HALT AMERICA'S DECLINE BY WELCOMING SKILLED AND ENTREPRENEURIAL IMMIGRANTS

By Cyrus Mehta

In recent times, there has been a confluence of diverse events, if stitched together, make immigration reform a virtual no brainer even if we have yet to come out of the economic doldrums.   Indeed, immigration reform in favor of skilled immigration, even if it is piecemeal and not comprehensive, can stimulate our economy in unimaginable ways.

First, the Census Bureau has officially indicated that white births are no longer a majority in the US. Non-Hispanic whites accounted for 49.6 percent of all births in the 12-month period ending last July. This is not something to be alarmed about; rather it is cause for celebration. The population in the US is now multi-ethnic and represents the diverse nations of the world. In our hyper-connected world, Americans who can adapt and interact with others across national boundaries can gain more benefit, bringing about further innovation, ideas and the understanding of other cultures. Of course, critics of increased immigration will bemoan this fact and blame it on the 1965 Immigration Act, which abolished the national origin quota system and opened up immigration to people from all countries. But such fear is driven more by xenophobia than anything else.   It is the 1965 Immigration Act, which has brought diversity into the US. Those who have come to the US regardless of their country of origin have clearly contributed to the country in immeasurable ways. They have also forged closer ties between the US and their country of origin. The symbiotic relationship between Silicon Valley and Bangalore is one such example.  While it has become a national obsession to comment about America’s declining superpower status, one way for it to continue to remain a superpower and be respected as well as admired is to foster a multi-ethnic population that represents all the countries of the world. Even the rest of the world will sit more comfortably with a multi-ethnic superpower than a superpower that favors one group over all others.

Second, we are on the cusp of what The Economist has called The Third Industrial Revolution. New advances in manufacturing will soon make the factory as we now know it obsolete. As manufacturing is going digital, especially with the advent of 3D Printer, we will no longer need long lines of factory workers. A product can be designed on a computer and “printed” on a 3D printer, which will have the potential of rendering supply chains obsolete. Also, the factory of the future will run on its own devoid of workers in oily overalls, and as The Economist presciently notes, “[m]ost jobs will not be on the factory floor but in the offices nearby, which will be full of designers, engineers, IT specialists, logistics experts, marketing staff and other professionals. The manufacturing jobs of the future will require more skills. Many dull, repetitive tasks will become obsolete: you no longer need riveters when a product has no rivets.” The US needs to attract these new skilled professionals who will run the factories of the future.

Third, a new report, Not Coming to America: Why The US Is Falling Behind In the Global Race for Talent, reveals how foreign countries are reshaping their immigration policies to boost their economy while the US remains mired in an obsolete and broken immigration system. The US is thus losing talent to other countries. The report, which has been issued by Partnership For A New American Economy, headed by NYC Mayor Michael Bloomberg, identifies three major risks if it does not reform its immigration laws: a shortage of workers in innovation industries, a shortage of young workers and slow rates of business startup and job creation. US companies are hungry for jobs in science, technology, engineering and math (STEM), but these jobs are hard to find among native US workers. The report also explores the more business friendly immigration policies of Australia, Canada, Chile, China, Germany, Ireland, Israel, Singapore and the United Kingdom in attracting talented immigrants and entrepreneurs. For instance, New Zealand has a rather broad welcoming policy for foreign entrepreneurs. There is no specific job creation or minimum capital requirement, and after two years of self employment “beneficial to New Zealand,” the entrepreneur can apply for permanent residency.

This fortuitous alignment of the stars bodes well for reform of our immigration system, which is not just creaky and obsolete but completely broken. The US has no special visa category that would encourage entrepreneurs to start innovative businesses and become permanent residents. The H-1B visa, which US companies rely on to bring in foreign skilled employees, especially in the STEM fields, is hobbled by a 65,000 annual cap, and the numbers under the FY2013 cap are expected to be reached many months ahead of the start of the next fiscal year, October 1, 2012! Even the employment-based immigration system has broken down even though there is no national origin quota. If you are born in China and India, and have been sponsored by an employer through the onerous labor certification process, it can take several years, even decades, before you get permanent residence.

