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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, December 22, 2011

Deportation Plans Could Split Up Married Lesbian Couple in Vermont

Associated Press-Vermont: Frances Herbert and her wife, Takako Ueda, were looking forward to the New Year's Eve family concert at the Baptist Church, the town fireworks on the pond and then a night at home to celebrate the arrival of 2012.

But federal immigration authorities have told Ueda she needs to leave the United States for her native Japan by Dec. 31, a move that would split up a couple who have been together more than a decade and were married under Vermont law in April.

Their relatively rare case illuminates the difficulties that binational gay couples face at a time when the Obama administration has pledged not to uphold federal marriage law in courts but the rest of the executive branch -- including immigration authorities -- still follows the letter of the law.

Federal immigration authorities demand extensive documentation showing that a binational couple claiming to be married really are: witness statements, property records, utility and other household bills showing both names and the like often are required. Herbert said she and Ueda submitted 600 pages of such evidence with their application.

"It's despicable," Herbert said. "We had 600 pages of proof, and 599 of them were completely ignored. One line on one page -- the one that said they were both women -- is what they paid attention to."

Herbert, a 51-year-old home care provider, and Ueda, a 56-year-old graphic designer, live in the southern Vermont town of Dummerston and got letters Dec. 1 from U.S. Citizenship and Immigration Services, a division of the Department of Homeland Security, telling them that Ueda had to leave the country within 30 days. Ueda's student visa expired in July.

They had applied for "relative alien" status on the basis that she was the spouse of a U.S. citizen, but the federal agency denied that petition.

The letter to Herbert, who had applied to be Ueda's sponsor, said that under the federal Defense of Marriage Act, the 1996 law saying the government would not recognize same-sex marriages, they couldn't be considered spouses. DOMA defines marriage as "only a legal union between one man and one woman as husband and wife."

"Your spouse is not a person of the opposite sex," wrote Robert Cowan, a U.S. CIS official. "Therefore, under the DOMA, your petition must be denied."

Only a handful of states recognize same-sex marriages. Experts say there are not reliable numbers on how many couples find themselves in a similar situation to that of Herbert and Ueda, but it's believed the number is small. Many binational same-sex couples don't seek spousal status for fear of being rejected because of DOMA.

Steve Ralls, spokesman for Immigration Equality, a nonprofit legal aid group that works on immigration and sexual orientation issues, said one San Francisco couple remained together despite getting government notices that one of the men, an Australian, needed to leave the country, while a New Jersey man's partner had been deported to Peru.

President Barack Obama and Attorney General Eric Holder Jr. announced in February that the administration would no longer defend DOMA in court in the cases in which it is being challenged. But until the issue is resolved, executive branch agencies, including those within the Department of Homeland Security, it remains the law of the land.

But Leslie Holmans, second vice president of the American Immigration Lawyers' Association, said that even after getting the types of letters Herbert and Ueda got, some same-sex, binational couples benefit from "prosecutorial discretion" by immigration authorities.

She said many federal prosecutors believe "our systems are so overcrowded that what we really need to be doing is concentrating on people who are a risk to our country. What's happened is that we have seen some same-sex couples go before the immigration court and ask for prosecutorial discretion." Government lawyers often respond by "either dismissing cases or they're not enforcing the notice of deportation."

Holmans said the situation is far from ideal because affected immigrants are left in "legal limbo," still without recognized immigration status and unable to get a job or seek other government benefits.

Scott Titshaw, a professor at Mercer University Law School in Georgia who has practiced immigration law and written articles on DOMA, said Ueda and Herbert most likely shouldn't fear Ueda's imminent arrest but "still have plenty to worry about." He said if Ueda traveled abroad, then she might be barred from re-entering the U.S. With local authorities in some states cracking down on illegal immigrants, Ueda might also want avoid travel to places like Arizona and Alabama, which both have strict immigration laws.

Herbert and Ueda first met as students at Aquinas College in Michigan in 1980 and stayed in touch during the next couple of decades after Ueda returned to Japan and married a man. She said that when Herbert went to visit her in Japan in 1999, she made a big decision. "I had a good marriage, but there was something missing, and that something was Frances." Eight months later, she moved to the United States, and the two had a commitment ceremony in 2000, marrying in 2011.

