Matthew Kolken | How Can We Fix The Immigration Problem In The United States? | OAP #44
Chase Geiser is joined by Matthew Kolken.
Matthew L. Kolken is a trial lawyer with experience in all aspects of United States Immigration Law – including deportation defense before Immigration Courts throughout the United States, appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals.
He is an elected member of the American Immigration Lawyers Association's Board of Governors where he has been a member since 1997. He is admitted to practice in the courts of the State of New York, the United States District Court for the Western District of New York, and the United States Court of Appeals for the Second and Ninth Circuits.
Mr. Kolken has received the highest AV peer rating by Martindale-Hubbell, has been named a "Super Lawyer" in Upstate New York by Super Lawyers magazine, was listed by Business First of Buffalo as being among the “Legal Elite of Western New York," and has received a "Superb" rating and "Client's Choice" award on Avvo.com. The New York Law Journal has recognized him as a "Lawyer Who Leads by Example" for his work providing pro bono legal services to unaccompanied refugee children, and he is the recipient of the 2018 Marquis Who's Who in American Law Albert Nelson Marquis Lifetime Achievement Award. Mr. Kolken was also awarded the American Immigration Lawyers Association Upstate New York Chapter's Equal Justice Under the Law Peter J. Murrett III Pro Bono Award in recognition for community service, and the Erie County Bar Association's Pro Bono Award in recognition and appreciation for legal services performed in immigration matters before the Court.
Mr. Kolken has appeared nationally on FOX News, MSNBC, and CNN. His legal analysis has been solicited by the Washington Post's Fact Check of the immigration statements of Secretary Hillary Clinton, then Presidential candidate Donald Trump, and the immigration status of the parents of First Lady Melania Trump. His opinions on immigration law have been published in Forbes Magazine, Bloomberg, The Los Angeles Times, Business Insider, and FOX News among others. He has been an invited speaker at AILA's annual conference on grounds of removability, is the author of the Deportation and Removal Blog on ILW.com, where he is a member of the advisory board of the Immigration Daily, an online immigration news periodical with more than 35,000 readers. He is also a prominent immigration reform activist having been ranked as the most influential person on Twitter in the area of Immigration Law.
EPISODE LINKS:
Chase's Twitter: https://www.twitter.com/RealChaseGeiser
Matthew's Twitter: https://twitter.com/mkolken
So Congress can make the law whatever they want it to be.
With respect to the political divide, I don't really think that either party is really genuine on the issue of immigration.
Democrats benefit from there being no immigration reform to a certain extent because they can use it as a cudgel during the election years to say that if you don't vote for us, you're never going to get out of the shadows or your family member is going to get deported.
They use it as a scare tactic.
And there is the flip side of that where Republicans say that all that the Democrats want are new voters.
But realistically speaking, you don't just become a citizen.
There's a long process to become an American citizen.
You first have to become a green card holder.
And then once you have your green card, you have to have that for five years.
And after you have it for five years, then you have to apply for naturalization.
The whole thing can take a decade, realistically speaking.
I mean, or the better part of a decade.
And then from the Republicans, they're a little bit more, I would say, ideologically pure on the issue of immigration.
And they're not lying to you.
They want to deport people that are here illegally.
And they want to limit who can come to the country.
And I think that their policies play out their stated desires.
Well, I don't think that's a problem with regards to how long it takes to naturalize.
And the reason why is I think that citizenship is something that you should earn over time.
Prove that you're an individual that maintains good moral character, that you've been paying your taxes, that you don't have any types of convictions in your record that negatively reflect on you as a human being.
Citizenship is special.
You know, you're not, unless you're born in this country or if you automatically derive because of your parents, if you were born outside of the country, it's something that should be aspired to.
And a lot of my clients that are green card holders never apply for naturalization to become a citizen.
If you've got a conditional green card, that's a two-year green card.
And then you have to file a petition.
They have the conditions removed.
And then it would go to a five-year, a five-year green card.
