He never went home.

He left his native county at the age of 20 to find work.  Born in an impoverished area of a poor country, he left home to earn money which he could send back to his mother and eight siblings.

He ventured through, and stayed briefly at, a few countries, eventually reaching the United States.

For the next 25 years, he crisscrossed California, Arizona, and Utah, moving from crop to crop before settling in San Diego where he worked as a dishwasher at one of the city’s  most prestigious restaurants.

He worked Monday through Sunday at minimum wage, and was given only two days off per year, Thanksgiving and Christmas.  He was not paid overtime and was not part of a union.

He never owned a car, boarding the number 11 bus at 3:15 p.m. and arriving at work at 4: 05 p.m.  After closing time, he was responsible for mopping, dusting, sweeping, and cleaning the entire building, including both restrooms, the kitchen, and the giant freezer room.

He would get on the bus at 5:20 a.m. to return home.  At 6:05 a.m. he would gently wake me up to go to school.

My Father, My Hero

My father was paid weekly on Tuesdays.  He would walk to the corner store, buy a money order for $25.00 or whatever he could afford, and send it to his mother.

As I grew older, I became the person responsible for filling out and mailing the money order.  It was an honor.  He continued to support them, up to the last week of his life.

My father died at the age of 71.  He had not seen his mother or any family members for the last 50 years of his life.

My father, along with my mother, taught me the love of reading and education.  If I wanted a comic book, a sports magazine, or a novel, he found a way to buy it for me.  He would listen patiently to me as I recited the main points the next day.

He consistently encouraged me to study hard so I could someday go to college.  When I was accepted to USC, he proudly told his co-workers I had been accepted to USCLA, a mixture of USC and our arch rival, UCLA.

He was afraid to ask for a day off to attend my graduation, so I called his employer and asked for him.  I still remember his huge smile when I put my cap on his head and showed him my diploma.

My father always tried to follow the news on television and radio.  He was a John Kennedy enthusiast and believed in JFK’s call for a just and humane society.

Together we watched the news of Kennedy’s inauguration.

Almost three years later we watched the news covering Kennedy’s assassination to his funeral procession.  That weekend, lasting from Thursday to Monday, but which seemed so much longer, my father sacrificed most of his limited hours for sleep and rest.

At the end, visibly tired and shaken, he told me, “We lost a good man.”

My father enjoyed when I would read parts of the San Diego Union to him as he sipped coffee and I ate my afternoon donuts with a glass of milk.  He could not read, something I never suspected as a young child.  After we shared the news, he would happily leave to catch the bus for work.

As he walked down the street, whistling a soft, joyful tune, I felt sad he would not be home to share the evening with us.

My Father, My Inspiration

My father showed me how to be a parent and husband.

A day never passed without a hug, a kiss, a smile, a positive comment, or “I love you.”

As I left to play baseball at an old neighborhood sandlot or basketball on an old court with a chain link basket outside St. Jude’s Church, he would give me all the change in his pocket.  He made sure I could buy myself and my friends some refreshments afterwards.

He raised my older sisters, who had been abandoned by their United States citizen father, with the same unconditional love that he gave to me.

For years my father and mother rode the same bus to work.  He became her friend during her time of need.  A few years later, they became common law husband and wife.

On my mother’s 55thbirthday, they quietly married.  When they returned home, my mother showed us the diamond ring he bought for her.  Small by today’s standards, it was huge to my sisters and me.  Worried about losing his job, he went to work that evening.

My father saved and recycled newspapers, bottles, rice bags, and aluminum cans to earn a few extra dollars, which usually was spent on buying some toys for us.

He took pride in buying us those toys and in giving us things he did not have as a child: adequate food, clothing, shelter, and medical care.

We never received governmental assistance.  We never felt deprived.

Today I live a good life.  I am a Harvard Law School graduate.  I have law offices in three Southern California counties.  I have a wonderful wife and children.  I live in a nice neighborhood, wear nice suits, and drive a nice car.  For all this, I owe my father an immense gratitude, far greater than words could ever express.

Frank Antonio Batara’s life was simpler yet grander.

He demonstrated a person’s value is not determined by rank in society, but kindness of soul and spirit.

Although he only stood  4″11′, he remains a giant as a person, father, and husband.  I will never fit into his shoes.

As a young kid, my future was founded upon the many sacrifices of my parents.

My father, who came here with so little and demanded even less, experienced the American Dream without complaints or regrets.

My father raised me and my abandoned sisters, provided life’s necessities for my mother, and never quit taking care of his mother, without seeking anything more than a job where he could earn a honest day’s wages for a honest day’s work.

My father was an immigrant.

My father was an American success story.

There are 15 Board members.

On the average, this means 2,200 decisions per Board member per year.

180 decisions per Board member per month.

Assuming a 40 hour week, 50 weeks per year, each Board member works 2,000 hours per year.

That’s 55 minutes per case.

If absences due to illness, training, conferences, or even coffee breaks are calculated, the time spent on each appeal is even less.

In such a system, it’s an open question whether justice, fairness, and due process for immigrants truly exists.

BIA Improvement . . .  Or Not?

