With his announcement Saturday morning that he would delay any administrative reform measures on immigration until after the 2014 midterm elections, President Obama has once again refused to stop or slow the mass deportations which have become the hallmark of his administration. He and his supporters claim he will take action after the elections. I don't know why anyone would believe that at this point. Whatever pressure the president is facing now to delay action would only increase were the Democrats to lose the Senate, as is now predicted by most observers. If Obama's poll numbers would crater if he implemented administrative reforms, dragging down the entire party, Democrats in Congress could persuade him to continue forestalling reforms after the elections. There will always be something more urgent on the president's agenda, some new reason to excuse another broken promise in November.

After the 2012 general election, I had begun to subscribe to the Democrats' prediction that demographic changes in the electorate would inevitably lead to broad legalization relatively soon. Given the demands of the two-year election cycle, House Republicans might succumb to the temptation to demagogue immigrants. But more reasonable voices in the GOP would prevail as the party looked ahead to 2016 and the prospect of failing to win the White House and the Senate. I read with interest Tim Dickinson's analysis of Karl Rove's political strategy in 2010 of winning state legislatures in order to reshape House districts more favorably for Republicans. Dickinson and others predicted that the strategy of spreading GOP voters among a larger number of districts--turning more districts red, but a lighter shade of red--would eventually backfire as the proportion of Democratic voters grew and turned the districts blue again. However, Nate Cohn this weekend presented a rebuttal to this theory, arguing that the concentration of Democratic voters in urban districts, combined with the increased polarization of the electorate, provides Republicans with a structural advantage in the House that could forestall demographic benefits to Democrats for many years. The influx of refugee children from Central America inflamed xenophobic elements in the GOP and made transparent the flimsiness of the Democrats' commitment to immigrant rights. Immigration policy, which Democrats had believed was a strength, was now seen as a threat to the Democratic policy agenda and control of the Senate.

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The public conversation about immigration reform in the U.S. relies on several flawed policy assumptions, for instance, that criminalization of employment and imprisonment for immigration violations are necessary elements of a system of restrictions on entry for noncitizens. I believe that a workable system of immigration controls could be created without those two policies.

These and other consensus policies are predicated on the idea that restrictions on entry and residence are rightfully imposed on noncitizens by sovereign states. That is, that a government has the right--and arguably the obligation--to regulate the entry of noncitizens into otherwise public spaces within its territory.

Contributors to the libertarian-leaning site Open Borders have been deconstructing the assumption that border restrictions are necessary or morally permissible. The site is a great resource, and I agree with many of the arguments made there.

But I want to make a stronger argument: that defining membership in a sovereign polity by accident of birth is not consistent with basic principles of justice. This means that, not only are closed border policies unjust, but the current international citizenship regime is unjust. There can be no "just and humane immigration reform" within this fundamentally unjust system.

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BTC protest Marco-Samuelito.jpg[Image: Steve Pavey]

Hundreds of undocumented and mixed-status families were reunited this week after ICE released people from immigration prisons en masse,
citing anticipated automatic budget cuts known as sequestration. In recent days, the White House has used its formidable political apparatus to play up the negative consequences of the sequester in an effort to maximize political damage to Republicans. Media reports told the story of drastic funding cuts to the Department of Homeland Security forcing the administration to release immigrants from prison. In reality, the sequester was likely an excuse, a convenient opportunity for the government to quiet growing criticism of Obama's longstanding policy of deporting record numbers of immigrants. Nevertheless, budget cuts to DHS mean that fewer fathers, mothers, husbands, and wives will be imprisoned and deported, which is good news for immigrant families.

The administration has stumbled from one public message to another regarding the prisoner releases this week. The initial message to the voting public was that immigrant prisoners were being released because of anticipated budget cuts, with the corollary that GOP hardliners were to blame for endangering public safety and national security. Representative Bob Goodlatte (R-VA) called the White House's bluff and claimed that the White House was recklessly releasing dangerous people. DHS clarified that all of those released were "low-priority" individuals according to ICE's prosecutorial discretion guidelines. But in conceding that none of the people released were a threat to public safety, the administration effectively admitted that they should not have been locked up in the first place. It was a week of spin masquerading as policy.  

If the prison releases really were a direct result of DHS budget cuts, then long live the sequester! Military cuts, prison closures, family reunification--what's not to like?

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A theme emerging from immigrant rights advocacy groups as immigration reform legislation is being drafted this year is that any acceptable bill should "leave no one behind." Groups like presente.org and United We Dream are pushing for legalization for all of the estimated 11 million undocumented people in the U.S. Politicians have promoted comprehensive immigration reform (CIR) as a once-and-for-all solution to the problem of unauthorized migration in the U.S.

President Obama and a bipartisan Senate working group have each proposed a blueprint for reform. The proposed legalization would require undocumented people to register with the government, pass background checks, learn English, pay a fine, and go to the end of the line. By legalizing undocumented people, sealing the border, implementing measures to make sure visa holders leave the U.S. when they are supposed to, and better facilitating future immigration flows, CIR is supposed to do what the 1986 amnesty failed to accomplish: permanently solve the problem of unauthorized migration.

