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Immigration Daily April 30, 2003
Previous Issues
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Editor's Comments

Legalization And Summary Affirmance

The 1st Circuit recently upheld the BIA's Summary Affirmance procedure (aka the regulation shearing the BIA) where, in many instances, the BIA simply "rubber-stamps" an Immigration Judge's decision, leaving one in doubt whether any meaningful review function was performed (Albathani v. INS, No. 02-1541 (1st Cir. Feb. 6, 2003, amended). As that decision stated: "For example, the Board member who denied [alien's] appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a ninehour day ... In fact, it has taken us considerably longer than one day to review this case, and the record of the hearing itself could not be reviewed in ten minutes." Still, finding the error harmless, the 1st Circuit upheld the procedure, while leaving the door open for future review by saying in the same opinion "Were there evidence of systemic violation by the BIA of its regulations, this would be a different case." It looks like the courts may not have to wait too long. The 9th Circuit recently decided a bizarre case where the BIA summarily affirmed a decision which the Immigration Judge never made (Murillo-Salmeron v. INS, No. 02-70704 (9th Cir. Apr. 28, 2003). Thankfully, the 9th Circuit held that "the BIA has no discretion to affirm a decision that was never made," but what was more interesting was its statement in the first para of the opinion: "While we recognize that the BIA is swimming in a sea of cases, barely able to keep itself afloat, there remains no excuse for the apparent failure to read the decision one is reviewing and to review the decision that was made." As we have written before, there is a fundamental underlying tension here - between those who would like to summarily deport every alien in sight - and the Bill of Rights. To see why this is so, let us for a moment pretend that the dreams of the "deport-em-all" crowd are granted, and the Feds go on a rampage, rounding up and deporting everyone who "looks" like an alien. There would then be nothing to prevent someone working for the government to deport a white, Anglo, all-American descendant of the Mayflower Pilgrims against whom that government employee had a grudge, if there were no basic fundamental due process, which involves, among other things, judicial review of deportation decisions. But even basic procedural due process puts a huge obstacle to large-scale speedy deportation, by the simple expedient of "gumming up the works," the works in this case being the American judicial system. It is our belief that events are moving in a direction which will take this matter out of the hands of both the Executive branch and the Judicial branch of our government. The legislature can only duck this issue for a while, not forever. Massive, large-scale legalization is not as far away as it looks.


ILW.COM Focus

"IRCA Strategies for Employment Immigration: Hot Issues in I-9s, Hiring Discrimination, OSC, etc."

The part of our immigration system that impacts America most widely is the I-9 form. No other provision of our immigration law touches more employers than the I-9 form. No other immigration form impacts more people - both citizens and aliens. However, the deceptively simple I-9 Form hides complex underlying issues and procedures. There are currently hundreds of government officials who are employed full-time and exclusively for I-9 related enforcement. With the creation of BICE, with its 14,000 personnel devoted to interior enforcement, new government initiatives for employer-related enforcement are entirely possible. All employers, including those downsizing and reducing their workforce, are impacted by I-9s, witness the hundreds of thousands of "mismatch" letters sent out by the Social Security Administration this past year.

ILW.COM's seminar series "IRCA Strategies for Employment Immigration: Hot Issues in I-9s, Hiring Discrimination, OSC, etc." seeks to unravel the complexity surrounding I-9s and its related issues. Led by the head of the IRCA group at the largest immigration law firm in the country, it features distinguished government panel speakers, includinig representatives from OCAHO, INS General Counsel, and OSC. While aimed at immigration attorneys, this seminar series would also benefit in-house counsel and corporate HR personnel. See the links below for more on this informative and educational seminar.

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Featured Article

New Interpretations On The Child Status Protection Act (CSPA)
Cyrus D. Mehta writes "Both the DOS and the INS, now known as the BCIS, have each issued guidance further clarifying some of the issues that have arisen as a result of the complex provisions in the CSPA."