Juan Osuna, acting director of the immigration court system, proudly testified about the progress made by the BIA in recent years at a Senate Judiciary Committee two weeks ago.

He noted the number of appeals going to federal courts are now about ½ what were they were at the high-water mark in 2005.

As part of the Bush administration’s streamlining reforms for immigration courts, the BIA implemented an affirmance without opinion (AWO) policy shortly after he took office.

Under this approach, a single member of the BIA was allowed to affirm a decision of an immigration judge without opinion.  One sentence.  Nothing more.

Before streamlining, all appellate decisions required three Board members.

The policy was intended to apply only in a limited category of cases.  Yet, by 2002, AWOs accounted for 36% of Board decisions, most of which denied appeals filed by immigrants.

Fighting to remain in the country, immigrants took their cases to the next level, federal appellate courts.

In 2002, immigration appeals were 8% of Ninth Circuit cases.  Three years later, they constituted 48%.

Faced with the flood of new cases, federal judges lambasted the streamlining process.  Their criticisms helped change how the BIA handles appeals.

At least in part.

Today most BIA decisions are longer than one sentence.  Including  long-winded opening recitals of case history, opinions are often 2-3 sentences . . . even when the issues appear to merit longer analysis.

It’s the 55 minute rule.

The problem is no longer affirmances without opinion.

Now, it’s affirmances without thought.

The Legacy Of Streamlining

To be fair, labeling all BIA opinions as affirmances without thought is a bit exaggerated.

Some cases, after all, are easier than others.  They take less time to handle.  55 minutes may be sufficient.

Still, many immigration appeals revolve around difficult issues.  In these matters, Board members cannot read the court transcripts, study the pleadings, motions, and evidence filed by the parties, and research the legal and factual issues under dispute in such a short window.

The problem stems from the legacy of streamlining.

Although the BIA has reduced the number of AWOs, other aspects of streamlining remain in place.

Like the elimination of the Board’s authority to conduct de novo fact finding.

In its place, the BIA’s review of case facts and credibility determinations was changed to a “clearly erroneous” standard – a more stringent standard which hinders the Board’s ability not only to correct mistakes by immigration judges, but also to check against unwarranted disparities among judges in factually similar cases.

The full effect of this shift is not clear.  Yet, there are some clues.

Prior to the 2002 changes, immigrants won 25% of their appeals with the BIA.  Shortly after, the number of appeals granted dropped to 10%.  The current figures are unknown.

In addition, two issues are conspicuously missing from the Department of Justice’s FY 2010 Statistical Year Book:

• How much time, on the average, does the BIA spend on appeals filed by the government vis-a-vis those filed by immigrants?
• How often, in terms of percentage, does the BIA grant appeals filed by the government vis-a-vis those filed by immigrants?

The BIA As Rubber-Stamp: Perception Or Reality?

Proving a “clearly erroneous” mistake is difficult business.  The task is far harder when the parameters of issues under review are poorly defined.

For example, in Immigration Appeals: The Need To Reform BIA Procedures, I discussed the frustration of two colleagues who had presented the same issue in separate cases.  At their hearings, the issue was interpreted in two different ways by two different judges from the same immigration court.

One judge noted the immigrant’s testimony about his relocation plans was not specific enough.  The other held against the immigrant because his testimony about relocation was too specific.

Both filed appeals with the BIA.

Logically, there is a mid-point. Unfortunately, neither statute nor case law has shed much insight on the subject.

On appeal, rather than resolve the apparent contradiction, the BIA did not find either position “clearly erroneous.”  It ignored the issue altogether in the first case.  In the second matter, the Board minimized the issue, choosing to affirm  the judge’s analysis without opinion, and likely without deep thought.

Both immigrants lost their appeal.

In the view of many Riverside immigration attorneys, this type of outcome is not unusual.

The BIA’s penchant for truncated decisions, regardless of case complexity, fuels a perception that the Board operates as a rubber stamp for immigration judges.

It’s hard to disagree when the judges are on a 55 minute time clock.

I often spent several months crafting new legislation.  At the end, the legislation was sometimes not introduced.

Between start and finish, political winds had shifted.

I was told the votes were no longer there.  My work product was neatly put in a manila folder and locked away in a filing cabinet.

Are Politics And Values Incompatible?

On Sundays I spent the afternoon with my boss at his home.

I would brief him on the upcoming week’s legislative agenda. We discussed pro and con arguments.  We analyzed alternative outcomes.  We scrutinized the key players on each side.  We assessed the public sentiment.

It was late September, elections were nearing, and a heated issue was up for a vote the following week.  Most financial power players were lined up against the measure.  The public was hotly divided, though a slight majority supported the measure.

I supported the measure.  My boss, deep inside, supported the measure.  I encouraged him to publicly vote his conscience.

“Carlos,” he scolded, “that’s reckless.  You’ll never have a political future because you’re too philosophical.”

I asked for clarification.   “By too philosophical, do you mean I’m too tied to my values?”

He answered, “Yes, that’s exactly what I mean.”

I replied, “”With all due respect, sir, I do not believe one can be effective in politics unless one stands up for his or her convictions.”

On Monday I tendered my resignation.

