President Obama has always made it known that he favors the enactment of some form of comprehensive immigration reform to allow for a “path to citizenship” for at least some of the approximately 12 million living in the U.S. without legal immigration status. During his term, it’s been a Republican Congress that’s been the main obstacle to getting any type of immigration reform initiative passed, whether it be the DREAM Act, or more comprehensive reform proposals. If you are wondering how the Republican candidates for President would approach the issue – below are direct quotes attributed to each of them, along with my own peanut gallery assessment:

Mitt Romney
“My view is, people who have come here illegally, we welcome you to apply but you must get at the back of the line, because there are millions of people who are in line right now that want to come here legally. I want those to come here legally. Those that are here illegally have to get in line with everybody else.” [Republican Debate, December 15, 2011]

RH – What line are you talking about Mr. Romney? The vast majority of undocumented individuals currently have no avenue toward legal status in the first place, and thus have no line to get into! This sounds good, but has no basis in reality. Maybe, like most politicians, he is just saying what he thinks the public wants to hear just to get elected, and once elected will do whatever suits his political agenda and survival. After Iowa, it looks like BS and nice sound bytes take you places though. Slick guys finish first?

“If I were elected and Congress were to pass the DREAM Act, would I veto it? The answer is yes.” [Washington Post, December 31, 2011]

RH – Same assessment as above. Sounds tough, and that’s what Romney thinks he has to sound like on immigration issues. Any reasoning he would cite, like in the first quote, would likely have no basis in reality. Nevertheless, slick guys appear to finish first.

“As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering. As President, a first step that [I] will take is to raise the ceiling on the number of visas issued to holders of advanced degrees in Math, Science, and engineering who have job offers in those fields from US companies.” [Believe in America, September 6, 2011]

RH – Great idea, and sounds great.

Newt Gingrich
“I do not believe that the American people are going to tolerate going after somebody who has been here 25 years, who has a family, has children and grandchildren, belongs to a local church. What I proposed is very standard things. Control the border by January 1, 2014. Make English the official language of government. Go to a much better visa program that’s much…that makes it more desirable to visit the U.S. legally. Go to a better deportation program to move people out who shouldn’t be here.” [CBS News, December 18, 2011]

RH – Congratulations Newt. You may win the award for the most honest of this bunch. Your answer is practical and real. Be careful though, honesty may not get you too far in this race. The tougher, “law and order” talk seems to be what most of the other politicians think will win the day.

“Let me start and just say I think that we ought to have an H-1 visa that goes with every graduate degree in math, science and engineering so that people stay here.” [Republican Debate, November 22, 2011]

RH- Great idea! Sounds great.

Ron Paul
“Somebody who’s been here and it’s their country I think there should be a program to bring them into the fold…but I want it to be done systematically. I think we need more efficiency at our borders, and allow the people to come in, especially for people who can take care of themselves. But you ask about what we do with 11 million and I would say you have to work out a program of assimilation, but you can’t just say borders don’t count and people should be rewarded for breaking the law.” [Univision, October 2, 2011]

RH- same commentary as for Newt. Its honest, real talk. Not as sexy as law and order though.

“End Birthright Citizenship – As long as illegal immigrants know their children born here will be granted U.S. citizenship, we’ll never be able to control our immigration problem.” [Ron Paul 2012]

RH- whether you agree with his stance or not, he is honest and truly believes what he is saying, particularly regarding the attractiveness of US citizenship for all children born here. His blunt commentaries appear to be getting him places.

Voted “yes” on H.R. 3736, a bill that increased the number of highly skilled workers from 65,000 to 115,000 by the year 2000. [U.S. House of Representatives, September 24, 1998]

RH- consistent with earlier commentary, he is honest and realistic on this issue as well. What planet he lives on other issues, such as foreign policy, is a whole other question.

Rick Perry
“Amnesty is not on the table period. There will be no amnesty in the United States. We’re a country of law and the idea that we’re going to tell people that somehow or another that that’s all forgiven is not going to happen.” [ABC News, November 29, 2011]

“But I do think that there is a way. That after we secure that border that you can have a process in place for individual who are law- abiding citizens who have done only one thing, as Newt says, 25 years ago or whatever that period of time was, that you can put something in place that basically continues to keep those families together.” [Republican Debate, November 22, 2011]

RH – Amnesty…a word loaded with toxicity in the immigration debate. However Rick, there is already a de facto amnesty in place now, as the US government is looking the other way for the millions in the U.S. without status. True to his inner character, Rick comes off like he wants it both ways and talks from both sides. He is not brave like Newt and some of the others – who says it like it is. Too slick for his own good it seems.

