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Immigration Daily April 26, 2002
Previous Issues


Editor's Comments

By a vote of 405-9, the House of Representatives passed H.R. 3231, the Barbara Jordan Immigration Reform and Accountability Act of 2002, which abolishes the INS and replaces it with a "Bureau of Citizenship and Immigration Services" and a "Bureau of Immigration Enforcement" both under an Associate Attorney General. The Bush administration has indicated its backing for this bill. The measure now goes to the Senate where it will be debated and probably amended before passage. The House Judiciary Committee Report on H.R. 3231 (a 234 page report) said: "The INS has been a beleaguered bureaucracy for decades. Congress has increased the INS's budget, hoping that additional resources were what was needed to solve the agency's shortcomings. The INS's budget increased from $1.4 billion in Fiscal Year 1992 to $5.5 billion in Fiscal Year 2002. Notwithstanding this budgetary expansion, the INS's performance has not improved. Most members of Congress have grown increasingly frustrated with the INS's poor performance in both immigration services and enforcement. The magnitude of the INS's problem is extraordinary - it had a backlog of 4.9 million applications and petitions at the end of Fiscal Year 2001, forcing aliens trying to play by the rules to wait in limbo for years. The Census Bureau estimates that at least 8 million undocumented aliens reside in the US. Over 300,000 criminals and deportable aliens ordered removed by the immigration judges have absconded. Much of INS's failure stems from the conflict between its enforcement and service missions. The INS is unable to adequately perform either of its missions. Rather, the agency appears to move from one crisis to the next, with no coherent strategy of how to accomplish both missions successfully."


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Featured Article

New Regulations for B Visa Holders and Their Impact on International Students
Ellen Badger of Binghamton University writes that the INS's proposed rule does not make provision for foreign parents visiting their adult children for a period of several months, especially in the case of foreign parents providing long-term child care for their adult children and that the proposed rule will likely burden the INS with a high number of B-1 and B-2 extension applications, which are unnecessary currently.


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Immigration Law News

EOIR-26 Is Defective
In Vargas-Garcia v. INS, No. 00-71019 (9th Cir. Apr. 25, 2002), the court held that the combination of the EOIR-26 form, the Board of Immigration Appeal's (BIA's) strict Notice of Appeal requirements and the failure to give any advance warning before the Petitioner's appeal was dismissed resulted in the violation of his due process rights. In this case, according to the court, the BIA's decisional law set out a stern specificity standard for applications made on EOIR-26, despite the fact the form does not make that clear, and the BIA dismissed the Petitioner's application summarily without giving Petitioner notice to cure the defect inherent in the form.

Arizona Endangerment Is Not Aggravated Felony
In US v. Hernandez-Castellanos, No. 01-10301 (9th Cir. Apr. 25, 2002), the court held that endangerment under Arizona law is not, categorically, an aggravated felony because a "substantial risk of imminent death or physical injury" is not the same thing as a "substantial risk that physical force may be used" and remanded the case for resentencing the Defendant who had asked for downward departure on the grounds that driving under the influence in an automobile missing its right front tire with his four minor children as passengers was not an aggravated felony.

BIA Did Not Abuse Discretion
In Carlos-Martinez v. Reno, No. 00-3033 (3rd Cir. Apr. 25, 2002), the court held that in dismissing the Petitioner's motion under the Convention Against Torture, the Board of Immigration Appeals had sufficient evidence to support its dismissal and since Petitioner was required to provide a reasonable explanation for his failure to apply for relief during the initial proceedings, the BIA did not abuse its discretion in refusing to reopen his claim for withholding of removal.

Bush Urges Congress To Restore 245(i) Temporarily
In a statement welcoming the Senate's passage of the Border Security Bill, President Bush said: "Congress should pass a temporary extension under 245(i)."

Rep. Frost Introduces Bill
Rep. Frost (D-TX) introduced H.R. 4575, a Bill in the House to change the requirements for naturalization through service in the US armed forces.

INS Statement On Cambodian Children Adoptions
In a statement, the INS said: "the suspension of orphan visa processing in Cambodia was taken for good reason: there are serious deficiencies in the Cambodian legal framework on adoptions, and there are very real human trafficking concerns ... the suspension remains in place."

DOS Announces Grants
The Office of Global Educational Programs of the Bureau of Educational and Cultural Affairs of the Department of State announced an open competition for an assistance award program to support the development of programs of instruction and faculty training at universities in Algeria and Tunisia in business management, public administration, information technology, computer science, or other fields with significant potential to support the modernization of the Algerian or Tunisian economies.