But then they can issue them for 10 years.
But in any event, regardless, that's just the validity of the card.
It's not the validity of your status.
It's sort of like your passport expiring.
If your passport expires, you don't stop being a citizen of the United States.
You just don't have a travel document.
But as to answer the other part of your question as to what's wrong with immigration, our current system, which was designed when Bill Clinton was president, it's all stick and no carrot.
And it doesn't serve the needs of American citizens, nor the employers of this country that need labor.
And I know that there's a very large contingency of people that say, well, you know, people that are in this country should be doing those jobs.
They're not going to do those jobs.
And there are industries that will be completely crippled without immigrant labor.
And I'm not talking about lawyers.
I mean, we got plenty of lawyers.
And although you can come to the United States as a lawyer, I know a few foreign nationals that are lawyers in the United States.
But if you don't want to pay $50 for a tomato, you better thank your lucky stars that you have immigrant labor.
And there needs to be a system that is very, very simple where Congress designates specific industries that the U.S. Department of Labor has already assessed as being hampered by a recognized labor shortage and say,
okay, if you're an employer in that industry, all you have to do is file a form to designate yourself as an employer, like a foreign worker, employer, whatever you want to call it.
And then individuals can come to the United States with a specific employment-based visa.
You just apply for that and then you come to the country and it only allows you to work in one of those industries as long as you can prove that you're qualified.
And make it simple.
Match up labor with employers and make it so, and then you have to follow those employers, make sure that they're actually hiring individuals that are authorized to work in the United States.
And if they're screwing around, borrow them from the system.
So I think that one of the sort of implications, though, I'm not sure that it's ever been explicitly said from the left side of the argument is that, look, you know, these people are practically refugees that are kind of pouring over the border.
And it's so expensive and difficult to get into this country legitimately that if we don't accept them, it's like a humanitarian crisis.
And I don't know if that's true or not.
But so I wanted to ask you, like, if I'm born in Mexico poor and I'm 25 miles from the border or whatever, and I want to legally come to the United States and stay for as long as possible without breaking any laws.
And the program that I just outlined, which would be very simple to design and implement and monitor, would facilitate all of that legal immigration.
And more so, it would alleviate the burden of customs and border protection because the vast majority of the individuals that'd be coming to the United States would be coming lawfully.
And the people that would be sneaking are ones that are the bad hombres, to quote President Trump, the ones that have particularly serious crimes that mean to do us harm.
Now, the other thing is that if you want to go through that process, it's going to require vetting.
You're going to have to apply for a visa.
You're going to have to get your fingerprints taken.
There's going to be clearance that will have to be done.
We'll know who these individuals are to a certain extent.
I mean, obviously, there's always the ability to gain the system, but the vast majority of the people wouldn't need to.
And the way I have always phrased it is: the best wall is a legal immigration system that works for everybody.
And you don't even have to make it so that system, let's say hypothetically, if the Republicans are going to dig in their heels and say, We don't want new Democratic voters.
So, make it so that these individuals can come to the United States with this type of visa, but they're not allowed to adjust status from inside of the U.S. to a green card.
So, they can't get a green card from inside of the country to circumvent the normal, lengthy process that is required, but potentially doesn't necessarily preclude them from getting a green card down the line through, I don't know, some earned pathway.
See, the challenge I have with that, though, is that let's just say somebody comes over here and they're legally allowed to work for five years in a specific field or industry, right?
And then while they're here, they maybe have a kid, right?
And then their kid is a U.S. citizen, but then they lose their job or the five years goes up and they have to go back to Mexico.
Their kid's a U.S. citizen.
It's like, man, that's going to create like tricky familial dynamics, right?
And the way the law is set up, that the child can't sponsor their parent until the child is 21 years of age.
And I mean, realistically speaking, I mean, depending on what industry, especially if there's a series of industries that have been designated that allow foreign labor to jump from job to job, and they're not indentured servants to have been tied to a specific employer, they have the opportunity to go to whatever employers have signed up for this process.
