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The Golden Door

News and views on immigration law

Archive for the ‘AZ S.B. 1070’ Category

New York Gov. Paterson’s pardon – a valid exercise of state authority on immigration matters

Thursday, November 11th, 2010

In comparison to Arizona’s S.B. 1070, a state law that attempts to make the enforcement of immigration violations a state function, New York’s governor, David Paterson, has modeled a way that states can impact immigration matters in a constitutionally permissible way.

Some basic background information:  Criminal law in the United States exists at both the federal and state level.  There are federal crimes and there are state crimes.  People living in the United States who are not U.S. citizens (even long-time legal permanent residents) can be deported if convicted of certain crimes, including state criminal convictions.  A pardon, however, can often erase the effect of that conviction for immigration purposes.

A pardon for a state criminal conviction is squarely within the authority of the state governor.  In an effort to prevent the deportation of individuals who have, since their convictions, transformed themselves into worthy and contributing members of society, Gov. Paterson has set up a panel to review these cases for eligibility for pardon.  For most if not all of these individuals, this is their only chance, under current immigration law, to stay in the United States, where they have lived most of their lives and where they have established families and become part of their local communities.  In some cases, individuals have already served out their criminal sentences but still face deportation.

A spokesperson for the Federation for American Immigration Reform (FAIR), a group that favors reducing immigration levels, responded to this initiative by stating, “as a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country[,]“ and further, that the Governor was “circumventing Congressional authority.”

Let me address each point raised by FAIR in turn.

The first objection is that anyone who has been ordered deported, regardless of their current circumstances or the harshness of the penalty on the individual, should be deported.  This hard-line position does not care about individual circumstances.  Every deportable alien is a throwaway person, not deserving of case-by-case treatment.  This position cannot take into account the benefit that the individual might bring to the community in which he or she now belongs, or the cost and pain associated with tearing that individual away from that community.  It reflects an attitude that rules must be blindly and rigidly applied and should always be bright-line and clear, black and white.  Basically, “You break the law, you’re out of here.”

So, how has this approach worked for us in our schools, with our Zero Tolerance policies?  Every week, I read of some new ridiculous school action driven by zero tolerance philosophy that punish the very children that it is supposed to protect.  The kid whose grandmother packed him a knife to cut his birthday cake who ran afoul of a no-weapons policy comes to mind, and there are countless other examples.  Children end up suspended or expelled because of actions that happen to fall within the zero tolerance zone, but who were never intended by the original proponents of the rules.  Applying the same thinking, that is, if-they’re-deportable-then-let’s-deport-’em approach, we end up deporting people who might remain in the country by way of a gubernatorial pardon.  These individuals may be legitimately deportable but they also have a legitimate shot at changing their eligibility for deportation.  There is nothing inherently wrong with exploring an available legal option.

As for the second objection, that Gov. Paterson is circumventing federal congressional authority, I wonder if FAIR raised this same objection to AZ S.B. 1070?

Most if not all state constitutions grant governors the authority to issue pardons and don’t place too many restrictions on how they can use this power.  This is a provision meant to inject flexibility in what might be otherwise inflexible situations.  Gov. Paterson is well within his authority to choose to exercise this authority generously.  Federal immigration law does not forbid state governors from exercising their right to pardon individuals for state criminal convictions and any attempt to do so would be a violation of states’ rights.

For FAIR to say that Gov. Paterson’s actions circumvent congressional authority, well, this is just not true.  What FAIR really means, I would hazard, is, “We don’t like it when government acts to help immigrants who have shown themselves to be unworthy.”  Of course, it doesn’t seem to matter to FAIR what the overall weight of an individual immigrant’s conduct over his or her lifetime might be, just that that person landed himself or herself in jail in the first place.  Following this philosophy, we really need to build a lot more prisons (I think the prison lobby has this well in hand), because there should be a lot more people in prison and who should be kept in prison for the rest of their lives because at some point they did something bad, hurt someone, and broke the law.  No one is salvageable.  Everyone must pay for their mistakes, and keep paying until they are dead or gone.

From my point as view as an immigration lawyer, I respectfully suggest that this zero tolerance approach is not wise nor humane.  For those of you who subscribe to the FAIR philosophy, I urge you to acknowledge that when we talk about immigrants we are dealing with fully-fledged human beings, not just ‘aliens.’  A person can do bad things and yet become a good person.  Some of these individuals have already served out their sentences.  Should they keep on paying for their mistake after they have already paid?  Sometimes second chances are warranted.  Deportation for those who only know America as their home can be a harsh fate, and hurts not only the deportee but their family members too.  No one is arguing that every immigrant convicted of a crime should be pardoned.  Rather, Gov. Paterson is employing an approach that weighs the individual’s crimes against his good deeds.  The pardon power is already embedded in the state constitution, and is a far cry from a circumvention of congressional authority.  Rather, it is the valid exercise of state authority that happens to affect immigration status.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Prison industry drove passage of S.B. 1070, according to NPR

