Constitutional And Practical Problems With Arizona's New Law
On April, 23, 2010 Governor Jan Brewer in Arizona signed a new law designed to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” The law defines three new crimes: failure to carry papers documenting proper immigration status; picking up, or being picked up as a day laborer if it impedes traffic; and knowingly transporting an illegal immigrant in a vehicle or concealing, harboring or shielding an illegal immigration from detection or encouraging an illegal immigrant to come to or stay in Arizona. The law mandates that police officers determine an individual’s immigration status if he or she has reasonable suspicion that the individual may be undocumented. While the law prohibits the police from doing an immigration status check solely based on race, skin tone or national origin, nothing prevents them from inquiring based on behavior, clothing or some other reason that is not race-based but equally discriminatory. In addition to being mean-spirited, the law is impractical and presents a litany of problems. Local law enforcement authorities are ill-equipped to engage in the highly technical work of enforcing immigration. There is no one document or number to call to verify the legal status of a foreign national. There are a substantial number of foreign nationals such as those who have been granted “deferred action” who are in valid immigration status but have no evidence of that status or only evidence showing that they made a legal entry many years ago. Does Arizona really want police officers who stop somebody for a traffic offense to spend hours trying to determine if they are here illegally or not? Moreover, many of these individuals are in the process of legalizing their status and the federal government has traditionally chosen as a matter of discretion not to place them in deportation and separate them from their employers and families knowing that they are on the path to residency. Should Arizona law enforcement authorities be allowed to trump federal action, tag these individuals with a crime, and thereby ensure their deportation? Another consequence of criminalizing immigration violations, which I imagine was unintended, is that once law enforcement authorities stop and arrest a foreign national, the foreign national will have all of the constitutional rights guaranteed to criminals by the constitution. They will have the right to be read Miranda warnings and the right to counsel and to be tried in city and state courts with criminal jurisdiction. It could cost cities millions of dollars to prosecute and defend these misdemeanor cases, which funds could deplete police budgets and impair their ability to go after dangerous criminals. The law will also undermine trust between immigrants and police at a time when we need increased cooperation to combat human smuggling and drug trafficking and other criminal enterprises that prey on immigrants. The police will lose the cooperation of important witnesses if they start making immigration inquiries. The only silver lining may be that the law has catapulted the debate about comprehensive immigration reform to the national stage once again. While finding a solution to our immigration problem will be taxing and politically painful, doing nothing is dangerous. We need many of the millions of undocumented immigrants currently in the United States. We rely on their skills, their tax revenue and their creative, entrepreneurial talents. It is important to understand that the reason so many migrants enter the United States illegally is because there is no way for them to come legally. The US labor market employs up to 500,000 low-skilled workers each year, but the US government only gives 5,000 permanent visas a year in that category. Demand for low-skilled foreign workers far exceeds the legal supply. These immigrants have long been a source of economic productivity and job growth in our country. Rather than criminalize their presence, we need to find a way to legalize them and incorporate them into the formal economy and our communities.
News and Noteworthy
Summer is looming in Miami and we are looking for ways to escape the encroaching summer heat and humidity. In celebration of the season, one that only a Miami native could love, we will be highlighting some of our favorite local treasures that make Miami sizzle. The first in our series is local chef Michelle Bernstein.
While she frowns upon the “celebrity chef” title Bernstein is nothing short of a legend to locals. Together with her husband, David Martinez, Bernstein owns Michy’s, declared as one of the “Top 50 restaurants in the country” by Gourmet Magazine and dubbed “Best New Restaurant in 2006" by Food & Wine Magazine and SRA. Martinez in the Design District.
Most recently Bernstein opened two new restaurants, Michelle Bernstein’s and MB Terrace at the Omphoy Ocean Resort in Palm Beach. In addition to the two restaurants she also provides services for in-room dining, weddings, and special events.
Bernstein has also opened a local chapter of Common Threads. Common Threads is dedicated to educating children on the importance of nutrition and physical well-being and to foster an appreciation of cultural diversity through cooking.
Congratulations to chef Michelle Bernstein on her culinary success!
Greece Added to US Visa Waiver Program
In April 2010, Greece was added to the countries participating in the US Visa Waiver Program (VWP). The VWP enables nations of 36 participating countries to travel to the United States for tourism or business for a stay of up to 90 days without obtaining a visa. The VWP is a fast and convenient method for eligible foreign nationals to visit the US and bypass the visa application process and its wait times and fees.
Reciprocity Fees Eliminated for Mexican Nationals
The Department of State has eliminated all nonimmigrant visa reciprocity fees for Mexican nationals and updated the reciprocity schedule. Visa reciprocity fees are based on what other countries charge US citizens for a similar type of visa.
