue like immigration. It is already a nightmare in the context of E-Verify. If President Obama does not act, he gives tacit approval to the notion that states can pass conflicting and impossible to fairly enforce immigration related laws. By going to Federal court he signals that SB 1070 encroaches on federal immigration law. Faced with this choice, there is no choice at all.

“You aren’t going to be asked for ID unless you first commit a crime,” said Arizona Governor Brewer in defense of Arizona’s new immigration law. Really? Arizona SB1070, as amended by HB2162, applies the “papers please” requirement to any “lawful STOP, detention or arrest.” People can be lawfully stopped to ask if they witnessed a crime. Or, if they are at a house with a car up on blocks.

Wouldn’t happen, you say? That’s not what the law intended, you say? This passage from an email from the Kansas lawyer who actually wrote the law to the legislator who put his name on it makes clear that papers please applies to anyone encountered in any way by the government:

“When we drop out ‘lawful contact’ and replace it with ‘a stop, detention, or rest, [sic.] in the enforcement a violation of any title or section of the Arizona code’ we need to add ‘or any county or municipal ordinance.’ This will allow police to use violations of property codes (ie, cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries as well.”

Yes, these were the very amendments made by HB2162.

Governor Brewer, you signed the law and its amendments. Don’t you think it’s time you found out what is really in there?

One of the problems with debates on serious issues being played out in the media is that all sides, by necessity, make their arguments with shorthand and sound bites. The same is true, in spades, of the public discussion on Arizona’s SB1070 immigration law.

Much of the debate centers around the law’s requirement that law enforcement personnel demand immigration documents when they have “reasonable suspicion” that someone they have stopped might be undocumented. Proponents of the law often give the example of an Arizona driver who has been stopped for speeding and is unable to produce a valid driver’s license as an example of reasonable suspicion.

While that example makes for a nice sound bite, the reality is a little more complicated. If Arizona had meant to limit the circumstances to that, they readily could have written a law that said that if a person required to produce an Arizona driver’s license cannot do so, check for his proof of legal status. That would have been ethnically neutral, and would have avoided getting into the vague territory of “reasonable suspicion.” But they didn’t do that. Instead, they went much further.

The Arizona law requires law enforcement officers (including non-police civil servants enforcing municipal civil codes) to demand documents where “reasonable suspicion” exists that a person might be undocumented. Thus, if a county official goes to a home to cite the resident for the grass being too tall, or having too many people living in the house, or having a car on blocks in the yard, this obligation kicks in. Since there is no reason in these kinds of instances to look at a drivers license, what would create “reasonable suspicion” in this form of “stop”?

The legal definition of “reasonable suspicion” arises from a 1968 Supreme Court case called Terry v. Ohio. The court there said that, under the Fourth Amendment prohibition against unreasonable searches and seizures, an officer may “stop and frisk” a person if the officer observes “articulable facts” that make it “reasonable to assume” that the person is violating the law. Well, here, the “frisk” would be the demand for the documents. But what articulable facts could arise that would make it reasonable to assume that someone is in violation of immigration laws? THAT is the sticking point. In the vast majority of circumstances covered by this law, the ONLY articulable facts would be ethnically based–color of skin, accent, language. And THAT then triggers an issue under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states “no state shall … deny to any person within its jurisdiction the equal protection of the laws”.

Modern law interpreting the Equal Protection Clause derives from the famous school desegregation case, Brown v. Board of Education. That case, and those that have followed it, have established that this Clause operates as a general restraint on the government’s power to discriminate against people based on their membership in certain classes, including those based on race and ethnicity. Because in the vast majority of the circumstances in which the Arizona law requires officers and officials to demand documents, the only possible articulable fact that would lead to the demand is ethnically based, the law conflicts with the Fourteenth Amendment.

It also is just plain against American values to engage in this kind of ethnic profiling.

There are those who argue that police develop “instincts” and “can identify patterns” that lead them to a reasonable suspicion based on their experience. Even assuming that that is true, and is not in fact based on subliminal prejudices, it would not be true here. The enforcement of this law is being assigned to state and local police and to civil servants, rather than to immigration officers. None of them have the experience to know what those patterns would be. Again, that leaves them with only ethnicity to serve as a guide. And, since the majority of ethnic minorities, including Latinos, in Arizona are in fact U.S. citizens or legal residents, ethnicity would not be a reliable basis even if such profiling were not morally repugnant.

by Lory Rosenberg, AILA Board of Governors member

The emerging evidence of DHS’s disregard and cover-up of immigrant deaths in detention is unconscionable and belongs on page one of everyone’s human rights agenda. Yes, these deaths occurred 2+ years ago, but there has been no meaningful action taken to investigate, prosecute and remove the DHS employees and contract workers responsible for the deaths or who persist in violating the civil and human rights of detainees. As reported by Nina Bernstein in the New York Times (January 10, 2010), documents obtained by the ACLU establish that “officials — some still in key positions — used their role as overseers to cover up evidence of mistreatment, deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts that pointed to substandard care or abuse.”

