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Immigration Daily June 4, 2002
Previous Issues


Editor's Comments

INS announced today the issuance of a final rule for adjustment-of-status application procedures under the Legal Immigration Family Equity (LIFE) Act legalization provisions. The final rule will be published in the Federal Register on June 4, 2002, and ensure that those eligible to apply for legalization benefits under the provisions of the Life Act are able to do so by May 31, 2003. (In our issue of June 3, 2002, we mistakenly carried the draft version of the announcement. Today's announcement is official.)


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Featured Article

The ABCs of Immigration - NAFTA Visas For Canadians And Mexicans
Greg Siskind and Amy Ballentine write about NAFTA visas.


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Immigration Law News

INS Announces LIFE Act Application Deadline
INS announced "The final rule will be published in the Federal Register on June 4, 2002, and ensure that those eligible to apply for legalization benefits under the provisions of the Life Act are able to do so by May 31, 2003."

Whitehouse Quizzed About Death Penalty For Alien Smugglers
In his Press Briefing on May 31st, White House Press Secretary Fleisher responded to a question about whether the President supported "the death penalty for those people involved in the smuggling of aliens on the border" saying "the President does support legal action to help protect people who would seek to come to this country, hopefully legally."

BIA's Denial Of Motion To File Out Of Time Brief Is Not Abuse Of Discretion
In Mingole-Kayesse v. INS, No. 01-2478 (4th Cir. Jun. 3, 2002), the court said that the Board of Immigration Appeals (BIA) did not abuse its discretion in denying plaintiffs' motion to file their brief out of time and also deferred to the BIA's credibility determination on the plaintiff's burden for establishing that they were eligible for suspension of deportation.

Almendares-Torres Not Overruled By Apprendi
In US v. Hernandez-Salgado, No. 01-4715 (4th Cir. Jun. 3, 2002), the court said that in enhancing the sentence for illegal reentry after deportation for an aggravated felony, the government was not required to charge the fact of Defendant's prior aggravated felony conviction in the indictment or prove it beyond reasonable doubt.

Discretion IS Not Abused In Denial Of Withdrawal Of Guilty Plea Not Asserted To Be Unknowing Or Involuntary
In US v. Quinones-Herrera, No. 01-8035 (10th Cir. May 31, 2002), the court noted that Defendant did not assert that his guilty plea for being a previously deported alien found in the US without having obtained the consent of the Attorney General to reapply for admission was anything but knowing and voluntary, and that he did not assert his actual innocence, and that the District Court thus did not abuse its discretion in denying Defendant's motion to withdraw his guilty plea; the court also noted that even if Defendant were to qualify for change of status under the LIFE Act Amendments, that would do nothing to eradicate his past immigration violations, including the one with he was charged.

Technical Correction To Proposed Rule
INS made a typographical correction to its proposed rule "Requiring Aliens Ordered Removed from the United States to Surrender To the Immigration and Naturalization Service for Removal."


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Buchannan Talks About Creation Of Single-Issue Anti-Immigration Political Party
Writing on the townhall.com website, Pat Buchannan says "If Karl Rove does not persuade the president to get off his "amnesty-for-illegals" kick, he is risking creation of a single-issue "Defend Our Borders!" party, which could siphon off enough votes to sink Bush in 2004."

1200 Activists To Lobby For 245(i)
Mexico's English language newspaper reports "members of the National People's Action (NPA) coalition, arrived in Washington over the weekend to champion several immigration measures but particularly extension of "Section 245(i)," which has been languishing in Congress."


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Letters to the Editor

Dear Editor:
While the enforcement of removal orders and laws in general are of paramount importance, safeguards against errors must be in place. People are asked to comment on the 30-day surrender rule by June 10th. The Surrender rule requires that persons with orders of removal or voluntary departure surrender themselves for such within 30 days or they will be barred for 10 years from any kind of immigration benefit for ten years and consulate review will be tainted by a negative inference. This is another effort to sound tough and get tough on people with orders of removal. Bravo. Right? - Well.. what about those with in absentia orders due to lack of notice on the part of the Immigration court or due to negligent lawyers or advocates. If a Lozada motion is filed, or worse a motion to reopen based on the fact that the same lawyer did not follow Lozada to properly reopen a case, will the removal orders be stayed? Upon a reopened proceeding, will an immigration judge stay a removal order - or vacate such? Technically, unless a stay of removal or voluntary departure is obtained - one can be removed while waiting for a decision by the BIA to reopen. Will the ten year bar disappear when the case is reopened? Will the "negative inference" at the consulates disappear? Non detained cases are taking over 3 years to get off the shelf at the BIA.

The rule, like the 3 & 10 year bars for overstays is another rule that does not serve its purpose. It may persuade a limited number of people to leave and take their chances, but how many? If one has nothing to go back to,the chances are he or she will simply go underground. This rule will force more people underground and thus perhaps never able to appeal, or become permanent residents. Unless the enforcement side of INS becomes very good at its function - the INS will not be very effective in removing those with orders. This surrender rule will not help them. Its time to re-think the purpose of the bill. The INS should go after illegal aliens with emphasis on criminal aliens. The 10 year period is too much of a time for the bill to be effective. Perhaps, if people had to leave and remain outside for a year or 18 months before applying at a consulate and overcoming the "negative inference" than more people might decide to leave.

