Wednesday, July 3, 2013

Will Passing Comprehensive Immigration Reform Benefit House Republicans?

Now that the Senate has passed immigration reform, the fate of the bill rests in the hands of the House. Although Speaker Boehner has emphasized that he would work to pass a bill, many have questioned his ability to corral the necessary votes after the farm bill brought to the floor of the House took a nosedive.

The path to immigration reform in the House has always been trickier. Local political considerations for many conservative members of the House may conflict with those of the national Republican party. On the national level, party luminaries see potentially catastrophic losses in future elections if the Hispanic community holds Republicans responsible for sinking immigration reform. On the local level, however, some House members fear that their predominantly conservative constituents will punish them at the polls if they vote for the bill. Thus, the national interests of the party may not coincide with local politics. And House politics is very local.

A new conservative talking point has emerged in recent days. Some prominent conservatives claim that Republican support for an immigration reform bill will not help at the polls and may, in fact, do the opposite because it will make a percentage of core conservatives less likely to vote.

Republicans are right to question whether their support for an immigration reform bill will benefit them in future elections. But part of the reason they are right comes down to the way in which they are approaching the issue. To illustrate, picture a married couple that gets into a fight. The wife asks the husband to apologize for a rude comment. The husband says he is sorry but the wife does not feel vindicated because the husband's tone implies that he is not really sorry - rather, he just wants the fight to be over.

The overall perception of the Republican party on immigration reform has the same tonal problems. Even if the bill passes, many will perceive Republican votes in favor of immigration reform as a hollow I'm sorry, which minimizes its potential benefits. Because Republicans did not enter the immigration reform debate with a unified national front, they've already minimized the potential benefit they could have obtained by supporting a bill. (That's not to say there aren't legitimate reasons why many Republicans have been hesitant - there certainly are.) They can either stubbornly refuse to say they're sorry and accept whatever benefits or consequences come with it, or they can begrudgingly try to sound genuine and hope the response is sufficient to make the problem go away.

Friday, June 28, 2013

NSA Leaker Snowden and Political Asylum

Regardless of what you believe about what he did, there is something comical about the chain of events surrounding NSA leaker Edward Snowden. The idea that he is sitting in an airport terminal in Russia while Putin says there's nothing he can do and Julian Assange, held up in an embassy in London, works to help Snowden elude the U.S. government. Meanwhile, Ecuador, likely the desired destination for Mr. Snowden, decides to back out of a trade agreement with the United States so that the U.S. cannot use the trade agreement as leverage against Ecuador as Ecuador decides whether to provide Snowden with asylum protection.

But even if Snowden did make it to Ecuador (and it's not clear at this point that he can), is he even entitled to obtain asylum relief? The answer to this question really is based on what you think about Snowden's actions. To obtain asylum, an applicant has to show that he or she will be persecuted on account of one of the five protected grounds and that the government is responsible (or abdicates to to the actions of private individuals). If Snowden is sent back to the U.S., he will likely spend the rest of his life in jail. So is this persecution on account of a protected ground?

The five grounds are: race, religion, nationality, political opinion, and social group. Here, the protected ground at issue is political opinion. Snowden disclosed classified information. A law says that you cannot do this. Countries have a right to prosecute individuals who violate the law, right? Well, it depends. It can be a judgement call, requiring countries to pass judgment on the way that other countries address perceived human rights issues.

For example, China requires Christians to practice in sanctioned institutions (although the restrictions appear to be loosening). The United States believes Christians should be able to practice their religion in any matter they see fit. Thus, if a Christian in China is punished for attending services in a house church, the U.S. government might provide that person with asylum relief even though that person has technically violated a law in China.

A more on-point example for Snowden's purposes is whistleblower protection. Under the theory that they are expressing a political opinion, the U.S. has provided asylum relief to applicants who claim they face persecution because they tried to expose government corruption.

So where does the U.S. surveillance program fall? According to some recently conducted polls, a majority of people in the U.S. think the government's actions are a reasonable response to ongoing security threats. Should that matter? And what are the implications of countries using the asylum process as a way to simply stick it to the U.S. for broader reasons?

Monday, June 10, 2013

Comprehensive Immigration Reform Faces Numerous Challenges in the House

If immigration reform's fate were based on securing a simple majority vote in the Senate, then it would easily pass. But of course sixty votes is now needed to pass anything in the Senate. Further complicating the task in the Senate, immigration reform supporters are looking for more than sixty votes. Seventy seems to be the magic number. This supermajority serves no purpose other than to provide momentum for the much tougher battle looming in the House.

The path to passing immigration reform in the House has never been completely clear. Here are three of the major obstacles:

1) Path to citizenship. Even with a 13-year wait period, many conservatives cannot stomach any form of amnesty. Yet this path to citizenship is non-negotiable for many Democrats, which puts Speaker Boehner in a difficult position as he tries to corral his members. (Although Boehner has been largely silent on immigration reform, he has recently made several references to a timetable for marshaling a bill - or multiple bills - through the House.)

