In Patel v. Zemski, No. 01-2398 (3rd Cir. Dec. 19, 2001), the Third Circuit found IIRIRA's mandatory detention provisions for aliens convicted of aggravated felonies to be unconstitutional. The Petitioner, a lawful permanent resident for more than ten years, had been convicted of harboring an undocumented alien. At an individual hearing an Immigration Judge (IJ) found that according to Board of Immigration Appeals (BIA) precedent harboring an undocumented alien is a crime relating to alien smuggling, and so an aggravated felony. The Petitioner was ordered removed from the US. The IJ's decision was timely appealed to the BIA, and the removal order stayed pending its decision. Petitioner has been in INS custody for 11 months, 6 months longer than his prison sentence for the underlying offense.
Under IIRIRA, detention of aliens convicted of aggravated felonies is mandatory. The Third Circuit looked to the Supreme Court's reasoning in Zadvydas in recognizing that immigration detention implicates a fundamental liberty interest. The court applied heightened, due process scrutiny to determine if the mandatory detention provision's infringement on an alien's fundamental right to be free from physical restraint was narrowly tailored to serve a compelling state interest. Given the government's articulated goals of preventing aliens from absconding or endangering the community, the court reached the conclusion that "[o]bviously, a hearing to evaluate flight risk and danger to the community presents a less restrictive means for the government to achieve its goals." Judge Sloviter, writing for the three judge panel, held "that mandatory detention of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community."
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Last Chance to Sign up for Jan 4th Teleconfence!
December 24th is the deadline to sign up for the seminar on "Immigration Implications of the 9/11 Tragedy" moderated by Stephen Yale-Loehr. If you are not among the hundreds of people who are already part of this 3-seminar series, you can still join the final
phone session, and receive tapes for the first two sessions. The speakers for the final session will be Angela Kelley, Angelo Paparelli and Norman Peterson.
For more details, or to sign up online, click here.
For more details, or to sign up by fax, click here.
Tip of the Day
Using a Browser
A browser is a software program that allows your computer to link to the World Wide Web and access documents (web pages). Netscape Navigator and Microsoft Internet Explorer are the two most popular browsers used. They are both graphical browsers which means that they are able to display graphics as well as text. Some other options for browsers include Opera, HotJava from Sun Microsystems, Arachne for DOS systems and Lynx, which is only a text browser. Most new computers now come with either Navigator or Internet Explorer pre-installed.
ILW.COM's website is best read with Navigator or Internet Explorer version 4.0 or higher (today most people use 5.0 or higher). Some features on the ILW.COM site, such as case tracking, will work faster with Internet Explorer than with Navigator.
If you use Immigration Daily in its e-mail version, please be aware that most of the original material which we digest is only accessible on the site through the contained links in the e-mail. Some readers have commented that they print out Immigration Daily and read it at their leisure rather than sitting in front of a computer. Even if that is your preference you may still on occasion want to print out the original source material from a specific link. We recommend using the web browser version in addition to the e-mail version of Immigration Daily.
ILW.COM Featured Article of the Day
The ABCs of Immigration - Labor Certifications - Schedule A, Group II
Greg Siskind and Amy Ballentine write about labor certifications under Group II of Schedule A which includes people of exceptional ability in the sciences and the arts (except for the performing arts.)
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Mandatory Detention Violates Due Process
In Patel v. Zemski, No. 01-2398 (3rd Cir. Dec. 19, 2001), the court held that that mandatory detention of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community.
Habeas Denied for Failure to Exhaust Administrative Remedies
The court in Kurfees v. INS, No. 00-7681 (4th Cir. Oct. 24, 2001), rejected Petitioner's habeas petition for failure to exhaust administrative remedies because she had not appealed to the Board of Immigration Appeals (BIA) the INS's denial of a motion to reopen. The court has designated its October 24, 2001, opinion as a published decision.
No Habeas for Alien Held in Canada
In Azizarab v. INS, No. 00-C-1474 (N.D. Ill. Dec. 14, 2001), the court denied a habeas petition from an alien who had previously been deported and was in the custody of Citizenship and Immigration of Canada.
Changes to the Hmong Veterans’ Naturalization Act of 2000
On November 28, 2001, the filing deadline was extended by 18 months for individuals eligible for benefits under the Hmong Veterans Naturalization Act of 2000. The new filing deadline for qualified veterans and their spouses is May 26, 2003. The new filing deadline for qualified widows of such veterans is November 1, 2003.
Enhanced Border Security and Visa Entry Reform Act of 2001
The House has passed H.R. 3525, the "Enhanced Border Security and Visa Entry Reform Act of 2001."
International Student Responsibility Act
Rep. Miller introduced the "International Student Responsibility Act" which gives the INS additional resources to implement the databases mandated by IIRIRA as quickly as possible, authorizes funding to ensure that the databases are not a paper exercise, requires the INS to notify colleges within 10 days when their students enter the country, requires colleges to promptly notify the INS if any of their students fail to enroll, and requires the Department of State to ask international students' home countries whether the students are known criminals or terrorists before granting the visas.