The Obama administration’s preference for looking forward not back is simply unacceptable in these circumstances. Despite DHS’s current claim that it is dedicated to overhaul and provide greater transparency in its detention system, well-documented reports from the agency’s own Inspector General, Human Rights Watch, the Transactional Records Access Clearinghouse (TRAC) of Syracuse University, and the Constitution Project reveal DHS’s persistent impositionof excessively lengthy detentions, and an apparently endless increase of lawful residents,asylum seekers,
and others with strong ties to the U.S. being detained without regard to or in spite of individual factors. Worse, these reports show that there has been no let up in the practice of “haphazard transfers,” causing some detainees to be moved without notice, with a resulting misplacement of records, loss of access to legal counsel, and, according to the New York Times, a nightmare of “‘errors, delays and confusion for detainees, their families, legal representatives’and the courts.” Such a prevalent level of agency disregard and disorganization inevitably will perpetuate the needless suffering of detainees seeking help from a deficient detainee health care system that places costs above care and covers up its inexcusable mistakes.

Promises of “overhaul” ring empty when the lawless and unaccountable foxes still are standing guard over the same chaotic, mismanaged, and inhumane henhouse. Incredibly, the Obama administration has rehired, “Nina Dozoretz, a longtime manager in the agency’s Division of Immigration Health Services who had won an award for cutting detainee health care costs,” apparently without investigation, and certainly overlooking her claim to have no memory of her involvement in a 2007 conference call to discuss the disposal of Mr. Bah, one of the deceased detainees. No self-imposed DHS “overhaul” of detention purporting to provide detainees with “improved health care” can satisfy the need for redress and responsibility, followed by a robust
regime of transparency and vigilant oversight that is essential to rehabilitate DHS’s lawless image and actual practices in this area. More important, a far greater level of institutionalized accountability and oversight of DHS is critical to protect the lives of detainees and ensure that they are treated with dignity according to law.

Today’s guest blogger is William Stock, member of AILA’s Board of Governors and partner in the law firm Klasko, Rulon, Stock & Seltzer

Employers who rely on foreign nationals to provide needed expertise in their workforce – from technical programmers to biochemists to wind turbine engineers – should take notice of three troubling trends which are becoming clearer as the discussion about employment-based immigration reform gets drowned out by the ongoing debate about comprehensive immigration reform.

The first trend is captured in this blog post by Vivek Wadhwa, a professor at Duke University who has studied high-tech entrepreneurship extensively. Current backlogs in the employment-based immigration categories trap foreign workers in the original job for which they were sponsored, meaning their companies cannot promote them to positions where their experience and skills can best be used. Nor can the workers take the initiative to start their own companies – while a small company may be able to sponsor one of its owners as an H-1B, a green card is much less likely in that situation. Wadhwa points out that eliminating the green card backlog (a major part of which consists of cases trapped by bureaucratic delays that should have been approved in past years’ quotas, which do not carry over from year to year) would free an enormous amount of human capital to innovate and create the next generation of companies that will drive economic growth in the US.

More troubling, a combination of the green card quotas (which tie foreign nationals to one specific job) and rules for terminated H-1B workers (described in detail here) are driving away the most talented foreign graduates of our universities. Recent surveys and profiles of foreign nationals in the US – particularly Indian engineers in Silicon Valley – have highlighted an increase in the number of H-1B who are opting to return home, either from necessity or because the Indian economy now offers them opportunities to start or manage companies that the U.S. can’t match because of their visa situation. While opponents of high-tech immigration love to argue that H-1B visas allow tech workers to come to the US and learn skills that they can use back home, the fact is that most tech workers would prefer to use those skills in the US – and that immigrants are a key part of the Silicon Valley start-up community (given how many start-ups have at least one immigrant founder).

The most troubling trend, however, will not be immediate in its impact. For the first time in five years, US graduate programs reported a drop in the number of international applications to their programs and the number of accepted applicants who chose to come to their programs. These students are the best and brightest from their countries, and when they choose to go to other countries rather than the US, we lose out not only on the tuition dollars they would have spent (at rates higher than out-of-state students pay), but also on their talents for companies in the US.

While these trends are troubling, they are not irreversible. What it will take, however, is a rational reform of our employment-based immigration system to recognize the contributions these immigrants make, and the national interest in providing a welcome mat to them.