“But if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart. We need to be educating these children, because they will become a drag on our society. I think that’s what Texans wanted to do.” [Republican Debate, September 22, 2011]

RH – sounds a little braver, but he tends toward back pedaling whenever one of his controversial positions, such as this, are taken issue with. After Iowa, he seems to be on his way out anyway.

“We need highly technical, trained engineers and biomedical scientists. And a lot of times, you can’t get those people because they can’t get an H-1B visa, for instance.” [CNBC, September 29, 2011]

RH- True!

Rick Santorum
“The idea people who are here 20 or 25 years and came here illegally only committed one illegal act, well, you can’t be here and commit one illegal act because almost everything you’re doing while you’re here is doing things against the law…So we say, we should let that happen. We shouldn’t break up families. We should let them all come…This is false compassion.” [CNN, December 6, 2011]

RH – Honest and practical. No waffling, so it seems.

“First off, I’m actually for a system that allows for people to come here, if they come here on a student visa or they come here on a visa that — you know, where they’re getting some sort of higher education or they’re learning some great skills that are good and necessary for the country — my feeling is, you know, if they graduate and do well, we should — you know, we should have — actually give folks the opportunity to have a green card and to stay here and work.” [Fox News, November 29, 2011]

RH – Sounds good. Is good.

Michele Bachmann
“Well, I don’t agree that you would make 11 million workers legal, because that, in effect, is amnesty. And I also don’t agree that you would give the DREAM Act on a federal level.” [Republican Debate, November 22, 2011]

RH – She sure is honest, and she does not waffle. Is she crazy? Is there any practicality to her approach? Those are separate questions. My take on the practicality of deporting 11 million people – including placing them in removal proceedings and providing “due process”? – HA, Good luck federal government! Anyway, after IOWA, all of her talk, and my commentary, is perhaps moot.

“We think about the United States and what’s in the best interests of the United States. If we can utilize these workers, like Steve jobs wanted to, then we need to offer those visas. That will help the United States. But I don’t agree that we should make 11 million workers who are here illegally legal.” [Republican Debate, November 22, 2011]

RH – Practical and smart on the visas for professionals and skilled workers. Not so much on the other issue.

Jon Huntsman
“I think you have to take a very practical approach to having them [undocumented immigrants] wait in line. There have to be certain requirements. Language requirements. English as an official language for example. Paying back taxes, if that is applicable. There needs to be some steps along the way that would suggest that they have paid whatever price and penalty in order to come out of the shadows and to gain citizenship in this country. You have to create a system whereby you can move towards citizenship. You can’t wish people away. You can’t just use rhetoric that says we’ll ship people back.” [Think Progress, September 19, 2011]

RH – Honest and practical, except for that “line” comment.

“I believe immigration is a human as well as an economic issue, and that children of illegal immigrants shouldn’t be punished for the sins of their parents.” [CBS News, September 23, 2011]

RH – Honest and practical.

“We can’t process people. The H1B visa process is broken. We need to bring in brain power to this country to shore up our economic might. We need to bring in foreign capital to raise real estate prices as well.” [Republican Debate, September 12, 2011]

RH – Smart, practical and honest!

PUBLISHED January 4, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Watching presidential debates is not one of my favorite things to do, mainly because I have a hard time believing a single word coming out of any of the participants’ mouths.  The posturing is so obvious, with each candidate trying their hardest to get their sound bites in, and say the things their “people” tell them they need to say.  So it was by accident – while looking for enjoyable garbage to watch on the Dumb Box (my mother’s affectionate term for the television), that I happened upon the debate involving Republican candidates for President last week.  At the moment I tuned in, the one topic I have more than a little familiarity with was being argued, U.S. immigration policy.  So I gave it a listen, curious to hear if any honest conversation was going on, or if it was going to be the usual festival of scare tactics, half-truths and snake oil pitches all too common in political arena immigration discussions.

What I heard: mainly the familiar cries for anything but the incumbent’s policies.  “We have to enforce the border”.  “We can’t have an amnesty….or have any talk about a path to citizenship, without first securing our borders…” (with hand stomping on podium……and praying for applause).  But, the question these politicians have a hard time answering, and do not want to answer is “what does securing the border mean?”  By repeating the “secure the border” cry in trancelike fashion, the politician seeks to avoid the next, elephant in the middle of the room, question of what do we do with the 12 million undocumented who are already here.  Of course these candidates will also do their best to avoid talking about how Barack Obama has facilitated record numbers of deportations during his term and has successfully amped up our border strength with advanced technologies and increased manpower.