Some issues are still being discussed, such as whether legalization will create a path to eventual citizenship or instead create a long-term limbo status. But despite these divergent positions, a bipartisan consensus is forming around legalization for most of the 11 million. Unfortunately, a significant percentage of undocumented people are unlikely to benefit from legalization as it has been proposed.

Colorlines recently put up an infographic that elucidates this point. None of the current CIR proposals would fundamentally change the immigration system. Beneficiaries of reform will still be subject to most of the laws and regulations that now exist, the same legal regime that pushed 11 million people into the shadows. The reasons that millions would be excluded from legalization include:

  • Unreasonable fees and fines - A friend recently estimated that combined fees and fines will be around $2,000 per person, which seems about right to me. The closest recent parallel was a mini-legalization program ("245(i)") that required fees and fines to the government of just over $2,000 per person. Lawyers' fees could be that much or more. A family of four living on a subsistence income could be looking at $15,000 to $20,000 to legalize. Prohibitive cost could make legalization unattainable for millions of people.

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The National Employment Law Center has released a useful summary of immigration reform legislation since 2004, with the Immigration Reform and Control Act of 1986 (IRCA) included as a baseline. The most recent bills listed may give us an idea of the contours of the bills Congress is working on now.

One provision in several of the bills that I've been scratching my head about is the requirement to be employed at the time of application for legalization, when by definition, applicants are prohibited from working lawfully. This as much as anything else captures the public confusion about immigrants that has made it so difficult to improve the laws. How do you write a bill that reconciles the fear that immigrants are taking jobs with the fear that they are living off welfare?

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I'm going to start publishing lawmaker's statements here on Citizen Orange more regularly. I use SCOUT from the Sunlight Foundation to follow what lawmakers say about the DREAM Act, and am going to start doing so for "immigration" more broadly.

Rep. Yvette Clarke, a Democrat congresswoman from New York's 9th district had this to say about what she thinks priorities should be for the 113th Congress:

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UPDATE: I just spoke with a member of the Immigrant Youth Justice League who has that I identify her only by her first name, Cindy. From what little I was able to speak to her, it sounds to me like she personifies what I think the story of this year is going to be as undocumented youth who have won some small measure of safety through the Deferred Action for Childhood Arrivals (DACA) program work to protect friends and family around them. Cindy is eligible for a regular driver's license after receiving deferred action under DACA, but her parents and other members of her community are not, and that's why she's in Springfield fighting for the passage of S.B. 957.

According to IYJL the bill just passed out of committee but there about 5 votes short in the House. Speaker Madigan, as far as I can tell has not yet publicly said whether he publicly supports or opposes the bill. Cindy said to keep pushing Speaker Madigan, and if you live in Illinois to contact your legislators. If your legislator already supports the bill, ask them to move other legislators.

ORIGINAL POST: It looks like it's going to come down to the wire, but there's a real chance that 250,000 undocumented immigrants in Illinois could be able to drive without fear coming out of this legislative session in Illinois.

This is bigger than Illinois. It could reverse a national trend that the pro-migrant movement has been on the losing side of for some time.

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I'm here in the land of eternal spring, Guatemala, thankful for the privilege that gives me the means and the ability to cross borders to be home with my family, this holiday season. My gift, this year, to those reading this, is one of my favorite Christmas songs--The Kinks' "Father Christmas"--The punk rock they helped inspire clearly shining through.

There's a lot to reflect on, this year.

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Happy Thanksgiving 2012

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I thought I'd share a little bit of Bob Marley this holiday weekend. I can't think of a better musician to express both the gratitude that has become the core of this U.S. holiday, along with the solemnity of the violence from whence it came.

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I sent the following email yesterday to Margaret Sullivan, the Public Editor of the New York Times.

Dear Ms. Sullivan,

I write with respect to your piece today addressing Jose Antonio Vargas's recent request to the AP and the New York Times to stop using the term "illegal immigrant."  Thank you for discussing this important issue.  I am an immigration attorney based in Philadelphia, Pennsylvania.  You cited Mr. Corbett, the associate managing editor for standards at The Times, as stating:

[I]n referring in general terms to the issue of people living in the United States without legal papers, we do think the phrases "illegal immigrants" and "illegal immigration" are accurate, factual and as neutral as we can manage under the circumstances. It is, in fact, illegal to enter, live or work in this country without valid documents.

I wanted to respond to this comment with a few points.  First, the terms "illegal immigrant" and "illegal alien" are not defined in the Immigration and Nationality Act and are generally disfavored by immigration judges and the members of the Board of Immigration Appeals, who make decisions about whether someone is to be removed from the U.S. or not.  According to applicable law, the terms are no more accurate than "undocumented" or "unauthorized."  "Alien" is the most accurate legal descriptor of a non-citizen.  I've attached and copied below a blog post I wrote for change.org a few years ago that explains this in more detail, with citations to applicable law (change.org recently removed the blog posts from that time period from its site, so the post is no longer available online.)

Second, the term illegal immigrant is not accurate because it usually assumes a person's immigration status when that status has not yet been determined by a court of law.  It has been documented that the Department of Homeland Security routinely attempts to deport U.S. citizens, and sometimes succeeds.  

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Illegal is Not a Noun