Last week was no different.

With elections around the corner, Obama addressed the DREAM Act at Georgetown University.

He told the audience, “I actually feel somewhat optimistic that we can get it done in the next legislative session.”

The exact meaning of the next legislative session was left unclear.

Prerna Lal, writing for Immigration Rights, pointed out Obama’s ambiguity:

“Punting the DREAM Act to the next legislative session means that it would most likely remain a dream for quite a while, unless Obama really meant the lame-duck session after the November elections.”

Lame Duck Politics: A Lame Political Strategy

Lal noted the likely folly of focusing on the lame-duck session for a legislative victory.

If a fortified Republican Congress sweeps into power, Democrats will only have 61 lame-duck days to pass legislation.  Under such a scenario, Lal asserts, it will be unlikely for Republicans to give any short-term victories to Obama for his own re-election bid.

On the other hand, if Obama meant the legislative session beginning next January, the prognosis is equally dim.

Given current election projections, it seems Democrats will lose, not gain seats in the November elections.

As Lal understands, it’s simple math.

Democrats, fearing the course of political winds, could not get pass the DREAM Act when they had control of the House and Senate.  Having fewer friendly votes is hardly a reason for optimism.

For many reform advocates, Obama’s Georgetown speech was election hot air.

Forks In The Road

Despite the likely obstacles, from the standpoint of a green card-citizenship attorney who helps immigrant youth, I am optimistic about the DREAM Act.

As soon as this round of elections end, the President will gear up his re-election campaign.  He will realize the need to reinvigorate promises made to immigrant communities which supported his party two years ago.

In my view, debate over immigration reform will sharpen in 2011 and 2012.  Even as many Democratic representatives continue to squirm, they’ll feel increased pressure to support some form of pro-immigrant legislation.

“In crises,” Henry Kissinger once noted, “the most daring course is often safest.”

The day after I tendered my resignation, my boss was absent from the controversial vote.   It passed.

So will the DREAM Act.

After all, in politics, values count.

161 out of 192 nations have reported human trafficking problems.  Approximately 27 million people are enslaved around the world.

Like an unchecked virus, it’s spreading in the U.S., one of the largest three locations for trafficked victims.   Law enforcement agents have noted trafficking-related activities in all 50 states, as well as Washington, D.C.

14,500 to 17,500 persons are trafficked into the U.S. each year.  70% of the victims are women, 50% are children.

And the annual profits, according to the United Nations, gleaned from the exploitation of forced labor is approximately 32 billion dollars.

Acknowledging this growing problem, the Department of Homeland Security recently launched the “Blue Campaign” – a campaign to fight human trafficking through a four pronged approach: prevention, protection, prosecution, and partnership.

Modern Day Slavery And The Debasement Of Human Beings

Officially, human trafficking is defined as the process by which a person is recruited to be controlled and held captive for the purpose of exploitation.

It involves the use of abduction, coercion, deception, fraud, or force.  It subjects men, women, and children to forced labor or sexual exploitation for economic profit.

It differs from migrant smuggling because the victims have not given their consent, or if they have, they have been deceived about the purpose of their journey.

Victims are placed in jobs like making clothes, growing food for export, assembling toys, cleaning homes, and providing childcare for their slaveholders.

Women and young girls, starting at ages 12-14, are often forced into prostitution.

In the United States, victims are trapped in an underground world of physical and emotional abuse at the hands of legal residents and citizens.

Recent newspaper headlines tell the story all too clearly.

• Charges are filed against a manpower leasing company in Kansas City, Missouri for labor trafficking.  The workers, mainly from Jamaica, the Philippines, and the Dominican Republic, provided services for hotels, resorts, casinos, and construction companies.

• A restaurant owner in Woodstock, Georgia is apprehended for operating a prostitution ring, comprised of women from Guatemala, Nicaragua, and El Salvador out of his place of business during non-restaurant hours.

• Five brothers from Ukraine are arrested for running a human bondage center from their cleaning business in Philadelphia, Pennsylvania, shuttling victims to New Jersey, New York, Maryland, and Washington, D.C.

• A shoot-out occurs at a Houston, Texas house serving as a smuggling center, where  Honduran nationals are beaten, wrapped in trash bags, and raped daily, while the smugglers extort money from the victims’ families to obtain their release.

Yet, to a large extent, trafficking operates under the public radar in the U.S.

The Psychological Dimensions Of Captivity

As an immigration attorney in San Diego, Riverside, and San Bernardino, I’ve encountered individuals whose hardships can barely be imaged by most Americans.

Ethnic genocide. Gender mutilation. Religious persecution.

Victims of human trafficking – hidden in the shadows of American – are often the hardest to assist.

Even when the opportunity arises, many are too frightened to escape.

On the one hand, they fear their oppressors, who have threatened to come after them or their family if they leave.  Victims are told immigration authorities will be called and they be put in jail and deported.  Deportation means retaliation by the traffickers’ web of connections in their home countries.

On the other, they fear being alone in the U.S.  Even if they escape, most have limited language skills, familiarity with local areas, financial resources, and lack valid documents to live here.

The combination leads to hopelessness – and hopelessness keeps them obedient to their abusers.