Today’s guest blogger is Kevin Lashus, Senior Attorney with FosterQuan, LLP in its Austin, Texas office.

On 8/25/09, a federal district judge for the District of Maryland denied the US Chamber of Commerce’s challenge to an amendment to the Federal Appropriation Regulation–originally mandated by a Bush Executive Order and recently adopted by the Obama Administration. As a result, as of 9/8/09, the Federal Appropriation Regulations will require that participating vendors (and flow-down subcontractors) initiate E-Verify for active and new employees.

Because every employer in the country is required to have a Federal Form I-9 on file for each employee hired after November 6, 1986, that establishes work authorization, and because, by virtue of this decision, the Federal Government will mandate that each federal vendor sign-up for E-Verify, the impact of today’s decision is immensely significant.

During these difficult economic times, most businesses are looking to the federal government (and those who do business with the federal government) to provide a source of income. However, to date, only a small portion of the American Recovery and Reinvestment Act of 2009 stimulus funds have been obligated as of 8/26/09 (for specific details, please visit: www.recovery.gov). So, any funds obligated by contract after 9/8/09 under the ARRA will include the E-Verify requirement.

More importantly, the regulation is not limited to ARRA funds, but to all appropriations contracts with the federal government beginning 9/8/09–with some very limited exceptions.

Accordingly, American companies who contract with the federal government for goods or services (including construction) will likely see existing contracts modified to require E-Verify review of (i) all persons hired during the contract term; and (ii) all persons assigned by the contractor to perform work on the federal contract.

Some employers assume that E-Verify only relates to foreign nationals because it is administered by US Citizenship and Immigration Services. That is not the case–an E-Verify requirement potentially touches upon every employee in the country and is not limited to foreign nationals working in the United States.

What does the decision mean?

Those employers who are already enrolled in E-Verify for more than 90 days are required to continue to initiate verification of newly hired employees within three business days of their start date, but have 90 days from the effective award date to begin using E-Verify for each employee already on their staff who is performing work upon an existing federal contract. (Any transition to using the system as a federal contractor does not allow a client to stop using E-Verify for its new hires on the standard three-day schedule).

For those clients not already enrolled, the contractor and any covered subcontractor will be required to enroll in E-Verify within 30 calendar days of the contract or subcontract award date. New enrollees will be provided an additional 90 days–for a sum total of 120 days–to enroll and initiate verification queries for employees already on their staffs assigned to fulfill a federal contract and to begin using the system to verify all newly hired employees.

Why should all employers care?

USCIS is data mining E-Verify, resulting in the identification of compliance failures, such as failure to E-verify all employees and failure to terminate employees after a final non-confirmation of employment eligibility. The monitoring will result in referrals to Immigration and Customs Enforcement for follow-up inspection.

Accordingly, non-compliant employers (but, more commonly uneducated/ unrepresented businesses) may increase the prospect of ICE inspection.

Bottom line: increased mandatory E-Verify requirements will lead to increased scrutiny. Ironically, those clients agreeing to initiate the E-Verify program are increasing, not decreasing their exposure.

Guest blog by AILA Board member Jerome Grzeca, Grzeca Law Group, S.C.

In just 4 months since its original posting, over 6 million people have tuned in to You Tube to see actor Bob Basso take on the role of Founding Father Thomas Paine in the video titled, “We the People Stimulus Package.” Viewers are undoubtedly attracted to Basso’s dramatic flair and plain-spoken approach toward issues including government spending, taxation, international affairs and immigration. While some may appreciate the “entertainment value” Basso provides, several of his satirical remarks made as fact are completely fictional. Furthermore, his choice to present as Mr. Paine, an immigrant, is dumbfounding.

Basso would have his viewers believe that Paine was a proponent of big government, anti-immigration laws and constraining policies. In fact, Paine would have supported just the opposite. By all accounts, he was a radical; a man whose ideals were deeply entrenched in the belief that each person, regardless of origin or religious faction should be free. He once said, “The world is my country, all mankind my brethren, and to do good is my religion.” Does this echo that of Basso’s xenophobic rant?

Paine, an immigrant, wrote the three top-selling literary works of the eighteenth century, inspiring the American Revolution, issuing a battle cry for individual rights and challenging the corrupt power of government. In his pamphlet “Rights of Man, Part II,” Paine affirmed his libertarian principles stating, “Great part of order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished.” These are not the words of a man who would call for the mandatory implementation of E-Verify, a costly, burdensome and invasive governmental system that during its testing phase negatively impacted the livelihoods of many American citizens who were incorrectly identified as illegal immigrants.

