The Immigration Score Sheet -- Four Years of What?

By Alan Lee, Esq.

As we look back on four years of the Bush Administration, Americans who have family members, employees or friends in the immigration process or are otherwise concerned about the drifting path of immigration policy towards conservatism, must decide the importance of the immigration issue to them and, if important, determine whether this Administration and its friends in Congress deserve four more years. To this writer, the Bush Administration, unfortunately, has been one of the worst for the rights of immigrants in the past 50 years. A small list of its "prized" accomplishments follows:

1. President Bush announcing his proposal in January 2004 to give temporary legal status to a large number of illegal aliens, but then not even pushing for any legislation to give flesh to his proposal. The President later further mentioned the proposal mainly in places where the words would be popular, giving credence to many earlier fears that the January announcement engineered by his chief political adviser, Karl Rove, was only done to curry favor from Hispanic-Americans for the November elections. He was, however, caught with the immigration question during his third debate with Senator John Kerry on October 13, 2004, at which time he defended his proposal as giving a "temporary worker card," emphasizing that it was not an amnesty as he stated was earlier proposed by Senator Kerry. Senator Kerry responded that the President's guest worker program by itself would not solve the immigration problem and that the country needed an earned legalization in which workers who have been here for a long time and paid their taxes among other factors could begin to move "towards full citizenship out of the shadows.”

2. The Administration's stripping five judges from the Board of Immigration Appeals in March, 2003, in a blatant attempt to toss off judges who were sympathetic to immigrant rights. At the same time, the Administration encouraged the Board judges to use affirmances without opinion (AWO) - one line decisions without reasoning. In speaking of the reasonableness of this process, the First Circuit Court of Appeals in Albathani v. INS noted that the Board member who denied Albathani's administrative appeal was recorded as having decided over 50 cases on a single day, a rate of one every 10 minutes over the course of a nine hour day. The Court further observed that the Circuit Court itself had taken considerably longer than one day to review Albathani's case, and that the record of the hearing itself could not be reviewed in 10 minutes. The National Association of Immigration Judges was so incensed by Attorney General John Ashcroft's continued interference in Board affairs that it published a position paper in early 2002 urging that the immigration court be removed from the Department of Justice.

3. The Administration's calling on all local law enforcement agencies to take part in enforcing the immigration laws, thereby undercutting efforts of police departments throughout the country to gain cooperation from immigrant communities in criminal cases. Many local law enforcement officials have complained to no avail. The Republican Congress continues its efforts to pass the CLEAR Act (H.R. 2671) and its counterpart in the Senate (S. 1906) which would force all state and local police officers to become federal immigration agents by denying them access to federal funds they are already receiving if they refuse the enforcement duties.

4. The Administration's failure to push Congress to pass two popular pieces of legislation, the DREAM Act and AgJOBS, which are largely noncontroversial and backed by many legislators in both parties. The DREAM Act would give conditional permanent residence status to children who arrived in the U.S. before the age of 16, have lived in the country for five years, graduated from high school or obtained a U.S. GED certificate and are of good moral character. It has 47 co-sponsors in the Senate and 134 co-sponsors in the House. AgJOBS would legalize the status of approximately 500,000 needed farmworkers and has been supported by 63 co-sponsors in the Senate and 104 co-sponsors in the House. In point of fact, the Administration reportedly told the Senate majority leader (reported in the 7/14/04 Wall Street Journal) not to let AgJOBS come up - not that the Administration was for it or against it - just not to let it come up for a vote!

5. The Administration's panicking and splitting the INS into three separate agencies, U.S. Citizenship and Immigration Services (U.S.C.I.S.), U.S. Immigration and Customs Enforcement (U.S.I.C.E.), and Customs and Border Protection (C.B.P.) in March 2003, based on the flimsy excuse that a flight school received confirmation copies of two of the 9/11 hijackers' approvals six months after their changes of status to F-1 student were actually approved. The confirmation copies were sent out by contractors and not INS personnel in a job that was largely ministerial. The upheaval, meanwhile, has caused much confusion to personnel and the public, contributed to massive backlogs of the agency, and not perceptibly improved efficiency and service. As of September 30, 2003, the number of pending cases at the U.S.C.I.S. stood at a record 6 million plus, and in the latest debacle of the Department of Homeland Security, entry was denied on terror related grounds to Yusuf Islam, formerly known as the famous 1970's folk-rock singer Cat Stevens, (best known for his song "Peace Train") and Tariq Ramadan of Switzerland, a moderate Muslim scholar offered a teaching post by Notre Dame University, while entry was reportedly allowed to 3 convicted and controversially pardoned individuals who attempted to assassinate Fidel Castro, Cuba's leader, with 33 lbs. of explosives at the Ibero-American Conference in Panama in November 2000. ("Narrow Borders," am New York, pg. 9, 10/1-3/04).