Both vowed to fight any effort to break them up.

"I'm a really great law obeyer. I grew up in Japan. We follow laws," Ueda said with a laugh. "But I have a very strong feeling, too, that I won't go back to Japan. I don't have a place to live in Japan. My family, my existence, is not there anymore."

New Challenge Filed Over Indiana Immigration Law

Associated Press-Indiana: A Hispanic advocacy group from northwestern Indiana has launched a second legal challenge to the immigration law approved by the General Assembly this year.

East Chicago-based Union Benefica Mexicana filed the lawsuit Tuesday in U.S. District Court in Hammond, claiming portions of the law are unconstitutional. A federal judge has blocked parts of the law from taking effect after a similar suit was filed by the American Civil Liberties Union of Indiana.

Attorney General Greg Zoeller said his office wants to postpone action on both lawsuits until after the U.S. Supreme Court considers the challenge to Arizona's immigration law.

"Indiana will join with other states in seeking a ruling from the Supreme Court that will provide some guidance to states on immigration, since Congress has thus far failed to enact or enforce federal immigration policies," Zoeller told The Times of Munster.

Opponents contend the Indiana law gives police officers sweeping arrest powers against immigrants who haven't committed crimes.

A federal judge in Indianapolis who heard the ACLU's challenge in June blocked a provision in the state law allowing the arrest of anyone who has had a notice of action filed by immigration authorities, a formal step that affects virtually anyone applying to be in the United States for any reason.

Another provision that the judge blocked makes it illegal for immigrants to use ID cards issued by foreign consulates as proof of identification.

Union Benefica Mexicana, which provides cultural, educational and health programs, argues in its lawsuit that creating a state immigration system "encroaches on the federal government's exclusive power to regulate immigration, and will lead to erroneous determinations by state and local officials of an individual's immigration status."

The group also claims that it has had to divert resources to assist people affected by the new law and that it deters some from seeking legal immigrant status because local police officers will continue to stop and detain them anyway.

DOJ's Race Claims Are, Alas, Weak

The Arizona Republic (Opinion): The most sensational allegation the Department of Justice has leveled against Sheriff Joe Arpaio's office is that Latinos are four to nine times more likely to be subject to traffic stops than similarly situated non-Latino drivers.

It is also the most important allegation. It appears to provide hard evidence in support of the general claim that the Maricopa County Sheriff's Office is guilty of systemic racial discrimination.

At this point, however, the presumption has to be that the allegation is also based on junk science, since the DOJ refuses to release the "statistical study" on which it is based.

The reason for that presumption, paradoxically, is the DOJ's findings letter itself. Another allegation is that the sheriff's office does not keep sufficient data on traffic stops to determine whether racial profiling is occurring.

How can the underlying data be insufficient to determine whether racial profiling is occurring, but sufficient to conclude that Arpaio's office racially profiles more than any other law-enforcement agency in the country?

The DOJ says the sheriff's office "frequently" arrests Latinos without cause. What constitutes "frequently"? The DOJ doesn't say.

How does the percentage of wrongful arrests of Latinos compare with that of non-Latinos? The DOJ doesn't say. How does the record of the sheriff's office compare with that of other Valley law-enforcement agencies with respect to wrongful arrests? The DOJ doesn't say.

Not all of the DOJ's findings letter is so thinly evidenced or contradictory.

The section on the treatment of Latinos in county jails does provide a facial case of the "pattern or practice" of racial discrimination prohibited by federal law.

As a general matter, however, the letter is uncomfortably weak regarding evidence to back up its sweeping charges of pervasive racial discrimination.

Arpaio, of course, contends that's because the issue isn't really racial discrimination. It's an attempt by the Obama administration to stop him from enforcing immigration laws.

I don't think that's the case. Regrettably, however, the Department of Homeland Security strongly bolstered Arpaio's argument when it rescinded the authorization for his office to access federal databases to check the immigration status of those booked in the county jails.