However, one candidate, Newt Gingrich, had the nerve to talk truth about immigration, and touch on the 12 million dollar question – suggesting a “humane” immigration policy and confessing he would not remove all illegal immigrants that are currently in the country:

“I do not believe that the people of the United States are going to take people who have been here a quarter century, who have children and grandchildren, who are members of the community, who may have done something 25 years ago, separate them from their families, and expel them,”

Now that took nerve.  Here in the midst of a gathering of the Republican’s best and brightest, Newt Gingrich took a risk and said what every other candidate deep down truly believes.  Of course our society will not be removing all of our undocumented.  That fact alone is evident in the practice of the various administrations in office over the past generation, no matter the party affiliation.  Newt’s statement nevertheless drew the predictable chorus of accusations that he is “soft” on immigration, and that irresponsible statements like his show he will be inclined toward creating policy that encourages more illegal immigration since the law breakers of the past will now be rewarded with green cards.

Let’s forget about the fact that for more than the past generation our society has implemented a de facto amnesty anyway, where we look the other way when it comes to our undocumented  immigrants who are not committing crimes, but instead are committed to cleaning up our homes, taking care of our elderly or installing our new dry wall.  No one at the Republican debate acknowledged that fact, and that our de facto amnesty is already a significant “magnet” to encourage people to come here based on the predominant motivation at play – that life in the U.S. without status is better than the futureless, hopeless life that awaits back in an opportunity-less and/or corrupt homeland.

Maybe Gingrich is already looking ahead and plotting a strategy for the November, 2012 general election.  Or maybe he was just having a moment of unavoidable arrogant clarity.  Whatever the case, it seems that notwithstanding the immediate schoolyard name-calling his immigration remarks prompted from his opponents, Gingrich stated an indisputable reality:   the undocumented population with deep roots in the U.S. and who are otherwise law-abiding, are not going home voluntarily, and further, face almost no chance of ever being deported.  Mitt knows it.  Rick knows it.  Herman knows it.  And even Michelle knows it.

PUBLISHED November 28, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

It made a splash, a big splash, even a misunderstood splash (as is common with splashes in immigration law).  Last week, the Obama Administration delivered the news that it would be re-prioritizing its immigration enforcement efforts, starting with a review of 300,000 removal (deportation) cases pending on the immigration court docket and consideration of “administrative closure” for the cases of non-criminals.  Administrative closure effectively, and indefinitely, puts a halt to the deportation process.  Furthermore, an individual benefiting from administrative closure mercy will be eligible to obtain an Employment Authorization Document.

This announcement offers hope to many in the midst of fighting removal proceedings.  It also offers confusion to millions of undocumented individuals living in the U.S. hungry for a solution to their immigration problem, and who are vulnerable to misinformation, fantasy, despair or all of the above.

Here is what we know about the new program:

1)      A high level “working group” comprised of Department of Homeland Security and Department of Justice officials will review all cases pending before the immigration courts, with cases deemed “low priority” being administratively closed, and those considered “high priority” to continue to be prosecuted.

2)      Although “low priority” and “high priority” have yet to be defined, there is reason to believe – based on previous Obama Administration memoranda and policy – that non-criminal cases, involving, among other factors, hardships to individuals and families residing in the U.S. for extended periods will qualify as “low priority”.  “High Priority” no doubt will be cases involving individuals with criminal backgrounds of some sort or another.

3)      New guidance will be issued to the various immigration related agencies within the Department of Homeland Security (including U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection) regarding what constitutes “low priority” and “high priority” to assist in decision-making, before the fact, for the initiation – or non-initiation – of removal proceedings.

4)      Individuals with administratively closed cases will be eligible to apply for employment authorization, although details of how such an application process will work have yet to be revealed.  Further, individuals granted employment authorization in this context are not considered to be in “legal status” or even on the road toward legal status, but only the subjects of a temporary, perhaps indefinite, reprieve.

5)      It is NOT an amnesty.

6)      It is not an avenue that can be availed of by which individuals who are not in removal proceedings.

The wording of this announcement appears to indicate that consideration of cases for “low priority” status and administrative closure will take place regardless of whether the subject requests such review.  However, it makes good sense for non-criminals in the midst of fighting removal proceedings, and with compelling, or even semi-compelling humanitarian factors, to take the initiative to approach their prosecuting ICE attorney’s office and seek an exercise of prosecutorial discretion consistent with the spirit of this new program.

