Comprehensive Immigration In Two Weeks? Yes, It’s Possible!

In 2007-08, and again in 2013, the Gang of Eight (senators) hashed out a thoughtful, comprehensive compromise bill. 
The main leaders were Dick Durbin and Lindsay Graham. They're still senators and they are very powerful in their caucuses.

You are probably familiar with its main contours: Lots of border security, more immigration judges (needed for deportation and ending the warehousing of migrants), and a path to LPR status (Lawful Permanent Resident) or citizenship for qualified unlawful immigrants.

I want to add two brief new points, especially for my HR audience.

First, Congress made a mistake in 1986 by shifting border control from the U.S.-Mexico boundary and putting it on employers. 
We all know this process today as “verification”— and it should continue. 
But in its present form, it is broken.

That takes me to point 2, a controversial idea. Issue a national ID car with biometric data, or something along these lines. 
Yes, it is Orwellian and frightening. It means the government can track you.

But I think we have reached that point. 
Facebook and others track us and exploit our privacy to a damaging extent.
China may already be tracking us in our cell phones. 
Anonymity is hard to come by unless you are a hermit.

There is no magic solution but taking a two-prong approach of assimilating who is here and stopping more migrant flow would seem to be a sustainable path forward.

I welcome critical posts and replies. We can learn by talking and listening to each other.

Will the Supreme Court Comes to Its Census? DIG This

A single citizenship question for the 2020 census could take away congressional seats and electoral votes in presidential elections from blue states such as California and Illinois, and move those votes to states such as North Carolina. That’s because the question will undercount not only unlawful immigrants but also American citizens who live with that person.

Case-in-point: Mom and Dad are unlawful immigrants and have two children born in the U.S. They won’t answer the census to avoid being deported. Their two American kids won’t be counted, either.

The idea for returning the citizenship question— it was last used in 1950, when the Walter-McCarrarn immigration act had racial restrictions on immigration to the U.S.— came from a GOP strategist. He died recently.

His estranged daughter found computer drives at his home. They show the plan to suppress Democratic votes by using the question. The computer also shows how he peddled the idea to the Trump administration.

Yesterday, a federal judge reopened the case. Basically, the judge is saying that the first trial in the matter involved perjured testimony as to how the question got on the census form.

Linda Greenhouse, in the New York Times, suggests that the Supreme Court use its “DIG” procedure to dismiss the case before issuing a ruling. DIG is “dismissed as improvidently granted.” It’s an oops-button the court can hit if it realizes it is about to make a mistake.

Greenhouse’s point is that if the Court goes forward with a ruling that allows the census question, and much of the American public realizes it’s a crass power grab, the Court will be damaged—and in time, the Court will pay a price by having the number of justices expanded to neutralize its influence.

Meet Sofía in “The Unborn Citizen”

Sofía is an unborn child of an unlawful immigrant woman in Alabama— a person of my literary creation in “The Unborn Citizen.” A summary of her legal plight appears below. If you want a copy of the paper— it is short— I’d be happy to share it with my blog readers and FB friends. I welcome critical comments, questions, clarifications, etc.

(There is no photo with this post. My hope is to have each reader form her or his own mental pictures.)

Summary

Alabama law creates constitutional rights for the unborn child without addressing this child’s basic needs for shelter, food, and health care. These problems are magnified for pregnant women who are poor, especially unlawful immigrants. Nonetheless, by equating the life of an unborn child with a born child, Alabama’s right-to-life laws have the effect of extending birthright citizenship to any fetus that has a heartbeat.

I adopt the perspective of Sofía, an unborn child of an unlawful immigrant in Alabama, to show that the state’s laws, in combination with President Trump’s hostile treatment of unlawful immigrants, make Sofía’s unborn life more fragile compared to her fellow unborn Americans. I suggest measures to secure Sofía’s in utero rights as an American birthright citizen: She must have a legal identity, access to basic welfare benefits, and subsistence from her mother’s legal employment.

Does A Teenage Girl in a U.S. Immigration Detention Center Have a Right to an Abortion?

For now, yes by a 2-1 vote yesterday of a panel of judges on the important D.C. Circuit Court of Appeals (the court where Clarence Thomas and Brett Kavanaugh served, as well as where Merrick Garland sits). That court grows more pro-life with each appointment by President Trump.

The Office of Refugee Resettlement has custody of several hundred pregnant unaccompanied minors every year. They are housed in 21 shelters, including those in states that significantly restrict abortions (e.g., Texas). 

