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On Nurses and Tourist Visas
Christopher T. Musillo, Esq. writes about nurses and cautions against use of the tourist visa to enter the US.
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Immigration Law News
Defendant Bears At Least Burden Of Production When Seeking Exception To Sentencing Enhancement
In US v. Valdovinos-Soloache, No. 02-1069 (2nd Cir. Oct. 24, 2002), the court said that where Defendant seeks an exception to a guideline enhancement for unlawful reentry after deportation which enhancement the government had shown was prima facie applicable, the Defendant bears at least the burden of production.
Less Than 50 Percent Likelihood Of Success Warrants Stay Of Removal
In Mohammed v. Reno, No. 02-2443 (2nd Cir. Oct. 24, 2002), the court said that the Petitioner needs less than 50 percent likelihood of success to warrant a District Court's stay of removal pending appeal of an adverse habeas Petition, but that there was no likelihood of success for Petitioner obtaining 212(c) relief since he was convicted of an aggravated felony after the enactment of AEDPA.
Rep. Tancredo Does Not Have Votes To Stop President, Considers Sponsoring
Guest Worker Legislation
A column in the American Conservative quotes Rep. Tancredo (R-CO) "When I
first thought about the election results I was pleased for the Republican
victories. The more I thought about it though, I realized that President
Bush will get most of the credit and that raises the question of how he
will use his popularity. I know this. If he wants an amnesty bill, we donít
have the votes to stop him" and also discusses Rep. Tancredo's guest worker
Former Speaker Gingrich Calls For New Guest Worker Program
Writing in the Wall Street Journal, former House Speaker Newt Gingrich says
"we need a new guest-worker program, which helps control the border by
legalizing the flow of honest people who want to work, play by the rules
and pay taxes."
Legalizing The Undocumented Would Serve US Security Interests
An editorial in the Sacramento Bee says "normalizing foreign workers'
status would serve U.S. interests by making them part of a system that
could be monitored, rather than leaving them to live precariously in the
shadows, from whence threats to security are likelier to come."
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Letters to the Editor
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A complaint was filed on Dec. 24 in the federal district court in Los Angeles on behalf of the American-Arab Anti-Discrimination Committee (ADC), the Council on American Islamic Relations (CAIR), the Alliance of Iranian Americans (AIA), the National Council of Pakistani Americans (NCPA), and six individuals required to register (four who registered and were arrested, two of whom entered on a Visa Waiver Program and therefore face removal without a hearing, and two who did not register as they fear illegal arrest).
The complaint includes two claims: (1) The mass warrantless arrests are illegal because they are taking place without required individualized determinations that the registrant is likely to flee before a warrant can be obtained (a requirement of the Immigration and Nationality Act), and (2) persons with adjustment applications pending and visas available should not be detained without bond or deported (an immediate problem faced by individuals who entered on a Visa Waiver Program).
While the plaintiffs all believe the registration program is not an effective tool in the war on terrorism, the lawsuit is not a general attack on the program, but rather on the way it is being implemented, at least in Southern California where the only mass arrests seem to have taken place.
The mass warrantless arrests are not only unlawful, they also seriously undermine the registration program by creating widespread fear in the Muslim and Arab immigrant communities deterring people from timely registering. These individuals may later face serious penalties for not having timely registered. We will probably soon amend the complaint to seek an "extension" of the registration deadlines in light of the mass arrests which discouraged individuals from timely registering.
We allege a class of all persons required to register in the INS Western Region. We would like to hear from community groups, advocates, and lawyers about the experience in cities other than Los Angeles as we need to quickly determine whether to limit the class to the Los Angeles district office, or keep it as broad as the Western Region.
We are interested in learning about a few types of cases: (1) people arrested who entered on a Visa Waiver Program and therefore face immediate removal without a hearing, (2) people arrested despite having a pending adjustment application with a visa currently available, (3) people arrested who wish to pursue a claim for damages for wrongful arrest, and (4) anyone else in urgent need of help.
We are trying to set up a meeting with INS officials in LA for early this coming week to explore whether the registration program can be implemented without future mass arrests. We will keep you posted. We've agreed to delay a TRO hearing for a few days while we explore the possibility of a meeting and while the question of which judge will preside over the case is resolved. The case was originally assigned to district judge Tagasuki in Los Angeles, but was then low-numbered and transferred to judge Stotler in Orange County (who recently denied a TRO in another case dealing with the registration program). We're opposing the transfer and hope in the next few days to learn whether the case will be transferred back to judge Tagasuki. Either way, unless a meeting bears positive results, we plan to seek a preliminary injunction blocking further mass warrantless arrests before the next January 10, 2003, deadline for registration, and a temporary restraining order barring the removal of individuals who have visas available but entered on a Visa Waiver Program and therefore face imminent removal from the country.
Articles are available on the web (New York Times, Washington Post, LA Times, LA Daily Journal, St. Louis Dispatch, BBC, CNN, etc. all have reports on the registration program and the lawsuit available on their web sites). ADC's and CAIR's web sites also include useful information on the registration program and the case, as does the web site of the American Immigration Lawyer's Association (AILA).
A group of about 12 public interest and private lawyers is working on the case (see complaint pp. 1-2).
Center for Human Rights and Constitutional Law
Los Angeles, CA
Regarding Matthew Park's letter in your December 16
issue, no matter how we feel about the fairness of
continued US military presence in South Korea, I don't
think it's fair to bash the US based on this one
incident. Certainly, when US soldiers committed
crimes in Japan, we have seen that they have been
prosecuted and the media covered those. I don't know
enough about the incident in Korea but perhaps there
was a reason why no one was prosecuted. Perhaps it
was determined to have been an accident and not a
criminal matter. Just because no "main US media"
covered the story doesn't mean there was some kind of
injustice or that the US values Korean lives cheaply.
Thousands of crimes and incidents of all sorts right
here in the US are not reported by the major media.
The recent and horrific Kansas murder trial of five
people by two ex-felon brothers were not covered by
the major print media (although it was on Court TV and
the Drudge Report.)
As far as the Korean businessman in Mr. Park's letter,
what was the complete story on him? Was he a US
citizen, a permanent resident, here on non-immigrant
visa, or has no status? We don't know. Even though
Mr. Park was being sarcastic and asked a rhetorical
question, I don't think a US citizen like Mr. Park has
to worry about the INS detaining him at the airport
because of traffic violations or even any major
criminal matter (I suppose if a naturalized citizen is
known to be a terrorist the INS might be able to
detain him or her at the airport). The Korean
businessman was probably not a US citizen. If he
were, all he needed to do was to show proof of
citizenship and be released. If there was a pending
criminal matter, the police, sheriff, or federal
authorities would take over custody of the person, but
not the INS.
Liem Doan, Esq.
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