September 26, 2012

The Honorable Janice K. Brewer
Arizona Governor
Executive Tower
1700 West Washington Street
Phoenix, AZ 85007

Dear Governor Brewer:

On August 15, 2012, you issued an Executive Order which barred those individuals eligible for Deferred Action (DACA) from obtaining driver’s licenses or other state benefits. After a fiscal analysis, I can only conclude that this decision was based upon your personal vendetta against President Barack Obama. Besides having no basis in federal or state law to issue this executive order, your policy will cost the state and businesses millions of dollars.

Had you or your advisors conducted an unbiased cost-benefit analysis, you would have likely concluded that this program will have a profoundly positive impact on a number of industries in our state, along with making our streets safer and saving Arizona resident’s money. Before I go any further, I must confess that I am no economist and my calculations may be considered rudimentary to some, but it will definitely make logical sense.

Let’s start from the basics: There is an estimated 50,000-80,000 individuals in Arizona who will qualify for DACA. A driver’s license for applicants age 16-39 is $25.00. Using the low-end estimate of individuals, which would mean the state is bound to earn $1.25 million in driver license fees. Let me add that these individuals will only get work permission from the U.S. Department of Homeland Security (DHS) for two years and then have to apply for renewals. That means the state will collect $1.25 million, or more, every two years!

In order to qualify for work permission under DACA, all applicants will have to undergo a strict vetting process by DHS. Candidates who will qualify must undergo background checks, been physically present in the United States for at least five years, and provide clear evidence that they have either completed high school or are currently in school. Many have already taken college courses or completed their post-secondary schooling. Therefore, we are talking about a class of individuals that are educated and will provide a benefit to the lagging Arizona economy. Rather than taking jobs from U.S. citizens, they will help expand the growth of businesses and spend their hard-earned money in the state.

Who else is bound to gain from the issuance of drivers licenses to DACA grantees? Insurances companies, car dealers, gas stations, automotive service stations, car washes, and pretty much any business that is not near a bus stop. Arizona is not exactly known for its excellent public transportation systems. Therefore, getting from point A to point B can be difficult without an automobile. According to the Insurance Research Council (IRC), one in eight Arizona drivers are uninsured. According to IRC, Arizona has the fifth highest percentage of uninsured motorists at 22% of the population. Insurance companies are bound to gain more customers and benefit their businesses when new drivers can either lease or purchase cars. There will be a trickle-down benefit to gas stations, tire and brake repair, and many other related industries.

The economic benefits to DACA are considerable and I have attached a report from the Immigration Policy Center, American Immigration Council, which provides raw data of these benefits. This includes tax benefits, expansion of investments, more spending and an increased incentive to fulfill educational goals. Nobody loses from this program and the state is missing a golden opportunity. This program only helps a narrow group of persons and, contrary to what you believe, will not be a magnet for others to enter the country without documentation.

Assuming you have made it to this point in my letter and your eyes are not completely glazed over, I want to make a final legal point. There is no doubt that the state is bound to lose money in litigation costs, and ultimately will lose in the courts, as your policy conflicts with state law and the federal REAL ID Act. More wasted money on behalf of taxpayers, more image problems and less tourism.

In order to function in society we must compromise, and sometimes make decisions that are against our core beliefs. I believe that your advisors are misleading you on the issue of immigration and particularly in the benefits of this DACA program. The benefits of this program to our state far outweigh the costs that we will incur if your executive order remains in place. Therefore, with the utmost respect, I ask that you lift this executive order and allow the economic boon that this program will bring to our state to become a reality.

Thank you and God bless America.

Written by: Mo Goldman, AILA Media-Advocacy Committee

Last month, I noticed this piece on the Bloomberg web site highlighting the practical effect of Alabama’s “strictest in the Nation” state-level immigration law on Alabama’s citizens.  The article vividly illustrates what it takes to enact what Kris Kobach and other anti-immigration advocates call “attrition through enforcement” – or what Mitt Romney recently called “self-deportation” – the idea that 11 million immigrants without status can be convinced to leave the US voluntarily, if only we make it hard enough for people without status to live in the United States.