One wonders how the US has an immigration system dominated by quotas, which also micromanages the employer and foreign national worker, when it espouses free market capitalism. Such a system is more reminiscent of one that could have been designed by communist apparatchiks in the former Soviet Union.  In order to unleash economic growth, it is essential to allow foreign nationals easy access into the US so that they can implement their ideas, create companies and employ more Americans. In a recessionary economy, we need more entrepreneurs to set up businesses and create jobs, and immigrants may have a greater propensity to engage in entrepreneurial activities. There may be a ray of hope. In a rare bipartisan move, freshman senators Marco Rubio (R-FA), Chris Coons (D-Del.), Jerry Moran (R-Kan,) and Mark Warner (D-Va) have introduced Startup Act 2.0, which includes immigration-related provisions to attain the following objectives:

• Creates a new STEM visa so that U.S.-educated foreign students, who graduate with a master’s or Ph.D. in science, technology, engineering or mathematics, can receive a green card and stay in this country where their talent and ideas can fuel growth and create American jobs;
• Creates an Entrepreneur’s Visa for legal immigrants, so they can remain in the United States, launch businesses and create jobs;
• Eliminates the per-country caps for employment-based immigrant visas – which hinder U.S. employers from recruiting the top-tier talent they need to grow.

While the chances of this bill passing in the current partisan political climate, prior the 2012 Presidential elections remain remote, one can still be surprised. After all, immigration ought to cut across partisan lines, and our elected representatives need to enact sound immigration proposals for the good of the country and the world. Although it would be ideal to comprehensively reform our immigration system, which would include providing a path to legalization for the millions of undocumented immigrants, small but meaningful initiatives such as Startup 2.0 could still be passed in the mean time. In the event that Startup Act 2.0 goes nowhere, there is still scope within our existing system to encourage skilled and entrepreneur immigration if only our immigration bureaucrats interpret existing immigration visa categories generously rather than in a mean spirited and niggardly manner. For instance, the intra-company transferee L-1A visa ought to remain a viable option for an entrepreneur to establish a branch or subsidiary of a foreign business in the US. Yet, in recent times, L-1A petitions get turned down wholesale on the ground that a small startup entity can never support a person in an executive or managerial capacity. This is nonsense and bureaucratic gobbledygook, as Congress never intended that small businesses could not support entrepreneur executives or managers. Sad to say, we happen to be in double whammy mode of no good legislation, along with bureaucrats reading out existing visa categories out of the law. The writing is on the wall, and unless we want to perversely see America spiral into decline, it is time to act fast and enact sound immigration reform.

ASSAULT ON BATTERED IMMIGRANTS: HR 4970 UNDOES VAWA PROTECTIONS AND RISKS LIVES

By Myriam Jaidi

“This will get people killed,” my colleague and I agreed while we reviewed the “Immigration Provisions” of HR 4970, the bill introduced in the House in April, ostensibly to “reauthorize” the Violence Against Women Act (VAWA) originally promulgated in 1994 and reauthorized and strengthened since its original passing.  The Immigration Provisions found in Title VIII of HR 4970, however, will effectively dismantle VAWA as we know it in the immigration context, place people in danger, set up a system that will likely violate the United States’ treaty obligations, and reverse decades of progress in the nation’s understanding of domestic violence and the pernicious ways in which an abuser can exercise power and control in domestic relationships.  Overall, HR 4970 undermines the central goals of VAWA: protecting victims of domestic violence and other crimes and assisting law enforcement with the protection of victims, and the investigation and prosecution of crimes.  If passed, it would also pull VAWA relief out of the paradigm governing all other forms of humanitarian relief in the immigration context. 