6. The Administration's alienation of Muslim communities in the United States by instituting the National Security Entry/Exit Registration System (NSEERS) special call-in registration program in September 2002, under which most males 16 and over from 25 countries were ordered to register at local immigration offices ostensibly to improve homeland security by interviewing them to determine whether they or any of their family members or acquaintances were threats. That, however, was not what finally transpired as hundreds were detained, thousands humiliated, and the fruits of the efforts from September 2002 to September 2003 after 290,526 registrations (83,519 call-ins and 207,007 port of entries) was a government statement that 11 had links to terrorism - even though none were charged with terror related grounds of inadmissibility or removability. The Administration proudly stated at the end of the program that it had placed 13,799 registrants into removal proceedings. This fact, however, should not be held up as a badge of honor, but as a mark of shame. It should be noted that DHS officers for the most part ignored the fact that the individuals were not threats and that many had applications for immigration relief pending with the U.S.C.I.S.. The ostensible goal of security gave way to detentions for illegals, deportations, and fleeing of many Muslims to the Canadian border. The end result has been deep distrust of the government by Muslims here and further reason for hatred from abroad.

7. The Administration's scaring away many tourists and students from coming to this country, a blow to the national economy. With its current ingrained culture of "no", this Administration has sacrificed part of the economic well-being of the country by putting up a series of barriers to make visitors and students feel less welcome while other countries are rolling out the welcome mat. Encouraging consular and immigration officers to say "no" to visa applicants and entrants at ports of entry respectively, and lengthening the visa process to unreasonable time limits because of many times ineptly handled security clearances has made the United States a less attractive place to visit and study in. The Social Security Administration in a recent foreign student regulation basically told students that it could care less whether they could drive a car, lease an apartment, or obtain many of the goods and services needed to live independently during the time of schooling. The U.S.C.I.S. with its new non-refundable SEVIS student fee of $100 to even obtain an I-20 student form will further discourage the entry of foreign students, as the student visa is not guaranteed and $100 is much money in most of the world. In the meanwhile, the CBP through its multiple confusing deadlines for machine readable passports, participation in U.S. VISIT, and biometric passports (in which our current biometric requirements do not match international standards) has many times discouraged and frustrated potential visitors to the States. The U.S. Department of Commerce has estimated that visitor spending dropped from $82.4 billion in 2000 to $65.1 billion in 2003 and the number of foreign students dropped by 8.5% between 2001 and 2003.

8. The Administration's seeming fixation with detaining and deporting those entering the country through means other than legal inspection without right to a hearing before an immigration judge or federal court (summary removal proceedings) while at the same time not adequately funding port inspections, a huge hole in our national security in which terrorists could bring in a suitcase nuclear device. Currently less than 5% of containers are inspected. The Administration in April 2003 announced that persons coming in by sea would be detained during the entire period of their proceedings; and further announced in August 2004 that illegal aliens caught within 100 miles of the Mexican border would be placed in summary removal proceedings unless they could prove that they were present in the U.S. for at least 14 days. Now it is attempting to pass legislation to extend the reach of summary removal proceedings to persons sneaking into the U.S. unless they can prove that they have been here for at least five years. In the meantime, the Administration has announced plans to go forward with development of a battlefield nuclear weapon which will penetrate deep bunkers in the earth despite cries of many that the money would be better spent to improve port security.

9. This Administration's unwillingness during its four years to ask Congress to roll back any of the harsh measures of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) including amending the definition of "aggravated felony" to include only serious offenses (currently the term can be applied to shoplifting offenses or other seemingly small crimes and trips up many returning lawful permanent residents at U.S. ports of entry who committed the offenses in the distant past when they were not considered aggravated felonies), repealing the 3 and 10 year bars against entry for most individuals who have been illegal in the U.S. for 180 days or one year respectively after April 1, 1997, and repealing the bar against judicial review of many immigration decisions ( INS was widely recognized as the worst agency in the federal government, and its successor should not enjoy immunity from a federal court's review of the reasonableness of its decisions).

10. The Administration's inability to deal effectively with its right wing House congressional elements as illustrated by October 2004's controversial H.R.10, the 9/11 Recommendations Implementation Act, to the effect that, even when the Administration voices support for removing anti-immigration provisions from such important legislation as asked for by the 9/11 Commission itself, the House Republicans have as of the date of this writing refused to compromise. They turned their 667 page bill into an omnibus wish list fulfillment package for the U.S.C.I.S. and U.S.I.C.E. incorporating many anti-immigrant provisions removing immigrant rights such as raising the bar to gain political asylum, making it easier to deport persons in the U.S. here for a long period of time, and even specifically targeting our successful Second Circuit decision of Firstland International in which the Second Circuit Court of Appeals held that there was no statutory authority for the government to revoke our client's immigrant visa petition once he had embarked on his journey to the United States unless a prior notice of revocation was given.

This is but a short list (which could undoubtedly go on ad infinitum) of the various ways that this Administration and its friends in Congress have hurt immigrant rights. In the House, the most virulently anti-immigration spokesmen up for reelection are Representatives Hastert (R-Illinois), DeLay (R-Texas), Tom Davis (R-Virginia), Sensenbrenner (R-Wisconsin), Hostettler (R-Indiana), and Hyde (R-Illinois). On the Senate side, the chief anti-immigration spokesmen up for re-election are Senators Grassley (R-Iowa), Frist (R-Tennessee), Kyl (R-Arizona), and Sessions (R-Alabama). When you Americans who are concerned with the country's immigration issues line up before the ballot box on November 2nd, you should consider whether you would like to have four more years of this Administration's policies.

The author is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in the case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof.

This article 2004 Alan Lee, Esq.


Copyright © 2003-2012 Alan Lee, Esq.
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