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Immigration Law News

DHS Promulgates Interim Final Rule Accepting Electronic Signatures On E-Filed Immigration Petitions
The Department of Homeland Security (DHS) issued an interim final rule with request for comments on a rule that amends the DHS regulations concerning the signature requirement for applications and petitions filed with the BCIS by specifically permitting applicants and petitioners to sign electronically.

INS Letter Provides Guidance On Nurse Licensure
A letter from Efren Hernandez of the INS says, "If the only barrier to licensure is the lack of a social security number and the petition is otherwise approvable, the INS may approve the H-1B petition for a period of one year." (courtesy of Sylvia Boecker)

Supremes Say INS Detention Of A Criminal Alien Who Concedes That He Is Deportable Does Not Violate Due Process
In Demore v. Kim, No. 01-1491 (Sup. Ct. Apr. 29, 2003), the court held that the INS detention of Defendant, a criminal alien and naturalized resident who had conceded that he was deportable, for the limited period of his removal proceedings, did not violate due process, as the detention period "served the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings" and as the detention not only had a definite termination point but in the majority of cases was for less than the 90 days the Court considered presumptively valid in Zadvydas. The court also held that federal courts had jurisdiction to review a constitutional challenge to 8 USC 1226(c).

Quoting Rescinded Portion Of 1st Circuit Case, 11th Circuit Says BIA's Summary Affirmance Does Not Violate Guatamalan's Due Process Rights
In Mendoza v. INS, No. 02-13235 (11th Cir. Apr. 16, 2003), the court in denying the Petitioner's asylum claim quoted from a portion of a recent 1st Circuit decision which portion had recently been rescinded and revised by the 1st Circuit. The argument which the 11th Circuit addressed here concerned the Board of Immigration Appeal's (BIA's) summary affirmance procedure.

Bangladeshi Fails To Satisfy Past Persecution
In Atique v. Ashcroft, No. 02-3283 (3rd Cir. Apr. 28, 2003), the court said that the Immigration Judge's finding that there was no past persecution was supported by substantial evidence, and said that the harrassment allegedly inflicted on him during his service in the Bangladesh air force-providing him with inadequate practice hours to maintain his flying skills and failing to consider his application to resign in a timely fashion did not rise to the level of persecution.

No Jurisdiction Where There Is No Meaningful Standard Against Which To Judge BIA's Exercise Of Discretion
In Belay-Gebru v. INS, No. 02-9509; 02-9518 (10th Cir. Apr. 28, 2003), the court granted the motion to publish its order and judgment dated March 26, 2003, where the court referred to the revised Board of Immigration Appeal's (BIA) regulations at 8 CFR 3.2(a) and said, "Because we have no meaningful standard against which to judge the BIA's exercise of its discretion, we hold that we do not have juridiction to review [Petitioner's] claim that the BIA should have sua sponte reconsidered the Immigration Judge's order."

Immediate Deportation May Not Be Ordered As Condition Of Supervised Release
In US v. Tinoso, No. 02-10128 (9th Cir. Apr. 25, 2003), the court held that the district court exceeded its authority in ordering, as a condition of supervised release, immediate and automatic deportation without a deportation hearing.

1252(d)(1)'s Exhaustion Requirements Apply To 2241 Habeas Proceedings
In Sundar v. INS, No. 02-13878 (11th Cir. Apr. 25, 2003), the court said that "An alien with a claim he wants to bring in a habeas proceeding may not bypass the Board of Immigration Appeals (BIA) simply because he thinks it will be unsympathetic to his claim, because the BIA may decide, upon reflection, that the contention is valid."

"BIA Has No Discretion To Affirm A Decision That Was Never Made"
In Murillo-Salmeron v. INS, No. 02-70704 (9th Cir. Apr. 28, 2003), the court said that "the Board of Immigration Appeals (BIA) committed legal error in deporting Petitioner based on his ineligibility for a [212h] waiver which, as the Immigration Judge noted in the very decision under review, was not required in the first place [for an adjustment of status].

Border Towns Express Concern That Entry-Exit Registration System Will Hinder Local Economy
The Arizona Star reports "...Arizona border city officials cringe as they contemplate what the new tracking system might do to their cities' economic security in the name of homeland defense."