I hope others will respond and comment, especially where it concerns those affected by in absentia orders and negligent lawyers.

Ross Brady, Esq.

Dear Editor:
Undocumented immigrants in the United States do not face mass deportation efforts according to the INS Commissioner (Immigration Daily 5/30/02). “…It’s not practical or reasonable”, he said, referring to such an action as being impractically large and adding that it would have too severe an impact on the U.S. economy. Is there anyone who is knowledgeable in this matter who disagrees with this reasoning?

Alan Greenspan, America’s most respected economist, agrees with the Commissioner. In a testimony before the U.S. Senate, he spoke affirmatively about immigrants’ impact on the nation’s economy: “I’ve always argued that this country has benefited immensely from the fact that we draw people from all over the world.” (Making a Difference in America – Report of AILF, Vol. 1, Issue 1)

The heads of many national business associations, including the U.S. Chamber of Commerce, also agree. They have confirmed the present importance of immigrant workers to the economy of the country and predict the need for even more such workers in the next ten years. (Testimony presented by the president of AILA, Steve Ladik, to U.S. Senate on 4/6/02).

One writer “To the Editor” recently wrote: “Hopefully the immigration problem [solution] will be solved by sensible people…”

I submit: The above are “sensible” (and qualified) people. Give Commissioner Ziglar sufficient time and, with the exercise of his authority, he will work out a solution soliciting the help of other qualified people as needed (if there is an obtainable solution). Unfortunately, fear has taken over the opinions of many Americans—fear of immigrants in general, not necessarily fear of individual immigrants. This complicates a realistic approach to the problem.

The U.S. Attorney General did not help future solutions when he proposed to have local police enforce immigration laws—a proposal the national Community of Police Consortium and many state police organizations and departments across the country have labeled as an impediment to the enforcement of criminal laws that will likely lead to civil rights abuses based on ethnicity, language and accent. This Justice Department’s new policy will not increase our national security. Opposition to this policy by police departments across the country continues to grow. (Immigration Daily 5/28/02)

In like manner, the imposition of new restrictions on immigrants in the obtaining of or renewal of their drivers’ licenses will not increase national security. Its only result is to force immigrants out of necessity to operate their vehicles without legal authorization—force them to violate yet another law. Without legal authorization, the worker cannot maintain his required auto liability insurance—no liability insurance, an additional law violation.

Does anyone think for one instance that not having a driver’s license would have impeded in any way the actions of the terrorists on Sept. 11? With the enormous amounts of money available to them and with their cunning they were able to obtain any identification needed. (In fact, they traveled freely back and forth around the world with no problems—paper wise or money wise. They had all of their needed documents and so much money that they sent part of it back before committing their dastardly deeds.)

A driver’s license is intended primarily to be a certification that the holder of such a document has passed the necessary tests to qualify the operator to legally drive a vehicle. With such a license, he can obtain the required liability insurance. Without a license, the driver is deprived of his proof of competency to drive. In case of an accident, an involved person with no liability insurance cannot cover his possible responsibility--a danger to our own selves as individuals.

(For Mexican immigrants, a national identification card is obtainable at any Mexican consular office. This card serves as identification and certification by his country that the person is who he claims to be. It is not intended to affect the legality or illegality of his presence in our country. It would help our national security if every Mexican immigrant obtained one. It could help the immigrant himself cash his payroll check and otherwise identify himself, and could possibly serve as a means of identification, if accepted, for that person to obtain or renew his driver’s license. With a valid license he is able to purchase auto liability insurance –and comply with our laws--which is of benefit to us all.)

I believe the Commissioner when he says that there will be no mass effort to deport undocumented immigrants. Only a very insignificant number of immigrants will thus face deportation while the vast majority will continue to live in the shadows, unidentified and unaccounted. Having large numbers of unidentified and unaccounted people in our country is counter to the interests of our security. There must be some way for them to acquire recognition. Of the very insignificant number that will have problems, a few may face deportation as the result of their being reported, through malice, as not having papers. Some will run afoul of the law and face deportation. Others possibly may be detained for operating a vehicle without a valid license; and if apprehended by a police official intent on enforcing immigration laws; they, too, may face deportation (for license violation together with lack of documentation). And some may even face deportation just through abuse of their civil rights by an overly zealous newly empowered police officer who through racial profiling detained them because of their color, language or accent; and discovered them to be undocumented. For the few that will be deported, the deportation will be anything but insignificant.

Richard E. Baer, D.V.M.

Dear Editor:
I thought [many of your readers would] be very interested in this new bill - AB 1999. It appears the California legislature is about to launch a major assault against the many immigration consultants that operate in the state... Bill Introduced, Bill Amended

Name Not Supplied


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. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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