This is the one immigration-enforcement program of Arpaio's that incontestably is implemented in a racially neutral fashion. The immigration status of everyone booked is checked. The DOJ made no allegation that the sheriff's office was misusing this authority for discriminatory purposes.

Arpaio's practice of checking the immigration status of everyone booked is now inconvenient and potentially embarrassing to the Obama administration, given the administrative amnesty policy it announced earlier this year. Under that policy, only serious criminals are to be deported. Arpaio's office would be documenting the number of illegal immigrants accused of lesser violations the Obama administration would be ignoring.

After a widespread outcry, the DHS retreated a bit, saying that Immigration and Customs Enforcement would do the jail checks.

This, of course, makes no sense. ICE is highly unlikely to be as available to county prosecutors to make the case to deny bail to illegal immigrants as required by state law, or to be as forthcoming with the public about the number of illegal immigrants being booked into the jails.

I've made it clear that I think Arpaio is running a rogue agency. That his baseless accusation of a vast criminal conspiracy involving county supervisors, senior county management and judges was an assault on the rule of law. And that his immigration sweeps violate fundamental American values and necessarily discriminate against lawful Latinos.

In my book, Arpaio wears a very black hat, and it would be great if some good guys chased him out of town.

At this point, however, it's far from clear that the Obama administration is wearing the white hat in this story.

Border Fence Blocks Bears in Migration, Study Finds

New York Times: The much-ballyhooed border fence has not just made it more difficult for illegal immigrants to slip across from Mexico into the United States. It has also become an obstacle, researchers say, for migrating bears.

A study published in this month's edition of Biological Conservation warns that the black bear population just north of the border in Arizona may be threatened by the increasingly impermeable barriers at the border. Also fragmenting the bear habitat are the growing urban sprawl in southern Arizona and the expanding highway systems that slice through rugged terrain, the study found.

Researchers used hair snags - pieces of barbed wire set up near bait to catch genetic samples of foraging bears - to track various bear populations in Arizona. They found significant genetic disparities between black bears in the east-central part of the state and the subpopulation just north of the border. The border bears, the study said, were more closely related to bears found in northern Mexico.

The population density of the border bears was substantially lower than the bears living farther north, which had a wider habitat that was less vulnerable to development, the study found. The border is a unique region, from a biological point of view, researchers say, with many North American species reaching the southern limit of their distribution there and many South American species extending not much farther north.

"We want people to be cognizant of the impact of human activities and how they are impacting wildlife populations," said Dr. Jon P. Beckmann, a bear researcher with the New York-based Wildlife Conservation Society and co-author of the bear study.

The authors, who include Todd C. Atwood and Julie K. Young of the United States Department of Agriculture's National Wildlife Research Center, intend to share their findings with the Department of Homeland Security and other state and federal agencies along the border. Dr. Beckmann said that the paper could be used to help generate innovative solutions that take bears and other large carnivores into consideration when border security was discussed.

As for the efficacy of border fencing in stymieing illegal immigrants, an issue that has come up in the Republican presidential primary contest, Mr. Beckmann said, "We're not weighing into that debate."

Solis Slams Alabama Immigration Law

Politico: In a sharply worded blog post, Labor Secretary Hilda Solis - a top White House liaison to the Hispanic community - slams the tough Alabama immigration law as "beneath the dignity of this great nation," and calls out the state's Republican governor by name:

In a widely noticed human rights speech this month in Geneva, U.S. Secretary of State Hillary Clinton articulated U.S. policy on the fundamental rights of all people living in the world.

She said, "All human beings are born free and equal in dignity and rights -… rights are not conferred by government; they are the birthright of all people. It does not matter what country we live in, who our leaders are, or even who we are. Because we are human, we therefore have rights. And because we have rights, governments are bound to protect them."

"These basic rights extend to immigrants living in Alabama."

This April, Alabama legislators voted to make it a felony punishable by 1 to 10 years in prison for any undocumented immigrant living in the state to enter into a "business transaction." That means signing a lease for an apartment or paying a utility bill.

