Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

What will be the impact of the Presidential election on immigration? Compare the consequences if the President is a Republican or a Democrat.

As of May 2012, with almost six months of campaigning ahead of us, little is certain about how the Presidential election will impact immigration in 2013-2017. As we move through May, it appears that both political parties are searching for wedge issues which will enthuse their constituencies while creating dilemmas for opponents, and for the moderates and independents who will determine the outcomes in battleground states. I predict that immigration will be one of the wedge issues in 2012. Most American voters, I believe, share my own faith in the rule of law, and are troubled by the presence in the U.S. of 11-12 million undocumented people, who have evaded inspection at the border, overstayed valid visas and permitted periods of stay, or are in some other category of notquite-right status such as TPS (temporary protected status) or awaiting final adjudication of the merits of an I-589 Application for Asylum, and for Withholding of Removal case. Both political parties and many candidates have some difficulty articulating a consistent and persuasive policy case for their preferences. The voters appear to be deeply divided on how to reform immigration laws and how to handle the presence of so many people here illegally. During Gov. Mitt Romneys campaign for the Republican Partys nomination in Florida, he recommended a policy of self-deportation. With Floridas 29 electoral votes a major prize for a candidate in the November election, the name of Senator Marco Rubio (R-FL), a dynamic Cuban-American elected in 2010 with key support from the Tea Party, is mentioned as a possible Republican Vice Presidential nominee. Senator Rubio has crafted a compromise Dream Act, hoping to straddle the divide between Republicans. Republican nativists oppose any measure to permit illegal immigrants to earn their way to citizenship, which they call asylum, and condemn as a reward for illegal behavior. Republican compassionate conservatives, perhaps including Sen. Rubio, regard children as meriting special consideration, though imposing conditions on their status adjustment. In Maryland, voters will consider a Referendum on the Maryland version of the Dream Act, which offers in-state tuition rates at Montgomery College and other community colleges in the state to all immigrants, except those here on valid non-immigrant student visas, who will continue to pay out-of-state rates unless they change status and meet residence requirements. The Dream Act gives children who came to the U.S. by means which evaded border inspection or entered on valid non-immigrant visas and overstayed their permitted temporary stay an opportunity to continue their educations in Maryland Instead of the Romney pattern of selfdeportation, these immigrants might be described as self-adjusting immigrants. The current
Michael Benefiel

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

U.S. law does not permit people to make an independent adjustment of status. Instead, U.S. law requires that immigrants obtain official permission to change their immigration status. This issue, whether or not to allow children to become educated at in-state rates, has become one of the hot-button controversies in Maryland and across the country. As I note in describing Senator Rubios version of a dream act, reconciling those Republicans who oppose it with those Republicans who favor some relief for students and young people will be a measure of the Republican Partys ability to mobilize voters who care about fairness and youth opportunities and get them to support the Romney candidacy with money and get-out-the-vote drives between Labor Day and Election Day. The national Democratic Party emphasizes responsibility and accountability, as well as its unavailing hopes for comprehensive immigration reform. President Obamas Administration continues to deport nearly 400,000 immigrants annually. Changes in enforcement priorities announced in June 2011, by Director John Morton for the U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), have not been consistently applied.1 With some jurisdictions, like Arizona, crafting new powers for local law enforcement, the judicial doctrine of Federal preemption in matters of immigration is under challenge. From the tenor of oral arguments in U.S. v. Arizona at the Supreme Court on April 25, 2012, I find it difficult to believe we will have a helpful and dispositive court decision in the next few months. How distinct are policies toward immigration as described by the two major political parties in the U.S.? How much do politics impact immigration flows at all? How much are these instead shaped by varying economic conditions and the migrants own ideas about opportunities in their countries of departure and countries of arrival, both worldwide and in the Western Hemisphere in particular? My view is that, for better or for worse, U.S. immigration policy is often reactive and varies with the state of our national economy and our sense of endangerment. Though volumes of regulations and transcripts attest to the effort to plan, structure, and enforce a consistent set of immigration laws and enforcement priorities, most observers see wide variations in the enforcement of immigration laws. Indeed, in the years since the terror attacks of September 11, 2001, the U.S. Congress and the Executive Branch have made dramatic new efforts to monitor activities by immigrants in the U.S. on the basis of national security concerns. In addition, since 2010, when Arizonas legislature enacted SB1070, which sought to add local law enforcement
1

The Administraions guidelines are found at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf and the print version is dated June 17, 2011. The American Immigration Trial Lawyers podcast, which summarizes the memos and discusses the pilot programs in Denver and Baltimore, is at http://media01.commpartners.com/AILA/podcasts/ProsecutorialDiscretionandPilotPrograms.mp3