Monday, November 1st, 2010

Here’s a story that NPR broke on October 28, 2010, regarding how the prison industry drove passage of Arizona’s immigration law, S.B. 1070. Not just an interesting read for immigration lawyers, but for anyone that may be affected by similar issues.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Florida’s copycat S.B. 1070 – exempting Canadians and Europeans

Friday, October 22nd, 2010

Here’s an example of draft legislation illustrating the thinking of the sponsoring politician. In Florida, Republican state representative William Snyder has crafted an immigration bill modeled on Arizona’s S.B. 1070 that specifically exempts Canadians and visa waiver program countries, that is, mostly European countries, with a smattering of former European colonies and affluent Asian nations, from the provisions of the bill.

Let me explain.  Representative Snyder’s bill, like S.B. 1070, requires law enforcement personnel to try to determine the immigration status of anyone they encounter in a lawful stop, detention, or arrest, if they have “reasonable suspicion” to believe that that individual is an undocumented immigrant.  This requirement to ascertain immigration status, however, does not apply if the detained person flashes a Canadian passport or a passport from one of the 36 visa waiver program countries. In effect, Canadians and most Western Europeans and the other lucky nationals of visa waiver countries get a free pass under this proposed legislation.  Police are just supposed to drop their “reasonable suspicion” of the undocumented status of these foreign nationals upon presentation of their passports.

I have to make a brief detour here, back to a point I’ve made in a prior post about what we’re asking law enforcement personnel to do under S.B. 1070 and its copycat bills.  So, presumably police officers, state troopers, and sheriffs and their deputies, etc., are supposed to keep a little cheat sheet of the current list of visa waiver countries in their smartphones, or maybe a link to the Department of State website of which countries participate in the visa waiver program, because this list isn’t set in stone and countries come and go.  Or maybe law enforcement personnel will just be expected to memorize this information, like definitions of crimes.  But in any case, in the event of a law enforcement encounter with an individual who the officer suspects may be in the United States illegally, when that officer looks over that person’s immigration papers, the officer will then have to think, “Hold on, is Andorra one of the visa waiver countries?  Should I radio this back to headquarters?”  Is this really what we want to put our law enforcement personnel through?

But anyway, back to the main topic.

If I had to try to justify this exemption of Canadians and nationals from visa waiver countries in Representative Snyder’s bill, I would hazard to say that the thinking was that Canada and the visa waiver countries might be a convenient short-hand for foreign nationals unlikely to be undocumented immigrants.  I’ll note, though, that one country, at least, is both a visa waiver country and one of the top 10 countries of origin for undocumented immigrants.  I would be curious to see a recent top 20 list to see how much overlap there is between the 36 visa waiver countries and the countries of origin of undocumented immigrants, but the Department of Homeland Security only seems to provide the top 10 countries, leaving 1.65 million people labeled unhelpfully as coming from “other countries.”  (In a 1996 report, INS listed 20 countries; but the most recent report only lists the top 10.)  However, this is not the reason that Representative Snyder put forth when questioned about this part of his bill.  His exact words:  “What we’re doing there is trying to be sensitive to Canadians. We have an enormous amount of … Canadians wintering here in Florida … That language is comfort language.”

Let me translate this.  Canadian tourists spend a lot of money in Florida.  Let’s not alienate them, or the mostly European visa waiver nationals, by holding them accountable for obeying our immigration laws.  We only really need to kick out the Latinos and Africans and Asians because they don’t contribute as much to our tourism economy and, well, to be honest, we all know that these are the real riff-raff that cause all the problems in the state.

Is there any other way to interpret this provision of Representative Snyder’s bill?

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Loma de Buenavista – responding to AZ S.B. 1070

Friday, October 8th, 2010

Let me begin by saying that I do not support or agree with Arizona’s anti-immigrant law, S.B. 1070.  I believe that S.B. 1070 is not good law and not good policy.  It is not good law because immigration is federal law, not state law. Any state or local law that interferes with one area of the immigration system without corresponding adjustments in other areas makes it harder for the federal government to balance competing interests and effectively manage the entire system.  It is not good policy because it delegates to law enforcement personnel a function that is highly specialized and difficult to carry out — ascertaining immigration status, which even immigration agents sometimes have trouble doing — and requires law enforcement personnel to take on this function in addition to their current responsibilities.  It is an invitation to racial profiling.  It is also not good policy because it has a chilling effect on immigrant communities in general, whether documented or not, and thus casts too wide a net for its purported goal of combating illegal immigration.  It discourages immigrants from interacting with law enforcement and makes it harder for police to establish good working relationships with immigrant communities in order to prevent and solve crimes.  Immigrant communities are already targeted by criminals who take advantage of this very fear, that the police are the enemy.