By June, Governor Robert Bentley had signed H.B. 56 into law.

"Imprisoning those who seek shelter and basic sustenance runs counter to the universal rights of all free people. It's beneath the dignity of this great nation."

Alabama Revenue Department Clarifies Business Transactions Covered by New Immigration Law

Associated Press: The state Revenue Department has changed its position on parts of Alabama's new immigration law and now says several common transactions at county courthouses are no longer considered "business transactions" where people have to prove their legal residency.

Revenue Commissioner Julie Magee sent a letter Tuesday to county officials saying that "the Alabama Department of Revenue has re-evaluated its position." She said proof of residency is no longer required for registering and issuing decals on mobile homes, applying for homestead exemptions on property, applying for current use valuation on property, or issuing titles on motor vehicles or mobile homes.

She said proof of residency is also not needed for an application for any exemption on property or abatement on property taxes, tax sale of property for failure to pay property taxes, and redemption of property sold for non-payment of property taxes.

Magee wrote that the change was based on new guidance from state Attorney General Luther Strange about what constitutes a "business transaction" in the immigration law.

The change comes after a federal judge temporarily blocked county officials from requiring proof of residency to get mobile home decals. U.S. District Judge Myron Thompson ruled in a lawsuit brought by the Southern Poverty Law Center. The suit contended the law was designed to drive Hispanic immigrants out of their homes by making it impossible for them to renew their annual decals.

Kristi Graunke, senior staff attorney for the law center, said Wednesday she welcomes the Department of Revenue narrowing its interpretation of the law and it's another indication of the folly of the law. She said the law center would continue to pursue its lawsuit.

Arizona Sheriff's Officers Turn in Federal Credentials

The Arizona Republic: Maricopa County Sheriff Joe Arpaio on Wednesday made a show of his detention officers turning in badges that came with their authorization to conduct federal immigration screenings in county jails.

But federal officials say immigration enforcement at the jails will not change following a decision to revoke the authorization and take over the duties themselves.

The Sheriff's Office has had an agreement with Immigration and Customs Enforcement since 2007 that authorized detention officers to conduct immigration screenings on every inmate booked into a Maricopa County jail.

Under that agreement, Arpaio's officers screened nearly 475,000 inmates since the agreement took effect, placing immigration detainers on about 44,000 inmates that prevent them from leaving jail until federal officials have reviewed their files.

Federal officials, however, removed that authority last week in the wake of a Justice Department report that accused the Sheriff's Office of violating civil rights and discriminating against Latino residents and inmates.

In response, 92 detention officers joined Arpaio at a news conference Wednesday where they turned in their ICE credentials.

A federal Department of Homeland Security official said a contingency plan already is in place that dedicates 50 immigration officers to enforce immigration laws at the jail. The sole responsibility of the 50 ICE officers is to respond, apprehend and arrest people for federal immigration violations, the official said.

The ICE officers will provide coverage at the jail 24 hours a day, 7 days a week, the official said.

Under the plan, all people booked into the jail will have their fingerprints automatically screened through a DHS immigration computer database as part of the federal government's Secure Communities program, the official said. ICE officers at the jail will place detainers on every person who the database shows is either an immigrant in the country illegally or is a legal immigrant accused of committing an aggravated felony that makes him or her deportable from the United States.

The official pointed out that the DHS immigration database is not foolproof. Some illegal immigrants may not show up in the database if they entered the country illegally and have never been arrested by the police or apprehended by federal immigration officials. To prevent illegal immigrants not in the database from slipping through the cracks, ICE officials will interview every person booked into the jail, unless the database shows they are naturalized U.S. citizens who are not deportable or are legal immigrants accused of petty crimes who are also not deportable.

The DHS official said the federal ICE officers will place detainers on all criminal immigrants identified in the jail and instruct the Sheriff's Office not to release them on the streets. ICE officials also will instruct the Sheriff's Office to hand over to ICE all criminal immigrants with detainers upon completion of their cases.

The Sheriff's Office books about 300 inmates into jail each day. Sheriff's Detention Chief Mike Olson said the agency placed immigration-related detainers on about 15 inmates each day.

