By Our Staff of Immigration Attorneys
The Law Offices of Spar & Bernstein
Frankly, we’re done squeezing our brains trying to figure out whether comprehensive immigration reform will happen or not in 2010.
We’re done playing the passive role of hoping, praying, and wishing it so.
We’ve instead decided to go totally proactive!
We’re imagining ourselves having full authority to change the immigration laws as we see fit, to, after all this time, do what we can to mend a desperately broken system, not only giving it a healthy dose of fairness, but, at last…a humane heart.
The following is our 20-point plan on how we’d change the law if we could:
1. Pass the DREAM Act. An absolute, utter, complete no-brainer!
2. Eliminate the three- and 10-year bars. Another great addition to the 1996 Immigration Laws was the three and ten year bars which stated that if you were in the United States illegally for more than six months and left you would be barred from reentering for three years. If you were here illegally for more than one year, you would be barred for 10 years.
3. Remove requirement of lawful entry in application for adjustment of status for persons who entered as a minor. Persons applying for adjustment of status (green card application inside the United States) must show, inter alia, lawful entry. This seems a cruel requirement to impose on persons who had no choice or control over their manner of entry, i.e., children. This change would not grant “amnesty” to children-turned-adults, insofar as they would still have to qualify and meet other requirements to be granted permanent residency. It would, however, recognize and correct the current punishment of the innocent.
4. End mandatory detention as we know it. Mandatory Detention should be reexamined and restructured. It’s unfair and a colossal waste of taxpayer’s money. There are too many crimes that trigger Mandatory Detention, including some very minor offenses. Crimes of violence, crimes against minors and most sexual offenses should remain on the list. However, as a taxpayer, we have no interest in paying hard-earned tax dollars to detain an immigrant whose offense may be marijuana possession or two shoplifting offenses. You can place people in proceedings if they commit deportable or inadmissible offenses but if they don’t pose a danger to society let them post bond and allow the immigration judge to decide their case. Repeal or amend INA 236(c), the mandatory detention provision, to include only serious criminal offenses, not misdemeanors.
5. Pass legislation such as the Uniting American Families Act (HR 1024/S. 424) and end discrimination against LGBT immigrant families. Under current immigration law, lesbian and gay Americans are unable to sponsor their partners for residency in the United States, resulting in many such families living separately, or facing imminent separation, from their loved ones. According to 2000 Census data compiled by the Williams Institute, an estimated 36,000 LGBT binational families are impacted by the inability to sponsor their partners for residency, and nearly half of those (47 percent) are raising children. The U.S. lags behind 19 countries that already recognize same-sex couples for immigration purposes, including the United Kingdom, Australia, Canada, France, and Germany.
6. Change technical statute for clarification of 8 USC 1229(a)(b)(5)C)(i). The current statute states that motion to reopen in absentia order of removal must be filed within 180 days of order if reason for motion is ineffective assistance of counsel. The statute is silent regarding whether the 180 days is a jurisdictional limit or not. As a jurisdictional limit, it is not subject to tolling (judicial discretion regarding suspension of time limit for fairness). Courts of Appeals are split on the issue of whether the 180 day limit is jurisdictional or not which has caused extreme disparities around the country. We’d change the law to state clearly that the 180 days is not a jurisdictional requirement, which would provide judicial discretion regarding tolling. This is would put to rest the conflicting views on the statute and be more in line with traditional notions of due process.
7. Eliminate quotas to the family-based petitions.
8. End country preferences for employment-based immigrant visas. Certain applicants are subjected to longer waiting periods for their immigrant visas due to their country of birth. For example, most of the world is immediately eligible for immigrant visas in professions requiring advanced degrees. Chinese and Indian nationals with advanced degrees in the same advanced degree professions are subject to a wait of several years. For employers, this limitation on where you can recruit is a significant factor in long-term planning. Whatever the reasons for country preferences were in the past, they do not hold up against the actual needs of our industries. In an age of international competitiveness, we are losing some of the best foreigners due to these country preferences.
9. Increase the number of H1B visas, so that the cap does not get filled so quickly. Allow more people to apply.
10. Narrow the definition of “aggravated felony” and bring back the discretionary authority of the Immigration Judge. The decision making powers of the Immigration Judge to decide whether a legal immigrant who violated the laws of the United States should be given a second chance was seriously limited by changes in the Immigration Law that occurred in 1996. The expansion of the definition of the Immigration term “aggravated felony” and other changes in the law has resulted in the shackling of the Immigration Judge’s discretionary authority. In too many cases, judges are forced to inform the immigrant that they are not even allowed a hearing to make their case to stay in the United States because their crime falls under the definition of “aggravated felony.” There are countless cases of people who came to the United States as legal immigrants as a toddler and got into minor trouble as an adolescent or young adult who are now being deported to countries where they know no one and in some cases don’t even speak the language. The criminal justice system may have given them a small fine or community service for their offense, but the Immigration system will send them away from all they have known to countries they don’t remember in many cases without even a hearing in the matter. Let the Immigration Judge decide. Let them make their case as to how they have rehabilitated themselves, their strong ties to the U.S and the hardship their removal would cause to their U.S. or Lawful resident family. Let the judges do their job!
