Countries such as Mexico can not participate in the DV because of the numbers of immigrants they send to the US, Kennedy made a special arrangement to let the Irish in, no logic.
US Immigration actually favors families more than workers in comparison to most if not all other first world countries.
Mixed family, sounds like one USC and one non USC in this case.
This is a matter of balancing out protection against implications.
Employment means business and business is trade for profit. When it comes to employment based immigration, the bottom line is the creation of wealth. Sounds simple and I know that immigration, at any level, involves human beings, but employment based immigration is geared towards the creation of wealth. If an employer is not able to hire an immigrant, or if the employee is removed, the employer will suffer a loss, an economic loss mind you, and he or she will hire a replacement. The "damage" can be quantified, measured, it's in the books.
Why is this? Employment-based immigration is designed to help businesses, employers and economic growth. There's protections in place to help the "immigrant" but the program is designed to help the employer meet new challenges by being able to "import talent" that, in term and by a direct effect, will also benefit the economy.
Family based immigration is designed to help "families" stay together. If a family member gets removed, the "damage" is not quantifiable, you cannot measure it. Sometimes, as expressed by some Courts, removal is comparable to the death of a family member. Can you measure death in hard figures? How many times have you heard of "grief counseling" for employers? Once you remove a family member, the damage is done. Can you replace a dead parent or child?
When you remove an employee, the damage is quantified. When you remove a family member the damage subjective, permanent and affects not only the employer and the alien employee, but the whole family. For all that matters, removal of a family member means either the destruction of the family as a whole or the forced expatriation of U.S. citizens, either one unacceptable.
Removal, in the case of families, should be reserved for special circumstances and severe offenses that justify such an outcome. It's hard to say that any reasonable person would want to stay married to a rapist, or a killer, in fact divorce is common when one spouse is convicted of such horrific crimes. However, it's very different when you impose such harsh punishments for minor violations such an ancient conviction for simple possession or even a petty theft. Poverty is not a crime in this country, but it has all the practical effects of a crime when persons are required to show "wealth" before they're allowed to stay together as a family.
INA protects jobs for U.S. citizens, that's clear, but who protects the families of U.S. citizens when an alien is involved? There's a few measures in place, but if you look hard enough, you'll see that these measures have very limited impact.
We've all seen it, endless talk to protect the "family institution" and "marriage"... Endless talk to protect children... Endless talk to lower the divorce rates... But when it comes to current law, the effects of outdated and unrealistic measures is clear and include divorce, families forced to rely on welfare and public assistance, children growing up without a father or a mother and U.S. citizens "punished" by exile for a crime they never committed... If you can say that the meaning and implications of family unity is comparable to the needs of an employer then yes, maybe the law is fine, but if you recognize family as the foundation of society and the nation then you'll have to agree that something needs to be done to rationalize these provisions in light of their grave, and very real, implications.
I have come across one situation where each spouse was banned from the others country, weird but true in this case, but reasonable to assume not too common.
I know many people who have had to move for their jobs, not impossible in the US for that move to be further than a move internationally. The spouse stays and is separated or goes and is not. A choice to be made.
I think if someone broke into my house the last thing I would be concerned about is their immigration status, actually as a non USC myself you might wonder why they would wish to risk their status as well a jail time.
With international marriages somebody has to move, so one spouse will be separated from their extended family.
Are you comparing a move because of a job to being forced to move, being forced to decide between country and family? That's stretching the point a little too much.
True many move out of the country because of a job, and true many quit jobs to spend more time with their family, but in either case, it's not a forced move but a personal choice based upon an informed discussion between the parties and an analysis of all pros and cons.
You say people "risk" committing crimes, I could list more than one hundred "crimes" that you wouldn't even know existed, and that require absolutely no intent or evil motive on your part. Many of these "crimes" are carry the penalty of removal as being "described in" or "related to" certain statutes. Depending on the "crime" you commit, you may find yourself in a similar situation, and that's the cold hard truth.
Moreover, a conviction or an arrest is not always required. In many cases, the "reason to believe" standard has been applied to perfectly innocent people. Notoriously, there's a case where an alien "inadmissible" for criminal activity and the decision was enforced even when the alien was acquitted of all wrongdoing by a court of law. "The AG does not need to wait for the Criminal Court...."
The repercussions of exclusion and removal upon a family are usually permanent, and they are even more damaging if there are children involved. There's law against domestic violence, counseling, mandatory therapy, but still, here you have a system that's splitting families on a daily basis for regulatory, minor infractions.