As the article makes clear, the only way to make life too difficult for immigrants without status to bear is to turn every “transaction with a citizen,” in the words of Alabama’s HB56, into an immigration checkpoint.  In other words, the only way to make life in the US difficult for those immigrants is to make life equally difficult for ordinary Americans:

In one month, [Mobile County License Commissioner Kim] Hastie’s office handed out 332 temporary vehicle registrations to legal Alabamians without proper paperwork. There were 152 in all of 2010. Fewer than five people in the country illegally were turned away, she said.

Thwarted citizens got mad: “They’d say, ‘I’m not a Mexican. Do I look Mexican to you?’”

One World War II veteran had no birth certificate, an expired driver’s license and a military identification that the county couldn’t accept, she said.

“He was so mad he was yelling,” Hastie said. “He said, ‘I served my country and I can’t register my car?’”

Alabama’s requirement that any person prove his or her legal status in order to do business, of any kind, with the state government has proven to inconvenience Alabama’s US citizen residents almost as much as it inconveniences the 2.5 percent of the population who live there without authorization – probably more, in fact, since Alabama’s US citizen residents are required to transact business with the government much more often than the relatively few unauthorized immigrants do.

It wasn’t until I heard this week’s edition of This American Life, however, that I really began to appreciate what “self-deportation” will really require.  Transacting business with the government, after all, is hardly a daily event,  whether we are here legally or not.  Merely requiring ID and proof of legal status to license a dog or get water service for a new house is unlikely to make life hard enough that someone without status will want to leave.

What self-deportation is going to require, if it is to work as its proponents say it will, is for all of us, every day, being willing to cut ourselves off – economically and socially – from our neighbors.  We will have to ask everyone we need to deal with for their papers before we sell them groceries or even offer them the sign of peace in church.  And, if we are Latino, or speak with an accent, we will have to prove our legal status every day to everyone we meet.  Jack Hitt, who authored the piece, put it this way:

Every Latino person, legal or illegal, whom I spoke to noted at some point that there’s just something hateful in the air now. Before the law, they felt accepted. They had American friends. They didn’t feel out of place.

Now when they go to a store, every single one of them told me they feel that people are looking at them weirdly, like, what are you still doing here? When the law changed to make them less welcome, they actually became less welcome, in a day-to-day, “passing you on the street” sort of way.

When considered in terms of tax dollars, “self deportation” would, indeed, cost less than having the government arrange deportation of 11 million people (around $285 billion).  The human and economic costs on the communities in which these immigrants live – splitting up families, disrupting businesses whose workers and customers leave, destroying whole towns – are the same.  The human cost to all of us, however, as we must harden our hearts and demand “papers” from every one of our Latino fellow-citizens, from every person we encounter who “looks foreign” to us – that is a price I pray our country decides it never is willing to pay.

I’d like to think that Newt Gingrich, the current GOP front runner, has come out squarely in favor of a pathway to citizenship for the millions of undocumented immigrants in the U.S. Not because I support his presidential candidacy, but because rejection of mass deportation as a solution to America’s broken immigration system raises the level of the national debate about immigration. At least he’s not ginning up the same old sound bites about securing the border and building fences.

But, the devil is in the details. Unfortunately, Gingrich’s proposal falls far short of what is needed to fix the broken immigration system. In fact, his idea would lead to the mass deportation of millions of people and the demise of scores of American families.

The cornerstone of Gingrich’s plan is the so-called “citizen review panels” which would consider whether an undocumented immigrant’s personal circumstances merit a reprieve from deportation. Gingrich likens the idea to the draft review boards of the World War II era.

But listening carefully to Gingrich it becomes clear that under his plan very few undocumented immigrants would even qualify to go before the review panels. Only those that have been in the U.S. for more than 25 years would be considered, even if they have compelling equities such as U.S. citizen relatives, a record of paying taxes, good moral character, and a consistent work history.

