The Department of Justice published a Final Rule today completely altering the Board of Immigration Appeals as we know it. Among numerous other changes, the Final Rule abolishes de novo review of IJs' factual findings, assigns most matters to single BIA members rather than BIA panels, and slashes the size of the BIA from 23 to 11. Though promoted under the guise of improving efficiency, it appears that senior officials at the Department of Justice view the BIA as an obstacle to the mass-removal of immigrants from the US, and seek through this rule to make it less of an impediment to their aims. The aggressive stance of the Executive Branch of our government in immigration matters pits it head-on against the other two branches of our System of Checks and Balances. In a decision by the Sixth Circuit today, the Judiciary ruled against the DOJ's Creppy Memo which calls for secret hearings in "special interest" deportation cases. Congress will surely take up immigration related issues when it convenes next week, and it is likely to proceed in a direction different than the one taken by the DOJ.
INS, DOL, DOS To Speak At New ILW.COM Seminar
ILW.COM is pleased to announce a new seminar course "INS, DOS, DOL - The Search for Consistency."
Many complex immigration issues require resolution with more than one government agency. Examples include H-1B and adjustment portability, 245(i) labor certification grandfathering, ACWIA issues, 212 waiver issues, changes in location or salaries of H-1Bs, changes from adjustment of status to consular processing, substitution of experience for education, J-1 issues and consular readjudication of approved petitions.
Many opportunities exist to ask the INS or the DOL or the DOS for that agency's position on particular issues. However, this seminar is a rare opportunity to confront three of the most knowledgeable government officials in one forum to resolve issues where their respective agencies have taken contrary or inconsistent positions. Ron Klasko and Tammy Fox-Isicoff will present selected cross-agency issues to Jacqueline Bednarz (INS), Steve Fischel (DOS) and Harry Sheinfeld (DOL).
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Losing the "Matter of State" Cloak
Jose Latour writes "The truth is simply this, folks: we can collect all the information from all the visa applications - immigrant or non- immigrant - that we want, and it is not going to help us one iota in terms of preventing a terrorist act" and "As a lifelong Republican, I find it infinitely humorous that our own party's leadership - led by the sword-waving Mr. Ashcroft - has so unceremoniously assumed the post-September- 11th position that more government intervention is better. How sad."
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Immigration Law News
DOJ Alters Structure And Procedures At BIA
The Department of Justice promulgated a final rule which "revises the structure and procedures of the
Board of Immigration Appeals (Board), provides for an enhanced case
management procedure, and expands the number of cases referred to a
single Board member for disposition. These procedures are intended to
reduce delays in the review process, enable the Board to keep up with
its caseload and reduce the existing backlog of cases, and allow the
Board to focus more attention on those cases presenting significant
issues for resolution by a three-member panel. After a transition
period to implement the new procedures in order to reduce the Board's
backlog of pending cases, the size of the Board will be reduced to
Sixth Circuit Says Creppy Memo Is Unconstitutional
In Detroit Free Press v. Ashcroft, No. 02-1437 (6th Cir. Aug. 26, 2002), the court held that the Constitution meaningfully limits non-substantive immigration laws and does not require special deference to the Government. In affirming the District Court's grant of a declaratory judgement as applied to one of the Petitioners against the Department of Justice's memo requiring "special interest cases" hearings to be held in secret, and closed to the press and the public, the Court said that Democracies die behind closed doors.
Ninth Circuit Says Right To Travel Internationally May Be Restricted Due To Arrears In Child Support Payments
In Eunique v. Powell, No. 99-56984 (9th Cir. Aug. 23, 2002), the court said that while there is a constitutional right to international travel, it differs from the constitutional right of interstate travel which is virtually unqualified, the difference means that it would not apply strict scrutiny to restrictions on international travel rights that did not implicate First Amendment concerns, and held that Petitioner's Fifth Amendment Freedom to travel internationally was not violated when Congress and the Department of State refused to let her have a passport as long as she remained in substantial arrears on her child support obligations.
Offense Of Transporting Aliens Is Aggravated Felony
In US v. Hernandez-Arellano, No. 01-1642 (8th Cir. Aug. 26, 2002), the court said that Defendant's prior offense of transporting aliens constituted an aggravated felony for the purposes of the Sentencing Guidelines applicable to his guilty plea for illegal reentry following deportation for an aggravated felony and that Defendant's dissatisfaction with the use of his prior convictions in calculating his criminal history constituted an impermissible collateral attack.
DOJ Press Release On BIA Restructuring
The Department of Justice issued a press release on the rule establishing new procedures and a new structure at the Board of Immigration Appeals saying "The central provisions of the final rule are as follows: *Three-member panels will focus their attention on complex cases by allowing more single Board member decisions where there are no novel questions, disagreements or difficult matters of law. This reform expands on the Department's ongoing streamlining initiatives. *The Board will use the standard of review for factual issues in appeals from immigration judges that most appellate courts use - a "clearly erroneous" standard. The Board will no longer review immigration judge's factual findings "de novo" - or anew. *The rule includes a series of time limits for the adjudication of cases. A single Board member has 90 days either to decide the case or refer it for three-member panel review. A three-member panel must render its decision within 180 days of referral. In limited circumstances, these time limits may be temporarily suspended. All of the time limits are designed to provide a more timely decision to the parties. *After the six-month transition period, the Board will be reduced to 11 members."
INS To Issue Rule On Part Time Students
INS announced "an interim rule to allow Mexican and Canadian commuter students to study on a part-time basis at schools located within 75 miles of the United States border." INS issued a News Release and a Fact Sheet.
