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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penalizing renting to or employing undocumented immigrants were struck down as unconstitutional in Hazelton, Pa., repealed in Riverside, N.J., and suspended in Fremont, Neb.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 These backlogs are the result of a quota system that is outdated and does not reflect the current demand for labor.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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

    2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

    3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

    4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

    5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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