11. Establish an appeal process for consular processing denials.
12. Extend 245(i) to include all petitions filed on or before a date selected in the future, so that non-citizens who have entered the United States without inspection may be able to adjust their status in the United States. Let’s ensure family unity and allow applicants with pending petitions before a certain date to adjust status notwithstanding any illegal entry or overstay.
13. Individuals should be eligible to file a waiver of his/her inadmissibility because of false claims to USC citizenship regardless of the date of action.
14. Eliminate the harsh discriminatory requirements for fathers filing for “illegitimate” children (i.e. children born out of wedlock) .
15. For fraud related waivers, the laws should allow children to be included as “qualifying relatives.”
16. Allow people to work while appealing a denial. Currently, one loses his work authorization when a petition or application is denied. As a result, an individual who is appealing a denial is left in a position where he is still permitted to remain in this country, but is unable to continue working while that appeal is pending. We believe that any individual who is going through the very long immigration process should be allowed to continue working until a final decision is made.
17. Eliminate bars to cancellation of removal for aggravated felons.
18. Provide appellate review of administrative decisions denying adjustment of status.
19. Force every CIS Officer, first to get hired, then to continue keeping their job, to study immigration law, including court decisions, as well as pass a final exam and, subsequently, periodic ones just to confirm their knowledge of immigration law.
20. Prohibit undocumented children from ever being detained.
Now how would YOU change the law? Please tell us. Pass the word and be heard!
{ 9 comments… read them below or add one }
Bravo!
Yes to 245i! There are so many of us waiting.
They could also adjust the family petition without the ten year waiting as it was in the 90’s when brothers and sisters or aunts could file for each other
They could also allow people who overstayed to adjust their status as long as they were paying taxes and are out of trouble.
Enforce the dream act already
I loved everything especially regarding the fact that kids should not be penalized for how their parents brought them into the country when they were just minors.
When it comes to Mexico, what needs to be changed is the political line on the map itself after working with Mexico’s people to dissolve their failed country and corrupt govt. in favor of statehood and citizenship, including erasure of all immigration records, plus amnesty for Mexican officials to allow everybody to start with a clean slate. See how it might be done at http://go.to/megamerge
1. Make it easier to immigrate legally to the U.S. but reduce the total number allowed to no more than 250,000 per year in all categories.
2. Repeal NAFTA, CAFTA and all other trade agreements to enable the poor in other countries to make a living.
3. Make E-verification of work status mandatory.
4. Require foreign workers to be paid at the same rate as American workers.
5. Deduct $100,000 from U.S. foreign aid to Mexico for every illegal alien apprehended internally or caught trying to violate the border.
6. Require every illegal alien apprehended at the border or internally to serve a six month sentence working on border infrastructure.
7. Impose harsh penalties on landlords who rent living quarters to anyone not in this country legally.
8. Withhold all federal funds from any cities or other local governments who refuse to cooperate with federal immigration authorities.
9. Require every foreigner seeking work in the United States under a temporary worker program to have a temporary work authorization card issued by the United States.
10. If an employer can prove that he cannot fill his jobs with citizen workers, he may apply to one of the federally-licensed employment agencies for the admission of the number of foreign workers needed.
11. Fine employers of illegal aliens on an escalating scale whether or not they hired them knowingly.
12. Stop employers from exploiting cheap immigrant labor by enforcing existing labor laws.
13. Vigorously and continuously pursue internal enforcement of immigration laws and provide for expeditious repatriation of illegals after they have served any prescribed sentence.
14. After a careful in depth review of supporting documents, issue a counterfeit-proof, machine-readable, biometric ID to all legal residents of border states.
15. Reinterpret the 14th Amendment to require at least one parent to be a citizen before any child can be awarded birthright citizenship.
16. Limit chain immigrations to the minor children and spouses of citizens.
17. Focus immigration quotas on those most likely to enable the U.S. to regain its fiscal solvency and remain competitive in the global economy.
18. Make everyone who enters this country illegally permanently ineligible for a pathway to citizenship.
19. Make true fluency in English a mandatory requirement for citizenship.
20. Make English the official language of the United States and repeal EO 13166.
Before we spend too much time worrying about potential immigrants, we should spend more time worrying about the future of our country if we yield to the immigration lobbies. Barbara Jordan, former U.S. representative from Texas, had it right when she summarized the results of the immigration commission she chaired: “It is both a right and a responsibility of a democratic society to manage immigration so that it serves the national interest.” The national interest is not the same as the interests of all those who wish to come to the U.S.
The “limit” of finite natural resources per capita as population increases without bounds is zero. How much farther down that road should we go. I hope the answer is, “No mas”.
Americans produce 20 metric tons of pollutants per capita annually. At that rate, if we add another 300 million people by the end of this century we will be producing an additional 6 billion tons of pollutants every year. Even if by some technological miracle or reduction in our standard of living we are able to reduce our per capita output by half to that of Mexico, we will have made absolutely no progress in reducing the present unacceptable level of pollution as our population doubles.
The fertility rate of American women is about at the replacement level of 2.1. This means that population growth in the U.S. is due almost solely to legal immigrants, illegal aliens, their higher fertility rates, and their progeny.
We need tax and immigration reforms that will enable us to stabilize our population within 20 years.
The total immigration quota should be tied to the total unemployment rate by sector. If the rate is above a specified level, immigration in that sector is suspended.