The risks run high and tempers hot in the context of domestic violence or other types of abusive relationships – such as trafficker to trafficking victim, criminal to crime victim.  Men and women come to us for help in our capacity as immigration lawyers – it is important to recognize that although the law is called the Violence Against Women Act, it helps all victims regardless of whether they are male or female, and we have seen many cases of men being abused either in marital relationships or other contexts.  Clients who come to us have been traumatized and are deeply fearful of further abuse and retaliation from their abuser for their daring to seek help and to escape the abuser.  They fear that the fact of submitting an application will lead to discovery and place them in grave danger.  And they are fearful of law enforcement and concerned that instead of being protected for coming forward, they will be removed from the United States, perhaps sent back to a place where abusers or their family members will have free reign to harm them.

Congress recognized a long time ago that immigrants are a particularly vulnerable group when it comes to relationship dynamics because they are at a disadvantage – their ability to obtain a green card requires sponsorship. Thus, the person seeking status is, until the end of the process, until the green card has been delivered, subject to the will of the sponsoring United States citizen (USC) or lawful permanent resident (LPR). Congress created the self-petitioning process “so that the battered alien can seek status independent of the abuser.” Paul Virtue, Acting Executive Associate Administrator, Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA § 384 (May 5, 1997).

Given the draconian provisions of the bill, discussed below, the drafters of HR 4970 appear to be operating on the unfounded assumption that fraud is rampant in the VAWA self-petition context. This has not been our collective experience at CDMA nor have we heard anecdotally that fraudulent self-petitions have been routinely approved. To the contrary, our experience shows that the VAWA Unit at the United States Citizenship and Immigration Services (USCIS) Vermont Service Center (VSC) is extremely well trained and carefully adjudicates VAWA self-petitions, issuing requests for evidence and/or notices of intent to deny in cases where an applicant has not provided sufficient proof of eligibility and denying cases where applicants ultimately are unable to demonstrate by a preponderance of the evidence that they are eligible for deferred action under the law.

HR 4970 changes all aspects of a VAWA self petition, taking this form of affirmative relief out of the paradigm governing other forms of affirmative, humanitarian-based forms of relief, and converting the process into a trial of the VAWA self-petitioner. Title VIII of HR 4970 jettisons the long-standing standard of proof in VAWA self-petitions. The Immigration and Nationality Act (INA) does not provide for a standard of proof for VAWA self-petitions, therefore pursuant to Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) a VAWA self-petitioner “must prove by a preponderance of evidence that he or she is eligible for the benefit sought.” In assessing whether an applicant has met this burden, INA § 204(a)(1)(J) provides that in adjudicating a self-petition, the Department of Homeland Security (DHS) “shall consider any credible evidence relevant to the petition” and DHS has discretion to determine what evidence is credible and how much weight to give the evidence. Moreover, the rules governing the process provide that a petition may not be denied solely on the basis of information provided by the abuser or a member of the abuser’s family living in the same household as the victim. See 8 USC § 1367(a). Any derogatory information must be independently corroborated. Also, violations of the confidentiality provisions can result in disciplinary action or civil penalties up to $5,000. See 8 USC § 1367(c).

Congress set the standard of proof as it did, precluded dependence on information provided by the abuser, and created strict confidentiality standards based on the established need to protect applicants from being located by an abuser or subjected to retaliation and further abuse. People do in fact get hurt and even killed in these situations. Because of that fact, the protections for applicants under VAWA, especially the confidentiality protections as promulgated in 1996, have been crucial to the central goals of VAWA and therefore strengthened with each subsequent reauthorization of VAWA to date (2005 and 2011).

HR 4970 would impose a “clear and convincing” evidence standard and dismantle the confidentiality provisions, replacing them with a perverse situation in which power over the application submitted by a battered spouse is effectively handed back to the abuser. The clear and convincing evidence standard is a very high standard, far above the default preponderance of the evidence standard applicable to most immigration petitions, whether business or family based. Even individuals in removal proceedings attempting to show that a mandatory ground of denial of an application for relief do not apply to them, carry only the burden of proving by a preponderance of the evidence that the grounds do not apply. 8 C.F.R. § 1240.8(d). Thus a battered spouse faces a higher standard of proof in an affirmative application process under HR 4970 than an individual in removal proceedings attempting to overcome evidence that he has committed a particularly serious crime or presents a danger to the security of the United States!