A recent report by the Pew Hispanic Center shows that of the approximately 12 million undocumented immigrants in the U.S., only 35% have been in the U.S. 15 years or more—even less have been in the country for more than 25 years. That’s more than 7.8 million people who, according to Gingrich, would be targeted for what he calls “dramatically easier” deportation. It’s not clear what Gingrich means by that ominous phrase, but I imagine it doesn’t include much due process and fairness.

Yet Gingrich’s proposal shines when compared to Mitt Romney’s. Romney suggests that undocumented immigrants, all 12 million of them, should turn themselves in, be given a transition period to get their affairs in order, and self-deport. It’s obvious that Romney hasn’t a clue when it comes to fixing the broken immigration system. Romney bases his proposal on the idea that the undocumented—many of whom have close family ties to America—can simply go home, get in line, and return legally. He obviously doesn’t understand—or worse, doesn’t care—that the broken immigration law includes a myriad of daunting legal obstacles which prevent undocumented immigrants from returning to America and their families for at least a decade or more. His proposal is as ridiculous as it is unworkable.

On the other hand, Romney and Gingrich both argue forcefully for an immigration policy that will attract the best and brightest to America—the innovators, entrepreneurs, and scientists. On this point—although neither would likely admit it—both GOP front runners agree with President Obama. Recalling a time when America opened its doors to highly skilled immigrants to shore up its competitive edge, President Obama has called for innovation, education, and rebuilding of America’s infrastructure. This  necessarily implies an immigration policy that keeps America open for business.

But what neither Gingrich nor Romney seems to get is that high skilled professionals and creative entrepreneurs won’t come to the U.S. if we do not fashion an immigration policy that restores and protects due process. Just ask the scores of business people and scientists who have been stymied by an overly restrictive immigration bureaucracy or targeted for special registration and prolonged security checks over the past decade. (Note: you may need to contact them via email or Skype because many have immigrated to other, more welcoming, countries).

The subtext of the current immigration debate is that undocumented immigrants won’t do what they should to gain lawful immigration status. This assumes that compliance with the immigration law is as easy as filling out a passport application at a local  post office. What none of the candidates seem to understand is that under the current law there is simply no way for most unauthorized immigrants to comply, as much as they might want to, whether they remain the U.S. or go back to their native countries.

Nevertheless, Gingrich’s proposal, as deeply flawed as it is, recognizes that wholesale removal of 12 million is not a solution.  And, if nothing else, that position is a welcome addition to a Republican immigration debate that has thus far been limited to little more than sound bites about border security, boots on the ground, and fences.

It happened again yesterday.

A foreign worker—this time from Honda—was arrested in Alabama and cited under the state’s new immigration law.

Sound familiar? It should.

The same thing happened a couple of weeks ago to Detlev Hager, a German executive from Mercedes-Benz, who was in Alabama to check on the company’s plant in Vance. This time the unlucky scofflaw was a Japanese employee of Honda. Like the unlucky German before him, he was arrested by Alabama cops after he forgot his visa in his hotel room.

In a blog posted last week I made the point that the hate ridden immigration law does little more than crush civil rights, wreak havoc on the state’s economy, and sully Alabama’s reputation. I also pointed out that a foreign company (or any company for that matter) would have to be nuts to locate in a state like Alabama that enacts a law which so flippantly subjects foreign managers and workers to arrest.

They say the definition of insanity is doing the same thing over and over and expecting a different result. Exactly what result do Alabama politicians expect by continuing to enforce HB56?

By David Leopold and Eleanor Pelta

You know that your country’s immigration system is really dysfunctional when . . . a job-creating entrepreneur must be the subject of a national news story in order to get his visa approved.