Michael Benefiel

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

resources to the efforts of the U.S. Immigration and Customs Enforcement (ICE) to enforce U.S. laws regulating immigration several state and even local governments have taken public policy initiatives to change the way immigrants are treated, allowed to receive government services, and granted access to employment and higher education. The Presidents Administration, through the Department of Justice and leadership of the Attorney General, has some limited authority to push back against the worst excesses, when a pattern of flagrant disregard of immigrant community members rights can be documented. Assistant Attorney General Tom Perez, who heads the Office of Civil Rights in the U.S. Department of Justice, announced on May 9, 2012, that he will initiate at civil action against Sheriff Joe Arpaio of Maricopa County, Arizona, for a pattern of abusive policing and incarceration practices documented in a December 2011 report to the Attorney General.2 To answer the question about Republican and Democratic policy statements about immigration, I will briefly summarize them from the parties respective websites and reporting from candidates remarks in the past months: A search on May 3, 2012, of the Republican National Committees website produced no hits when I entered immigration and illegal immigrants. When I went to the Spanish language resource page, I listened to a 30 second commercial in rapid Spanish, running in Florida (one of a dozen battleground states) already. The Republican attack on the incumbent president is that his economic management is insufficient and many people are suffering. I found the RNC silence on immigration puzzling. It may be that the RNC has not yet resolved the delicate balancing act required to solicit Latino votes while not losing the support of nativist voters who are looking for more vigorous enforcement of immigration laws. Senator Marco Rubio (R-FL), a Cuban-American with ties to the Tea Party Movement in Florida, has recently spoken on the topic of Hispanic youth and fairness under our immigration laws: The [Rubio Dream Act] compromise would grant students who are the children of illegal immigrants a new kind of nonimmigrant visa that would let them live in this country legally for a period of time. They could work, drive and pay taxes. He would also grant nonimmigrant visas to the graduates of colleges and trade schools, enabling them to stay here and work.

The Civil Rights Division of the DOJ began an investigation of the Maricopa County Sheriffs Office in June 2008 and summarized its findings to the County Attorney in a Dec. 15, 2011, letter to Mr. Bill Montgomery. Following several months of negotiations aimed at reaching a consent decree with Sheriff Joe Arpaio and MCSO, the efforts to reach a consent decree broke down. Public exchanges between the outspoken Sheriff and the Civil Rights Division have already begun. The text and the specific patterns of discriminatory policing, jail practices, as well as retaliatory practices of the MCSO are documented in a 22 page public document, available at: http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf

Michael Benefiel

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

The proposal would not grant them green cards, giving them permanent residency, which sets it apart from the original Dream Act. With their nonimmigrant visas, they could seek green cards in the traditional way, either through marriage, family or an employer. But they could remain in this country legally during that process. Left with few options, many students and activists said that they were open to Mr. Rubios compromise but that they would wait to see the complete bill.3 During a Republican candidates debate in late 2011, Texas Gov. Rick Perry made a favorable comment about the Texas version of the Dream Act, which he signed into law in 2001 after the Republican majorities in the legislature enacted the bill. This comment received a hostile reception from the audience.4 A similar search on the same date of the Democratic National Committees website produced the following careful language, stressing responsibility and accountability, on immigration: America has a long and rich heritage of immigration. Democrats have always embraced our countrys diversity, but we also recognize that our current immigration system is broken. Democrats support comprehensive reform grounded in the principles of responsibility and accountability:

Responsibility from the federal government to secure our borders: The Obama administration has dedicated unprecedented resources to securing our borders and reducing the flow of illegal traffic in both directions.

Responsibility from unscrupulous businesses that break the law: Employers who exploit undocumented workers undermine American workers, and they have to be held accountable. Responsibility from people who are living in the United States illegally: Undocumented workers who are in good standing must admit that they broke the law, pay taxes and a

http://www.nytimes.com/2012/04/27/us/politics/with-gops-ear-marco-rubio-pushes-dream-act-proposal.html , The New York Times, reported and printed in the April 27, 2012, edition. 4 http://www.star-telegram.com/2011/11/17/3534654/illegal-immigrants-and-texas-public.html Fort Worth Star Telegram, downloaded on 05/03/2012, original published 11/17/2011.