They may be able to get another job, especially in the farming industry.
I mean, they're always looking for people, always.
So if you, man, and maybe this is my privilege speaking, for lack of a better term, but if I want to go to Mexico, I just, I just, I just get a passport and I fucking go to Mexico, right?
And obviously, you know, visiting a country is different from inhabiting one for a period of time.
But I still don't, I still, as an American who is actively interested and constantly observing politics, I still don't know what you have to do to come here and get a green card.
So the employment-based categories are broken down into tiers.
And depending on what your qualifications are, will determine what tier you're in, and that will determine how long of a wait you have.
But before you can determine if you have a visa, because basically in order to come to the U.S. with a green card, you have to have an immigrant visa, a green card visa to be able to come to the U.S. To get that green card visa, there's a prerequisite.
The U.S.-based employer who wants to sponsor you, in most instances, has to first go through the U.S. Department of Labor to determine, to be able to determine that they've undergone a recruitment campaign to try to find U.S. citizens or lawful permanent residents to do the job.
Once they get that labor certification, then they can file a petition, an immigrant petition for alien worker with U.S. citizenship and immigration services.
Once that petition is approved, notification will go to the council abroad, if there's a visa available, and then they can apply for that visa.
And then once they have that visa, they can come to the United States and they're admitted as a green card specifically to work for that employer.
But in certain categories, the wait can be a decade.
I mean, if you're from India or China, you're not getting a, in a lot of categories, here, I'll just let me pull up the visa bulletin.
And it changes every month.
So every month you get new numbers.
Let's see.
Hopefully my computer's working.
Okay, so employment-based, first preference, that's the priority workers.
Second preference are members of professions holding advanced degrees and persons of exceptional ability.
Third is skilled workers, professionals, and other workers.
Fourth are special immigrants.
And then fifth is employment creation.
So for China, if for China, we're talking from China and you're a family, yeah, China.
It's mostly current, ironically, but that's because of the pandemic.
But if you're from China and you are second or third preference, it's a three-year wait for second preference.
It's a two-year wait for third preference, one-year wait for other workers.
Ironically, right now, Mexico is current for all of those for employment base, which is very, it's unprecedented.
India, but India, which is a large percentage of the employment-based immigration, because they're coming over to fill as professionals, as skilled workers, members of professions holding advanced degrees, things along those lines.
Second preference, which is advanced degrees and people of exceptional ability, people that we want here.
But it doesn't, you know, if we don't, but as long as the rest of the world sucks, it seems to me that we may have an immigration problem in the United States.
Well, I think the rest of the world is always going to suck.
And this country is kind of circling the drain these days.
I mean, especially with what just happened today with the infrastructure bill, if it points through the house, if it gets through the house and they go through reconciliation, there's no way that we are ever going to pay this back.
I think everybody was calling our bluff on how much we were spending in Vietnam, like France and these other countries that we had all the gold reserves and they were demanding gold in exchange for U.S. dollars.
And we didn't have the gold because we printed.
And Nixon had to pull us off the gold standard because we couldn't honor the exchange.
There was one thing that he actually said, because they were asking about withdrawing troops from Afghanistan and whether or not because of the fact that the terrorists are taking over the country again and are overwhelming the Afghani militaries, whether or not he would reverse course.
And he's like, no, we spent enough money there.
And I'm like, I agree with that.
I mean, I don't want to spend any more money on foreign wars.
Yeah, it seems to me, and I don't know what the Intel community knows and if there was some very important and highly classified reason for these wars, which seem to me to have been ridiculous.
But it seems to me that it would have been totally acceptable for us to just go over there with special forces, find Osama bin Laden, and just assassinate him and then be done with it.
I could be wrong, but I'm pretty sure they went to Afghanistan.
I don't think I don't remember anymore.
And then we invaded Iraq right after that because the false claims of weapons of mass destruction.
It was either bad intel or a lie.
I don't know which, but I'm pretty sure that's how that happened.