The Blue Campaign Needs All Of Us

In launching the Blue Campaign, the Department of Homeland Security committed its resources to developing enhanced public awareness, victim assistance programs, and law enforcement training to the fight against human trafficking.

However, trafficking of persons is not just a local or national problem.  It’s a global problem perpetuated by well-organized, mafia-like networks, with tentacles reaching far and wide across national boundaries.

Likewise, the solution must be global in scope.

As part of its initiative, the DHS plans to coordinate local, state, national, and international alliances.

“The battle against human trafficking is a shared responsibility,” notes DHS Secretary Janet Napolitano, ” involving the Department’s federal, state, local and tribal law enforcement partners, non-profit and non-governmental organizations, governments around the world and communities across the nation.”

At the local level, all of us are needed.

The lives of trafficking victims are always close enough to touch almost each and every one of us.

In most instances, the clues are there.

Unexplained absences from school.  References to frequent travel to other cities.  Physical bruises and withdrawn behavior.  Malnourishment, hunger, and worn out clothing.

But due to our unfamiliarity with the indicators, victims remain invisible to us.

To help citizens learn to identify and report human trafficking, the Blue Campaign will soon begin its public awareness outreach, using both traditional and social media tools, in 18 different languages.

To the extent we learn to spot the tell-tale signs, we can slam the door shut on human slavery.

The war against human trafficking cannot succeed without my contributions.

Nor without yours.

Aggravated Felonies Under IIRAIRA

Until 1996, most lawful permanent residents (LPRs) facing deportation due to criminal convictions were entitled to a merits hearing at immigration court.  An immigrant’s positive equities were balanced against the nature of an immigrant’s convictions. It was possible to win judicial forgiveness and a second chance to remain lawfully in the United States.

This changed when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).  As a immigration lawyer in San Diego, I witnessed many minor non-violent offenses, deemed misdemeanors in state court, suddenly designated as aggravated felonies for immigration purposes.  And aggravated felonies lead to automatic deportation orders.

The Supreme Court Clarifies The Misdemeanor-Felony Distinction

In Carachuri-Rosendo v. Holder, the Supreme Court slammed the government’s blurring of the misdemeanor-felony distinction.

A lawful permanent resident, Carachuri-Rosendo had lived legally in the U.S. since he was five years old.  He had committed two misdemeanor drug possession offenses.  For the first, possession of less than two ounces of marijuana, he spent 20 days in jail.  For the second, he pleaded nolo contendre to possession without a prescription of one tablet of Xanax, a common anti-anxiety medication, and received 10 days in jail.

After the second conviction, he was deported for having committed the aggravated felony of “illicit trafficking in a controlled sentence.”

A unanimous Supreme Court held the government’s interpretation that minor drug possession offenses constitute aggravated felonies was counter-intuitive.

“Congress,” wrote Justice Stevens, “like Humpty Dumpty, has the power to give words unorthodox meanings.”

But the English language, he added, “tells us that most aggravated felonies are punishable by sentences far longer than 10 days, and that the mere possession of one tablet of Xanax does not constitute trafficking.”

The Impact Of Flawed Deportations

Following the Carachuri-Rosendo decision, 26 legal rights organizations have asked the government to implement procedures allowing immigrants – improperly denied the opportunity to defend themselves at court and sent back to their countries of origin – to reopen their cases.

If successful, they would be able to return and live legally in the U.S.

Recently, in “For Those Deported, Court Rulings Come Too Late”, New York Times reporter Nina Bernstein shared the plights of three former LPRs, also convicted of minor drug offenses, who might benefit from new reopening procedures:

• Vincenzo Donnoli, 51, had lived in the U.S. since the age of nine.  He ran a landscaping business and had five children.  He was deported to Italy after two misdemeanor convictions, one in 1988 and the other in 2006.
• Seweryn Smieciuch, 27, was a bricklayer deported to Poland.  He had entered the U.S. at the age of ten, when his parents won the green card lottery and moved to Brooklyn in 1993.  He spent two days in jail.
• Damon Franklin Spence, 35, had lived in the U.S. since he was 11 years old.  He left behind four kids and was running a sneaker store when he was deported to Jamaica.  He had been convicted of two possession of marijuana misdemeanors.

In my view, since their deportations were based on misguided interpretations of law, the right to new hearings seems to logically flow from the Court’s reasoning in Carachuri-Rosendo.

Otherwise, the Court’s bark far exceeds its bite.

Reopening Misguided Deportations As A Principle Of Fairness

Family unity has long been a fundamental tenet of immigration law.  Conversely, the effect of family separation is a major issue of deportation defense.

It is unknown how many lawful permanent residents (LPRs) were sent back to their home country as a result of the mistaken aggravated felony rules.    However, a recent University of California study estimates the magnitude of family separation on LPR families caused by deportations for minor crimes during the period of 1997 to 2007:

• 87,884 LPRs were deported during the ten year period
• 68% of these LPRs were deported for minor non-violent crimes
• The deported LPRs had lived in the U.S. an average of ten years
• The deported LPRs had a total of 103,000 children
• 88,000 children of deported LPRs were U.S. citizens
• 44,000 children of deported LPRs were under 5 years old

In addition, there were 217,000 other family members (including U.S. spouses, parents, brothers and sisters) affected by the deportation of LPRs.