In 2017, ORR received requests for abortions from 18 pregnant unaccompanied minors. However, in March 2017, ORR announced a policy to require permission for an abortion from the ORR Director. Previously, shelters assisted minors with an abortion if state law permitted the procedure. If a state restricted the abortion, ORR would transfer the minor to a shelter willing to provide access.

Scott Lloyd, the new director in 2017, denied every abortion request presented to him during his tenure, including those involving a verifiable claim of rape. This included a request from Jane Poe, who was diagnosed in a medical examination to have been raped. Lloyd explained that ORR must provide refuge “to all the minors in our care, including their unborn children.” He wrote: “In this request, we are being asked to participate in killing a human being in our care,” and “we ought to choose [to] protect life rather than to destroy it.”

Question for Mr. Lloyd: If your agency cannot shelter these children with decent health care, beds—and you are now taking away schooling and recreation for these kids— how do you propose the newborn in your custody should live a decent life?

Can the Fired “Code Red” Weatherman Win His Job Back?

Not likely (but read on). Joe Crain was officially fired this week. We can assume the reason was his public criticism of his employer’s insistence on using a “Code Red” banner when even a hint of severe weather was in the forecast. In central Illinois, especially during the spring, that possibility is prevalent.

Crain was saying that WICS was basically using Code Red to drum up ratings but it was also like crying wolf. Viewers were vocal in backing Crain’s position.

Here’s why Crain is unlikely to win a lawsuit, if he seeks recourse.

Employment-at-Will: This is the bedrock of American employment law. It means an employer can fire anyone, at any time, for any reason, or no reason (unless the reason is prohibited by law).

First Amendment: Yes, Crain was fired for his speech. But WICS is a private employer. The First Amendment doesn’t apply.

Contract: Yes, Crain likely had an employment contract. Just as likely, the contract preserved the station’s right to fire Crain at-will. Many employment contracts contain non-disparagement clauses—if the employee rips the employer, the employee can be fired.

Defamation: Unless WICS speaks out against Crain, and intentionally falsifies information about him, this is not an avenue for Crain.

Is Crain totally out of luck? No. 
Illinois has a tort (a civil action) called the public policy exception to employment at will. It means an employee cannot be fired for upholding a public policy. 
Here is a basic illustration: Suppose truck company fired a driver for failing to drive his vehicle 80 m.p.h. This would violate an important public policy: speed limits for trucks in order to save lives.

Crain could argue that his job was to inform the public of imminent severe weather. WICS was interfering with his duty to provide credible warnings. Usually, however, this tort requires that a plaintiff show that he or she was required to break or ignore a law—often courts say a “fundamental” law, not just any law. There is no law, to the best of my knowledge, that WICS broke by running Code Red banners on sunny days.

Alabama Abortion Law Compares Roe v. Wade to Holocaust, Other Atrocities

Photo Credit: Brandon Kelly "Follower of Jesus. Husband. Dad. Pastor. Writer" 

I’m developing a research paper titled, “The Unborn Citizen.” Instead of disputing new fetal heartbeat laws, I accept (for this paper) the premise that human life begins at conception, not birth. What are the legal ramifications for unlawful aliens who are pregnant in Alabama? One implication is that the pregnant woman cannot be deported because doing so would deport a U.S. citizen. There are other implications. 

For now, I pass along portions of The Alabama Human Life Protection Act (source is here, https://legiscan.com/AL/text/HB314/id/1980843)

The law is premised on earlier legislation enacted by Alabama voters. On November 6, 2018, electors approved by a majority vote a constitutional amendment. The Constitution of Alabama of 1901 now declares and affirms the “public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children.”

The Alabama Human Life Protection Act uses the Declaration of Independence as justification for the law:

In the United States Declaration of Independence, the principle of natural law that “all men are created equal” was articulated. The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women’s suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement. If those movements had not been able to appeal to the truth of universal human equality, they could not have been successful.

Next, the law states:

It is estimated that 6,000,000 Jewish people were murdered in German concentration camps during World War II; 3,000,000 people were executed by Joseph Stalin’s regime in Soviet gulags; 2,500,000 people were murdered during the Chinese “Great Leap Forward” in 1958; 1,500,000 to 3,000,000 people were murdered by the Khmer Rouge in Cambodia during the 1970s; and approximately 1,000,000 people were murdered during the Rwandan genocide in 1994. All of these are widely acknowledged to have been crimes against humanity. By comparison, more than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number w who were killed in German death camps, Chinese purges, Stalin's gulags, Cambodian killing fields, and the Rwandan genocide combined.