But it's neither here nor there.
My point is, just why don't you just, why don't you just assassinate the guy responsible for the terrorist attack instead of being in a war for 20 years?
For the first time ever, we have people who are at, who are serving overseas in combat whose parents are also serving overseas in combat at the same time.
You know, honestly, just kind of on the topic of Afghanistan and Iraq, my whole, my biggest issue with what happened after 9-11 is really the Patriot Act.
I don't know what you think about that, but it seems to me that domestic surveillance is a major issue and really catalyzing a lot of our other problems right now.
I've voted for two Republicans in my entire life and no Democrats.
And I've done libertarian.
George Herbert Walker Bush, my first vote ever in 1988.
And then based on what I saw, and I was a two-time Gary Johnson voter, was actually asked to be a delegate for him in the state of New York and really, really thought seriously about voting third party up until the impeachment trial.
And I saw the first impeachment trial.
And what I saw, I just thought was basically just political retribution.
There was literally nothing to justify what they were doing.
So what kind of, what, what, it's funny because when you, when I, when I hear immigration lawyer, I don't, it doesn't immediately scream libertarian or anything other than left.
Well, I mean, you have to argue statutory eligibility for the relief that you're requesting.
But a lot of the cases that I have are criminal or criminal aliens, individuals that have been convicted, that have green cards that have been living here legally and might have been convicted of a crime that subjects them to the institution of removal proceedings.
And then you have to break down, you have to break down what the precedent says with respect to that specific conviction.
And a lot of times there's no law that guides you and you have to do your own independent analysis and then present that to the court in a persuasive manner.
Well, there's some DUIs, aggravated DUIs can potentially be considered to be a crime involving moral turpitude.
So basically a crime involving moral turpitude within one conviction for a crime involving moral turpitude within five years of your lawful entry to the United States subjects you to removal and there's really no way to waive that.
After five years, you need two crimes involving moral turpitude to be removable.
So what's the minimum crime?
Some assaults, some simple assaults.
A crime involving moral turpitude is one that is basically one of the sins, something that is morally reprehensible, something that society frowns upon.
It requires a mensrea, something where you have to intend to do the evil.
It's not a statutory crime like going like speeding.
It doesn't make a difference if you were speeding because you needed to get your child to the hospital.
You were speeding, you get pulled over.
So there's no mensrea there.
There's no intent required.
So typically an intent is required and the minimum conduct necessary has to be something that would ordinarily be frowned upon.
Theft is almost always a crime involving moral turpitude.
And there's some exceptions for that.
It's called the petty theft exception.
There's some certain simple possession convictions for marijuana, 30 grams or less.
That's most likely not going to, if you have one, you're fine.
And the FISA court, and that's the reason why I voted for Donald Trump, because when I found out that they had a Democratic agent that created a dossier that was dropped into the laps of the FBI, who used it to materially lie to a FISA court judge to unmask an agent of the Trump campaign and then take that information and somehow use it to trump up impeachment charges against Trump.
I mean, I'm like, this is fucking, this is from a bad movie.
Like, it's so, it's so transparently clear that what they're doing is they're trying to remove a duly elected president.
I mean, don't, and I'm not even going to get into the whole this last election with the ballot harvesting and all that bullshit.
I think I'd like to see what's going on in Arizona.
I want to find out what happens with all that stuff.
But I think for me, the thing that upset me the most was that the Supreme Court ruled that there was no standing prior to the end of the election.
And then after the election, it was moot.
So when do you have a cause of action?
If you can't bring it before you're aggrieved, and then after you're aggrieved, you don't have anything to be pissed off about.
So, I mean, and that was John Roberts.
That was John Roberts just fucking the Constitution in the ass.
Well, Ryan Dawson had to basically move to Japan because he can't do anything here.
Are you familiar with him?
Very controversial.
He's not an anti-Semitic from a racial standpoint, but very anti-Israel and very vocal about it.
Kind of, he makes like so he's a Democrat?
No, he's not.
