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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
Nina Manchanda, Esq., Assistant Legal Editor
Marc Ellis, Esq., Chat Transcripts Editor
Gary Endelman, Esq., Columnist
Joel Stewart, Esq., Columnist
August 10, 2000
Contents:
Editor's Comments of the Day
Cases of the Day
Immigration News of the Day
ILW.COM Highlights of the Day
ILW.COM Chats and Discussions of the Day
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An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Correspondence to editor@ilw.com. Letters may be edited and may be published and otherwise used in any medium.

Editor's Comments of the Day

In Fornalik v. Perryman, No. 992442 (7th Cir. August 8, 2000), the 7th Circuit tries to make sense out of the confusing and contradictory actions of the INS. The Petitioner is a seventeen year old boy whom the INS was trying to deport even though he has been in the US for almost four years, his mother, father and three brothers are all in the US and the closest relative he has in his home country is a nonagenarian grandmother. Petitioner's father was granted a visa under the Diversity Lottery for fiscal years 1995. Apparently due to confusion and misunderstanding Petitioner, his mother and brothers did not receive immigrant visas before the end of the fiscal year. They entered the United States with tourist visas, in September 1996, expecting to stay. In October 1997, the INS served Notices to Appear on Petitioner his mother and his brothers. Due to administrative errors and the mother's change of address, Petitioner's case had been separated from the rest of the family's and the INS intended to remove him from the United States. The court noted, "(s)urprisingly, the INS could not articulate an agency policy regarding at what age an unaccompanied child would not be deported…." Petitioner's family life deteriorated to the point his mother left the household and sought and order of protection and Petitioner himself was the victim of physical abuse.

Petitioner filed with the Vermont Service Center for an immigrant visa as the abused child of a visa recipient and shortly after filed a habeas corpus petition with the district court. The district court found that it did not have jurisdiction to hear a claim arising from a decision of the Attorney General to "commence removal proceedings." After the district court's dismissal but before the circuit court's consideration of the appeal, the Vermont Service Center approved the special immigrant petition. The approval notice indicated that Petitioner could apply for adjustment of status and stated that the Service had decided to place the case under deferred action for fifteen months.

The court addressed these contradictory actions by the Service Center and the District Office by finding that the INS was one unified agency. It found that the regulations equate district and service center directors, their delegated functions are similar and neither trumps the other except where regulations explicitly provide. The court found unconvincing the argument, "that is from Vermont and this is Chicago," and followed a simple decision principle. Since the Vermont office was the last to act, its deferred action remained in effect until terminated for reasonable cause and upon appropriate notice.

The court relegated to the position of a "conceivable fly in the ointment," the question of whether or not it even had jurisdiction to hear the case. The INS argued that the court was precluded from jurisdiction as this was a challenge to discretionary action taken by the Attorney General to (1) commence proceedings, (2) adjudicate cases or (3) execute removal orders. The court found it did not fall into any of those categories.

The case does highlight existing problems within the INS. It shows the inconsistency and inefficiency with different offices within the same agency using federal monies and judicial resources to carry out their squabble over which office within the agency would have its way. The court's characterization of the jurisdictional issue also illustrates the judiciary's uneasiness in dealing with this issue in the wake of IIRIRA.


Cases of the Day

Court Orders INS to Respect Deferral of Action
In Fornalik v. Perryman, No. 992442 (7th Cir. August 8, 2000), the Petitioner had received a notice from the Vermont Service Center inviting him to apply for an immigrant visa or adjustment of status and informing him that the INS had placed the case under deferred action for fifteen months. The INS argued that the notice of deferred action from the Vermont Service Center could not trump the decision of the district director in Chicago to take action on a removal order. The court found that the "INS is the INS," not a "mare's nest of competing and autonomous actors," and since the deferral decision was the last one it would remain in effect until the agency as a whole comes to a decision.

7th Circuit Reverses BIA's Ruling on Military Desertion
In Vujisic v. INS, No. 99-3184 (7th Cir. August 7, 2000) the circuit court reversed the Board of Immigration Appeals's finding the BIA erred in holding that punishment for desertion from military duty can never constitute persecution on account of political opinion and concluded improperly that changed country conditions negated Vujisic's fear of persecution. The court held that this particular case was not one of ordinary military desertion and Vujisic presented such compelling evidence supporting his fear of persecution that no reasonable fact finder could agree with the Board's decision.


Immigration News of the Day

Alliance Fights Boost in Visas for Tech Workers
According to the Los Angeles Times after a string of legislative victories that made it the envy of Washington, the powerful high-tech industry is facing its first significant opposition on Capitol Hill. The dispute pits Silicon Valley's economic success against the potentially explosive politics of racial discrimination, immigration policy and workplace protectionism.

Immigrants Stretching Paychecks Over the Border
The Rocky Mountain news reports that every payday millions of immigrants, legal and illegal, are cashing in on the US economic boom and wiring cash home to their families. Latin American governments estimate that last year more than $8 billion came to their countries from US immigrants-more than $6 billion of that to Mexico.


ILW.COM Highlights of the Day

Share This Immigration Daily Newsletter With Your Friends!
Thousands of people subscribe to Immigration Daily and find the information extremely useful. Forward it to your friends. They will appreciate your thoughtfulness.


ILW.COM Chats and Discussions of the Day

Chat with Attorney Barry Lieber
Attorney Barry Lieber will answer questions on all aspects of immigration law on Thursday, August 10, 2000, at 9:00 p.m. Eastern (New York) time. Questions will be accepted 15 minutes prior to the start of the chat.


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