In no case should an individual, who is not in removal proceedings, pay an attorney or other purported professional to avail of benefits under this program – as no benefits exists outside the context of removal proceedings.  And again, even for those in removal proceedings, details regarding how the act of mercy (administrative closure), or employment authorization can be accessed are few and far between at this point.  As always, though, important developments in this area, and all areas of immigration law, will continue to be reported on here.

PUBLISHED August 22, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

With the DREAM Act out of the picture for now, the 15 million undocumented/out of status immigrants living in the U.S. are left wondering, what options for living legally in the U.S. are left? Of course leaving the U.S. is not an option for the vast majority of these immigrants – contrary to what the anti-legalization camp see as their next logical step. These individuals have already decided that life in the U.S. in an undocumented status is better than life as a legal resident in their home country. The option most of this population will pursue is to simply wait. At some point, our nation and the U.S. Congress will come to realize that wide scale deportations are not going to happen, and that a path to legalization is the only solution. In the meantime, as stated, for most it’s a waiting game, although the following options at legalization or adjusting status for the undocumented or visa overstay continue to be viable:

1)  Visa Overstays May Be Able to Adjust Status if: they are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen. This class of immigrant may have the option to adjust status in the U.S. without having to return to their home country for any step in the process, notwithstanding unauthorized employment or overstaying their authorized period of stay in the U.S. (does not include those entering as “crewman”, or K-1 fiancés who did not marry their petitioner). Spouses of U.S. citizens, parents of adult U.S. citizens, and under 21 children of U.S. citizens are known as “Immediate Relatives” in immigration law talk and do not require additional legal qualification for eligibility to adjust status in the U.S. such as coverage under INA Section 245(i) – see below – to adjust status in the U.S.

Other types of non-“Immediate Relative” family based immigration applicants or employment based applicants who are visa overstays may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 - pursuant to Section 245(i) of the Immigration and Nationality Act –see below.

2)  Entered Without Inspection (EWI): If you are the spouse of a U.S. Citizen, a parent of an adult (over 21) U.S. citizen, or child (under 21) of a U.S. Citizen who entered without being inspected by an immigration official (e.g. no visa), the option to adjust status in the U.S. only exists if you were previously included in some sort of family or employment based immigration filing submitted pursuant to Section 245(i) – see below.

Other types of non-“Immediate Relative” family-based or employment-based applicants who entered without visas (EWI) may be able to adjust their status in the U.S. but only if they were included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, or January 14, 1998 – pursuant to Section 245(i) of the Immigration and Nationality Act.

3) EWI’s or Visa Overstays with an employer willing to facilitate a green card process, and they are a professional and/or have some special skills that may be scarce in the U.S. labor market, an employment based immigration filing may be an option if they are grandfathered under Section 245(i). Word of warning though: most candidates for this option may very well be waiting 5 years – give or take – before any type of immigration benefit, such as an employment authorization is in sight.

What is Section 245(i) of the Immigration Nationality Act? Section 245(i) allows for certain otherwise ineligible visa overstay/undocumented immigrants to undergo all steps in the U.S. immigration process in the U.S. and without having to return to a U.S. consular post in their home country (aka “245(i)grandfathering”). To be “grandfathered” under Section 245(i), the applicant must have been:

a.  included in some sort of family or employment based immigration filing submitted prior to April 30, 2001, and they were physically present in the U.S. on December 21, 2000 OR

b.  included in some sort of family or employment based immigration filing submitted prior to January 14, 1998 (with no physical presence requirement)

Relief in Removal Proceedings: If the visa overstay or undocumented immigrant gets arrested by immigration authorities and placed in removal proceedings, options to remain in the U.S. and even be awarded permanent residence by the Immigration Court indeed are available. Most notably, relief known as “Cancellation of Removal” allows those without status to be considered for a green card by the Immigration Court if: 1) they have been present in the U.S. for more than 10 years or more prior to being placed in removal proceedings. 2) they are of good moral character and 3) their U.S. citizen or permanent resident spouse, parent or child will suffer “exceptional and extremely unusual hardship” if they were forced to return to their home country.

For those who fear return to their home country due to persecution they might face on account of their race religion, political belief or “social group”, asylum-related relief (and eventually green card issuance) may be available from the Immigration Court.

PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

As most people have come to learn by now, the DREAM Act – the legislative initiative to allow for the legalization of 1 million or so undocumented individuals who came to the U.S. as children – has been shot down by Congress. The very same Republican force that gave birth to this legislative proposal a few years back was pretty much responsible for its demise. And yes, 2 +2 = 5.