2) Border Security. Even in the Senate, this continues to remain an extremely contentious issue. It all comes down to setting a way to determine whether the border is "secure," which will be a trigger for the path to citizenship. Senator Rubio plans to propose an amendment that will require a 90 percent apprehension rate of individuals crossing the border illegally. Putting aside the difficulty in assessing the apprehension percentage, 90 percent sounds like an unfeasible threshold. And immigration advocates have been quick to point this out.

But if this is an unrealistic percentage, then Democrats must concede that tens of thousands of people will continue to illegally enter the United States every year, even if the bill passes and increased border security measures go into effect. And if such entries take place over a significant numbers of years, down the road there will again be a sizable number of unauthorized immigrants in the country. Thus, immigration advocates who claim that the current bill is a solution to illegal immigration are incorrect. The bill is a proposed solution to the present circumstances. As noted in previous posts, immigration is not a problem that will be "solved" in any sustainable way. To do so would require changes to people's innate desire and drive to pursue greater opportunities for themselves and their families. (Or it would require a draconian convergence of technological advancements and privacy infringements in the name of security.)

3) President Obama. Plain and simple, the prospect of President Obama being perceived as "winning" if immigration reform passes is a pretty substantial roadblock. This has nothing to do with policy or the bill itself. It's all politics. There is a contingent of House Republicans who do not want to be seen as supporting a bill that would positively contribute to Obama's legacy. Period.

Wednesday, May 29, 2013

Immigration Bill Clears Committee and the Search for Votes Continues

After hundreds of amendments, the immigration reform bill has made its way out of committee. The biggest stumbling block was an amendment Senator Leahy wanted to offer that would have provided U.S. citizens with a right to file petitions for permanent residency on behalf of their same sex partners. For a number of Republicans, this amendment would have been a poison pill, so Senator Leahy agreed to refrain from proposing it.

Anyone interested in immigration reform should see this as a smart decision by Leahy. Immigration and gay marriage are both contentious issues. Mixing the two together only serves to severely lower the chances that any immigration reform package will pass. And the truth is, in the not-too-distant future, U.S. citizens will have the right to petition on behalf of a foreign national of the same sex. The speed with which the tide has turned in the United States on the issue of gay marriage has been staggering. On the whole, younger generations in the United States simply don't oppose gay rights with the vigor seen in a sizable percentage of older generations. So it's simply a matter of time before immigration law is amended to reflect this reality.

So now that the bill is out of committee, it is up to the Senate leadership to muster the 60 votes needed to avoid a filibuster. It's not yet clear that they have the votes, which is where the balancing act begins. It all comes down to being able to amend the bill in a manner that will appease Senators who have not agreed to vote for the bill while making sure that such amendments do not lead any Senators to pull their support.

Many of the same stumbling blocks discussed in a previous post may still surface in the floor debate. But there is one previously mentioned stumbling block that does not seem as dangerous anymore: the cost of immigration reform. The Heritage Foundation released a study that suggested an astronomical implementation cost. But the faulty methodology of the study and racial conclusions reached by one of the co-authors in previous works led the study to, as the Washington Post explained, "land[] with a thud." And the grumblings were not limited to Democrats. Republicans, as well, were left scratching their heads.

Another line of attack conservative groups are using against the immigration bill is to compare its complexity to Obamacare (and claim that both bills are "bloated"). In a way, this line of attack is accurate. Health care is complicated. Immigration reform is complicated. Thus, the bills that address these issues respectively are complicated. But the accuracy of this line of attack is not a reason, in and of itself, to kill the bill. If it were, then the U.S. would only confront simple issues.

And aside from the bill being complicated, the implementation of the bill (assuming it passes) will be especially bumpy. In 1996, President Clinton passed an amendment to immigration law that actually sought to limit the rights of certain immigrants and make it harder for them to fight deportation in court. The initial reaction of many government immigration attorneys was that their jobs might be in jeopardy. To the contrary, however, immigration litigation increased over the next decade. So imagine the volume of litigation after a comprehensive immigration reform bill gets enacted. It would certainly be the golden age for the immigration attorney.

Tuesday, May 7, 2013

Comprehensive Immigration Reform Stumbling Blocks

The Gang of Eight's immigration reform proposal will soon be debated in the Senate Judiciary Committee. During this time, opponents of immigration reform will do what they can to offer amendments to the proposed bill, in the hopes that they can derail the proposal. Here are some of the main issues that could potentially thwart the proposal:

1. Border security: Even though Marco Rubio was one of the senators who crafted the initial proposal, he is already advocating increased border security measures. Specifically, he is concerned that the language in the proposed bill does not do enough to ensure that unauthorized immigrants are barred from obtaining green cards until there is actual proof that the border is secure.

Most senators would be fine with increased border security provisions. But, such provisions may serve as a stumbling block if immigration advocates view the provisions as unobtainable. After all, a path to citizenship is irrelevant if the path can only be triggered by an unrealistic benchmark.

2. Internal security: The Department of Homeland Security's border patrol presence is much greater than it used to be and the government has made it much more difficult for unauthorized immigrants to cross the border illegally (although when there's a will there's a way). However, government efforts are severely lacking when it comes to monitoring people already in the country. We saw this on display after the Boston bombings when it was discovered that some of the players may have been permitted to reenter the United States even though they were no longer involved in the activities linked to their visas.

