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Editorial - SB 590: An Arizona-style invitation for litigation

March 16, 2011
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Indiana Lawyer Editorial

By Angela D. Adams

angela adams Adams

The past weeks have brought heated debate about immigration policy to our state. The Indiana General Assembly is currently considering various anti-immigrant bills. Among them is Senate Bill 590, modeled after Arizona’s immigration law. Currently being challenged in Federal District Court on constitutional grounds, Arizona’s law has invited much criticism and proved costly to the state’s economy. Indiana should not be next in line.

Pursuant to Article 1, Section 8 of the U.S. Constitution, regulation of immigration is a power exclusively granted to the federal government. Allowing states to set their own immigration policies violates the Supremacy Clause of the Constitution.

Immigration laws and ordinances passed by states and municipalities have led to costly litigation battles. Most have been enjoined or invalidated, or they are currently pending in court. Arizona’s 2007 employer sanctions law, which was upheld by the 9th Circuit Court of Appeals, is currently pending before the U.S. Supreme Court. Ordinances penalizing renting to or employing undocumented immigrants were struck down as unconstitutional in Hazelton, Pa., repealed in Riverside, N.J., and suspended in Fremont, Neb. A housing ordinance ruled unconstitutional in Farmers Branch, Texas, is currently under appeal. In Valley Park, Mo., a housing ordinance was blocked and an employment ordinance was upheld, but the forthcoming decision in Arizona 2007 calls this ordinance into question. Taxpayers bear the burden of these exorbitant litigation costs.

States are frustrated because the federal government has failed to fix our broken immigration system. Often overlooked are the reasons why the immigration system is broken. Why can’t undocumented immigrants just get legal?

Most undocumented immigrants would prefer to have lawful status. However, for the vast majority of those who have come to the U.S. without inspection or overstayed their visas, this is not an option. Backlogs for family-based permanent immigration preference categories can be anywhere from five to 20 years. Employment-based permanent immigration categories often take five to seven years. These backlogs are the result of a quota system that is outdated and does not reflect the current demand for labor.

Those who entered without inspection or overstayed their visas are ineligible for adjustment of status in the U.S. and must apply at the consulate abroad. Upon departure from the U.S., they face additional obstacles depending on how long they have been in the U.S. unlawfully. Accumulation of 180 days of unlawful presence in the U.S. triggers a three-year bar; one year of unlawful presence triggers a 10-year bar. The three- or 10-year bar can only be waived by demonstrating that a U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if the applicant could not return to the U.S. Those without a qualifying family relative are ineligible for the waiver of the three- and 10-year bars, and thus are effectively foreclosed from obtaining any lawful immigration status abroad. In plain terms, they can’t stay and they can’t go.

Others may be in administrative removal (deportation) proceedings awaiting a hearing for many months or even years. Only an immigration judge can decide whether someone is removable, and in many cases the respondent may be eligible for certain types of relief which can only be sought in removal proceedings. Even if local police arrest every undocumented person in the state, it is still ultimately up to the federal government to charge them, put them in proceedings, and, if necessary, deport them.

The decision to stay or go is often a personal and difficult one. Many immigrants are part of mixed-status families where some members have lawful status and others do not. For children brought to the U.S. at a young age through no fault of their own, Indiana may be the only home they have ever known. Our current immigration laws often lead to family separation and do not allow for families to be reunified in a timely manner.

State anti-immigrant proposals like Indiana’s SB 590 will not solve the problems of our federal immigration system. However, there is a way that we can contribute positively to the immigration debate. Many government officials, attorneys, businesses, social service providers, faith-based leaders, and other concerned Hoosiers have signed on to the Indiana Compact, a statement of five principles to guide rational debate on immigration policy in Indiana. The Indiana Compact declares that immigration is a federal issue; that law enforcement should focus on crimes; that strong families are the foundation of successful communities; that Indiana should be a welcoming state; and that the way we treat immigrants says more about us than it does about them. See www.indianacompact.com.

As attorneys, we have a duty to challenge the status quo, urge our government officials to lead efforts to strengthen and reform federal laws, and uphold the U.S. Constitution. I invite you to join in the discussion.•

__________

Angela D. Adams is an attorney with the law firm of Lewis & Kappes concentrating on immigration matters. She is board president of the Immigrant Welcome Center, chapter secretary for the American Immigration Lawyers Association, and on the steering committee for the Alliance for Immigration Reform in Indiana. The opinions expressed in this column are the author’s.

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  • CuteAnjeli
    Really appreciate this post. It’s hard to sort the good from the bad sometimes, but I think you’ve nailed it. send flower lebanon || send flowers ireland
  • ...
    know nothing indeed..
  • Know nothing
    Its always a safe position for lawyers to advocate the pro immigration position. Its American as apple pie since the days when Mr Lincoln press ganged Irish immigrants into his Civil War right off the boat. Does anybody care about the natives? Well some representatives get it and they will win votes while a lot of hand wringing happens in the meantime.
    • Good Article
      Good job Angela! That's an excellent article. Very informative, realistic point of views and good reasoning. I compliment you for that.
      Renny

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    1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

    2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

    3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

    4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

    5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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