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Immigration Daily


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Immigration Daily November 8, 2002
Previous Issues
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Editor's Comments

Earlier this week, the Supreme Court decided an immigration matter INS v. Orlando Ventura, No. 02-29 (Sup. Ct. Nov. 4, 2002). Carl Baldwin writes about this decision in today's Featured Article.

This decision by the Supremes may have the unintended consequence of partially negating the DOJ's recent regulation shearing the BIA. Here's how. The DOJ's new regulation reduces the BIA to a the role of rubber-stamp tribunal in many instances. Two entire levels pre-IIRIRA have now been removed - the district court, and (largely) the BIA. Circuit Courts are accustomed to reviewing well developed matters where the administrative agency and the district court have established a firm grounding of fact, and have analysed the legal basis thoroughly. Now, however, matters appealed to Circuit Courts may frequently be inadequately developed to the standards to which Circuit Judges are used to. The Supremes decision may now give added cause for the Circuits to remand matters before them back to the BIA for a fuller development of the record, thus partly foiling the DOJ's recent BIA regulation.


INS/DOL/DOS Seminar Deadline Is Sunday, November 17th

ILW.COM's seminar course "INS, DOS, DOL - The Search for Consistency" features Jacqueline Bednarz (INS), Steve Fischel (DOS) and Harry Sheinfeld (DOL). Leading the discussion will be distinguished practitioners Ron Klasko and Tammy Fox-Isicoff who are justly reputed to be dynamic and incisive speakers. Each of the seminar course's 3 sessions features 30 minutes of Q&A with the speakers.

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.

The following is the curriculum for "INS, DOS, DOL - The Search for Consistency"

FIRST Phone Session on September 10, 2002: DOL/INS Issues
This session will deal with DOL and INS positions on cutting edge issues including:

  • Start date of H-1B employment where issuance of social security number delayed
  • 245(i) grandfathering based on withdrawn or denied labor certification applications
  • Effect of concurrent filing on labor certification substitutions
  • Impact of leaves of absence on H-1B aliens and employers
  • Effect of changes in employer structure, job description full-time status, salary and location of employment on LCA, I-129, ETA, I-140 and I-485

SECOND Phone Session on October 16, 2002: DOS/INS Issues
This session will deal with DOS and INS positions on cutting edge issues, including:

  • Child Status Protection Act
  • Concurrent adjustment/consular processing issues
  • Consular readjudication/revocation of INS-approved petitions
  • 3 and 10 year bar waivers
  • Travel by H-1B portable aliens
  • Who is subject to the two-year return requirement?
  • Accompanying or following to join

THIRD Phone Session on November 20, 2002:

  • Summary of DOL/INS/DOS positions on cross-agency issues
  • Hot Issues at DOL, INS and DOS
  • Impact of formation of Homeland Security Department on DOL, INS, DOS
  • Post-election legislative forecast for the new Congress
  • 2003 - a look ahead
Speakers for this seminar series include:

Jacqueline Bednarz, Special Assistant to the Executive Associate Commissioner for the Office of Policy and Planning of the Immigration and Naturalization Service in Washington, D.C.

Steve Fischel, the Director of Legislation, Regulations and Advisory Assistance in the visa office of the Department of State.

Harry Sheinfeld, Litigation Counsel in the Employment and Training Legal Services Division, Office of the Solicitor, at the U.S. Department of Labor.

Speakers for the final session of this seminar course are Ron Klasko and Tammy Fox-Isicoff.

For more info, including registration information online, click here.
For more info, including registration information by fax, click here.

Featured Article

Supreme Court Chastizes Ninth Circuit for Failing to Remand Asylum Case to BIA
Carl R. Baldwin writes "It is disconcerting to see the Ninth Circuit, so much admired by immigration lawyers for its sensitivity to the rights of asylum seekers, be so severely reprimanded by the Supreme Court."

Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here:

Immigration Law News

No Reversible Error In Dismissal Of Habeas Petition
In Davy v. INS, No. 02-6395 (4th Cir. Nov. 6, 2002), the court said that that it did not find any reversible error in the district court's decision to dismiss his habeas petition.