Moreover, the protections of applicants for asylum are not granted to VAWA self-petitioners under HR 4970. HR 4970 provides that upon filing, a VAWA case will be transferred to a local service center for adjudication and that an officer “shall conduct an in-person interview of the alien who filed the petition” and “may also gather other evidence and interview other witnesses, including the accused United States citizen or lawful permanent resident, if they consent to be interviewed.”

The government and the advocacy community have learned over decades how important confidentiality is to victim safety. As recognized by the White House in a recent blog, “the risks of serious injury and homicide increase when a victim is taking steps to leave an abusive relationship,” a central basis for the confidentiality provisions of VAWA. Confidentiality is a long-standing, crucial component of humanitarian forms of relief. For example, in the asylum context, confidentiality is paramount and it is unthinkable to ask the abuser for input on the persecution of the asylum applicant. Title 8, Code of Federal Regulations (CFR) section 208.6 provides that

Information contained in or pertaining to any asylum application, records pertaining to any credible fear determination conducted pursuant to § 208.30, and records pertaining to any reasonable fear determination conducted pursuant to § 208.31, shall not be disclosed without the written consent of the applicant, except as permitted by this section or at the discretion of the Attorney General.

In the asylum context, confidentiality is considered breached when information contained in an asylum application is disclosed to a third party such that the third party can “link the identity of the applicant to: (1) the fact that the applicant has applied for asylum; (2) specific facts or allegations pertaining to the individual asylum claim contained in an asylum application; or (3) facts or allegations that are sufficient to give rise to a reasonable inference that the applicant has applied for asylum.” Joseph E. Langlois, Director, Asylum Division, Office of Refugee, Asylum, and International Operations, USCIS Interoffice Memorandum, Fact Sheet on Confidentiality (June 15, 2005). That is a significant protective regime founded on a compelling logic: “Public disclosure of asylum-related information may subject the claimant to retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated, or endanger the security of the claimant’s family members who may still be residing in the country of origin.” Id. 

The rationale behind the VAWA confidentiality provisions are similarly rooted and make sense in the context of the significant risks faced by battered individuals and the purpose of VAWA: to allow battered immigrants “to leave their batterers without fearing deportation.” Violence Against Women Act of 1993: Summary and Purpose, H.R. Rep. No. 103-395, at 25 (1993). Congress developed the existing confidentiality measures to protect victims of domestic violence from being tracked down by their abusers for retaliation and continued abuse. These provisions are crucial to breaking the cycle of power and control that is the crux of domestic violence, and essential to bringing immigrant victims out of the shadows. Experience bears out the fact that whether or not the petitioning individual lives with his or her abuser the possibility that the abuser will be contacted about the application puts the individual in danger. Clearly, HR 4970 makes a mockery of the important protections and undermines them by providing that “all credible evidence submitted by an accused [USC or LPR] . . . shall be considered.” HR 4970 strongly implies that the abuser has to be given notice of the application, as the only way an investigation may be done is if the abuser is contacted and asked to participate. This should simply not be allowed. People will be killed as a result of a measure like this.  

The bill’s use of the term “the accused” in reference to the abuser is completely inappropriate and highlights the fact that the bill shifts the inquiry from a victim-centered assessment of eligibility to a trial of the victim, shockingly taking a defensive stance in favor of the abuser, with the presumption being that the applicant is lying. Other fora already exist in which “the accused” can have his or her day in court such as divorce court, criminal court, family court, or civil court. Disputes between individuals can be weighed in all of these fora. But the self-petition process should not be a trial and is not intended to be adversarial. Furthermore, as noted above, there is extensive documentation of the fact that victims are afraid to come forward and press charges against their abusers specifically because they fear retaliation meted upon them or their children and other loved ones.

Another deeply troubling aspect of the bill is the proposed dismantling of the VAWA Unit at the USCIS Vermont Service Center. The VAWA Unit has amassed 12 years of specialized experience in adjudicating VAWA self-petitions and officers there receive extensive training on how to assess applications, uncover fraud, and properly determine an applicant’s eligibility under the law. Dismantling this unit in favor of local adjudication would be a huge waste of money and undermine the purpose of VAWA.  