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Other Items

Yes Way, Jose!
An opinion piece in the Washington Times says that "a striking coalition cutting across the political spectrum in recent years has been coalescing in support of immigrants and in recognition of the importance of immigration to the United States and our economy."


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Letters to the Editor

Dear Editor:

Thank you for providing such a wonderful forum for those of us interested in immigration issues. I look forward each day to reading the letters to the editor, and appreciate the opportunity to be exposed to such a wide variety of viewpoints and opinions. Regardless of one’s stance on many of these issues, there’s no doubting the fact that people feel passionately about immigration issues, and it’s easy to get caught up in the various "discussions" that play themselves out on-line. I consider myself fortunate indeed to live in a country where publicly expressing one’s opinions and beliefs is not something that will bring harm to me or my family members (although it might generate a few scathing remarks in return!).

Regarding various polls that say American citizens believe one thing or another—isn’t the entire argument somewhat faulty? Since when does might make right? At one time or another in our nation’s history we could say that a majority of Americans believed in slavery, or in denying women the right to vote, or in the right of a husband to beat his wife so long as the rod used was no larger than a thumb’s circumference...

I wonder whether the real issue, stripped down, might amount to being a matter of the "haves" of the world feeling somewhat threatened by the "have nots", who in most cases simply want to improve their own life or the lives of their children? Perhaps it’s a concern that some of the "haves" are clinging rather precariously to their own status, and fear that too many "have nots" coming into our country in search of the American Dream just might bring down their own standard of living.

You can dress it up by saying things like "this is the law and they should abide by the law", but I know that if I lived in a country where young children are regularly sold into prostitution or slavery so the remaining family members could live, I would do everything possible to escape such a life of hunger, deprivation, and oppression. I should watch my child die an early death from malnutrition, disease, or the ravages of armed conflict, or worse yet, watch her spirit die gradually over time—for the sake of waiting years and years for the possibility that we might "legally" emigrate to some country where we would have a chance at a decent life? Less dramatically—I know everyone’s not a refugee—if I lived in a country where I could expect to work hard all my life (typical life span being maybe as few as 45 years), and die leaving my children no better (and perhaps even worse) off than when I was born—you bet I would jump at any opportunity to improve my "economic condition" by emigrating, legal or not. Please. Since when is it wrong to want to give yourself and your children a better life? Are we just going to say "too bad, so sad" to those unfortunate enough to have been born into a less-open, less-prosperous nation than ours?

I hear lots of people talking about a "higher law", when debating abortion, the use of human embryos in research, etc.—playing the morality card to justify breaking the law. Well, what about all those children already in the world who are living in absolutely deplorable situations? Do they not deserve a chance to live a good life? Is it okay to leave them out of the equation because they’re not Americans? (Frankly, I think there are plenty of children in the U.S. who are also living in deplorable situations, with little hope for their future—and I don’t see too many anti-abortion activists reaching out a meaningful helping hand to them…but that’s another story).

The point I’m trying to make—and perhaps I’m just being naïve here—is that until we acknowledge our role as fellow citizens in this "global village" of ours, we are destined to keep repeating the same mistakes over and over again—in the name of nationalism, religion, or whatever. So long as "have" and "have-not" distinctions exist, there will always be people looking for a better life for themselves and their children, whether here, in Europe, Australia, or elsewhere. How many suffocation deaths of people crammed into trucks and shipping containers will it take before we accept the reality of the situation? Until we acknowledge that people are going to do whatever they can to improve their condition—legal or not, and often at great physical, emotional, and financial risk—we’re never going to get very far in terms of an immigration scheme that works well.

I certainly don’t have the solution—I doubt if any one person does. And no, I’m not in favor of simply throwing open our borders. But I do think we should acknowledge the legitimacy of the argument that just because someone didn’t follow the rules when they came to the United States, doesn’t mean they are any less-deserving of the benefits of a civilized society. Given a choice, many individuals would probably rather attain "the good life" in their own country--but that's just not always possible--and won't be until human society has progressed to the point where there are not so many glaring distinctions between the standard of living from one country to another. "We" really are the world (that song drives me crazy, but it’s an apt image), and these are our brothers and sisters we’re talking about. Now what are we "haves" going to do for our "have not" siblings?