The number of detainers placed on inmates has dropped since federal officials took over the program last week, Arpaio said. Since then, he said, federal officials have placed immigration-related detainers on three inmates.

An ICE official could neither confirm nor deny that total but insisted that undocumented inmates will not be allowed to "walk free" as Arpaio has claimed.

If Arpaio agrees to cooperate with the Department of Justice to resolve the issues in the report, ICE could reinstate the 287(g) agreement, allowing jail officers to resume enforcing federal immigration laws, the official said.

Wednesday, December 21, 2011

The No-Brainer Issue of the Year: Let High-Skill Immigrants Stay

The Atlantic (Opinion): Behind Door #1 are people of extraordinary ability: scientists, artists, educators, business people and athletes. Behind Door #2 stand a random assortment of people. Which door should the United States open?

In 2010, the United States more often chose Door #2, setting aside about 40,000 visas for people of extraordinary ability and 55,000 for people randomly chosen by lottery.

It's just one small example of our bizarre U.S. policy toward high-skill immigrants. Every year, we allow approximately 140,000 employment visas, which cover people of extraordinary ability, professionals with advanced degrees, and other skilled workers. The number is absurdly low for a country with a workforce of 150 million. As a result, it can be years, even decades, before a high-skilled individual is granted a U.S. visa. Moreover, these 140,000 visas must also cover the spouse and unmarried children of the high-skilled worker, so the actual number of high-skilled workers admitted under these programs is less than half of the total. Perhaps most bizarrely there is a cap on the number of visas allowed per country regardless of population size. How many visas are allocated to people of extraordinary ability from China, a country of over 1 billion people? Exactly 2,803. The same number as are allocated to Greenland.

A rational immigration policy would open the United States to many more high-skill immigrants. High-skill immigrants innovate, patent, and start new firms at higher rates than natives. At least one-quarter of the new firms in technology and science fields, from software and semiconductors to biotech, are founded by immigrants. In Silicon Valley, more than half of the high-tech start-ups were founded by immigrants. High skill immigrants especially with degrees in the fields of science, technology, engineering and mathematics (aka: STEM) create more jobs and higher wages for Americans. Increasing high-skill immigration is such a win-win policy for increasing innovation that it's tempting to call it a no-brainer. Instead, "no-brainer" turns out to be a better description of our current policy.

At a minimum, we should shift from family-based immigration to work-based immigration, using a point system for skills, such as used by Canada, Australia and Hong Kong. At the same time as we limit skill-based visas to 140,000, we have over 1.1 million legal immigrants per year, most based on family immigration. Even the harshest critics of immigration cannot fault a policy that keeps the number of immigrants constant while shifting toward more high-skill immigrants.

We also should create a straightforward route to permanent residency for foreign-born students who graduate with advance degrees from American universities, particularly in the fields of science, technology, engineering and mathematics. We educate some of the best and brightest students in the world in our universities and then on graduation day we tell them, "Thanks for visiting. Now go home!" It's hard to imagine a more short-sighted policy to reduce America's capacity for innovation.

In an election year, no one expects any major action on immigration reform. But support for fixing our high-skill immigration system is widespread and bipartisan. A bill to lift the country cap on employment visas ("Fairness for High-Skilled Immigrants Act" (H.R. 3012)) sailed through the U.S. House in November on a 389-to-15 vote, although it was later blocked in the Senate for tactical reasons by Sen. Chuck Grassley (R-Iowa). Senator Charles Schumer (D-NY) and U.S. Rep. Jeff Flake (R-Ariz.) have both put forward proposals to "staple" a green card to the diplomas of foreign students graduating from U.S. universities with advanced degrees in STEM fields, an idea that also been endorsed Newt Gingrich, Mitt Romney and President Obama. Few people defend the current system.

We should debate the issues on which we do not agree. But shouldn't we also agree to act on the issues over which there is no debate? The time to increase high-skill immigration is now.

ALEX TABARROK - Alex Tabarrok is associate professor of economics at George Mason University and research director for the Independent Institute. He is the author of Launching the Innovation Renaissance.