ABC News reported this week that Amit Aharoni, an Israeli national and a graduate of Stanford Business School, had secured $1.65 million in venture capital funding to launch a company called CruiseWise.com, an online cruise booking company. Aharoni’s company hired nine Americans in just one year. Astoundingly, USCIS denied Aharoni’s request for a visa and told him that he had to leave the U.S. immediately. Aharoni now lives in Canada, where he runs his company via Skype from a friend’s living room. After the ABC report aired Tuesday, USCIS did an abrupt about-face, granting Aharoni’s H-1B visa the next day, but only after wiping the egg from its face.

Is this really the way it’s supposed to work? While it is true that we are in dire need of legislative changes to accommodate the needs of 21st century business persons seeking to come to our shores to invest, innovate and create jobs, USCIS has spent the last few years re-interpreting the current laws to block the ability of job creators to develop those jobs in America.

Why does the very agency charged with giving visas to those who will create jobs for Americans so often refuse to do so?

That is a question, frankly, that AILA and other stakeholders have asked USCIS over and over and over again. USCIS leadership is beginning to focus on entrepreneurship as well as better training for adjudicators, but the agency also must directly confront and deal with the source of the problems that gave rise to the Aharoni H-1B denial. Those of us in the trenches, filing cases on behalf of  immigrant entrepreneurs like Aharoni,  know that his story is not a fluke nor an exception, but is rather typical of  a clear anti-business—and particularly anti-small business—trend in USCIS decision-making. Agency adjudicators do not understand, perhaps do not even care, that immigrant entrepreneurs like Aharoni create jobs for Americans. And it is the continued investment and hard work of such immigrants that will get America out of the economic doldrums and sharpen its competitive edge in the global economy. But a radical and –given the economy—swift shift is necessary in order for adjudicators to view their decision-making tasks as efforts that directly impact our economic health.

USCIS ultimately did the right thing yesterday for Mr. Aharoni. But let’s hope that the agency does not view this as an isolated instance. How many entrepreneurs have left the U.S. and not returned, taking American jobs with them to places like Bangalore, Shanghai, and Vancouver? Now USCIS leadership must go much further, and look at the underlying causes for agency decision-making that is costing the U.S. much needed dollars and jobs, and sending the very talent we sorely need to other countries.

Written by: Tony Weigel, AILA Media-Advocacy Committee

What it “is” is becoming more clear. We pro-immigration advocates have a lot of work to do.

Our country has had an ongoing policy war over immigration since its inception. This history includes both positive and negative periods, each influenced by the day’s politics, economics, and the varying attitudes this “nation of immigrants” has harbored towards its more recent immigrants.

For some, the current debate is helplessly and hopelessly fixated at the border. Candidates for public office talk of “front door” and “back door” immigration policies without acknowledging they are both attached to the same “house.” Our country has failed to fundamentally address the immigration needs of our economy, yet many of our leaders have embraced the flawed logic that walling ourselves in from the world and adopting and vigorously enforcing draconian laws at the federal and state levels will end unauthorized immigration. These efforts have not only failed to spur federal legislative action, they have paralyzed those with the legitimate responsibility and ability from acting. For example, since 2007, Congress has twice failed to pass the DREAM Act by only a handful of votes.

Among those seeking our country’s highest office in 2012, there is little serious discussion about reasonable immigration policy solutions. The current administration has failed to affect significant, positive reforms, legislatively or administratively, has steadfastly advanced programs like Secure Communities and indiscriminately ramped up enforcement. Republican contenders have failed to effectively defend or advance positive solutions. In the words of former political strategist for George W. Bush and ABC News political consultant, Matthew Dowd, “You can’t have a thoughtful conversation about it in the Republican Party right now. You’re either [former U.S. Rep. and anti-immigration advocate] Tom Tancredo, or you’re for sanctuary cities.” The failure of Republican debate participants to speak out against a proposed policy of electrocuting human beings reflects that tragic, political reality.

We as AILA members are all participants in the current chapter of our country’s immigration history. The good news is that we have several shining examples of the kinds of work that can and should be done to change the storyline.