Immigration in the Press
Smuggled Children among Border Patrol's Biggest Headaches
According to an Associated Press article in the Amarillo Globe-News the flow of children smuggled across the border into Texas has made baby formula and pureed carrots almost as common as ammunition and handcuffs at Border Patrol stations.
"Immigration Implications of September 11th tragedy"
Attend the at-cost seminar series moderated by Stephen Yale-Loehr.
Click here for more info or to signup online.
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This Day in Immigration
From December 21, 2000
"Final Rule on H-1Bs
The Department of Labor has issued an interim final rule and request for comments on the regulations implementing ACWIA including the additional attestation requirements regarding anti-displacement and recruitment obligations for H-1B dependent employers and willful violators. The commentary and rule run almost 150 pages in the Federal Register - pp 80109-80158, pp 80159-80208, and pp 80209-80254."
Letters to the Editor
I appreciate the need for sensitivity, even with the arguably over-sensitive (in our firm we rarely use the a-word unless we're quoting a statute), but no one has said what they call the foreign-born, non-US citizen, non-national instead of "alien." Can anyone offer any suggestions for an exact synonym? "Non-citizen" isn't it, because a non-citizen who's a national (e.g. a citizen of American Samoa) is not an alien under INA Sec. 103(a)(3). "Immigrant" obviously only works some of the time, likewise "applicant." "Individual" is a possibility. Let's try and help those colleagues who'd like to avoid giving offense but are thesaurustically challenged.
J. Hanson, Attorney at Law
I think there is a lot of soft violations going on, which almost amount to abuse by the employers.
The insecurity of the foreign workers is exploited by one and all employers. Whether it is "self motivated" extra hours in the software industry or the gradual prolongation of the J-1 waiver requirements for physicians.
I think this lawsuit against Tyson Foods will fortify the immigration laws, give confidence to legal immigrant workers that the labor laws are real and applicable. Hopefully It will prevent violations of labor laws by greedy employers who intimidate immigrant workers to extract more work or more intense man-hours from them.
After 9/11 more employers are exposed to the news of the third world and realize the depth of the North-South economic imbalance. The realization that the stakes are very high for the immigrant is going to motivate most employers to to raise the stakes using either patriotism or increased vigilance as an excuse.
I am surprised that it has not already happened in the immigration process. After all if I had a cheap foreign worker, the best interest of my business depend on continued maintenance of all three, it would be logical to prefer that the worker remain "cheap," "foreign" and "continue working."
Good Business, it seems, is at odds with the spirit of the labor and immigration laws. I may be wrong but that is just my opinion.
The answer to the question of illegal immigration, and "targeting" illegals instead of terrorists is really simple. (Even though the question itself is a "red herring" and has no true validity.) We are a nation of laws, not men. Every person present in the United States of America is protected by the laws of this great nation on one hand, and on the other hand has an obligation to respect, abide by and follow the laws, whether or not they agree with them, and whether or not it suits their personal or financial interests. The same applies to Americans abroad, who must follow the laws of the country they are in, or can expect to be punished - when in Rome do as the Romans do. In the United States of America, we have speeding laws, and speeders are punished when they are caught . . . because they broke the law; we have drug laws, and drug dealers are punished when they are caught . . . because they broke the law; we have antitrust and securities laws, and violators are punished . . . because they broke the law; we have laws against driving while intoxicated, and violators are punished . . . because they broke the law. Should violators of immigration law, both employers and workers alike, not be punished . . . because they broke the law? Without law there is chaos. "United we stand, divided we fall" has never been more applicable than it is now, in the wake of the September 11th terrorist attacks. We are told that America is a government of the people, by the people and for the people . . . we are not, or should not be a government of special interest groups with special agendas. The solution to all questions concerning immigration, both lawful and unlawful, is really simple. If the law is wrong, change it . . . but don't break it. Lawlessness leads to chaos and chaos, one small step at a time, will be the undoing of the greatest democracy on earth.
Newport Beach, CA
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IMMIGRATION LEGAL TRAINING SEMINAR
Des Moines, Iowa. Basic intensive immigration legal training seminar to be held January 14-18, 2002, at the Marriott Hotel in downtown Des Moines. Sharply discounted room rates of $49/night plus tax for single or double at the downtown Marriott. Call 800/228-9290 for room reservations and mention the immigration legal training seminar. Sponsored by the Midwest Legal Immigration Project and the Immigrant Legal Resources Center. For more information, call Cyndy Bolsenga, 515/271-5730 or fax 515/271-5757 or e-mail firstname.lastname@example.org.
On January 31st & February 1st 2002, the National Immigration Forum will host its inaugural conference “A Nation of Immigrants in the 21st Century: Moving Forward in a Time of New Challenges.” The conference will be held at the Mayflower Hotel in Washington, D.C. For details, click here. For registration form, click here.
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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
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