Lack of Immigrants Could Hurt Growth

Politico: Illegal border crossings may grab the headlines, but the entrepreneurial spirit of foreign-born graduate students has become essential for job creation. Of the 50 top firms that received venture capital backing in the past three years, 46 percent include at least one immigrant founder, according to a report released Tuesday by the National Foundation for American Policy.

"It's clear that America gains a great deal when we're open to talent, wherever that talent is born," said the foundation's executive director, Stuart Anderson.

Each of the companies analyzed is privately held and valued at less than $1 billion, making them candidates to become publicly traded entities.

On average, the 23 companies started by an immigrant that were profiled in the report employ 150 workers.

Separately, 74 percent of all the companies surveyed have at least one immigrant working in management or product development.

Current visa laws restrict the potential for immigrants to both study in the United States and start tech-based firms.

Alex Mehr, a native of Iran who co-founded dating website Zoosk, struggled with an arduous multiyear journey to obtain the visas needed to start his San Francisco-based company.

He first had to hitchhike through Turkey to receive a student visa to pursue a Ph.D. in mechanical engineering at the University of Maryland. Later, he said he got his green card through a government lottery.

Of the 14.7 million immigrants who applied this year to the Diversity Immigrant Visa Program for permanent residency, just 50,000 were picked through the lottery, according to the State Department.

The visa situation for his co-founder became desperate enough that they considered moving their company to Canada, Mehr said.

"We could not actually sponsor ourselves through our own startup," he said.

Congress has shown some understanding of the visa dilemma, with the House voting 389-15 last month to remove the per-country caps on employment-based visas. The measure, though, still has to clear the Senate.

"It doesn't solve the problem, but it does help the situation," said Mark Heesen, president of the National Venture Capital Association.

Lawmakers have tried to couple reforms that could resolve the situation with less-popular steps to address illegal immigration, Heesen said.

"It's difficult to see something" getting passed this year, he said. "The problem, up to this point, is the inability of Congress to divorce illegal immigration from legal immigration."

For Illegal Immigrant, Line Is Drawn at Transplant

New York Times: Without treatment to replace his failing kidneys, doctors knew, the man in Bellevue hospital would die. He was a waiter in his early 30s, a husband and father of two, so well liked at the Manhattan restaurant where he had worked for a decade that everyone from the customers to the dishwasher was donating money to help his family.

He was also an illegal immigrant. So when his younger brother volunteered to donate a kidney to restore him to normal life, they encountered a health care paradox: the government would pay for a lifetime of dialysis, costing $75,000 a year, but not for the $100,000 transplant that would make it unnecessary.

For nearly two years, the brothers and their supporters have been hunting for a way to make the transplant happen. Their journey has taken them through a maze of conflicting laws, private insurance conundrums and ethical quandaries, back to the national impasse between health care and immigration policies.

The waiter's boss sought private insurance, she and the brothers said, speaking on the condition that their names be withheld for fear of provoking immigration authorities. The Catch-22: for the first year, the waiter, called Angel, would get no coverage for his "pre-existing condition," nor would he receive the dialysis that keeps him alive and able to work four days a week.

Doctors sought a transplant center that would take him. Hospitals in the city receive millions of taxpayer dollars to help offset care for illegal immigrants and other uninsured patients. But at one hospital, administrators apparently overruled surgeons willing to waive their fees. At another, Angel was told to come back when he had legal status or $200,000.

A last resort is a return to Mexico, where the operation costs about $40,000. But to pay off the necessary loans, Angel and his brother, a deli worker, would have to sneak back in through the desert. If they failed, they would be cut off from their children in Brooklyn, who are United States citizens.

"As a physician, it puts you in a real ethical dilemma," said Dr. Eric Manheimer, Bellevue's medical director, noting that a transplant would sharply reduce Angel's risk of death from complications. "The ultimate irony is it's cheaper to put in a transplant than to dialyze someone for the rest of their life."

Bellevue performs no transplants but, as a trauma center, often supplies organs harvested, with family consent, from illegal immigrants fatally injured at work.