“American principles of justice,” noted the legal rights groups In their joint letter to Attorney General Eric Holder and DHS Secretary Janet Napolitano (PDF), “require that these immigrants now receive their day in court.”

They’re right.

After more than a decade of flawed deportations, due process demands nothing less.

It was barely 7:00 a.m.

I was peacefully returning from my early morning exercise.  Since I had not yet even drank a cup of coffee, I wasn’t quite ready for a long dialogue.

My neighbor, however, was fired up.  She had read my comments the day before in the Southwest Riverside News Network online paper.

Being my neighbor, she felt entitled to an explanation.

And I felt it important to explain my position, since her misunderstanding likely reflected that of others living in nearby communities.

Not wanting to add any fuel to the immigration wildfires, I put a intellectual lid on various elements of our country’s past, like Manifest Destiny – even though my neighbor’s overly broad statement called such responses to mind.

Instead, limiting my reply to the present, I clarified my view.

I had not asserted racism was the reason for our broken immigration system.  But I clearly stated racism is a major reason why we can’t start the task of fixing it.

Racism Enters The Hemet And Southwest Riverside Immigration Debate

A few weeks ago, the Hemet City Council publicly endorsed Arizona SB 1070.  They have since been joined by Temecula and Lake Elsinore, other cities located in Southwest Riverside, in supporting anti-immigration measures.

Being an Riverside immigration lawyer, with offices in Central Riverside and Hemet, I felt compelled to write an article outlining why the Hemet City Council had made a poor decision for its residents.  I openly welcomed rational discussion on my opinions anytime.  I challenged the mayor to a public debate.

Shortly afterwards, my position was addressed by a local reporter.

She wrote the Hemet City Council votes were right.  She did not provide any local reasons for her position; she emphasized stereotypical criticisms of undocumented immigrants.  More off the mark, she implied the disagreement of SB 1070 opponents was limited to playing the race card.

Her position had two major shortcomings.

First, she had ignored the main issue whether the Hemet City Council had made the right decision for the City of Hemet.

Second, besides taking the discussion off course, her view on the race card was too narrow.

I decided to join her in talking about the issues of name-calling and stereotypes – and addressing, in more depth, how racism too frequently overshadows real immigration policy debate.

The Race Card Is A Double-Edged Sword

Actually, I agreed with the SWRNN reporter’s position that SB 1070 opponents should not play the race card.

But I did not think she took her position far enough.

Both sides need to stop the arbitrary name-calling.

The reporter noted being personally offended when she hears that SB 1070 supporters, like her, are labeled Nazis by some left extremists.  I hope her experience has been limited to indirect third party accounts.

Otherwise, she would appreciate my predicament.

Every time  I have publicly stated my views, views which are not racist, I’ve received a flood of racially insulting, degrading calls, emails, and messages.  Most of these communications do not discuss policy differences; rather, they prefer to directly insult me, my wife, my kids, my cousins, my in-laws, my buddies, and even my Facebook friends.

For such naysayers, the quality of my character is solely determined by my ethnicity and my immigration positions.  Both of which I doubt they fully understand.

This type of chatter is not limited to my phones or email address.

Nearly everywhere I look, I find similar vulgar remarks being made about SB 1070 opponents, especially Hispanics.  From blog posts to newspaper columns, from online forums to radio talk shows, derogatory rhetoric and imagery portrays Latinos as the scum of the Earth.

Are these folks playing the race card?

The Role Of The Media In Sparking Fears of Immigrants

What seems like a sudden explosion in hysteria towards immigrants had been growing, almost unnoticed, for several years.

In fact, as the Anti-Defamation League’s video, seen below, shows,  the recent hate-based behaviors which I have experienced at my Hemet immigration attorney office were being fueled in part by years of exaggerated journalism and careless news reporting.

Honesty About Race Versus Playing The Race Card

With so much negative imagery, it’s not hard to fall for some of the rhetoric.

Thus, it’s important to be clear what we mean when we talk about playing the race card.

There is, after all, a difference between playing the race card and having a fruitful dialogue on how racist tendencies hinder reasonable debate about immigration.

Consider:

• Are those persons who anonymously call my office and leave choice remarks playing the race card?
• Am I playing the race card when I bring up the ugliness, rudeness, and mean-spirited comments of such callers and online communities?
• Am I playing the race card when I explain the fears of certain ethnic communities, with a history of strained relationships with law enforcement, about a law which proponents assert is facially neutral?
• Are SB 1070 supporters playing the race card when they explain how the Nazi label offends them?
• Are SB 1070 opponents playing the race card when they point out documented white supremacist ties of Russell Pearce and Kris Korbach, SB 1070′s chief architects?

In my view, it is not playing the race card to discuss the role of race as a driving force behind the Arizona law or as an element of social divisiveness.  To assert the contrary is to ignore the genuine pain which is part and parcel of our country’s effort to form a more perfect union.