Michael Benefiel

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

penalty, learn English, and get right with the law before they can get in line to earn their citizenship. Comprehensive immigration reform is essential to continue the tradition of innovation that immigrants have brought to the American economy and to ensure a level playing field for American workers.5 The Republican primary campaign, with a changing cast of characters and a range of issues, moved toward an imprecise and somewhat unsteady consensus on elements of our immigration system. The dedicated and activist Republicans who participate in the primary process appeared to favor candidates who took strongly worded positions against asylum or other permissive responses to the presence of some 11-12 million6 undocumented immigrants in the U.S. During the candidates debate in Florida, where the issue is strongly contested, former Governor Mitt Romney responded this way: Adam Smith of the Tampa Bay Times asked Romney to explain something in his immigration plan the fact that he wanted to get people out of the country to apply for entrance legally, but also did not call for deporting anyone. How would he get them out of the country? The answer is self-deportation, Romney replied, they decide they can do better by going home because they cant find work here because they dont have the legal documentation to get work here. He added that he would be willing to give them a transition period. The moderator repeated the word. Self-deportation? Isnt that what we have now? Romney replied that we have a card that says who is here legally, and that he understands the plight of illegal immigrants, but I dont think its fair to the people who have loved ones waiting on line to get here.7 Gov. Romney has framed the issue as a matter of fairness to those who are waiting on line and apparently believes that enforcement of laws requiring employers to confirm the eligibility of their employees and enforcement of laws prohibiting the falsifying of identification documents will prevent undocumented workers from finding employment in the U.S. As we learned this semester, these notional lines in countries like Mexico and India, to pick two examples, can be very long indeed. Family preference immigrant visas for the Indian citizen
5 6

http://www.democrats.org/issues/immigration_reform, downloaded 05-03-2012 Pew Trust estimate 7 http://www.mediaite.com/tv/mitt-romney-on-illegal-immigration-the-answer-is-self-deportation/, downloaded on May 3, 2012, with an original date on the article of Jan. 23, 2012

Michael Benefiel

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

children of naturalized U.S. citizens filed on or before Dec. 22, 2004 were eligible for processing in February 2012, a minimum wait of 7 years, 2 months. Of course, this was a short wait compared to Mexican citizen children, whose applications filed on or before April 22, 1993, a minimum wait on line of some 18 years and 10 months.8 Since Gov. Romney has credentials earned at Harvard Business School and wealth earned in the competitive world of investment banking, I find his views on the U.S. immigration system either ill-informed or, more likely, designed to please the Republican audience at the Florida candidates forum. Whether or not these campaign remarks will in fact guide a future Romney Administrations immigration policy choices must be a speculative exercise. My guess is that serious efforts to impose employer sanctions that were meaningful and added costs to business operations would be strongly resisted by the free market, business constituency which is a core support group for the Republican Party. If Gov. Romney seriously relies on a policy of self-deportation, then immigrants who can find work will stay and those who cant may turn to criminal activities or fall into the shadow economy of day laborers, cash transactions, and exploitative working conditions in low wage service sectors. The outcome of the election will be determined in the dozen battleground or swing states, which historically have registered voting majorities for both of the national parties. As you will see on Table 2, the electoral college victory of Barack Obama was assured when he ran the table, winning in all twelve in 2008. The situation in these battleground states is mixed as of May 10, 2012. As we know from previous Presidential election cycles, a lot can happen in the 180 days between now and Nov. 6, 2012. On the basis of these data, which show that Obama is leading in ten of the twelve battleground states, the Florida contest becomes even more important for the Republicans. I predict with some confidence that Senator Marco Rubio will be the Vice Presidential pick, though we wont learn of this until late August. The 29 electoral votes controlled by Florida voters are essential for any possibility of a Romney win.

http://www.travel.state.gov/visa/bulletin/bulletin_5640.html The online version of the Visa Bulletin issued by the U.S. State Department for February 2012.

Michael Benefiel

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

Table 1. Early May Polling Data from Battleground States, 2012 # State Name Electoral Pct. of Poll Pct. of Poll Votes respondents respondents 2012 favording favoring Obama Romney 9 47 47 29 43 44 6 51 44 16 47 43 6 52 44 4 51 42 5 54 40 15 47 43 18 50 43 20 47 39 13 51 44 10 51 42 Date of most recent poll and margin of error 04/23 4.1% 05/01 2.9% 05/06 2.85% 04/03 4% 04/30 4.5% 04/20 4.4% 04/22 4.3% 04/30 2.5% 05/06 3.3% 05/01 2.9% 05/01 4% 04/29 3.8%

01 02 03 04 05 06 07 08 09 10 11 12

CO Colorado FL Florida IA Iowa MI Michigan NV Nevada NH New Hampshire NM New Mexico NC North Carolina OH Ohio PA Pennsylvania VA Virginia WI Wisconsin

Source of data from various statewide polling organizations, academic and news organizations, collected at Wikipedia at http://en.wikipedia.org/wiki/Statewide_opinion_polling_for_the_United_States_presidential_election,_20 12

Table 2. Battleground States for the 2012 Presidential Election and their 2008 Results # State Name Electoral Votes 2012 9 29 6 16 6 4 5 15 18 20 13 10 Percentage for McCain 2008 45 48 44 41 43 45 42 49 47 44 46 42 Percentage Allows in-state tuition for Obama for residents, even 2008 those in unauthorized status 54 No 51 No 54 No 57 No 55 No 54 No 57 Yes 50 No 52 No 54 No 53 No 56 Yes

01 02 03 04 05 06 07 08 09 10 11 12
Michael Benefiel

CO Colorado FL Florida IA Iowa MI Michigan NV Nevada NH New Hampshire NM New Mexico NC North Carolina OH Ohio PA Pennsylvania VA Virginia WI Wisconsin

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

Sources: List of Battleground States from USA Today; Electoral Vote Totals from Wikipedia; Results of 2008 Presidential Election from The Almanac of American Politics, 2010 edition, List of states allowing in-state tuition for all immigrant residents, regardless of status, from Wikipedia, downloaded May 3, 2012.