He's like a, he's like a, I would say almost like a Confederate.
He's just like a very kind of, you know, South should have won type guy.
Oh, and he's he's really bright, but he's a war of southern, the war of northern aggression.
Yeah, yeah.
He's a very bright guy.
He's just odd.
And he makes these documentaries that are like four and a half hours long on his webcam, and they're very impressive and compelling, but they're, you know, they're, they're out there, right?
And anyway, he basically got banned from Venmo, banned from PayPal, banned from, I don't think you can have a bank account in the United States, and not on any social media platform.
And he moved to Japan in 2006.
He moved to Japan.
He moved to Japan after Bush got elected the second time because he didn't.
He said he, he said, I asked him why.
He said, because I don't want to pay for the bombing of children.
You know, he's thinking like Iraq, you know, collateral damage type stuff.
Right.
And I like the guy a lot.
So don't get me wrong.
I know that I know that he's out there, but I don't know.
You know, I could get you on at the same time, actually.
You guys have been having a good conversation.
But the point that I was trying to make is that the stuff that you were citing as, you know, like CCP type shit has started to happen already or has been happening to the most fringe of us.
Like when Alex Jones got banned, everyone's like, oh, it's just because he's a maniac.
And then now it's like every other person that I ever followed on Twitter is getting banned.
unidentified
Like, I'm no Nick Fuente's fan, but why'd you ban him?
I think this is the reason why, and the other reason why I ended up voting for a Republican, and not that Trump's a Republican, but voted for Trump, voted for a main party candidate, was because the hypocrisy became too much for me to handle.
I just, I can't deal with it.
Okay, we'll go back to my wheelhouse.
With I represented a large number of unaccompanied minors back under the Obama administration and the Trump administration who were refugees coming to the country.
And my own bar association, the American Immigration Lawyers Association, that I served as an elected director of the board of governors on secretly and privately endorsed Joe Biden for president.
First time in the history of the association to make an endorsement of a candidate.
It was a huge issue that barely got a blip on radar that they were trying to downplay the amount of cases of COVID and immigration detention.
And all of the things that they were that the far-left immigration lawyers that are really just hyper-partisan Democrats that couldn't argue their way out of a paper bag, let alone win in court.
Yeah.
Yeah.
They're pathetic.
They're lazy.
They're generally not all that smart.
Obviously, don't have a very high opinion of most of them.
Well, I think that people were yearning for the comfort and predictability of a boring president.
You know, because after Obama was out of office, and I'm no fan of Obama, but as I was a college student at the time and I didn't like him then, but everything felt like it was going to be okay.
Like he just felt like a president I didn't like.
But I wasn't worried about like the future of the nation, right?
And I think that with Trump, though I supported him, you know, he was a very incendiary figure, is a very incendiary figure.
And so I think that people were like, man, I'd rather have the guy who is very closely associated with Barack Obama and cannot, you know, utter a complete sentence as president than hear another good point, you know, from this obnoxious, loudmouth guy, you know?
And I think that's, you know, if Trump legitimately lost the election, which I don't know.
I go back and forth on what I think happened.
But if he, if he lost, it's because people voted against him, not because people voted for Biden.
SAFE Act is the law in New York State that makes it illegal to have cosmetic features on your semi-automatic rifle with a detachable magazine because it makes it to use Dana Ash's.
Well, we need more laws that says that it's illegal to take a rifle and kill children.
But in any event, all it basically did was it said if you have a rifle that's semi-automatic with a detachable magazine, it can't have a series of other cosmetic features because that will make it an assault rifle.
So it can't have a pistol grip, but it can have a grip at a 45-degree angle.
They don't want the average citizen to be able to organize into an informal militia to be able to combat against tyranny.
And I know that that sounds ridiculous, but that's the design of the Second Amendment.
And we've seen it play out.
I think it was the Bundy Ranch under Obama where the ATF came in and all of these guys from all over the country came to and were stationed on top of a bridge and you saw the ATF like backing away.