Karmell Bowen

Dear Editor:

Mr. Smith makes an excellent analogy in his letter of 4/25 regarding illegal aliens and the benefits they receive in the U.S. by breaking the law. Not only would it be ridiculous to wait years to renew a driver's license behind those that have had their licenses suspended, etc., but I don't think the American people would stand for it. The same is becoming very clear not only in the general population but in the U.S. Congress as well as we are seeing immigration laws that tighten our borders, increase the difficulty in obtaining visas, reduce the time allowed as a tourist, abolish the INS and hopefully a permanent burial of the de-facto amnesty 245(i). All of these measures taken post 9-11 are to make our country a stronger and safer one and it has not come soon enough.

J. Seyes

Dear Editor:

In response to John Smith’s letter of April 25, I want to say thank you for your objective view. I am glad there are people out there that can see the situation for what it really is without being bogged down by the emotional aspects. We are understandable affected by media images of destruction, death and desperation in other countries. But, it is not understandable to apply those same feelings to images of illegal immigrants being apprehended for knowingly and willingly breaking the law.

Perhaps the objection raised by Richard Baer to the “couple being given ten minutes to get ready before they are whisked away from their children to be taken to a detention center for finger printing, strip-searching and incarceration” is valid. But, honestly, isn’t that they way it should be? If those who break the law are not held accountable for what they have done (and, really, a few inconveniences and a little humiliation is rather humane in comparison to criminal punishment in other countries around the world), what’s to stop them from doing it again? And, what will deter others from intentionally breaking the laws of this great country?

It is a fact that, as Mr. Baer points out, “this type of hostility will not help to solve the immigration problem.” But, neither will allowing those who break the law to get away with the infraction simply because their crime is not as serious as that of the suicide bombers. To each crime is affixed a punishment. While illegal aliens should not be punished the same as mass murderers, they should be punished. And, foreign national who are honoring and respecting the laws of the United States by following the designated process and rules of immigration should be rewarded for their diligence, not made to wait because of the angry protests of law breakers.

Michelle Bushman

Dear Editor:

The recently proposed rules by the Immigration & Naturalization Service for admission for a period of 30 days of the visitor aliens to the United States is not just and fair. People from different countries of the world come to visit the United States not only to see different places of the United States, but also to meet their relatives, who are either US citizens or legal permanent residents. Mostly, the retired parents visit the United States to meet their grand-children and usually stay in the United States for about 6 months with their family members. Therefore, the proposed 30 day period of stay for the bearer of a visitor visa in the United States to be endorsed at the time of admission is too short.

At present, the United States ranks 3rd in the world to have tourists from different countries of the world after France and Spain. Furthermore, the United States is quite distant from Europe and Asia, and when the tourists from these continents come to visit this country, they spend more than 30 days, because America is a great country and it has lots of tourist places to be visited, such as New York, Los Angeles, San Francisco, Chicago, Miami, Washington, D.C., Las Vegas and Dallas. 30 days stay is not enough to visit these places. It is certain that the tourists will not come to spend just for 30 days. The United States will lose tourists to a great extent, if they are admitted for a 30-day stay only.

People say that it is very hard to get the US visa, because the aliens have to take interview at the US Consulate, and it takes them a whole day just for the interview. It seems that the inspecting Service officer at the time of admission asks the aliens again different questions (some kind of interview again) about his/her purpose of trip, period of stay, financial resources etc., which, I am sure, will cause much irritation and inconveniences to them. Furthermore, when they arrive at airport from their long flight, they already are tired. Instead of giving them relief from their travel fatigue and long queue at the time of admission, further interview by the inspecting Service officer will aggravate their pain.

Therefore, in view of the above circumstances, I would like to offer the following solutions, which, I think, are the best that should be implemented:

1. The Visa Waiver Program must be abolished, because the terrorists find it very easy to enter the United States under this program.

2. The privilege of changing status from B2 visa to Student visa also should be discontinued, because the inspecting Service officer will not be able to examine the alien so carefully at the time of admission as a Consular Officer does. So, the student visa should be issued only at the US Consulate.

3.The period for a visitor visa to remain in the U.S. should be granted for a minimum 6-month period at the time of admission to those visitor aliens who are over the age of 50. The other visitor aliens who are below 50 years of age should be granted a minimum 3-month stay at the time of admission. Extension for a further period of 3 months may be granted to the both categories.

Sushil Babu


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. Send Correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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