My own narrower focus, due to my work with the advocates for the YES vote on the Maryland Dream Act, is on how the wedge issue of in-state tuition for Hispanic/Latino children will play out in the election cycle of 2012. Now that President Obama has evolved to come out (personally) in support of those who want to get married and cannot, Im hoping that he will also make a mention of the Dream Act and work to push legislation in the Congress. Though it will be impossible, in my opinion, to attract Republican votes for a Federal version of the Dream Act, the Democratic Party can go to the polls with a wedge issue that will work successfully with their Spanish-speaking constituency, as well as bilingual family members, including those who vote and are active in support of immigrtants rights. Table 3. States Granting In-State Tuition for Post-Secondary Education (Dream Act), 2012 Percentage Percentage Presumed Winner in voting for voting for Nov. 2012 McCain in Obama in 2008 2008 01 CA-California 55 37 61 Obama 02 IL-Illinois 20 37 62 Obama 03 KS-Kansas 6 57 42 Romney 04 MD-Maryland 10 36 62 Obama 05 NE-Nebraska 5 57 42 Romney 06 NM-New Mexico 5 42 57 Obama 07 NV-Nevada 6 36 63 Obama 08 OK-Oklahoma 7 66 34 Romney 09 TX-Texas 38 55 44 Romney 10 UT-Utah 6 63 34 Romney 11 WA-Washington 12 40 58 Obama 12 WI-Wisconsin 10 42 56 Obama Sources: List of states with in-state tuition from Wikipedia, Electoral vote totals from the Federal Election Commission http://www.fec.gov/pages/elecvote.htm, and results of 2008 Presidential election from The Almanac of American Politics, 2010. As noted in the text, based on the 2008 results, there appear to be 62 electoral votes for Republicans and 141 electoral votes for Democrats.
Michael Benefiel

State Name

Electoral Votes 2012

Michael Benefiel

Professor Alan Drew

Immigration Law, Spring 2012

Table 4. Latest Polling Results in Dream Act States, May 2012 Electoral Percentage Percentage Poll date and Margin of Votes favoring favoring Error 2012 Obama Romney 01 CA-California 55 62 31 04/02/12 2.2% 02 IL-Illinois 20 56 35 02/06/12 4% 03 KS-Kansas 6 31 56 11/10/11 3.5% 04 MD-Maryland 10 * * * 05 NE-Nebraska 5 39 51 03/25/12 3.1% 06 NM-New Mexico 5 54 40 04/22/12 4.3% 07 NV-Nevada 6 52 44 04/30/12 4.5% 08 OK-Oklahoma 7 * * * 09 TX-Texas 38 43 50 04/22/12 4% 10 UT-Utah 6 31 63 07/10/11 3.6% 11 WA-Washington 12 53 38 02/19/12 2.76% 12 WI-Wisconsin 10 51 42 04/29/12 3.8% Source and note: * No polling data available, presumably because MD is safe for Obama and OK is safe for Romney, and no one is willing to pay for a poll which will prove that. Polling data from academic and news organizations in the various states, collected in Wikipedia at
http://en.wikipedia.org/wiki/Statewide_opinion_polling_for_the_United_States_presidential_election,_20 12

State Name

Romney is ahead in states with a total of 62 electoral votes. Obama is ahead in states with a total of 118 electoral votes. I predict that the margins will shrink dramatically and that Labor Day polls will show a much closer race. Both candidates will get predictable national convention upticks, and then the real game from Labor Day to Election Day will feature an enormous amount of media to reach the undecided and independent, most of whom are waiting to see what others will do so they can vote with the winner. In my view, if President Obama learns a little Spanish and does some work in Florida, he can drive a wedge between the comfortable and somewhat complacent Cuban-American aristocracy which has dominated this ethnic constituency for a long time, and the less-favored and somewhat resentful or envious non-Cuban Spanish speakers who would respond to new opportunities in U.S. politics. Measured support of the Dream Act, as proposed by Senator Rubio, will fall short of meeting the real needs of high school graduates and their families in Florida. With some judicious use of surrogates in Florida, the Obama campaign could make inroads and at least force the Romney campaign to spend time and money to safeguard the 29 electoral votes at stake.

Michael Benefiel