They were in full-blown retreat because there was like, I don't know, 100 and something guys with rifles saying, fuck you.
You're not taking, you're not coming on this guy's land and taking his shit.
Okay, so I'm sure I'm screwing up the whole thing, and I'm sure I don't remember anything that really happened.
But my recollection is that he had his cattle on federal land, and I think they were coming on the land to try to get his to kill, might have killed his cat.
So I think there might have been, there was an order directing Bunny to pay a million dollar withheld grazing fees because Bunny's use of federally owned land adjacent to his ranch.
Well, you would have to get a Republican legislature and a Republican governor in that state to basically say that if the feds come in to try to enforce federal IRS law, we're going to arrest you and we're going to put you in jail.
And then there's a standoff between the feds and the state because otherwise, I mean, so that's what I don't think that there's any way that it would happen without the backing of your state government.
I mean, if you could organize that, the feds would come in immediately and there would be a gigantic, the ringleaders would be, I mean, we've seen what happens.
Ruby Ridge, the feds will come in and just start killing people because that's what they do.
So, you know, one of the things that I think about a lot is just general, the general decline of societies, right?
So like a lot of people make comparisons to what happened in Rome, to what's happening in America, and they try to, you know, see if there's any similarities or learn from what happened to Rome in terms of like, you know, hyper-expansion and debasing of currency and stuff like that.
But, you know, this is really the first time, and I've said this before on the podcast, but I want to bring it up to you because I want to hear your feedback.
This is really the first time that there's ever been a civilization, at least in recorded history, that has like a hyper-sophisticated intelligence branch of government that is like, there's no checks and balances, right?
So like, yeah, like Caesar had his own private guard or whatever, and his own police or whatever.
But this is like the first time that, yeah, this is this is like the first time that we have branches of government that are like the intelligence community, for example, like the FBI or the CIA, where when something wrong happens, when there's a crime committed by these entities, it seems like all they do is conduct an internal investigation.
And they don't have to tell anybody else anything, even politicians, even presidents, unless they specifically ask or have need to know.
And so I guess the reason I want to bring this up is how are we going to keep this branch of government in check?
I mean, we're not like a three-branch government anymore.
There's executive branch, judicial branch, a legislative branch, and an intelligence branch.
Yeah, I can't remember the details of why that was.
I think he was president-elect, and they weren't telling him anything because he wasn't technically in office yet, but it was unprecedented, and they were just kind of being assholes.
So basically what Comey was trying to do was, in my opinion, preserve the sanctity of the institution by saying, this is what she did wrong, but it's not a criminal offense.
Completely make the case for a criminal offense, but then say that she's not going to be charged.
And then she wins and it's all forgotten and Trump goes away.
You mean you, I have friends in the Department of State.
If any single one of them had a private server in their bathroom that they were running professional emails through, classified shit, do you think those people wouldn't be spending the rest of their lives in jail?
And then she didn't even deny that that was happening.
Like that, that's not even a conspiracy.
The conspiracies are centered around what was the content of the emails because they were all deleted.
Nobody knows, right?
But there's a bunch of people.
The fact that she actually had this, the fact that she actually had the server, and we do know that some of the emails were classified, but the fact that she actually had it, that's undisputed.
I mean, that's public information.
The crime was committed.
I don't understand why prosecutions.
Is it up to the AG?
Is that just the deal that the AG has to decide what cases for us?
The whole Monica thing is really weird because if that were to happen today, you realize how many abusive power allegations would be made against the president for like, you know, she was working for you.
She was an intern.
She didn't want to.
Like, if that happened today, I think she certainly would have come out and said, I didn't want to.
I just felt like I had to because it was the president.
How is a president supposed to get laid, by the way?
So say you're a single president, unmarried, whatever, and you want to sleep with somebody, you know, just because they're hot and similar interests, whatever.
How do you do that without them being able to make the accusation that they were overwhelmed by your power and they felt like they couldn't deny you your advances?