Previously, applicants for Mexican TN and TD visas were able to pay for up to three years of visa validity at the time of the first issuance. Under the new reciprocity schedule, TN and TD visa validity is limited to 12 months. This is the same period of time US citizens are permitted to work in Mexico before they must renew their FM3 work permits.
Deadline For Haitians Approaching Fast
A reminder to Haitian nationals - the registration deadline for Temporary Protected Status (TPS) is fast approaching. Haitian nationals, who have continuously resided in the United States since January 12, 2010 and who meet other TPS eligibility requirements, must file their applications for TPS no later than July 20, 2010. The TPS designation for Haiti will remain in effect through July 22, 2011.
Newly Designed Permanent Resident Card
US Citizenship and Immigration Services (USCIS) has redesigned the Permanent Resident Card, commonly known as the Green Card, to incorporate several major new security features.
Some of the new key features are: color shifting ink, embedded radio frequency identification (RFID) technology, tactile laser personalization, infogram (holographic image), laser engraved fingerprint, unique background design, micro-image high resolution pictures of state flags, personalized embedded hologram, optical media stores all digital files including biometrics, micro-image high resolution pictures of US presidents.
Also, in keeping with the card’s nickname, it will now be colored green for easy recognition.
As of May 11, 2010 USCIS has begun issuing Green Cards in the new, more secure format. USCIS will replace Green Cards already in circulation as individuals apply for renewal or replacement.
Supreme Court Requires Defense Attorneys to Advise on Immigration Consequences of Guilty Pleas
In March, 2010 the US Supreme Court issued a decision finding that the Sixth amendment requires criminal defense attorneys to advise noncitizens of the immigration consequences of a guilty plea. The decision, Padilla v. Kentucky, arose from a post-conviction proceeding in a Kentucky state court in which Mr. Padilla sought to vacate his guilty plea based on ineffective assistance of counsel. He had pled guilty to a drug trafficking charge after his attorney misadvised him that his plea would not affect his US legal permanent resident status. However, a conviction for drug trafficking results in nearly automatic deportation from the US and, therefore, despite the fact that Mr. Padilla had been a permanent resident for more than forty years and a veteran of the Vietnam war, he faced deportation. Because of his conviction, he was ineligible for any defenses to deportation, and faced a permanent bar from returning to the United States if deported.
In light of this decision, criminal defense attorneys must now make sure to inquire about the immigration status or citizenship of their clients. They must also investigate and advise about different plea alternatives in order to avoid deportation. They should advise on the potential consequences of sentencing on a noncitizen’s immigration status.
If you are a foreign national facing criminal charges here in the United States, your defense attorney must work closely with an immigration attorney to examine the issues.
The Padilla decision is a real victory for immigrant rights in the United States. The consequences of deportation are often worse than the criminal sentences imposed by state and federal courts around the country.
Update on H-1B Cap Subject Petitions
As of May 6, 2010, US Citizenship and Immigration Services (USCIS) has received 18,000 petitions for the 65,000 H-1B’s available. It has also received 7,600 petitions for the 20,000 H-1B master’s exemption cap. Just a few years ago, the H-1B quota was met in a matter of days from the new fiscal year’s quota becoming available. This year, H-1B usage has been slow, mirroring the sluggish economy and fewer employment prospects. Nevertheless, as the H-1B cap is highly unpredictable, we continue to recommend that cap subject petitions be filed as soon as possible. If you anticipate the need to hire a foreign professional please contact our office to schedule a consultation.
Visa Bulletin
Heavy demand for family-based immigrant visa numbers for people from the DOMINICAN REPLUBLIC has exceeded availability. As a result, there are no immigrant visas available for Dominican nationals in the month of June.
Staff News
We’ve added a new tool to our website for better access to up-to-the-minute case status information. You can now access your virtual client file via the Julie C. Ferguson, P.A. website. If you would like more information about this and other helpful case management features please contact our office and ask for Christine, our resident guru. 305.358.0155.
Staff News
This past month Julie joined am radio host Manuel Fernandez on his weekly radio show, The Right Turn Lane on station 880 “The Biz”. Julie was invited to the show as an immigration and nationality law expert and was asked to speak to recent political activity, proposed immigration reform, and the newly passed immigration law in Arizona.
From the Desk of Julie C. Ferguson
Welcome to the seventh edition of the Julie C. Ferguson, P.A. newsletter. As always, thank you for your thoughts, comments and support. We appreciate your feedback.
If there is an immigration and nationality law topic that you would like to learn more about please let us know. Send your requests to Christine at admin@jcfimmigration.com.
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