 PUBLISHED December 20, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

If past experience is any guide to the future, the new and “improved” DREAM Act proposal now up for congressional consideration has little or no chance at passage. As the post 9/11 era has taught us, legislative proposals to excuse, in any way, immigration law violations generally face the bleakest of prospects. Proponents of the new DREAM act, or any other type of initiative to “go easy” on immigration violators, will surely be greeted with the same heated opposition previous versions of the proposal faced, even though the current bill comes with many more eligibility restrictions. A key vote on the new proposal will take place in the coming week.

First, a review. The DREAM in the DREAM Act stands for Development, Relief, and Education for Alien Minors. The essence of the DREAM Act, in all of its incarnations – including the present one, is to allow for a path to legal immigration status for certain undocumented immigrants brought to the U.S. as young children, who have completed a high school education or equivalent and fulfill, prospectively, other conditions such as a minimum number of years of college or honorable service in the military. The enactment of a DREAM Act type proposal would benefit approximately 1-2 million undocumented young adults who were essentially raised as “Americans”, consider themselves “Americans” and have never really known any country other than the U.S.

To make the bill more attractive to the mainly Republican opposition in Congress, sponsors have added more stringent eligibility requirements, including:

• Excluding from eligibility applicants with a criminal record of more than two misdemeanors convictions,
• Requiring applicants to provide complete biometric information to Department of Homeland Security, and register with Selective Service (like all other US citizen and residents over the age of 18 years are required to do),
• Requiring applicants to pay all taxes owed to date, 
• Imposing a cutoff age of 30 years old as of the day of enactment, 
• Extend the good moral character requirement to the day the applicant originally entered the US as opposed to the date of enactment, 
• Requiring applicants to eventually demonstrate English language and Civics proficiency similar to current naturalization requirements, 
• Imposing a 10 year conditional nonimmigrant status, followed by 3 years of lawful permanent resident status, before ultimately becoming eligible for naturalization,

Opponents of the DREAM Act say the enactment of this proposal would lead to all kinds of financial burdens on U.S. society. However, a common sense evaluation of the facts on the ground reveal otherwise. Most notably – with passage of a DREAM Act, we will have a population of young adults who will now be in a position to work legally in the U.S. and PAY TAXES. Remember, these young adults are not going anywhere – unless forced to by ICE agents, since the countries of their birth are practically different planets to them. Further, the costs of instituting and executing on a plan to deport this portion of our undocumented population is prohibitive, estimated to be in the area of $48 billion. Lastly, if forced to removal proceedings, a good portion, if not majority of this population would qualify for relief in court based on their lengthy residence in the US and hardships to US citizen and resident family members.

Of course the enactment of the DREAM Act, whatever the version, makes good sense, as does overall comprehensive immigration reform for the undocumented population at large. It’s just that good sense and politics do not always go together. We will know more next week.

PUBLISHED December 1, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

For about the past 10 years a legislative proposal known as the DREAM Act – standing for Development, Relief, and Education for Alien Minors – has been under consideration at various times by lawmakers in Washington. Essentially, the bill would allow for a path to legal immigration status for certain undocumented immigrants brought to the U.S. as young children, and who have completed a high school education or equivalent and fulfill, prospectively, other conditions such as 2 years of college or 2 + years of honorable service in the military. Just yesterday, a proposal to move forward with the legislative process to consider the DREAM Act was shot down, with the U.S. Senate rejecting further discussion of a larger Defense Authorization bill of which the DREAM Act was just one component (as was a proposal to reverse the current “don’t ask – don’t tell” policy toward gays serving in the military).

If one were seeking a barometer for the political climate in Washington and the congressional appetite for passing any type of immigration reform, one need only look to the events leading to the killing of the DREAM Act. Give it whatever label you want: amnesty, path to citizenship, legalization – the DREAM Act would open the door to legal status, and eventually US citizenship, to an estimated 1-2 million undocumented young adults who were essentially raised as “Americans”, consider themselves “Americans” and have never really known any country other than the U.S. For many of the same reasons cited by forces against any type of path to legalization legislation, further consideration for the DREAM Act was rejected by the U.S. Senate by a margin of 56 to 43 – with Republicans – this time, and a handful of Democrats lining up to fight the bill. In general, those opposed to the DREAM Act, or any other legislation providing a path to legal status for those present in the U.S. in violation of our immigration laws, see such legislative proposals as a reward for unlawful behavior, and unfair to foreign nationals who come to the U.S. and comply with our immigration laws, or “wait in line” outside the U.S. for their turn to get a green card.