All this is not to say that the purported concerns that drove passage of S.B. 1070 are not valid concerns:  to reduce violent crimes and drug and human trafficking crimes committed by undocumented immigrants; fear that the violence from Mexico’s drug wars would increasingly spill over the border; and lack of adequate immigration enforcement at the federal level that allows large numbers of undocumented immigrants to enter Arizona almost at will.  I agree that the federal immigration system needs an extensive overhaul, including effective deterrents to illegal immigration, effective tools for enforcement, unclogging the routes of legal immigration to encourage those we want to come to America to come speedily and contribute to our economy and society, and ensuring that employers who cannot find American workers can legally employ immigrants to do the job.

But on balance, I believe that S.B. 1070 goes too far in infringing on the rights of legal immigrants, chilling relations between immigrant communities and law enforcement, and injecting into the immigration system a wild card element not controlled by federal immigration authorities.  Let’s think through the consequences of all these undocumented immigrants who hypothetically will be picked up under the new law.  These individuals will be handed over to federal immigration authorities, who will then be faced with the problem of what to do with them.  Detention facilities are already overcrowded, and the money to feed and house these additional new detainees, who federal immigration authorities have not designated a priority to deport, will come out of the federal taxpayer dime.  Actually deporting these detainees will add even more (unplanned) burden and expense to the federal immigration budget.  And, once removed, without any change in immigration enforcement policies at the federal level, deportees will  likely promptly cross the border again, being careful this time to stay a little more under the radar, that is, avoid the police even more.

So there are plenty of reasons to criticize S.B. 1070, and I’m sure I’m not the only immigration lawyer in Philadelphia who feels this way .  But one article that I came across today really illustrated for me the frustrations of the Arizonans who support this law.  The BBC story, “Arizona immigration law stokes fear in Mexico village,” is about a poor rural village, Loma de Buanavista, located in the Mexican state of Guanajuato, northwest of Mexico City.  It is estimated that 60% of the village’s population lives in Arizona as undocumented immigrants, sending remittances back to relatives at home.  The village is so dependent upon these remittances that if they were to dry up the villagers would be devastated.  And if large numbers of their prodigals came back home there would be another problem — lack of employment.

Here’s a quote from one of the villagers, Ms. Mata Martinez:  “It’s people that go there (to the US) with no intention to steal or bother other people. They just want to have a job, grow, and generate jobs for those us here.”  Ms. Martinez doesn’t care about whether the waves of immigrants that Loma de Buenavista sends to Arizona enter legally with the permission of U.S. immigration authorities or not.  Clearly, she feels that illegal crossings shouldn’t matter so long as, once over the border, Loma de Buenavistans keep their heads down, work hard, and send money back home.  After all, this money is vital to the village’s economy.  S.B. 1070 is merely an obstacle to the flow of remittances and a threat to the livelihoods of the villagers’ relatives abroad.

While these are the concerns of the people of Loma de Buenavista, why should Arizonans care?  The actions of immigrants from Loma de Buenavista and others like them means that money earned in Arizona is sent abroad rather than spent on the local economy.  Also, depending on whether these immigrants pay income taxes or not they may or may not be contributing their fair share to any government or government-funded services that they use.  I’m not talking about public benefits like welfare or Medicaid that are only available for those with legal status, but infrastructure such as roadways and public transportation systems, emergency room services, fire departments, and other emergency first response services.

Still, try to imagine an Arizona without the Loma de Buenavista immigrants and their brethren.  Who would work the menial and hard labor jobs at low rates of pay that these immigrants are willing to fill, the landscapers, fruitpickers, factory workers, nannies, housekeepers, janitors, and construction workers?  Undocumented immigrants like the Loma de Buenavistans wouldn’t come to America if there wasn’t a demand for their labor that is not met by the domestic labor force.  What we need to do as a nation is recognize this reality and craft federal immigration reform that facilitates the fulfillment of the real labor force needs of American employers, protects immigrant employees from exploitation due to their undocumented status, and keeps better track of (and taxes!  don’t forget the taxes!) those who live within our borders.

A reformed immigration system would theoretically reduce the incentive to attempt to enter illegally for those who just want to come here to work.  This decrease in illegal immigration flows would then free up enforcement resources which could then be used to better target the hardened and dangerous criminals who need to be promptly and permanently removed from the country.  If fear of crimes committed by undocumented immigrants is the real reason behind the passage of S.B. 1070, then I’m afraid that Arizonans will wait a long time to see improvements under the auspices of their new anti-immigrant law.  I predict that S.B. 1070, if ever implemented, will only dilute federal immigration enforcement resources, making it harder to deport the criminal undocumented immigrants that we all want gone. Going through a legitimate Mexican immigration attorney is the most reliable way for families to attain solid legal citizenship; with penalties like these for trying to cut around the process, it seems unduly risky to do anything else.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933