Inadequate Support For District Court's Finding Of Permanent Residence
In Culliford v. Queen, No. 02-1698 (4th Cir. Nov. 6, 2002), the court said that its review of the record indicated inadequate support for the district court's finding that Petitioner was a permanent resident of the US and remanded the matter for reconsideration of whether diversity jurisdiction exists in this case.

No Certificate Of Appealability To Cut State Sentences Short For Immediate Deportation
In Earle v. INS, No. 01-2369 (10th Cir. Nov. 6, 2002), the court said that Petitioner gave no cogent reason supported by relevant legal authority to show any error in the district court's holding that it had no jurisdiction to order Petitioner's state sentence be cut short so that he could be deported immediately and denied a Certificate of Appealability. Petitioner is serving state sentences for murder and other crimes and sought to be immediately deported.

No Issues To Appeal Where District Court Imposes Sentence Higher Than Plea Bargain, But Within Applicable Range
In US v. Rodriguez-Lopez, No. 02-3129 (10th Cir. Nov. 6, 2002), the court said that there were no issues to properly appeal the district court's imposition of a sentence at the higher end of the applicable Sentencing Guidelines range where the Defendant had pled guilty and the United States had recommended a sentence at the low end of the range (the district court had imposed the higher sentence in light of the Defendant's extensive prior criminal history).

Family Responsibilities Are Discouraged Factor For Downward Departure
In US v. Aguirre-Cordero, No. 02-1165 (10th Cir. Nov. 6, 2002), the court said that it had no jurisdiction to consider the propriety of the district court's knowing choice not to exercise its discretion to depart downward on the basis of the Defendant's need to provide financial support for sick family members which he alleged warranted expidited deportation.

INS News Release On TPS For Salvadorans
The INS issued a news release saying "the INS today reminded those eligible Salvadorans to re-register immediately for temporary protected status to maintain TPS and employment authorization."

INS Thwarts Haitian Attempts
The Miami Herald reports "Dealing a blow to more than 200 Haitians detained in South Florida, the INS thwarted attempts by an immigration judge to grant bond Wednesday to the migrants, charging that they pose a threat to national security."

Cubans And Haitians Receive Unequal Treatment
The Fort Lauderdale Sun-Sentinel reports "The landing of a boat load of Cubans in the Florida Keys on Wednesday magnifies complaints that Haitians receive unequal, racist treatment from U.S. immigration officials, immigrant advocates said."

Attorney listings on ILW.COM are searched 200,000 times/year! Each attorney listed is searched an average of once each day! Just one new client will pay for the entire year's fee! Click here for more info:


Labor Certification Advertising
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We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
For information on advertising in the classifieds please click here

For a listing of current immigration events please click here
For services/products of use in your law practice please click here

Letters to the Editor

Dear Editor:
Recently, in almost all Immigration Daily issues I find URL links to PDF documents on your web site that don't exist and it has begun to frustrate me because I am really interested in the full content. For example, in today's issue I was really interested in the following article,,1107-riley.pdf but this Adobe PDF file doesn't exist on your web server, or if it does, something is definitely wrong with the spelling of the URL link itself. (maybe it has to do with the comma in the file names? I've never seen it before but who knows?) Some of them work, some of them don't. If this happened only once or twice I wouldn't have taken time to mention this to you, but it happens to me almost every day and with more than one link per issue. I am wondering if I am the only reader who has such problems or if these web pages in fact don't exist at all. In case I am the only one, then obviously something must be wrong with my email software or web browser, in that case would it be possible to subscribe to Immigration Daily in a form that I would get the whole news in plain text without any URL links at all?

Geza Levai
Reseda, CA

Editor's Note: We checked the link above and it works just fine. We carry many pdf documents every day, and thousands of people download these each day on our website without problems. You may want to try cutting and pasting the link into the web browser and then hitting the return key. If the document still does not load, you should check if you can download pdf files from other websites. If not, then you need to reinstall the free Acrobat reader on your computer. You should also try this after rebooting your computer to see if there is something on your computer that might be causing this. Immigration Daily is sent out with the links embedded. In the future, we may make other formats available, but there are no plans at the moment.

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 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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