"Here's the paradox: he could donate, but he can't receive," Dr. Manheimer said, calling the imbalance troubling. Organ registries do not record illegal status, but a study estimated that over a 20-year period noncitizens donated 2.5 percent of organs and received fewer than 1 percent.

To those focusing on immigration enforcement, however, the inequity runs the other way. "They should not get any benefit from breaking the law, especially something as expensive as organ transplants or dialysis," said Representative Dana T. Rohrabacher, Republican of California, who contends that care for illegal immigrants is bankrupting American health care and has sought to require that emergency rooms report stabilized patients for deportation unless they prove citizenship or legal residence.

"If they're dead, I don't have an objection to their organs being used," Mr. Rohrabacher added. "If they're alive, they shouldn't be here no matter what."

To Ruth Faden, the director of the Johns Hopkins Berman Institute of Bioethics, the brothers' case, like the transplant statistics, illustrates how quickly firm principles on both sides unravel in practice.

"We tie ourselves up in knots," she said, "because we've accepted as a country and in international human rights law that if someone shows up in extremis in your emergency room, the nurses and doctors and technicians are morally obligated, and legally obligated, to provide that life-saving care."

How to begin refusing care, she added, becomes a dilemma for "real people in real time."

The sudden onset of the waiter's illness in January 2010 left no time to spare. At Bellevue, he underwent surgery to implant a temporary venous catheter in his neck, to cleanse his blood of lethal toxins. The cause of his renal disease is most likely genetic: when he was 8 about the age of his own sons now his father died of kidney failure.

Through quirks of legislative history, nearly everyone with end-stage renal disease in the United States, regardless of income, is covered under federal Medicare for dialysis and transplantation, except illegal immigrants. But regardless of a patient's immigration status, hospitals can be reimbursed for emergency care by Medicaid, the federal and state insurance program for the needy.

Unlike most states, New York, California and North Carolina define outpatient dialysis as an emergency measure. Studies show such regular dialysis is cheaper, with fewer life-threatening complications, than waiting until toxin levels require hospital treatment.

"What do I have to do to become normal?" Angel remembers asking. The medical answer was clear: a transplant, and anti-rejection drugs costing about $10,000 a year. But news that his brother and sister were compatible donors came with a blunt warning, the waiter recalled: "As long as you don't have your papers, you won't get a transplant."

Like many Mexican New Yorkers, Angel has relatives who migrated years ago without visas and are now citizens. An uncle still works for the restaurateur who helped him legalize. But immigration rules have changed, eliminating such paths.

"My boss, she tried to help me," said the waiter, who supported his mother and half-siblings from the age of 16, and worked his way up from busboy, paying taxes, mastering English and learning enough French to counsel diners on the wine list. "We find no way."

His boss kept hunting. "He deserves every break he can get," she said.

They consulted lawyers at LegalHealth, which counsels low-income patients. Randye Retkin, the director, said the waiter was one of a dozen patients in need of transplants who were referred to the nonprofit program by hospitals last year because of immigration barriers.

For many there is no remedy, Ms. Retkin said. She cited a Mexican mother of two who died without the small-bowel transplant she needed, just as lawyers won a yearlong legal battle for Medicaid to pay for it.

The waiter turned to the Mexican consulate, which appealed to Dr. Manheimer. The doctor said he persuaded surgeons at NYU Langone Medical Center to waive their $20,000 fees, but administrators would not absorb the rest. The hospital declined to comment.

Two other doctors, Hector J. Castro, a critical care specialist, and Kann H. Patel, a hematologist, sent Angel to Mount Sinai Medical Center. But there a financial transplant counselor told him he would have to pay double the typical cost in advance, to cover any complications.

"Personally, I'm troubled by it," said Dr. Sander Florman, who directs the Recanati/Miller Transplantation Institute at Mount Sinai. "We're looking at human beings."

But Dr. Florman confirmed that the waiter's experience reflected policies at the hospital. "Our general approach is we're not the immigration police," he said. "On the other hand, there has to be a mechanism to pay for it."

