Vol. 1:1 Fall 2010

vol1-1In March 2010, JICL hosted its first symposium, "Poor Huddled Masses or Enemy at the Gates? The Debate Over Immigration Reform and National Security." The event brought scholars and government officials together to discuss the need for immigration reform and to debate policy change. The debate also covered the connection between immigration in the United States and concerns about national security.

I will begin not by describing the proposed solution, but by describing the problem.

Clients come to Catholic Charities each Thursday. Countless times, we have to advise them that they have no remedies. Even if the alien has a potentially petitioning family member, a solution to the need for family unification may prove elusive: the alien may not be able to adjust status and may be naturally reluctant to proceed to a consular interview because of concerns about the three- and ten-year bars. Or the alien may be a preference immigrant having a priority date which is simply many years from becoming current. Each of these situations is not uncommon and has resulted in long delays which run counter to the stated policy of family unity.

A more dramatic problem confronts workers in the U.S. occupying less that skilled positions which U.S. workers do not wish to fill.  Because realistic immigrant and non-immigrant visas are largely lacking for this class,  these non-citizens constitute the largest human aggregate in need of relief under the present system.  Incorporating these workers into U.S. economy and society constitutes a pubic interest imperative of the first order.

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This last month has witnessed a significant new development in the immigration policy debate. Senators Schumer (D-NY) and Graham (R-SC) unveiled their new “framework” for comprehensive immigration reform legislation. It took less than a day for President Obama to endorse the framework. And it is estimated that about 100,000 people will march in Washington on Sunday, March 21, in support of a comprehensive immigration bill. It probably will be the largest rally ever held in Washington, DC, in support of an immigration legislative effort. All these developments would point toward a renewed momentum for the passage of a comprehensive immigration reform bill.

I. WHAT IS COMPREHENSIVE IMMIGRATION REFORM?

Before I go too far, let me clarify as to what I mean when I use the term “comprehensive immigration reform.” There are many examples and versions of legislation that have been ascribed that title. There is the Gutierrez bill; there is the Schumer-Graham framework. And then there are the bills Congress debated and failed to enact in 2006 and 2007.

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The discussion of immigration and national security is rarely about what it should be about. What it ought to be about is how the U.S. government should use the various tools of immigration policy—visas, background checks, identity verification, border searches, and internal enforcement of immigration laws—to try to keep out or remove those who might pose a serious threat to the United States. Instead, since the September 11 terrorist attacks, national security arguments have been used to justify the expansion of enforcement measures that are part of a larger effort to identify and remove illegal immigrants, and have raised the hurdles for entry by all immigrants. The result has been a set of policy measures that are doing more to undermine U.S. national security than to enhance it.

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Comments Delivered at St. John's University School of Law, March 19, 2010

We all know this is a census year, and we await the results of the 2010 census with great interest. Many of us also know that, in the five years that separate these decennial censuses, the bureau of the census makes an official estimate of America’s population. In 2005, the official estimate of the United States population was 296 million, of which 36 million were foreign born.

To use the estimate that the panelists were making, about one-third of those, or 12 million, were illegally in the United States or, if you prefer, undocumented. That was the official estimate, not of the illegal aliens, but the population estimate.

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When a non-U.S. citizen is a defendant in a criminal proceeding, the results can have legal consequences beyond the criminal sentence. Essentially, if a non-U.S. citizen (including those with Lawful Permanent Resident “LPR” status) pleads guilty to or is found guilty of certain criminal offenses, he or she is subject to removal/deportation from the United States. Since federal and state criminal courts are separate from the immigration courts, many times criminal lawyers may not have been aware of the immigration consequences of certain types of judgments of conviction (“JOC”) and may not have advised such clients of the immigration consequences of guilty pleas or findings of guilt.

Recently, in Padilla v. Kentucky, the United States Supreme Court, as well as various other federal and state courts, has examined the impact of ineffective assistance of counsel (“IAC”) on criminal defendants who are not United States citizens and who may be subject to removal/deportation as a result of criminal convictions. This same issue was reviewed nine months prior to Padilla when the New Jersey Supreme Court decided State v. Nuñez-Valdéz. However, Padilla still left many questions unanswered.

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