HR 4970 adds other obstacles to the process by requiring a stay of adjudication “if an investigation or prosecution is pending” and directing the adjudicating officer to consider the fact that “no investigation has been undertaken or if a prosecutor’s office has not commenced a prosecution after the matter was referred to it . . . .” No acknowledgement is made of the legion reasons why a case might not be prosecuted even after it commenced, including prosecutorial discretion, limited resources, a victim being threatened by the abuser that his or her cooperation will lead to retaliation by the abuser, or a combination of factors. In the U visa context, a prosecutor will sometimes decide not to issue the required U visa certification to the victim who needs it to apply for a U visa, if there is to be a trial in a criminal case, until the trial is completed. This is done for various reasons, the central one being so that the defense cannot use the fact of the certification to impeach the victim’s testimony or to ensure cooperation of the witness at trial. However, the key distinction is that in one case the prosecutor is exercising her discretion whereas in the other, the prosecutor’s discretion does not come into play in a meaningful way. HR 4970 makes the decision for the prosecutor – and stalls a case if a prosecution ensues or paints a case with a negative brush if a prosecutor decides not to proceed.  

Another highly disturbing component of the bill is the mandated denial of a petition and expedited removal of an applicant “upon receiving any evidence of any material misrepresentation on a petition . . . .” The evidence need not be credible. The misrepresentation need not be knowing or willful. Thus a simple mistake of fact on the part of the applicant leads to draconian results including not only denial of the petition, but being processed for expedited removal and being barred from eligibility for any other form of relief. This provision could potentially come into direct conflict with the United States’s treaty obligations, such as those imposed by Article 3 of the Convention Against Torture, which prohibits the United States from returning an alien to a state where there are substantial grounds for believing that the individual would be subjected to torture.  

This bill effectively represents throwing decades of research and aggregated knowledge about domestic violence out the window and constitutes an abuser’s dream codified and approved by the federal government. And no wonder. The Huffington Post discovered one of the driving forces behind HR 4970 is the head of a mail order bride service. A federal jury awarded one of the brides her company matched with an abusive American husband $434,000 after a trial. The verdict was affirmed upon appeal by the United States Court of Appeals for the Fourth Circuit. Go figure.

HIDDEN TREASURE: HOW STATES THAT WANT IMMIGRANTS CAN TAKE ADVANTAGE OF ARIZONA v. US

By Gary Endelman and Cyrus D. Mehta

Anyone in favor of federal preemption of state immigration laws, especially Arizona’s SB 1070, was disappointed with the way the oral arguments before the Supreme Court justices on April 25, 2012 turned out in Arizona v. US.  It appears that the core provision of SB 1070, Section 2(B), which mandates police officers to determine the immigration status of anyone they stop if they have a “reasonable suspicion” that the person in “unlawfully present in the United States” may be upheld even if other provisions are  preempted. And while it is obvious that this provision would lead to racial profiling, the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and other provisions. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law. All it does is to allow police officers to determine if someone was unlawfully present by inquiring about that person’s status with the federal Department of Homeland Security. Whether this would lead to the incarceration of both citizens and lawfully present non-citizens did not seem to concern the justices as the inquiry regarding immigration status would be made in conjunction with another state offense, such as speeding or driving without a license. Moreover, even without SB 1070, the justices noted that the federal government has allowed state enforcement personnel to do much the same thing, especially through its Secure Communities program or through cooperation in the “investigation, apprehension or detention of aliens in the United States” under INA § 287(g).

The colloquy, below,  between Chief Justice Roberts and Solicitor General Verrilli  during oral argument gives us some insight into why 2(B) is likely to be upheld:

CHIEF JUSTICE ROBERTS: Right. So, apart from Section 3 and Section 5, take those off the table, you have no objection to Section 2?