We can – and we must – be aware of the role of race, and the influence of racists, without arbitrarily calling each other racists if we are to shape immigration solutions.

This is far more difficult than one might think.

The Spirit Of Independence Day

The Fourth of July was a perfect opportunity for my family and friends – black and white, red and brown, yellow and beige, and all colors in between – to celebrate our founding fathers’ wisdom:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

My community of diverse fellowship helps to provide me with the strength to confront racists agitating in the house of immigration debate.

We must minimize, if not eliminate, their undue influence on this debate.  Then we can move forward.

If we allow them to linger around, influencing minds – the animosity between the two sides of immigration reform will continue to grow.

We cannot underestimate their role in the current debate.  Their influence is far greater than their numbers.  Their ability to devise arguments to drive a wedge between those on both sides of the immigration issue who are open to reason is uncanny.

Their goal is simple.  Disrupt and destroy.

In theory, despite the hate-filled vibes, most of us can still agree to disagree and work forward.

In reality, we cannot afford to let racist messages flourish unchallenged, without risking the internal erosion of our nation.

And we certainly can’t fix a broken immigration system if we let them keep us from talking to each other in a civilized, rational, and honest way.

Overcoming Different Perspectives

About an hour later, as the summer temperature started to move into the 80′s, I finally went inside, showered, and had breakfast.

My neighbor and I had not reached an agreement on all aspects of immigration reform.

But we developed a consensus.

Racism has no place in the immigration reform debate.

Immigration wildfires, which erupted in Arizona a few months ago, have now spread to Riverside County, located in Southern California.

Since I’m an immigration lawyer in Riverside, I’ve long known the debate over immigration reform was overdue.

True debate, on any issue, must be based on reasonableness.  Unfortunately, the early stages of the immigration debate in Riverside have reflected individualized rumors, factual falsehoods, and public hysteria.  Discussions have quickly turned sour.

Earlier this week two local government bodies, the City of Lake Elsinore and the City of Hemet, took stances on the Arizona bill.

Frankly, I don’t understand how the Arizona wildfires are relevant to Riverside County.

Didn’t Smokey the Bear teach all of us to put out fires before they spread?  And not to take actions which carelessly spread the flames to new areas?

In other words, “Why would any city council in Riverside County feel compelled to endorse the Arizona proposal?”

The Immigration Debate In Hemet

On the evening of the City Council meeting to discuss their endorsement of SB 1070, I showed up to state my opposition.  I was allowed three minutes to speak.  At the end of my three minutes, my microphone was cut off.

As I walked back to my seat, the mayor decided to personally challenge my position.  He did not challenge any other speaker, neither before nor after me.

I thought, ‘That’s great.  We’re going to have a real discussion.”

Nope.

He would not let me respond.

Hardly fair play.

Certainly, not civic diplomacy.

Unfortunately, much of the debate over immigration reform has been moving in this direction.

The saddest aspect, however, is not the lack of concrete, evidence-oriented discussions.  Rather, it’s how Hispanic opponents of SB 1070 have been the victims of mean-spirited and ugly name-calling, imagery, and innuendo.

Let’s not fool ourselves.  Our country does have some immigration problems to resolve, and our immigration system is largely a complex maze of broken pieces loosely tied together.

But let’s also be genuine. We cannot fix such items until we agree to disagree politely and move ahead to open and honest debate.

Neither side will get everything they want out of immigration reform.

Still, both sides can learn a lot from each other and develop better solutions than now exist if – and only if – the hate-based rhetoric, imagery, and actions are removed from the equation.

My Chance, Finally, To Respond To The Hemet Mayor And City Council

A few days after the Hemet City Council meeting, the Southwest Riverside News Network asked me, in my capacity as a Hemet immigration lawyer, if I would like the opportunity to respond in writing.

Naturally, I jumped at the opportunity.

There’s almost nothing I would like more than a truly open discussion on issues about immigration reform.

Or the chance to discuss Hemet City Council’s proposal with the mayor and his cohorts in a free and flowing exchange of ideas.

Point and counter-point.

Not aimed at winning an argument.  Rather, focused on creating solutions for our joint neighbors.

The key points addressed in my guest article, “Hemet City Council just made a bad decision, for many reasons,” are summarized below.

Looking Forward To True Immigration Reform, True Political Debate

As I noted above, far too many opponents of reasonable immigration reform don’t care about reasonableness.

They view the world very narrowly.  It’s a “us versus them” world view.

Many of these individuals are not interested in considering new information, especially facts which do not easily fit into their world views.

Nonetheless, they are very vocal, clogging up blog posts, newspaper reader columns, online forums, and radio talk shows with their degrading nonsense.

I believe they represent the minority of all those who oppose immigration reform.

Despite the adversity, I remain open to mutual discussions with immigration reform opponents.

So I’ll keep trying.

Since I have immigration law offices in San Bernardino, Riverside, and Hemet, discussions about true immigration reform and local policy solutions with the City Council of Hemet and the City Council of Lake Elsinore seem in order.

It’s an open invitation.  Forums open to the public would benefit the entire community.

However, Council members will have to leave their matches at home.

He seemed three months out of law school.