I will not go into how status is granted to an alien in family-based cases; case law is full of colorful opinions. But I'll tell you one thing, the right to marry is granted by the Constitution to every citizen. You cannot say, with a straight face, that you're allowed to marry an alien and at the same time being "automatically" branded as a criminal engaged in fraud, a presumption that you have to rebut. That's what adjudication seems to be all about. It's not your actions, but the "possibility" that you might do something wrong that gets you in trouble. If that thinking was allowed in the criminal world, I tell you, most cities would be deserted and their entire population would be in prison. While there's no protected right for an alien to reside in the U.S, the alien cannot be seen "in a vacuum" but as the member of a U.S. family who has such a protected right. In these type of cases, upmost care should be taken to make sure there's no violation of the constitutional rights of the citizen, but the current approach indicates that there's extreme care to make sure that aliens are allowed residency only when there seems to be no other possible course of action.
Are you comparing a move because of a job to being forced to move, being forced to decide between country and family? That's stretching the point a little too much.
Its a choice every multi national marriage makes, a choice we had to make. Been there got the T Shirt, will no doubt need to review it in the future.
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True many move out of the country because of a job, and true many quit jobs to spend more time with their family, but in either case, it's not a forced move but a personal choice based upon an informed discussion between the parties and an analysis of all pros and cons.
Forced, well nobody is making you, but then nobody is stopping families being together, just might not be in the US.
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You say people "risk" committing crimes, I could list more than one hundred "crimes" that you wouldn't even know existed, and that require absolutely no intent or evil motive on your part. Many of these "crimes" are carry the penalty of removal as being "described in" or "related to" certain statutes. Depending on the "crime" you commit, you may find yourself in a similar situation, and that's the cold hard truth.
You mentioned theft so I responded to it, perhaps the number 1 reason to get naturalised asap.
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Moreover, a conviction or an arrest is not always required. In many cases, the "reason to believe" standard has been applied to perfectly innocent people. Notoriously, there's a case where an alien "inadmissible" for criminal activity and the decision was enforced even when the alien was acquitted of all wrongdoing by a court of law. "The AG does not need to wait for the Criminal Court...."
I thought we were talking about PR's, I am sure there are odd calls, I just do not see them come up, so I am assuming quite rare. All the ones I have seen on boards such as this have had a reason
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The repercussions of exclusion and removal upon a family are usually permanent, and they are even more damaging if there are children involved. There's law against domestic violence, counseling, mandatory therapy, but still, here you have a system that's splitting families on a daily basis for regulatory, minor infractions.
Splitting is optional, most bans I have seen are waivable. I see very few people post with permanent bans.
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I will not go into how status is granted to an alien in family-based cases; case law is full of colorful opinions. But I'll tell you one thing, the right to marry is granted by the Constitution to every citizen.
A lot of same gender couples have found otherwise.
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You cannot say, with a straight face, that you're allowed to marry an alien and at the same time being "automatically" branded as a criminal engaged in fraud, a presumption that you have to rebut. That's what adjudication seems to be all about. It's not your actions, but the "possibility" that you might do something wrong that gets you in trouble. If that thinking was allowed in the criminal world, I tell you, most cities would be deserted and their entire population would be in prison. While there's no protected right for an alien to reside in the U.S, the alien cannot be seen "in a vacuum" but as the member of a U.S. family who has such a protected right. In these type of cases, upmost care should be taken to make sure there's no violation of the constitutional rights of the citizen, but the current approach indicates that there's extreme care to make sure that aliens are allowed residency only when there seems to be no other possible course of action.
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Not my interview experience and not that of the vast majority. Seems very rare for someone to not be allowed to adjust status and the few cases I have seen have all had large flags waiving.
We're not describing same-gender couples, that marriage is not protected constitutionally, mainly because of the so-called "family protections" and "strengthening" provisions I've described here.
A couple may make a choice, that's one thing, it's being forced to make that choice with no avenue of relief what makes the procedure "barely" Constitutional. Moreover, you mentioned waivers, and those waivers are simply put a way of saying "you have an option" when in reality you do not. Some waivers are granted, but the standards are fuzzy, complex and not so well understood. Did you know that the AG may adjust the "hardship standard" to go well beyond the statutory prescribed "extreme hardship"? In this case, the AG is given the power to alter the statute. The law doesn't say "hardship to the satisfaction of the AG", it mentions "extreme hardship", so this statutory construction not only challenges well-established rules but seems to give the AG the power to effectively legislate over hardship standards.
"Nobody is stopping families from being together"... This is the most superficial interpretation of the law. Nobody is forcing separation? If that were so, there would be no need for waivers at all, separations wouldn't occur, they would be seen as trivial. You're assuming that all other countries will admit a U.S. citizen, and like you well said, that's not always the case. In either case, a right may only be super-seeded when public benefit "clearly outweighs" the individual's right. Removing a killer or a rapist is clearly in the public benefit, the person is to be imprisoned for very extended periods of time and possibly life. But when dealing with a petty thief, things are much different. A "petty theft" is not a criminal offense that represents a danger to society as defined by the criminal justice system; in fact, these offenders are, most of the time, punished by a small fine or restitution. In cases such as that one, the citizen's right is not outweighed by public benefit.