GENERAL VERRILLI: We do, Your Honor. But, before I take 3 and 5 off the table, if I could make one more point about 3 and 5, please? The -- I think -­because I think it's important to understand the dilemma that this puts the Federal government in.

Arizona has got this population, and they've -- and they're, by law, committed to maximum enforcement. And so the Federal government's got to decide, are we going to take our resources, which we deploy for removal, and are we going to use them to deal with this population, even if it is to the detriment of our priorities –­

CHIEF JUSTICE ROBERTS: Exactly. You -- the Federal government has to decide where it's going to use its resources. And what the state is saying, here are people who are here in violation of Federal law, you make the decision. And if your decision is you don't want to prosecute those people, fine, that's entirely up to you. That's why I don't see the problem with Section 2(B).

We hope we are proved wrong and the Supreme Court will find SB 1070 unconstitutional in its entirety, but even if we are not wrong, do not lose heart. Good things can also come out of it.  Take a look at Peter Spiro’s intriguing essay in the New York Times, where he argues that even if SB 1070 stands, it will ultimately wither as Arizona, and other copycat states, will continue to hurt economically. Thus, such laws that Arizona and some states will enforce with vigor will ultimately die their own natural death. Of course, this still does not excuse the fact that 2(B), while in existence, is likely to result in mass incarcerations, while the state police inquire about each detainee’s status. One saving grace it that someone who is actually affected, such as an individual who is lawfully present,  can mount another challenge based on due process and equal protection violations, rather than preemption, and this may have more of a chance to succeed. In the mean time, Spiro states, “One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.” Thus, most other states that welcome immigrants, legal and undocumented, and recognize their contributions, will deliberately not pass similar laws like Arizona’s. By not enacting similar laws, they will be competing with those states by enticing their corporations, as well as jobs, to move over.

While there are very good arguments in support of preemption, if  part of SB 1070 is upheld, states that want immigrants can go even further than do nothing. For instance, a state can pass a law that encourages immigrants who reside within to apply for a personal endorsement from the state’s governor in support of a national interest waiver request, which waives the job offer and labor certification requirement, when applying for permanent residency. The state can set criteria for whom it wants to encourage, such as entrepreneurs or robotics specialists, and its governor can write a  personal letter in support of their petitions for permanent residency through the federal national interest waiver pursuant to INA § 203(b)(2)(B)(i). As in Arizona’s Section 2(B), the state is not creating a new immigration category, but simply assisting the federal government to make a determination under federal law. Unlike Arizona’s SB 1070, which is premised on driving away immigrants from the state through attrition, the purpose of a state law in our hypothetical example is to encourage the immigrant to remain in that state and contribute to its economy, which in turn will benefit the national interest of the US. Indeed, we commend noted attorney Rami Fakhoury of Troy, Michigan, who is proposing such standards for Governor Snyder of Michigan to implement in order to support a national interest waiver request from a Michigan resident.

In the same vein, a state can designate certain occupations as shortage occupations, which may assist the Department of Labor in more easily certifying a labor certification  pursuant to INA § 212(a)(5) of an employer filed on behalf of a non-citizen resident in the state. A state can be a more effective judge of shortage occupations than the federal government, and if a labor certification is filed on behalf of a non-citizen in that particular state designated shortage occupation, the DOL may be more influenced in making a favorable determination on the labor certification. Similarly, even with regards to an undocumented immigrant, a state may be able to enact criteria for recommending that such a person, who has otherwise not been convicted of serious crimes and is say an essential farm worker,  is deserving of prosecutorial discretion by the federal government under its new prosecutorial discretion policy and thus be permitted to remain in the state and  prevent its farm produce from otherwise rotting away. There may already be such authority under INA § 287(g), which authorizes the federal government to enter into a written agreement with a state to perform the function of a qualified immigration officer in relation to the “investigation, apprehension and detention” of non-citizens. In the era where the government has implemented a broad prosecutorial discretion policy, a state can assist the federal government in the “investigation, ”  rather than the apprehension or detention, of an individual who may merit such discretion from the federal government.