The law defines the following:

Section 3(7) UNBORN CHILD, CHILD or PERSON. A human being, specifically including an unborn child in utero at any stage of development, regardless of viability.

Section 3(8) WOMAN. A female human being, whether or not she has reached the age of majority.

For my analysis, what I find interesting is that there is no alienage restriction of who is an unborn person. This means that the unborn child of an “illegal alien” has full constitutional rights under Alabama law.

For now, I welcome comments of all types, pro and con, regarding this law—and I am especially interested in what readers see as implications if one assumes, as I do here, that Alabama has the constitutional power to say that life begins at conception. In other words, what does it mean—apart from criminalizing abortion— to say that a fetus is a person with full constitutional rights who enjoy the equal protection of the laws? 

Census Undercount Looms: Can Democrats Fix It?

The U.S. census form has not asked a citizenship question since 1950— the last time that immigration laws imposed restrictions based on race. 

In 2020, the Trump administration plans to go back to the 1950 census question. 

This will likely undercount all aliens, especially those who came to the U.S. unlawfully. Some of them will fear identification and deportation.

This past week, Justice Ruth Bader Ginsburg hinted that a 5-4 decision will soon be issued that permits the undercount. This will create more representation in the House of Representatives for Republicans.

Can Democrats fix this? Maybe.

Consider the dispute between Utah and North Carolina over the 2000 census. The Census Bureau has always had a problem getting a complete count of everyone in the U.S. In instances where the Census Bureau was unsure of the number of residents at an address after a field visit, the Bureau inferred its population characteristics from its nearest similar neighbor. This is called “hot-deck imputation.”

The Census Bureau used this process in 2000 (and continues to do so). As a result, Utah had a downward adjusted count and North Carolina had a gain. In effect, North Carolina took one congressional seat from Utah (both are traditionally GOP states).

Utah sued in Utah v. Evans, 536 U.S. 452 (2002). The Supreme Court upheld the use of that statistical technique. The Court said the inferential technique was a better version of the “actual enumeration” required by the Constitution.

So, an adjustment is still possible but this assumes a change in presidential administrations in 2021 and a Supreme Court that is willing to stand by its precedent in Utah v. Evans. This outcome seems uncertain, to say the least.

Are Slaves “Immigrants” or “Migrants”?

This question has been controversial for students in my immigration and employment class. I get it: the words we use in connection to human migration are fraught with unclear meaning— for example, “illegal” versus “undocumented” or “unlawful” alien.

In my class materials, I have referred to African slaves as “immigrants.” My students, almost unanimously, have disagreed.

They make the valid point that people who are captured, uprooted from their homes, forced on ships in shackles, and sold at auction as slaves in the colonies cannot be called “immigrants.” Their views have been so emphatic that I have adopted their use of “migrants.”

Where was I coming from in calling slaves “immigrants”? Most people who came to America in the 1600s and 1700s were indentured servants. They were usually white English people who gave up their freedom for seven years to pay for passage and an apprenticeship in America. They are called immigrants— but they were not free people (nor were they slaves, to the point made by my students).

Here is a perspective from Prof. Aaron Fogelman (1998). He says that slaves should be called “immigrants.”

He make a different point from mine: By excluding slaves from the “immigrant” category, we completely overlook the experiences and cultural contributions made by slaves in early America. We simply delete them from our inquiry of American immigration.

What do you think? Migrant, immigrant, or another term? I welcome your view (email me at mhl@illinois.edu). 

Meanwhile, consider what Prof. Fogelman thought:

“The large volume of eighteenth-century migrations to the thirteen colonies has been overlooked by historians who have neglected to consider the African slaves. In the 1970s Peter H. Wood and C. Vann Woodward lamented the exclusion of African slaves from the ranks of “immigrants.”  They attributed it to racism and the tendency of immigration historians to begin their studies in the nineteenth century, as African immigration into the United States was ending. Too often historians have used the European model to explain immigration and the immigrant story in American history-whatever does not fit that model may not be understood as immigration.

In my view, however, immigrants were people who came from somewhere else to the mainland colonies or the United States (as opposed to having been born there). The immigrant story critical to the demographic, economic, and cultural development of the United States is an ongoing, complex, and changing tale that enlists a cast of characters from nearly all parts of the globe. In the past generation that view has become more accepted, as historians have given increasing attention to slaves in the colonial period as forced African immigrants. But a comprehensive study of immigration into British North America and the United States that includes Africans and takes into account their varied ethnic backgrounds is still lacking, even though the number of slaves imported may have equaled or surpassed that of European immigrants in the eighteenth century.”