• AILA leader Laura Lichter recently served on a prominent, ICE Advisory Task force.
• DC-area member Paromita Shah, Associate Director of the National Immigration Project of the National Lawyers Guild, has been engaged at a high-level in opposing Secure Communities.
• A group of 13 members: Debbie Smith, Vikram Badrinath, Stephen Manning, Russell Abrutyn, Cynthia Aziz, Aaron Tarin, Kimberly Herrera, Rebecca Sharpless, Farrin Anello, Socheat Chea, Eli Echols, Mark Barr, and Andres Benach, have worked tirelessly on amicus briefs in opposition to state laws in Arizona, Utah, Georgia, Alabama and South Carolina.
• 135 AILA members in 31 states have volunteered to represent young adults through the AD2 program.  A group of 9 senior AILA members, organized by Mo Goldman, serve as mentors to the group.
• Iowa member Lori Chesser has served as a leader in the Iowa Immigration Education Coalition, which has brought together a broad coalition in support of positive immigration policies.

The opportunities to make a difference are out there and the resources to help write the rest of the present chapter are at our fingertips. AILA offers a variety of great tools to advocate for better policies. Additionally, the Immigration Policy Center develops and maintains a wealth of information and critical analyses of the misinformation driving today’s bad policy decisions. Changing the tone and tenor of today’s debate requires reaching out to our communities, making meaningful connections, and helping educate those in the media and others about facts to counter the tide of fear.

We all have things we must do to pay the bills, but it simply makes me sick to read stories like those coming from Alabama, and it incenses me to hear the top leaders of a major political party recklessly use the bigoted words “illegals” and “anchor babies.” The time to act is now.

Please do.

Written by: Mo Goldman, AILA Media-Advocacy Committee

October 18, 2011: A day that will live in U.S. immigration infamy.  ICE proudly boasts the news that in Fiscal Year 2011 the U.S. deported a record number of individuals (396,906). On PBS Frontline: Lost in Detention, Maria Hinojosa exposes the deplorable immigration detention conditions and widespread abuse, along with how President Obama’s policies and Secure Communities have been an unmitigated failure.  Meanwhile on CNN, we watch the Republican presidential candidates play a game of “who will build the biggest border fence” and debate who did or did not hire undocumented immigrants (for the record, Perry won that argument).  But, all this doesn’t matter to Cesar Adan Hernandez Montoya.  Cesar doesn’t have time to focus on debates or television.  He has to worry about himself and his family.  He has been held for 60 days in detention without bond.  Time is ticking for Cesar and his future in the U.S. Cesar has a dream to go to college and be a role model and mentor to young kids in his community.  For now that dream is on hold.

Hope and Change!  Hope and Change!  Change.  Well, one out of two isn’t bad, right?  And it hasn’t really been change for the better.  The Department of Homeland Security has continued the record number of deportations in an effort to meet that magic number of 400,000 deportations per year.  Remember, if they don’t come close to their numbers they may lose the appropriations from Congress.  According to ICE, nearly 55 percent of those removed were convicted of felonies or misdemeanors.  This means that nearly 45 percent of those removed were non-criminals like Cesar, who committed only civil immigration or other minor violations.  So why should we care about Cesar and other non-criminals facing removal?  They’re just a number right?  If President Obama shows that he’s tough on enforcement perhaps that will convince the Republicans to join him in passing Comprehensive Immigration Reform.  Back to CNN to see what the Republican candidates think about our current get-tough policy:

“I say we build a border fence along the entire border!”

“I say we build a double border wall along the entire border!”

“Well, I say we build an electrified fence along the entire border and…I’m just joking!”  The crowd at the debate laughs along with Mr. Cain.  Apparently electrocuting Mexicans is humorous.

Hope is lost and what we are witnessing is change for the worse.