So removals are rare when nobody is convicted? Really? If you limit yourself to message boards then, I guess I'll have to agree with you, but I consider these boards a very small and almost insignificant part of the whole picture. Case law says otherwise. The landmark opinion in Thomas gives you a clear picture of what's really going on. Recently, the 6th circuit was confronted with "allegations of a crime" and the IJ entered a removal order without a trace of conviction and having a report from a court expert about the good nature of the applicant.
Not the vast majority of interviews are about removing a person or finding a reason to remove a person? Then why the ninth circuit had to establish a "rule of the game" specifically telling CIS adjudicators that "aliens may not be required to have a more valid marriage than citizen couples"? Why the BIA continuously rejects "viability" tests? Why is it that the so-called "fraud flags" are continuously being challenged and the Courts have decided to stop premature conclusions of fraud and analyze each case on its own merits. Fraud is a crime, and to commit the crime you have to complete the elements of the offense. Even in attempt cases, you need to complete a very substantial step towards the completion of the crime and "mere preparation is not enough". If you tell me that you agree that people should be punished by presumption instead of action, then why have the criminal court? An arrest should be enough because arrests are (or should be) based upon "reason to believe", and reason to believe is not enough to convict, not even in the absence of a defense. As the court would put it, "wrongdoing means action, not just a thought or inclination. Thoughts and beliefs, we would reiterate, are protected by the First Amendment..."
Live for today and forget about tomorrow, life of a rodeo man...
If you are complaining about how the law is written, well that seems in the US more down to Politicians. I am used to a system where the Politicians set strategy but usually the laws are drafted by civil servants who are more likely to understand the ramifications. Makes more sense to do it that way to me. Which is why I think it highly unlikely a sensible reform will ever be passed.
I personally do not like waivers, too subjective for my taste, seems a given in Mexico and a real pain in say Rome, illogical and I believe due to another political involvement.
I do wonder why CIR never seems to include civil partnerships, how can it be comprehensive and not acknowledge modern reality?
But there is also some responsibility on the mixed family, surely one of the things to consider when you get serious with a citizen of another country is where you will live. It is not a given it has to be one way only.
In any case, family based programs should be separate and apart from employment based programs. Creating efficient, dedicated provisions for each program wouldn't only streamline the process but also produce fair and adequate results.
The services provided by an employee cannot and should not be compared to the importance of preserving family unity. In criminal court, family and community involvement are seen as a powerful equities meriting a reduction in sentence or perhaps an early parole. From the immigration point of view, family, alone means little, if anything; it's only extreme hardship to that family that's taken into consideration to provide very limited relief.
Forced relocation is seen as some possibility, but according to the rationale of the Courts, this possibility only arises in a valid manner when the alien becomes part of the family after removal proceedings are initiated. Because of the Constitutional protections afforded to citizens, an automatic presumption of relocation cannot be imposed on a citizen who exercises his or her constitutional rights.
The core of the matter here is that family-based provisions may not be seen in a vacuum, they not only involve the very basic rights granted to aliens under the law but also the fully extended Constitutional and legal rights afforded to every single citizen, including the right to reside in this country and the right to free association and the pursuit of happiness.
Your comment on CIR are valid. Comprehensive means "one that makes sense". Consideration of reality must be the starting point of any law, not only CIR. Current INA has failed because it's not designed to deal with reality in an efficient, fair and just manner.
Nobody here would even assume that constitutional rights extends to the spouse of a citizen, the constitution itself is quite clear on that, and the Supreme Court reading of the pertinent statutes are also firm on that matter. However, you cannot consider the rights of a spouse, as different as they may be, in a vacuum.
"Pursuit of happiness". This phrase is also the foundation of civil liberties and the very origin of the famous "American Dream". The pursuit of happiness, along with the right to free association, create the constitutional bedrock upon which marriage is established. Marriage is seen by the Supreme Court as the foundation of family, an institution that's "vital to society". It's implications are not light, they go well beyond the scope of any and all employment contract or legal agreement.
It's not about any sort of leniency to the "spouses" as you put it, it's about respect for the citizen's rights, it's about a fundamental respect for the value of a the American family, it's about children, it's about society and tradition.
The law fails to properly address is the real implications that INA, in current form, have upon U.S. citizens. That's why I suggested a separation and independent re-design of both the family based immigration program and the employment-based immigration program. It seems only rational to observe that different situations merit different approaches.
I've observed/read about the reaction of some citizens who've been slapped in the face with removal orders against family members, including children, for very minor violations and/or conduct that wouldn't even be criminal in any court. The real effect of such orders is much deeper than perceived by the public, and the implications grave enough to merit a re-evaluation of all related statutory provisions.