“Tariffs” on NCAA (and All Other) Foreign Students

Tariffs have become a key policy tool. International students must pay taxes on scholarships. So what? For U.S. students, a scholarship is not taxable. But again, the value of a scholarship is taxable for international students.

It’s not called a tariff. But it works the same way: The U.S. adds up to a 30% tax on scholarships similar to a 20% tariff on Chinese goods.

This tax has impact on NCAA scholarships. There are 17,000 student- athletes from other countries among the roughly 480,000 students that take part in NCAA sports (3.5%). Some sports have a high concentration of foreign students: Tennis (32% of men and 30% of women on college tennis teams come from other countries, many of whom are on scholarships).

The chart shows the percentage of international students in NCAA sports. While most of these students play in non-revenue sports, they are a growing part of college basketball (6.7%).

For more, see “These Are the Scholarships Most Likely to Go to Foreigners,” at https://www.marketwatch.com/story/these-are-the-sports-where-foreigners-get-the-most-us-athletic-scholarships-2017-05-11

Do You Know Someone Who Is Underemployed? Real Unemployment is 7.1%

Our news media give us only one measure of unemployment. Officially, the Department of Labor calls this U3— their third way of measuring unemployment. It is the total number of people (A) working, or (B) seeking work— called the labor force— and measuring the percentage of job seekers relative to this overall labor force.

There are other measures of unemployment. One is U6. It includes “marginally attached” workers, plus part-time workers. 
In U3, they count the same as someone working their dream full-time job. 
U6 counts someone is working a short gig more like a job seeker than a fully attached worker.

The May 2019 figure for U6 was 7.1%, while U3 was 3.6%. See this: https://www.bls.gov/news.release/empsit.t15.htm.

Want a concrete example of a U6 worker? The New York Times reports on older workers today, noting:

More than half of workers over 50 lose longtime jobs before they are ready to retire, according to a recent analysis by the Urban Institute and ProPublica. Of those, nine out of 10 never recover their previous earning power. Some are able to find only piecemeal or gig work.

***

(The ProPublica report is compelling. For more, read: https://www.propublica.org/article/older-workers-united-states-pushed-out-of-work-forced-retirement.)

Are You Ready for a Bot-Interview? Illinois Law Restricts Orwellian HR Practice

A growing number of employers use artificial intelligence to screen candidates in the hiring process. Gecko, Mya, AutoView and HireVue offer AI-powered interview platforms.

Under a law passed by the Illinois General Assembly, Illinois employers using artificial intelligence platforms during their hiring and recruitment processes would have to seek the consent of job applicants.

What do interview-bots do? They evaluate applicants’ facial expressions, word choices, body language, vocal tones, and dozens of other personal characteristics. 

Data collected through this process is translated into a score that the employer can use to determine whether a job candidate is a good match for the organization. (I’ll get back to the red text in a few seconds.)

Hundreds of employers already use these platforms. They say it’s efficient and cuts hiring time.

A Deloitte study says that video interviewing assisted by AI can reduce pre-hire assessment questions from 200 to just 5 and raises the possibility of one-interview hires.

To be clear, Illinois is not banning AI interviews.

“Applicants deserve to be as prepared as possible coming into the interview process,” bill sponsor Sen. Iris Y. Martinez (D) said in a statement. “While artificial intelligence can be a useful tool for companies to screen and hire employees, they should not be able to use it without the applicant agreeing to do so.”

The new law will require employers to disclose their use of AI analysis tools as part of the job recruitment and evaluation process. Prior to any video job interviews, employers would have to notify the job applicant in writing that AI may be used to analyze the applicant’s facial expressions and fitness for duty; provide applicants with an information sheet explaining how AI works; and obtain written consent for the use of AI technology during the interview process.

The legislation also would place limits on employers’ ability to share and maintain AI videos. H.B. 2557 specifically requires employers to destroy such videos within 30 days of a completed hiring process.

What are these dozens of other personal characteristics? I don’t know. My concerns are that people with disabilities (speech impairments) and accents will be filtered out on grounds of fluency. Ditto applicants with wrinkles (older workers), people of color, and unattractive people.

Down the road, I also worry about who gets pinned with liability for biased hiring decisions. Let’s say that ABC Corp. uses AI-bots, and this leads to hiring bias. Under Title VII and related discrimination laws, employers are liable. Here, the employer could plausibly shift the blame to the AI firm—not an employer, and therefore, not liable.