As he spoke to the immigration judge, his voice squeaked.  His motion was simple.  He asked for a new hearing date.

Waiting my turn, I listened to his presentation.

He was a new associate in his office.  His client’s hearing was four weeks away.  His employer believed the case presented complex issues and felt the need to personally handle the next hearing.  However, his boss had a scheduling conflict and would be out of state.

The request seemed reasonable to me.

The judge blew a fuse.  In a deep and harsh voice, he scolded the young attorney, “Tell your boss if she does not personally appear, I expect you to represent your office’s client.  She should not enlist the assistance of counsel unequipped to handle her cases.”

After replying, “Yes, your honor,” the young man turned, put his head down, and left the courtroom.

The judge was out of line, way out of line.

Perhaps the judge had a bad breakfast or a rough commute into the office.  Maybe he woke up on the wrong side of his bed.  His behavior was still inexcusable.

Immigration Court Overload And Burnout

I’ve often wondered why some immigration judges act like having temper tantrums is a form of judicial discretion.

The American Bar Association’s report, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (PDF), recently shed insight on the problem.

The report did not pull any punches.

Acknowledging many immigration judges display bias and intemperate behavior on the bench, the ABA pointed out these judges are not doing a good job in providing fair decision making and due process to immigrants at deportation and removal hearings.

A major source of stress and burnout experienced by immigration judges, noted the ABA, is caused by the large caseloads placed on immigration judges and a shortage of support staff, including paralegals.

In particular, the report stated:

• There are 57 immigration courts and 231 immigration judges
• Immigration courts handle more than 280,000 proceedings each year – an average of 1,243 per year for each judge
• To keep pace, each immigration judge needs to issue 19 decisions per week, or four decisions per day
• Due to a lack of time, immigration judges issue far too many oral decisions, even in complex cases

In addition, the ABA report found cutback of funds have resulted in a lack of sufficient training and inadequate supervision of immigration judges, as well as antiquated technological resources.

Judicial Temperament In The Face Of Pressure

Prior to joining the bar, I had an idealized notion of a judge.  In my mind, a judge was a person who exhibited integrity, intelligence, wisdom, fairness, morality, freedom from bias, and respect for others.

Reality, at times, has shattered such images.

In their defense, judge are under a lot of daily pressure.  Being “Mr. Congeniality” day in and day out is a struggle – especially in the immigration court system.

Still, I believe judges should show respect to all who come before them – from squabbling parties and argumentative attorneys, to evasive witnesses and inattentive jurors.

No judge, after all, would excuse my undue rudeness on the basis of personal stress and a heavy work schedule.

Our system of justice depends on public trust.  As more and more judges fail to treat everyone with dignity and courtesy, even while being decisive, trust in our legal system erodes.

It does not help when our role models, like judges, fail to demonstrate a role to model.

With Great Power Comes Great Responsibility

I’ve been an immigration deportation trial attorney for almost two decades.  I’m accustomed to the culture of rudeness which pervades significant parts of our immigration system.

Nonetheless, I was shocked at the immigration judge’s unprovoked verbal assault on a new bar member.

My case was seventh in line.  I decided to follow the young attorney and try to lift his spirits.  I caught up with him at the elevator.

On the way down, I told him that he did a good job in clearly outlining the position of his client and his employer.  I stressed the judge’s comments were inappropriate.  I encouraged him to discount the judge’s remarks and return to court in four weeks, fired up and ready to make the judge eat his words.

I drank some water and headed back up.

That weekend I watched Spiderman with my son.  The movie reminded me, “With great power comes great responsibility.”

Sadly, too many immigration judges don’t get it.

Government lawyers are among those sometimes confused by CAA’s simplicity.

A Defense To Deportation And Removal

Three weeks after arriving in Mexico City, Norma finally reached Tijuana, Mexico.  The next day she went to the San Diego port of entry.  She noted her fear about returning to Cuba.  The officer granted parole, allowing her lawful entry into the U.S. and releasing her from custody.

At Norma’s deportation and removal defense hearing, government counsel objected to Norma’s request to adjust her status to permanent residency.

“Your honor, the only potential avenue of relief is her weak claim of asylum,” wrongly insisted the DHS attorney not once, not twice, but three times.

Grasping the judge’s growing frustration with this error, I asked the court for a two-week continuance to allow opposing counsel to study the issue.

What Is The Cuban Adjustment Act?

The Cuban Adjustment Act was enacted on November 2, 1966.  Like most immigration laws, it was politically inspired.  It resulted out of massive Cuban migration to the U.S. after the 1959 Cuban Revolution and failed attempts to overthrown the Castro regime.

A large part of CAA’s uniqueness lies in its “one year and one day” rule.

Cuban citizens can apply for permanent resident status if they have been present in the U.S. for at least one year after admission or parole.  They do not need to be beneficiaries of family-sponsored or employment-sponsored immigrant visa petitions.

The 1995 Wet Foot/Dry Foot Policy

Under the Clinton Administration, the Cuban Adjustment Act was revised in 1995. The changes became known as the wet foot/dry foot policy.