While Utah has also passed an enforcement oriented immigration law similar to Arizona’s, it contains one unique provision quite unlike any other state’s law. The Utah provision offers work permits to undocumented immigrants who pass background checks, have paid fines and can demonstrate a work history. The measure does not offer legal status or citizenship, but would allow unauthorized workers who meet its criteria to continue working in Utah. This provision also requires a federal waiver. If the Utah provision, which is currently enjoined, is allowed to go forward, in the event that the Supreme Court gives a green signal to states in Arizona v. US, we estimate that there will be more states that will enact laws similar to the Utah guest worker provision than Arizona’s SB 1070.

There is no reason to think that it will always be punitive. Many of the progressive achievements in modern American history, such as women suffrage, popular election of senators, wage and hour laws, occupational safety, and most recently same sex marriages, to name but a select few, first appeared on the state level. The many instances where federal intervention has been necessary to protect civil rights against state abuse should not blind us to the possibility that state action can also be a force for good. Long ago, Justice Brandeis recognized that federalism offered a constitutional framework for experimentation and creativity:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…

New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932)(Brandeis, J. dissent)

Since the New Deal, the operating assumption in American politics has been that reform must come from Washington DC to be imposed upon the states. The growth of the imperial presidency has flowed directly and inevitably from this core conviction. This is certainly the case with immigration reform given the plenary federal power over this issue as an extension of foreign policy. The inability or unwillingness of Congress to deal effectively with undocumented migration to this country on an unprecedented level has created the impetus for state action to fill up the vacuum. We advocate that Congress must deal with this situation by creating more pathways to legal status over an enforcement only approach, which is what states like Arizona have done.  Until now, such state action has been deprived of constitutional legitimacy; the Supreme Court may be ready to change that. Indeed, the first signs of this came with Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 179 L.Ed.2d 1031 (2011) when a 5-3 ruling upheld the 2007 Legal Arizona Workers Act thus transforming the power of state regulators to grant or withhold business and professional licenses into tools of immigration enforcement. Should the High Court sustain SB 1070, for the first time since the 1870’s, the states will be able to take advantage of a constitutional regime that not only tolerates but welcomes their presence and invites their participation. Of course, Congress can also deal with states legislating on immigration by expressly preempting such action, but one will need to wait for that day to happen.

Those who think immigration is good for America will then have to find a way to review and revise their most basic assumptions on the nature of American reform. There is a way to make lemonade out of lemons.  Even now, not all state and local action has been negative. Utah is but one such example. Look and you will find others. Congress may not have passed a federal Dream Act but California and Illinois have done precisely that on the state level. Maryland too adopted its own Dream Act in 2011 and the Maryland Supreme Court will soon decide if this measure must go to a voter referendum this fall. In his most recent state-of-the-city address, New York City Mayor Michael Bloomberg vigorously supported a Dream Act for New York State, though Governor Cuomo has yet to declare his position. 12 states now grant in-state tuition rates to undocumented students. Texas, California and New Mexico provide financial aid to undocumented students. If we look north to our neighbor, Canada, its provinces have considerable influence in Canada’s immigration policy. An intending immigrant to Canada will get a preference if he or she meets certain requirements of Quebec province, for example. 

Our position on SB 1070 has not changed. We do not believe it is constitutional. We do not write to endorse a patchwork immigration system of 50 different approaches without unity or definition. The dangers of this are apparent to all and we devoutly wish that our ideas will be made irrelevant when the Supreme Court finds SB 1070 to be constitutionally impermissible. Yet, candor requires us to admit that the result may not be as we would like. Now is the time to prepare for what may come and think the unthinkable. We owe it to our clients and our country to turn a problem into an opportunity.  Until now, both supporters and critics of SB 1070 have assumed that if the Supreme Court were to uphold the law,  it will unleash a tsunami of copycat legislation. This may happen and it may hurt. Yet, the future often has a way of surprising us. More may emerge; the outcome could well be different than what most hope or fear. This blog points a way forward. What happens next is up to you. 

(The views expressed by guest author, Gary Endelman, are his own and not of his firm, FosterQuan, LLP)