While proponents of the DREAM Act, or comprehensive immigration reform in general, do not deny that unlawful activity took place to facilitate the foreign national’s undocumented status, they do indeed push the only realistic policy of addressing the problem of having an undocumented population of 10-15 million living in our shadows. That is, unless forced to leave, these millions of foreign nationals, particularly those who lived their entire lives in the U.S., are not going anywhere. Further, that “line” the opponents of these reforms refer to is indeed a fiction for the overwhelming majority of the undocumented, since a line only exists for those who have the requisite family relationship, or in some cases, employer-employee relationship for employment based filings.

They Voted For It Before They Voted Against It: In previous incarnations, the DREAM Act was actually championed by Republicans in the Senate. Republican Senator Orrin Hatch of Utah was the first to introduce the DREAM Act all those years ago, and he is joined by other former DREAM Act Republican supporters, like Senators Bob Bennet and Lindsey Graham, to defeat what is now a Democratic legislative proposal. Apparently, the DREAM Act no longer suits their political interests, with Democrat introduced legislation like the DREAM Act – and practically any other pretext they can find – becoming rallying cries for anti-Democrat politicians looking to make a name for themselves and/or kick Democrat incumbents from office come November.

Champions of the DREAM Act in Congress have signaled their intention to reintroduce the legislation after the November elections. I wonder whether we will see a change in the climate by that time.

PUBLISHED September 22, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

Recent estimates place the number of illegal or undocumented immigrants in the U.S. anywhere from 10 to 15 million. With very few exceptions, the laws these individuals are violating are civil in nature – similar to most traffic laws, or parking ordinances. Thus, contrary to the pronouncements of countless talking heads in the media, these violators are not “criminals” and necessarily subject to criminal punishment such as a prison sentence. Instead, immigration law violators are subject to the deportation process (now known as removal proceedings) where they will face a judge and an attorney from Department of Homeland Security’s Immigration and Custom Enforcement division (ICE) and the possibility being sent back to their home countries. A significant portion of this population however, may actually emerge from these proceedings in better shape than how they entered, with many eligible for relief such as “cancellation of removal” – and awarded a green card, if they have otherwise obeyed the law, resided in the U.S. for more than 10 years and have U.S. citizen or permanent resident spouses, parents or children who stand to suffer extreme hardships in the event of their deportation. Additionally, other forms of relief in defense of removal proceedings may be available to certain foreign nationals, depending on the facts of their case. Most of the undocumented population however, will likely have no choice but to ultimately pack up and leave.

Given that the vast, vast majority of the undocumented population have no criminal records whatsoever – and are otherwise hard working members of our society, and that the U.S. government has neither the resources nor the will to proceed with removal proceedings against so many millions of people, ICE has recently announced its priorities FOR immigration enforcement. And the release of this announcement just days ahead of President Obama’s July 1 speech to strongly urge our nation’s Congress to push ahead with immigration reform is no coincidence.

Starting with a bold admission that it only has resources to remove, or place in proceedings, up to 400,000 foreign nationals per year, the recent ICE memo proclaims that the following types of immigration law violators will be the focus of ICE efforts to enforce U.S. immigration laws (listed in order of priority):

1. “Aliens who pose a danger to national security or a risk to public safety” – such as individuals suspected of engaging in terrorism or espionage, violent criminals or repeat offenders and criminal gang members.

2. “Recent illegal entrants”, including those recently entering legally, but remaining in the U.S. in violation of their status. The language of the memo implies that immigration law violators who have been in the U.S. for longer periods of time, will not necessarily be a priority for ICE.

3. “Aliens who are fugitives or otherwise obstruct immigration controls”: includes various criminal offenders, individuals previously removed from the U.S. but who have reentered, individuals who are the subject of orders of removal but who never departed, and foreign nationals known to have committed some form of immigration fraud.

The recent ICE directive also indicated that absent extraordinary circumstances, the following classes of immigration law violators should not be subject to detention: those suffering from serious illness, the disabled, the elderly, pregnant women and mothers who are nursing or who are the primary caretakers of children or an infirm person.