Hope is lost? But what about that memo that John Morton published on June 17, 2011?  The memo that called for a greater exercise of prosecutorial discretion, along with providing detailed criteria for ICE agents and attorneys to determine whether deportation cases are a low priority.  And how about that letter from Homeland Security Secretary Janet Napolitano that called for the review of 300,000 pending cases?  Apparently the ICE office in Michigan may have overlooked or ignored that memo and policy change.  Apparently they aren’t the only ones.  When asked about review for low priority cases, most immigration attorneys are receiving a similar response, “we are awaiting guidance” on how to proceed.  Although Secretary Napolitano’s announcement was made public in August, it appears that no procedures or protocols have been provided to the ICE rank and file.

On PBS Frontline, Cecilia Munoz, an adviser to President Obama on immigration, blames our current crisis on a broken system of laws.  She states that the president is enforcing the law of the land.  She says that the solution to this problem is immigration reform.  Yes, that would be the solution Ms. Munoz if both political parties could work together.  However, the reality is that they are not working together and you have the power to shape policy and ensure that your enforcement priorities are being followed by the people on the ground.  You can stop deporting 180,000 non-criminal individuals.  You can make a difference in the lives of many and keep families together.  You can make that simple call that could save Cesar from being deported to a country he hardly knows.

October 19, 2011: A rally was held for Cesar in front of ICE Headquarters in Detroit.  Soon we will find out if Cesar is going to remain in the U.S. to fulfill his dreams or become another number included in the FY 2012 year-end removals.  Perhaps his impending removal will be halted and we will see the start of a new day and life for Cesar.  A day that won’t be as infamous as yesterday.  A day that will bring him hope and change.

Written by: Ally Bolour, AILA Media-Advocacy Committee

A new attitude seems to have taken hold in American society these days – one that appears to be spreading through every medium and every social group. I see it on television, in newspapers, and on the internet; I hear it on the radio and in everyday conversations. Alienating and dehumanizing any group that is “different,” starting of course with immigrants. If the immigrants are undocumented – we call them illegal. If they are U.S. citizen children, but have undocumented parents – we call them the children of illegals! We pass laws in Alabama to demand that children bring proof of the “legality” of their parents to the classrooms. We no longer exhibit pride in the American melting pot; we try to explain it away and hyphenate it instead.

We give police officers the power to ask for papers from people who look different – perhaps they wear traditional clothing, or speak with an accent, or have darker skin than the next person. We even debate the “true” meaning of the 14^th Amendment to the U.S. Constitution and plant seeds of doubt regarding the rights to birthright citizenship in America.

Just recently, the House of Representatives proudly presented a bill for markup which would have given protection against civil lawsuits to those who report “suspicious activity” and would have designated yet another federal czar – this time to counter homegrown violent Islamist extremism. The bill is notably silent on reporting non-Islamic violent extremism. The proposed law reminds me of another congressional action which created the House Committee on Un-American Activities circa 1938-1975, which destroyed countless lives and families.

This marginalization extends beyond the immigration debate. To date, we’re still attacking President Obama for not being black enough. Herman Cain, a Republican presidential contender, declared the President of the United States of America to be of the “other” camp – specifically that he has “never been part of the Black experience.” The President’s father was Kenyan, so it has been open season to insult Mr. Obama as a non-American and to actually demand the original of his birth certificate. Prominent persons of influence have declared President Obama to be a Moslem. When cornered by reporters, they cowardly make non-committal statements such as “I take him at his word that he is a Christian!”

And that is yet another group to marginalize. Pundits define “Christianity” to include only Evangelicals; certainly not Mormons. A few days ago, the conversation on every news channel was whether or not Mormonism is a cult. Pundits proudly pronounce that Americans “tolerate” Jews, Catholics, Buddhists, Hindus, Moslems and persons from other faiths and even non-believers. The caveat being that though these tolerated folk may stick around, they are not equals and therefore can’t hold certain positions, thereby ignoring the equal protection clause of the Constitution.

But then we have yet another group to marginalize, because Evangelical Christians can’t be gay, but if they insist that they are, then they also go in the tolerance category. Additionally, they will have the extra burden of going to church every Sunday and repent ad nauseam for who they are. Still, they shouldn’t be able to serve in the military because they’d be taking showers in close quarters; and marriage for them is categorically out of the question! To make sure of that, Congress will spend at least $1.5 million of public funds to defend a law – DOMA – which President Obama, U.S. Attorney General Eric Holder, the very author of that discriminatory bill, former Georgia Congressperson Robert Barr, have all called unconstitutional.