Under the 1995 provisions, the U.S. Coast Guard is required to repatriate Cubans intercepted at sea, those with “wet feet,” back to Cuba – unless they can prove a fear of persecution if they are sent back, in which case they are resettled in a third country.

Cubans who make it to U.S. shores, those with “dry feet,” are permitted to stay here and adjust status the following year.

The Dusty Foot Trail To Southern California

The 1995 amendments led to unanticipated consequences.

Fearing apprehension at sea, Cubans changed their route to the U.S.  Entering via Miami became a less preferred option.

Over the past decade, like Norma, Cubans have opted for traveling first to Mexico, and then entering the United States at a Mexico-U.S. port.

• Between 2004 and 2005, Coast Guard efforts were intensified. The interdictions of Cubans more than doubled from 1,225 to 2,712.  In 2007 the high of 2,868 was reached.
• As a result, the number of Cubans arriving through Florida began to decrease, dropping below 1,000 per year by 2006.
• Meanwhile, the amount crossing the Mexican border rose from almost 6,000 in 2004 to approximately 11,000 in 2007 and 10,000 in 2008.

The trend, dubbed “dusty foot,” continues today.

The Difficulty With CAA Is That It’s Not Difficult

Having practiced as a San Diego immigration attorney for more than 15 years, I feel the migration patterns of Cuban immigrants should have led DHS lawyers to a better understanding of the Cuban Adjustment Act by now.

Even though the number of Cubans entering the U.S. at California and other southwestern states dropped to 5,600 in 2009, this figure is large enough to justify increased training of government attorneys.

Most immigration programs have complex requirements.  Not CAA.  Immigrants from other countries can only admire its’ leniency.

The Cuban Adjustment Act is not a difficult program to understand.

Ironically, for government attorneys accustomed to imposing barrier after barrier to permanent residence, that’s the difficulty.

Not surprisingly, public confidence in the immigration court process has eroded.

A Day At The Immigration Court

A few days ago, as I sat in the immigration court lobby, a distressed colleague stopped to ask me a question.  He had just received an unfavorable ruling.  An immigration judge ordered his client to be removed from the United States.  The judge held his client’s testimony was not specific enough about his family’s relocation plan if he was deported.

About 15 minutes later, another fellow bar member stormed out of a different courtroom across the hall.  She, too, was upset because her client had lost his case.  The judge held against her client because his testimony was too specific about his family’s relocation plans.

Given the current system of immigration appeals, I’m not sure their chances of winning on appeal are any better.

The ABA Report On Immigration Appeals

Recently, a report commissioned by the American Bar Association, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (PDF), outlined concerns about the immigration appellate system.

According to the report, many of the current problems can be traced to “streamlining” procedures implemented between 1999 and 2002.  The changes were designed to address backlogs and delays – which presumably encouraged abuse of the immigration appellate system and caused hardships for immigrants with meritorious claims.

The changes have not worked out as intended.

In 1999 the first streamlining reforms took place, allowing a single Board member to affirm a decision of an immigration judge without opinion (“AWOs”) in a limited category of cases.  Before this change, all decisions required three Board members.

In 2002 streamlining took a huge leap forward.  These changes, noted the ABA:

• Expanded the category of cases in which AWOs and single-member review were appropriate. Within the next year AWOs accounted for 36% of Board decisions.  Although this figure has decreased, short opinions remain the dominant form of BIA decision-making.  Now, the Board’s decision are often only two to three sentences, even when the issues appear to merit longer analysis.
• Eliminated the BIA’s authority to conduct de novo fact finding, limiting review of fact and credibility determination to a “clearly erroneous” standard. This inhibits the Board’s ability to correct mistakes by immigration judges and to check against unwarranted disparities among judges in factually similar cases.
• Imposed time limits for rendering decisions, requiring single-member opinions to be issued within 90 days and panel decisions within 180 days. These time limits place an unreasonable burden on immigrants and their attorneys in many cases, as well as serve as an irrational incentive for truncated BIA opinions.
• Reduced the size of the BIA from 23 to 11 members. Even though the size of the Board had been increased back to 16 members, insufficient resources are still a major hurdle to adequately handling the 30,00 new appeals filed annually.

According to the ABA, the combination of these factors have caused a dearth of Board precedent and guidance for immigration courts, appellants, and immigration appeals lawyers.  To be designated as precedent, decisions must be issued by a three-member panel or the Board en banc.  As a result, the vast majority of Board decisions are now unpublished and, although binding on the parties, do not serve as precedent.

Immigration Appeals: Missing Authority, Absent Leadership

There are no cases, to the best of my knowledge, on point to guide my colleagues on what constitutes sufficient, but not too much, testimony about an immigrant’s relocation plans if he or she is forced to leave our country.

On appeal, my fellow bar members will need to pioneer their own paths.

Holding their breath is not advised.  As I wrote in Sleeping Justice: The Board of Immigration Appeals’ Failure to Lead, I have been waiting over 7 1/2 years for the BIA to clarify hardship factors in cancellation of removal cases.

Either standard used to deny my fellow bar members’ cases, in the absence of judicial clarity, is near tantamount to an unconscionable standard.

Like Congressman Gary Ackerman, “I’m in favor of immigration but we also need rules.”