I could get into Boromand, related to fraud, or even the recent Billeke opinion on equity and dismissed charges, but I'm not here to debate these cases to detail. Case law extends well beyond a message board and personal experience. The anomalies of the system have been commented upon by many district judges and appeal courts. If the law was properly constructed to provide for fairness and efficient procedures this whole discussion would be then out of order.
Fairness in law is not a luxury, it's a mandate. The law must be fair by definition, the law must be rational and most importantly, the law must obey the Constitution, not the other way around. Constitutional rights may not be eroded by legislation absent an amendment or binding reinterpretation of the statute.
Ordinary people see no harm in the indefinite incarceration of terrorist criminals, the worst of the worst; but the debate is not about those criminals in particular, not even about their deplorable crimes, the debate is about the Constitutional habeas rights. This is how important constitutional rights really are. Now, objectively speaking, if the constitutional rights of terrorist scum are protected then wouldn't it make sense to protect the rights of citizens even more?
This message has been edited. Last edited by: Houston,
I have to agree with you. If the problem is ignored it will not go away, it'll only get worse. I believe the breaking point is just around the corner, the issue is becoming more and more one that affects every community, every town, every city.
Reinforcing current provisions is not going to help, it hasn't helped any in the last 10 years unless you define "help" as contributing to the problem. A new rational approach is needed and the need is imminent.
Live for today and forget about tomorrow, life of a rodeo man...
I am not sure there is a breaking point in the sense I think you mean it.
My guess is that the trigger will be the next major recession, as long as most people can get by, that's OK, but if there is a large part of the 'native' population suffering, or think they will be, and they see what work there is being taken by those here illegally, then there could be consequences.
I do know that the current economic situation is unsustainable, I do not know if the consequences will be gradual or explosive.
I've warned folks time and time again against restricting their views to the pseudo-realities painted by many web sites and blogs. Reality according to case law tends to be very different than what's portrayed as "real" in cyber-space. Reality is cold, strict and very, very powerful. In a recent opinion, the 8th circuit speaks clearly as to the fundamental unfairness of current law, and to those who see no fault in current statutes, here's the "conclusion' of the opinion evidencing the real consequences of immigration provisions:
"To us, it seems contrary to the traditions of this great Nation to remove an elderly, law-abiding couple who have spent fifteen productive years in this country to Russia, a country where they have not lived for nearly forty years and whose people do not yet enjoy our levels of economic, political, and religious freedom. But Congress has delegated this judgment to the Executive Branch... That is the extent of our judicial review authority. Accordingly, we must deny the petition for review."
Opinions such as this one should be a loud wake up call to Congress. Here we have the Judiciary forced to apply law that's contrary to the very same core values that define this nation.
Live for today and forget about tomorrow, life of a rodeo man...
I have yet to do my Naturalization, but my understanding was that each of the 3 branches had clearly defined roles.
I have been following the story of the executive firing attorneys whose only error seemed to be in prosecuting Republicans, this seems the other side of the equation.
Funny aspect is that most politicians have a legal background.
I have no knowledge of this case, as a general comment why is it not OK to send people back to Russia in this case, but is OK not to let them in.
I see many posts from Russians complaining how hard it is to get a Visitors visa for their relatives, the other consequence of people not heeding the terms of their original entry. So their are other victims.
Of course, a Court cannot change a law, and that's why the law hasn't changed beyond binding opinions in each circuit. (The court does have authority to "intepret" the statues when challenged, but that's a different thing).
If you follow the pertinent case law you'll discover how this is just one of the many opinions that reflect critical and severe problems with the law. The ninth circuit alone has rendered certain areas of INA unconstitutional triggering Supreme Court challenges. Other opinions commented on the incromprenhensible lack of consistency regarding the waiver authority, the draconian provisions of exclusion and the very real impact of such statutes upon American families and the overal international image of the nation.
As for the Patriot Act scandal... no surprise there, nothing more than a "big circle of irony".
Back on topic there was a bit on the radio this morning, paraphrasing:
Guy worked for Dennys as head of the Kitchen and had done so for 13 years.
He was part of the management team and explained that their Managers were instructed to prefer illegals for basically the same reasons mentioned before, more maliable, did not pay extra for overtime etc etc.
He was only earning $12 an hour, there had been no increase in pay rates for 6 years.
So yesterday he got his cards, replaced by an illegal.
And was to say the least a bit upset about it.
My sympathy was somewhat limited as he had been part of the process, but then I guess what choice did he have.
Going back to the point you made sometime back, will Denny want to sponsor any of their illegals? I think not, they do not want legal employees. I can not imagine they would willing incur any cost.
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