You see, once you start removing groups from our American society the way it has become customary to do so in the public arena, we end up with a hard-core minority who will do anything and everything to hold onto their narrative in order to control the debate, thereby leaving the majority out in the cold.

We can’t just tolerate the cultural mosaic that is America; we must embrace, love, and cherish it just as we have done throughout our history. As part of that, we must reintroduce the notion of the melting pot society in the classrooms of Alabama, Arizona, Utah, and beyond. We need to pass a Comprehensive Immigration Reform (CIR) bill to bring millions of families out of the shadows and into our fold. The definition of families under CIR must be all encompassing. LGBT families have long suffered from this lack of recognition and are still battling discriminatory laws in America. As such, DOMA must be repealed so bi-national couples have the option of immigrating to the U.S. All of these families will create jobs, pay taxes, and attend schools; they will apply for loans, and then buy homes and cars; they will travel, book hotels, buy tickets and go to the movies, therefore stimulating our depressed economy.

At the same time, we can relieve the Department of Homeland Security from issuing endless memos on how their various dragnet policies are color-neutral. Resources will be freed up to secure our borders. Congress can retreat from passing laws that target any particular segment of our society. Local law enforcement will once again gain the trust of every community and thus be able to go after criminals amongst us – documented or otherwise. Only then will the national debate be able to move forward on how to improve life for every American, not just the selected few. Under this vision, no one – whether majority, minority, or any sub-group in the middle – is marginalized or dehumanized.

This week a teacher in Alabama asked a 4^th grade girl for her immigration papers. That it happened in Alabama, a state whose very name still conjures up bloody images of the civil rights struggles of the 1960s, may not be surprising. That it happened in an American classroom in 2011 is horrifying.

Contrast that image with DHS Secretary Janet Napolitano’s national immigration policy speech, delivered Wednesday morning at American University, where she reiterated the Administration’s commitment  to enforce the immigration law in a way that “enhances public safety, border security, and the integrity of the immigration system, while respecting the rule of law.” The DHS Secretary reaffirmed what she termed as “new policies, including a new process that ensures that those enforcing immigration laws make appropriate use of the discretion they already have in deciding the types of individuals we prioritize for removal from the country.”

Much of what Secretary Napolitano said was good. Her speech endorsed the fundamental principles of ICE Director John Morton’s directive to his agents to engage in smart enforcement by prioritizing the removal of violent criminals and national security threats. Just a few years ago it would have been unimaginable to hear the head of DHS speak that way, much less enthusiastically endorse the use of prosecutorial discretion by ICE field agents and prosecutors.

To be sure, the speech was far from perfect. Secretary Napolitano made no mention of the serious—some would argue fatal—problems associated with ICE’s Secure Communities Program. Nor did she explain how the agency would respond to the recent DHS Task Force Report, which was highly critical of Secure Communities. The agency Task Force, which was appointed by ICE Director John Morton and comprised of a wide range of individuals from across the political and social spectrum, including law enforcement officers, agents, and officials, immigration advocates, and attorneys (AILA President-Elect Laura Lichter was a Task Force member), found serious problems with the program and called for its overhaul. The Task Force recommended that Secure Communities be retooled to ensure the broad use of prosecutorial discretion, more transparency and public accountability, the implementation of mechanisms to target people who pose a risk to communities, and clarification that immigration law violators or individuals charged with misdemeanors or other minor offenses are not enforcement priorities unless they pose a risk public safety or national security. At a minimum, Secretary Napolitano should have explained how the agency intends to implement the Task Force’s recommendations.

Which brings me back to the 4^th grader in Alabama.