BIA Acting Chair Is Now Chair
Attorney General Ashcroft announced the appointment of Lori Scialabba, Acting Chairman of the Board of Immigration Appeals (BIA), as the Chairman of the BIA.
DOL Says LCA Settlement Terms Do Not Need Review By ALJ
In the Matter of Maruhachi Ceramics of America, Inc., No. 2002-LCA-00021 (OALJ, Aug. 23, 2002), the Office of Administrative Law Judges remanded the matter to the Administrator, Wage and Hour Division consequent to the joint notice by the parties that the matter had been resolved by settlement.
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Report On Benching Investigation
The Sacramento Bee reports on a benching investigation by the Department of Labor.
TPS Not Being Used By Eligible Beneficiaries Due To Fears Of Deportation By Big Brother
The South Florida Sun-Sentinel reports "Thousands of Salvadorans eligible for a special program that allows them to stay and work legally in the United States could be avoiding the program, fearful that it might be a ploy to deport them."
US Losing Flight Training Industry Without Means To Administer Precautions Required By War Against Terrorism
The South Florida Sun-Sentinel reports "Technical problems and bureaucratic squabbles have kept the government from doing background checks on hundreds of foreign flight students across the country, putting the careers of legal residents on hold and damaging Florida’s air industry."
Border Patrol Agent Grieves Fallen National Park Ranger
The Tucson Citizen reports "Park Ranger Kris Eggle was killed Aug. 9 near the Mexican border in Organ Pipe Cactus National Monument while helping U.S. Border Patrol agents chase two fugitives sought by Mexican authorities in four killings. Border Patrol Agent John Malone, who works in the Tucson Sector's Ajo Station, shares his account of what happened that day."
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Letters to the Editor
The American Immigration Lawyers Association today issued the following press release on Ashcroft's Changes to BIA which are a Slap in the Face to Immigrants
"The Attorney General today issued a final regulation that will negatively impact how the Board of Immigration Appeals (BIA) functions by severely compromising due process and the independence of the immigration court system. These changes join others the Bush Administration has issued in the past year that fail to balance our enhanced security needs with this nation of immigrants' Constitutional guarantees. As the highest administrative appeals body for immigrants, the BIA reviews decisions made by immigration judges and INS officials in individual cases. BIA members make decisions that ultimately can determine whether someone who has been persecuted and tortured for his beliefs will live or die and whether U.S. families will be united or divided.
"The BIA often is the court of last resort for the vast majority of people seeking review of decisions by immigration judges. It is vitally important that the BIA remain a robust and vigorous review body," said Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association (AILA). "It is troubling that the Bush Administration talks about reaching out to immigrants on the one hand, but pulls the appellate rug out from under them with the other."
Despite voluminous comments (http://www.aila.org/contentViewer.aspx?bc=9,576,598) from numerous organizations raising issues of critical concern, the final regulations are nearly identical to the regulations proposed last February, and go in the wrong direction. Immigration laws are incredibly complex and often unclear, Congressional intent is often ambiguous, and the INS itself frequently argues positions that courts later hold are contrary to congressional intent. Yet the Administration's changes seem to assume that the appeals before the Board do not involve complex questions of law.
"AILA fully shares the Attorney General's concern that the Board achieve timely and efficient adjudications and backlog reductions. But the Administration's regulations, issued in the guise of achieving efficiency, will sacrifice justice in the name of expediency," said Ms. Butterfield. AILA, along with dozens of our coalition partners, called on the Attorney General in a February 11 letter (http://www.aila.org/contentViewer.aspx?bc=9,576,597) to bring together interested constituencies to recommend proposals to improve administrative review in a way that will affirm the independence and impartiality of the BIA, facilitate immigrants' access to the BIA, enhance due process, and promote an efficient adjudications system. The Attorney General never responded to that call.
The new regulations, slated to go into effect on September 25, 2002, ignore the fact that changes the BIA recently initiated already had begun to show results by increasing efficiency and reducing the backlog, without sacrificing due process. The regulations run counter to these proven changes by reducing the size of the Board from 23 members to a mere 11 members, mandating review by single Board members instead of panels of three, imposing extraordinarily tight briefing schedules (detained persons must submit their appeal briefs within 21 days, simultaneously with the government's brief and without the chance to see the government's arguments), and severely circumscribing the discretion of BIA Members to review the facts of the case before them.
Immigration courts must be independent, impartial, and include meaningful checks and balances. To that end, AILA advocates the creation of a separate and independent immigration court and appellate system. These and other issues are detailed in testimony (http://www.aila.org/contentViewer.aspx?bc=9,576,580) AILA presented before the House Immigration Subcommittee during a February 6, 2002 hearing, and are currently under consideration by the Senate in the context of the debate on the creation of a Department of Homeland Security. "The time has come for an independent court," concluded Ms. Butterfield."
Public Affairs Manager
American Immigration Lawyers Association
Please allow me one more time to respond to the "Corporate in - house immigration specialist" letter and remarks. I am so thankful for any response. Yes, we are aware of the fact that we have made mistakes too. But not only our "Turkish Gastarbeiters" treated with respect by our government, so was my Ex-son in law, when he moved with my daughter back to Germany in 1992. My daughter, who is an Austrian Citizen, was asked to turn over her permanent workpermit to her husband, so he could work. That was it. In the meantime, him, her and their american born child lived on welfare-about 2400 Deutsche Mark. Since I wrote my letter, my daughter will not re-file the application for the american citizenship. She does not want to sell her soul in order to become a US citizen. And what kind of mother want her child to live without a soul? We are willing to move back to Europe. What we need is a bit more time - legal time - to wrap up all our affairs. We are afraid we will not get that time. I thank you very much for your attention.
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