Mount Sinai officials say they provided $67.3 million in uncompensated care last year, and received $25 million from the state to offset such costs. "Mount Sinai struggles each day to balance its limited resources with its strong commitment to provide compassionate medical care," it said in a statement, noting that kidney transplantation, unlike dialysis, is not an emergency procedure under Medicaid.

For nearly everyone else, however, there is a Medicare option. Scholars trace the unusual program, now costing $40 billion a year, to a 1962 Life magazine article titled "They Decide Who Lives, Who Dies," about laymen at a Seattle hospital who judged which patients would get scarce treatment on the first "artificial kidney machine." The outcry that followed is often credited for the birth of bioethics and for the 1972 law guaranteeing coverage.

That law did not mention citizenship, said Dr. Scott Sanoff, who teaches medicine at the University of Virginia, but later restrictions, and murky state-by-state variations in Medicaid, left decisions on illegal immigrants' access to care to each medical center, often without any payment mechanism. The life-and-death nature of the decisions has been obscured, he added: In the case of Angel, "his life expectancy could be more than doubled with the transplant compared to dialysis."

The waiter now shuttles between a basement dialysis center, the restaurant and his family's cramped but well-kept walk-up. There, as their children clustered nearby, his brother, 26, said they would not give up.

"He's more than my brother, he's like my father," he said. "If I can give him life, I have to."

Immigration Effort Mistakenly Holds U.S. Citizens

NPR: A growing number of U.S. citizens have been mistakenly detained as part of the Secure Communities program. It's a federal effort to detect and deport illegal immigrants who've been arrested by local law enforcement. In Los Angeles recently, four native-born citizens all Latin have been held for days at a time.

LINDA WERTHEIMER, HOST: Staying in California, we'll look now at how a federal program is playing out in Los Angeles. A growing number of U.S. citizens have been mistakenly detained as part of the Secure Communities program. It's a high-tech effort to detect and deport illegal immigrants who have been arrested by local law enforcement.

As Krissy Clark from member station KQED reports, in L.A. four native-born citizens, all Latino, have been held days at a time in the last few months.

KRISSY CLARK, BYLINE: Antonio Montejano is a 40-year-old construction supervisor and father of four.

ANTONIO MONTEJANO: I was born in Los Angeles, California, and I am an American citizen.

CLARK: But, Montejano says, when he told that to his jailors last month, again and again, they didn't believe him. Montejano was arrested after shopping with his family at Sears. He says they spent $600 but forgot to pay for a $10 bottle of perfume his daughter had asked for.

After he plead guilty to petty theft, a judge dropped the fine against him and told the police to let him go. Instead, authorities kept him locked in an L.A. county jail for two more days, because a federal database had flagged him as a possible illegal immigrant.

MONTEJANO: Those days in the jail were some of the worst days in my life. I felt completely powerless.

CLARK: Cases like Montejano's are becoming more common, according to Hector Villagra with the American Civil Liberties Union. He says the federal database kept by Immigration and Customs Enforcement, or ICE, isn't always right.

HECTOR VILLAGRA: But ICE shoots first and asks questions later. As a result, ICE often mistakenly issues holds against lawful residents and sometimes even U.S. citizens.

STEVE WHITMORE: And we certainly don't want that to occur.

CLARK: Steve Whitmore is a spokesman for the L.A. County Sheriff's Department. Civil rights groups have called on the county to limit participation in Secure Communities, given the mistakes. County and federal officials say they're working together to improve the database. But, Whitmore says, the intent of the program is still sound.

WHITMORE: Serious criminals that are in this country illegally should be deported and not allowed back in.

CLARK: As for U.S. citizen Antonio Montejano, it took sending copies of his passport and birth certificate to immigration authorities to finally get him released. When he got home, his eight-year-old son, who's also an American citizen, had a question for him.

MONTEJANO: Dad, can this happen to me? Because I look like you?

CLARK: A recent UC Berkeley study estimates that more than 3,000 citizens nationwide have been mistakenly detained under Secure Communities.

For NPR News, I'm Krissy Clark in Los Angeles.