Perhaps instead of sending a tea bag to his local government official, Basso should sit down to a warm cup and do some real research on the issues surrounding immigration. He would find that many of his lecture points are completely unsubstantiated.

BASSO: “[The government] hands $30 billion of a bankrupted treasury to illegal alien welfare, rewarding lawbreakers for making a mockery of your laws.”
FACT: To the contrary, undocumented immigrants are not eligible to receive any “welfare” benefits and even legal immigrants are severely restricted in the benefits they can receive.

BASSO: “[The government] allows 20 million illegal aliens to reap the benefits of a [social security] retirement program that legal citizens paid into all their lives.”
FACT: The estimated 11.6 million unauthorized workers are not, and have never been, eligible to claim social security benefits. On the contrary, according to a 2005 Social Security Administration (SSA) report, undocumented immigrants paid $520 billion into the Social Security system under names or social security numbers that don’t match SSA records, and will likely never be able to recoup that money.

BASSO: “[The government] should make English the united language of America – giving every legal immigrant a chance to succeed.”
FACT: English is already the united language of America, without government intervention. Furthermore, along with showing a basic knowledge of U.S. history and government, applicants for U.S. citizenship are required to display an ability to read, write and speak English.

BASSO: “No tax payer money should be given to illegal aliens – do not reward lawbreakers.”
FACT: The immigrant community is not a drain on the U.S. economy but, in fact, proves to be a net benefit. Research reported by both the CATO Institute and the President’s Council of Economic Advisors reveals that the average immigrant pays a net 80,000 dollars more in taxes than they collect in government services. For immigrants with college degrees the net fiscal return is $198,000.

Finally, and maybe most importantly, Basso states that Americans “have become nothing more than cowering spectators watching the nation their grandparents built – the richest, most powerful, most self-sufficient republic in history – with the highest standing any nation ever achieved – now in the greatest decline in history.” This great nation, the one our immigrant grandparents worked so hard to build, would not be what it was without the huddled masses who immigrated to the United States. The settling of America began with the belief that people – regardless of ethnicity – could live together and govern themselves by making laws for the common good. From time-to-time, this important part of America’s history will be forgotten, and it will take more than an amateur video to bring fact to light. The fact is that America is different – we are the “Nation of Immigrants” and should never forget it.

Guest blog by Josie Gonzalez, Gonzalez & Harris
www.josiegonzalez.com

U.S. Immigration and Customs Enforcement (ICE) announced today that it is issuing 652 Notices of Inspection (NOIs) to businesses in order to audit I-9 records that contain information regarding an employee’s right to work legally in the U.S.

ICE was quite candid about how these companies were selected. They were targeted as the result of lead driven investigations and as part of the agency’s initiative to focus “… its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”

Investigative leads come from a variety of sources including: disgruntled employees who complain about the company’s perceived disregard for immigration laws; employer filings of government labor certification applications to legalize the status of undocumented workers while continuing to employ them illegally; and consumer complaints that one’s identity is being used by an employee

Employers using E-Verify to verify the documents of new hires often harbor a false sense of security that they have hired a legal workforce. However, the incidence of identity theft is quite high; it is becoming increasingly common to find that workers have used valid documents that pass muster with E-Verify but belong to another person. Unbeknownst to most E-verify employers, the government announced that when it uncovers patterns of misuse and fraudulent documentation, it may refer the E-Verify employer to ICE for follow up investigation. (74 Fed. Reg., No. 98, pp. 24022-24027, May 22, 2009).

In a workforce comprised of many family members and friends, supervisors often know which employees are working with fraudulent documents. This knowledge may be imputed to management with resulting corporate liability.

During an audit, ICE demands the surrender of I-9s within three days. In this short timeframe, it isn’t possible to correct all I-9 deficiencies. For example, how can one update expired work authorization documents if an employee is on vacation? Nevertheless, employers facing surprise audits should make every effort to bring their I-9s into compliance by ensuring that there is an I-9 for all employees hired after November 6, 1986, that I-9s are fully completed and signed by both the employee and the employer, and that expired documents are updated. Corrections need to be initialed and dated; never backdate the forms.

Stepped up enforcement has only just begun. The smart employer will be proactive and conduct internal audits to ensure that a meaningful immigration compliance policy is in place and to uncover potential liability such as identity theft, use of fraudulent documents, careless completion of I-9 forms and — most importantly – evidence of the knowing hire or the continued employment of unauthorized workers.

Josie Gonzalez, an immigration attorney in Pasadena, California, is on the Board of Governors of the American Immigration Law Association where she chairs The Immigration Worksite Enforcement Committee.