DHS is already proposing some modifications to its current procedures to correct these monitoring deficiencies, which shows that the efforts do not necessarily have to be tied to a comprehensive reform bill. But as senators start looking into the verification procedures and background checks used to ensure  prospective immigrants and visa holders are here legally and do not pose a security threat, look for some interesting amendments that might irk immigration reform proponents.

3. Employment visas: Business and labor groups negotiated at great length to come up with a compromise for the optimal number of employment visas that will be allocated for various types of jobs.  But many institutions have specific employment needs and they will be lobbying behind the scenes to maximize their positions, which could potentially upset the carefully crafted balance.

4: Cost: The cost of comprehensive immigration reform has not yet taken center stage but expect to see much more about it in the upcoming weeks. Implementation costs are much easier to quantify than assumptions about the long-term economic impact of immigration reform. Politicians and political interest groups will start to highlight studies and analyses that purport to accurately quantify the cost. For example, the conservative Heritage Foundation just released a study that put a long-term 6.3 trillion dollar price tag on the package. How they arrived at that figure is less important than the fact that this number will be repeated in the news over and over again and will register with some.

Saturday, April 27, 2013

20 Years in the U.S. + Caught With a Gram of Marijuana = Deport?

Adrian Moncrieffe is a Jamaican national. He legally came to the United States in 1984. More than twenty years later, in 2007, he was arrested for possessing 1.3 grams of marijuana (described as the equivalent of two or three joints). He pled guilty to "possession of marijuana with intent to distribute" in the state of Georgia. As a result, the government sought to deport him.

The case is one among many crimmigration cases that, in recent years, has made its way to the United States Supreme Court. The intersection between criminal law and immigration law has always been dicey. Many of the convictions that render a person deportable are based on state law. However, immigration law is federal. Accordingly, to determine whether a drug crime renders someone deportable (or ineligible for relief from deportation), the courts often must ask whether that person would also be guilty of a particular federal drug crime.

In Moncrieffe's case, the answer to that question could determine whether or not he is deported. Earlier this week, the Supreme Court held that an immigration judge should have the discretion to not deport Moncrieffe because his crime was not necessarily severe enough to require deportation. According to the Court, his conviction could simply mean that he planned to give a joint to a friend, free of charge; he wasn't necessarily going to sell the marijuana to others. And, giving a friend a joint does not eliminate an immigration judge's authority to halt a deportation. (The more technical reasoning behind the Court's categorical analysis of the crime can be found here.)

It may seem harsh to require deportation when a person present in the United States for over two decades is caught with such a small amount of marijuana. But U.S. drug laws are very harsh for everyone, including U.S. citizens. Thus, it could be argued, there is no reason why immigrants should bear any less of the brunt of harsh U.S. drug policies.

On the other hand, it could be argued that even if a drug offense should render someone deportable, immigration judges should still have the discretion to cancel deportation if the circumstances warrant it. Another argument is that the economic resources expended to deport someone for certain minor drug charges just aren't worth it. Why not redirect the resources to those who may actually pose a national security threat? Then again, perhaps the minor drug conviction is the only way to deport someone who may pose a greater security risk (much like tax evasion charges against mobsters).

It will be interesting to see whether the immigration reform measures proposed (or soon to be proposed) by Congress will adopt the status quo or contemplate changes to crimmigration.

Friday, April 19, 2013

Will Boston Derail Immigration Reform?

Details are starting to trickle in about the two suspects that authorities believe are responsible for the horrific incident during the Boston Marathon. One of the suspects, Dzhokhar Tsarnaev, is a national of Kyrgyzstan who became an American citizen last year. The other suspect, Tamerlan Tsarnaev, emigrated to the United States as well. He was killed last night in a shootout with police.

The potential for immigrants to commit crimes is always an argument made by anti-immigration groups as a justification for limiting immigration. Conversely, immigration proponents would rather highlight the vast majority of immigrants who contribute to society and do not engage in illegal behavior. They argue that the actions of a few do not provide a justification for curtailing immigration.

The debate becomes less abstract (and initially more emotionally driven) when a specific horrific incident is linked to someone who is not a U.S. national. Between lax immigration and security, the pendulum naturally swings toward security.

We saw this after 9/11. After it was discovered that at least one of the hijackers had obtained asylum, Congress passed the REAL ID Act, which, among other things, sought to tighten up the asylum system. But time passed and the pendulum has slowly begun to swing away (slightly) from security; the asylum grant rates are now holding steady at around fifty percent.

So what will the reaction be now? The Boston Marathon details will certainly galvanize those who are opposed to the comprehensive immigration reform proposal unveiled earlier this week. And security concerns will cause a segment of the population to question the current proposal.

This horrific incident should remind everyone that security is a broader concept than border security. It also serves as a reminder that there is no such thing as 100 percent effective security measures.

For every 100,000 immigrants that Congress proposes to legalize, there will inevitably be a few bad apples - just as there are outside the immigrant community. The question is, do the security risks posed by these bad apples outweigh the social, economic, and humanitarian value that the vast number of immigrants contribute to the United States?