Given the context of this recent ICE memo, it is clear that most, if not all, immigration law violators will not be returning to their home countries unless they are ordered to and put on a plane back home (and notwithstanding recent state legislative measures like Arizona’s). We as a nation are then left with one simple question to answer: should an initiative to subject all immigration law violators to removal proceedings be implemented, and if so, are we prepared to hire tens of thousands of government workers to staff such a plan? For certain, based on our government’s immigration law enforcement policies over the past 2 decades, this is not a direction we are headed. If that is the case, then the logical answer that follows would be a legislative agenda featuring comprehensive immigration reform and a path to citizenship for our nation’s otherwise law abiding undocumented – a population who are ready, willing and able to continue as contributing members of our society. President Obama knows this as do most logical Americans, but whether logic will prevail in this discussion is a separate question altogether.

PUBLISHED June 30, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

The question has been lingering for years:  what is our nation going to do about the 15 million or so undocumented living in the U.S.? Commence removal proceedings against them? Grant legal status to most or all of them who are otherwise law abiding? Do nothing and essentially allow for a continued, de facto amnesty?    

In part to address the question of undocumented in their state, and in part to cry out for help regarding the security of their state and border with Mexico, the State of Arizona has taken the extraordinary and unconstitutional step of criminalizing violations of U.S. immigration law.  That means state law enforcement agencies in Arizona now have the authority to arrest and criminally prosecute immigration law violators present in their state, with violators turned over to federal authorities for the initiation of removal proceedings after being served a state sentence. Violators of this law however, only become subject to arrest and prosecution if the law enforcement officer has a “reasonable suspicion” that the suspect is living in the U.S. in violation of immigration law.     

Amidst huge political pressure, Arizona Governor Jan Brewer last week signed this state legislative proposal into law, although it is not set to take effect for several months. Regardless of the state’s plan though, the actual implementation of the law is unlikely to ever happen. Numerous groups, including the Obama administration, have signaled their intention to challenge the constitutionality of the legislation, and the legal battle may very well work its way up to the U.S. Supreme Court. In the meantime, an important national conversation will be taking place. 

Make no mistake; the numerous legal defects in this law are clear as day.  Most notably, the law flies in the face of the explicit constitutional prohibition against states acting in realms where the federal government has sole jurisdiction, such as immigration policy and border control. Just as flagrant is the law’s convenient disregard of individual (undocumented or otherwise) civil liberties such as constitutional rights to Due Process of Law and against Unreasonable Searches/Seizures, with Arizona law enforcement given carte blanche to essentially engage in racial profiling and arrest anyone who looks, sounds or smells undocumented, or is otherwise “reasonably suspected” to be in the U.S. without legal status. The constitutional issues are numerous, as are the logistical challenges, including the ugly reality of  violent criminals being given the upper hand against their undocumented victims or witnesses, with law enforcement now assigned the conflicting responsibilities of not only arresting the violent offender, but also their undocumented victim or witness.

For sure, this new Arizona legislation has gotten people talking, both in support and opposition, and ranging from civil rights leaders, politicians of all persuasions, and of course, to the media pundits. What is clear though is that the people of Arizona, through their state legislators, have spoken and most people in Arizona are not happy with the status quo when it comes to federal enforcement of our border with Mexico and our immigration laws in general. Although the people of Arizona have a right to have their health, safety, and property protected, the goal must be achieved within parameters allowed by our constitution, and thus they will not have the final say on the implementation of the new measure. Again, the new Arizona law has restarted an important conversation, but whether it will be an honest one or one involving politician/pundit posing opportunities remains to be seen. Unfortunately, from the looks of it, posing appears to be the dominant theme, as we seem to be becoming a society too quick to accept fear mongering and sensational presentations as foundations of our world views.

The importance of Arizonians’ concerns with regard to crime, border enforcement, and the use of its financial and natural resources should not be minimized. However, the answer lies not in draconian, desperate state action, but solutions that will come from our U.S. Congress and President.  Hopefully, strong Congressional and Presidential leadership will prevail, with the American public being reminded that it was former President George W. Bush, along with John McCain and legions of other Republicans who most recently championed legislation to strengthen U.S. borders AND enact comprehensive immigration reform – with a path to U.S. citizenship for most of our country’s undocumented population. Unfortunately, now that it is President Obama, and legions of Democrats who are championing this dual initiative, there are conveniently only a handful of Republicans supporting the cause, with most Republicans speaking to American voters’ fears, anger, and resentment.

In assessing the options outlined above with common sense and clear headed thinking,  one can be sure the option of initiating removal proceedings against so many millions of people is in no way financially, logistically, or even emotionally realistic.  Rather, the option advocated by President Obama, and previously advocated by President George W. Bush and presidential contender John McCain, featuring enhanced border enforcement and legalization of the undocumented is the sensible approach and one superior to mass deportations or the status quo.  But for this realistic, common sense answer to have a chance, we will need two important ingredients: 1) honest and gutsy presentations by politicians and 2) a clear thinking, and practical, public. That seems like a long shot these days.