A Firsthand Account Of The USA Patriot Act In Action
A firsthand account in San Francisco's Alternet says, "Two weeks ago I experienced a very small taste of what hundreds of South Asian immigrants and US citizens of South Asian descent have gone through since 9/11, and what thousands of others have come to fear. I was held, against my will and without warrant or cause, under the USA Patriot Act."

It's A Stretch To Label Indefinite Detention Without A Hearing A Matter Of National Security
A Rocky Mountain News of Denver, CO op-ed on Attorney General's assertiong of power to lock up indefinitely without hearings says, "The decisions about which illegal aliens should be locked up properly belong to the immigration courts, and certainly should not be made on a wholesale basis."


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Letters to the Editor

Dear Editor:
I note the canard in "Chucky's" letter of April 29th that attorneys are practicing immigration law to "line their pockets with fees." As an attorney whose practice since 1977 has been concentrated in areas pertaining to immigration law and practice, I am heartened by the number of fellow AILA member attorneys who selflessly share their time and knowledge. Most of my colleagues are dedicated to the advancement of their clients' cases because the attorneys seek to improve the lives of their clients, and understand the overall benefits of immigration to the general welfare of the US. Most immigration lawyers also understand that there are many other areas of law that are much more financially rewarding than the practice of immigration law.

Robert R. Gard
Chicago, IL

Dear Editor:
Obviously, "Chucky" has an ax to grind with lawyers. I wonder if he has the same chip on his shoulders toward, doctors, or for that matter does he shave his head so he won't have to go to a barber? The truth is, lawyers serve their client and immigration lawyers' clients are immigrants. AILA serves immigration lawyers, but also serves as a counter balance to the far right wing anti-immigrationists. Chucky must understand that ILW.COM is a publication that provides a service to lawyers and laymen alike, by offering cutting edge articles and timely news clips that keep us all informed. It appears that, ILW.COM provides readers, on both sides of the immigration issues, to express their views. ILW.COM does not have to do this - I assume they do it to spark a debate of the issues and to make their publication interesting. This seems clear from the vigorous debates over the past year in ILW.COM's letters to the Editor to which Richard Baer, The Lone Ranger and others have contributed, but which now, sadly, have pretty well fizzled to an argument over whether Ali Alexander's statistical claims about taxes are accurate - the kind of debate that is about as relevant as how many elephants can fit on the head of the Director of Homeland Security. Chucky must also understand that there is room in this world for all points of view and all professions, and that the immigration problems facing our nation are not going to disappear just because he may have a particular point of view. The trick is, how do we make the immigration system work for the betterment of the US? Maybe Chucky can tell us.

David D. Murray, Esq.
Newport Beach, CA

Dear Editor:
In response to Doug Edmond's letter, and your answer, well, not quite like you say it is, here is what shows up, where's Part 1? I was going to write to ILW.COM today with the same query as Doug, but then saw his. It really would be easiest if you could provide direct links to the various "Part" type articles. I have run into this with the Lester Series, which always seemed to be out of order and Paparelli articles. Although I read Immigration Daily every day, I sometimes wonder how I have missed parts 1 and 2 of something like yesterday's part 3. You know, we lawyers only have so much time in the day and searching is time consuming.

Name Not Provided

Editor's Note: Providing links is something that our readers have asked for in the past. However, due to resource constraints, this is unfortunately not possible. Try using our advanced search engine to find the items of interest. Our search engine is a very powerful tool that can be used to search past cases, articles, news items, etc but which requires a little time to master. Unselecting all options (including word stemming) and using natural language for type should elicit the desired search results. For example, suppose you are looking for a multi-series article, for e.g. type in, "From The Beginning: Agile Immigration Advocacy For New Businesses", select articles in the dropdown box, unselect word stemming, select natural langugage, and click search. All three articles, Part 1-3 are displayed in the search results, which appeared each Monday, beginning in the April 11, 2003 issue of Immigration Daily.


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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