How does forcing a terrified child to search through her book bag for immigration papers in Alabama fit into what Secretary Napolitano described Wednesday as an “historic effort to secure the border and enforce our immigration laws in a cohesive way that is smart, effective”? That it is the result of a draconian state, not federal, law is hardly a justification. To the contrary, history is replete with images of terrified children answering to laws born of hatred. And, if nothing else, history has taught the world important lessons about what can happen when an extremist fringe writes laws and sets policy.

Congress’ failure act on immigration reform has resulted in what Secretary Napolitano described Wednesday as a patchwork of state laws passed in an attempt to fill the void. But it is much more than that. Such laws are an affront not only to national immigration policy but are repugnant to the very democracy we cherish and for which so many have paid the ultimate price.

The laws enacted in states like Arizona, Georgia, and Alabama are ethnically charged hate laws which target Latinos, pure and simple. They are intended to engulf discrete ethnic communities in an atmosphere of fear and uncertainty forcing “attrition by enforcement”—a sterile term coined by anti-immigrant restrictionists which effectively equates to ethnic cleansing. These laws are downright dangerous.

Scholarly Supremacy Clause arguments and Supreme Court precedent aside, the image of a terrified little girl rifling through her pockets to prove her immigration status to her teacher speaks volumes about why states have no business setting immigration policy.

And it begs the question of when, given all we know about inaction in the face of injustice, are we as a nation obligated to ask the fringe restrictionists and their allies in Congress, as Joseph N. Welch, head counsel for the United States Army, courageously asked Senator Joseph McCarthy in 1954:

“Have you no sense of decency…at long last?”

Today is an anniversary that will go virtually unnoticed. It marks 15 years since the Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). For many practicing young lawyers who came into the field wanting to keep families united, this law suddenly changed the playing field tipping it in a way that made it even harder, and in many cases impossible, to seek justice. IIRAIRA made practicing immigration law that much more complex.

I’m not quite sure where to start.

This blog could be devoted to how IIRAIRA removed justice from the immigration courts by stripping judges of their ability to evaluate individual immigrants and their contributions to America.

Or it could focus on the married couples and families torn apart as a result of IIRAIRA’s punitive bars to re-admission which apply to foreign nationals who have overstayed their visas in the U.S.   Added to the law as deterrent to illegal immigration, the bars have clearly had the reverse effect, serving instead as an incentive for people to hunker down and remain in the U.S. unlawfully rather than be separated from their U.S. citizen spouses and children.

Or this blog could describe the stories of countless immigrants who gave up their fight for justice in the immigration courts rather than languish for months, even years, in mandatory detention because IIRAIRA denied them reasonable bail.

Or it could describe how IIRAIRA, coupled with the anti-immigrant panic that gripped the nation after 9/11, led to a virtual police state for immigrants; an America where midnight warrantless arrests, secret trials, and special registrations of distinct ethnic groups were the norm.

Finally, this blog could make the argument that the ramifications of IIRAIRA’s unduly harsh provisions have not been limited to the courtrooms, detention centers, or ports of entry. So too, have business visa petitions been subject to years and years of increasingly restrictive agency interpretation and adjudications which have only served to stifle education, innovation, and entrepreneurship.

Today a key author of the law, Rep. Lamar Smith, now chairs the House Judiciary Committee. A few years after IIRAIRA was enacted Smith signed a letter to then-Attorney General Janet Reno calling for more careful use of prosecutorial discretion. The plea never would have been necessary but for the harsh consequences of IIRAIRA, which was spreading injustice while doing little to improve America’s immigration system.

In the end, the lesson of IIRAIRA is that good immigration policy cannot be made by slapping together specious sound bites and talking points. That just makes an already dysfunctional immigration system more dysfunctional. America deserves immigration solutions, not more detention, deportation, and exclusion. We don’t need more IIRAIRA’s. We need a comprehensive policy that secures the border, keeps our communities safe, protects America’s economic edge, and restores and protects due process.

Let’s hope Lamar Smith and the other sponsors of IIRAIRA have learned this lesson, too.