PUBLISHED April 24, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

When it was announced Lou Dobbs, a controversial television commentator, was leaving CNN, I set out to write a column explaining the significance of his views and departure from CNN and whether the controversy surrounding him is truly warranted. I finished a few drafts but had a difficult time tying together my thoughts and arriving at any meaningful conclusions. However, Dobbs’ recent pronouncements, on Fox News’ O’Reilly Factor, in favor of a legalization program for our country’s undocumented population, prompts me once again to think about Dobbs and the relevance of his views.

I must confess that I never regularly tuned in to watch Dobbs’ program, but I do know that he developed a reputation as being an angry, populist, even racist, voice especially when it came to the enforcement of the U.S./Mexico border and U.S. immigration law in general. Apparently, Dobbs’ presentation became too angry and opinionated for CNN management to continue to stomach. Notwithstanding his irritating, and over-generalizing style, I still think he asked some good questions. How did our borders become so porous? Why aren’t our immigration laws strictly enforced? How is it that the undocumented population in the U.S. has reached the 12 to 20 million level? Given his relative popularity and notoriety, one gets the impression that Dobbs is thinking about the basic questions that are on the minds of “regular Americans” (whoever they are).

How did we get to the point where 12 to 20 million people decided that their lives here illegally are better than a “legal” life in their home country? Many, many factors of course. The following are some of my own general, anecdotal and non-scientific observations.

Based on my day to day interactions with employers and foreign nationals seeking to stay in the U.S., it is clear that there is nothing like a hungry, hard working foreign national to fill a job, whether skill or unskilled, professional or non-professional – at least compared to a second or third generation American. But for a small, small percentage, the foreign national coming to the U.S. is coming here to work hard, make money and create a better life than the one he had in his native land. In most cases, it’s not that he works for cheap, but it’s that he has a drive and motivation born out of deprivation, with his homeland providing little or no promise for economic, educational or professional advancement.

In previous generations, U.S. immigration law has mostly found a way to accommodate the demand of U.S businesses for these hungry, enterprising workers, and the ambitions of the foreign nationals seeking to “make it” in the U.S and pursue the American dream. In fact, most would agree that it is the generational infusion of a hungry, enterprising workforce that has been integral to our nation’s evolution and character. In the past couple decades though, it is clear that much, much more of the rest of the world want to come to the U.S., and legal avenues available to accommodate this increased interest have only become fewer. For certain, politicians sense their non-business constituencies to be generally opposed to creating laws allowing for more ways for foreign workers to take U.S. jobs – especially since 9/11 and in our present economic environment.

The result: an undocumented population of 12 to 20 million, professional and non-professional workers alike, who arrive and stay in the U.S. They remain in the U.S. because the U.S. government has made a deliberate decision to not institute deportation proceedings against this otherwise law abiding (but for a small percentage), undocumented population. They remain in the U.S. because life here, even illegally, is better than their life in their home country. In the U.S., unlike in their home countries, they can work hard for a better future, if not for themselves, then for their children. But for most of these people, there exists no vehicle toward legal immigration, no paperwork to complete and no “line” in which to wait their turn. The bottom line, legal avenues for the vast majority of the 12 to 20 million generally do not exist and never did exist.

Back to Lou Dobbs. Dobbs wonders aloud, sometimes very aloud, how the current undocumented population managed to reach its current level — and for this, Dobbs has been portrayed as, among other things, anti-immigrant. But, beneath his bravado and anger, I see someone who asks some honest questions no one seems to want to answer, such as: If the U.S. really can benefit from hungry enterprising workers earning market wage, why don’t we institute laws that allow for such a transaction, as opposed to just looking the other way when it comes to enforcement ?

During his recent appearance on O’Reilly’s show, Dobbs admits that since first taking up immigration as one of his pet issues , he has become wiser and less angry – particularly when it comes to the issue of what to do with our nation’s undocumented. He has resigned himself to accepting the notion that our nation has neither the bureaucratic infrastructure nor emotional strength to deport 12 to 20 million individuals – so let’s be honest, Dobbs realizes, and create an avenue to “legalize” them.

Regardless of his motivations – including his political aspirations, if Lou Dobbs represents the voice of John Q. Public and he has finally accepted the honest and realistic solution of comprehensive immigration reform, and a path to citizenship for the undocumented, perhaps our nation has turned a significant corner in this discussion.

PUBLISHED January 9, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois