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Immigration Daily July 2, 2003
Previous Issues
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Editor's Comments

Many Items

Today's issue covers a number of items of interest: A BALCA case features the inimitable DOL conclusion that an applicant's spouse is a third party, BCIS announced that TPS has been extended for Montserrat, DHS launched a week-long celebration of citizenship featuring many naturalization ceremonies, and EOIR released new local operating procedures for two immigration courts. There is much else including an article on recent memos on the Child Status Protection Act, five cases from the circuit courts, two classifeds, and much more. To find the item(s) of interest to you, please scroll below, and click on the link(s) to access the original document(s).


ILW.COM Focus

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Featured Article

A Critical Look At BCIS'/DOS' Interpretations Of The CSPA: Part 1 of 2
Alan Lee, Esq. examines eligibility under section 204 of the Immigration & Nationality Act for the benefits of the Child Status Protection Act in light of recent interpretations by the BCIS and the DOS.


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Immigration Law News

USSC Seeks Comments
The US Sentencing Commission sought comments on possible priority policy issues for the amendment cycle ending May 1, 2004, including immigration related provisions.

DOS Seeks Comments
The Office of Visa Services of the Department of State sought comments for Form DS-1884, petition to classify special immigrant under INA 203(b)(4) as an employee or former employee of the US Government abroad and provided a 60-day notice.

Monserrat Designation Under TPS Extended
The Bureau of Citizenship and Immigration Services (BCIS) annonced the extension of the designation of Montserrat for Temporary Protected Status effective August 27, 2003 thru August 27,2004. The 60-day re-registration period begins July 1, 2003, and will remain in effect until September 2, 2003.

Pardon Waives Only Grounds Of Removal Specifically Set Forth, No Implicit Waivers
In re Suh, 23 I&N Dec. 626 (BIA, July 1, 2003), the Board of Immigration Appeals said that "the Defendant's pardon did not waive his removability as an alien convicted of a crime of domestic violence or child abuse under section 237(a)(E)(i) of the INA, because that section was not specifically included in section 237(a)(2)(A)(v)."

BICE Says Accused Human Smuggler And Financier Extradited To US
The Bureau of Immigration and Customs Enforcement (BICE) announced today that an accused human smuggler and financier had been extradited from Hong Kong to the US. "It may have taken ten years to get Cheng into a US court for smuggling thousands of Chinese migrants but that only demonstrates BICE's resolve to identify, investigate, locate and bring to prosecution those who traffick in human beings," said Michael J. Garcia, Acting Assistant Secretary for BICE.

9,500 New Americans To Be Inducted At 50 Naturalization Ceremonies Nationwide, Kicks Off Weeklong Citizenship Celebration
The Department of Homeland Security issued a press release launching a weeklong celebration of the Nation's independence that highlights the importance of legal immigration and citizenship. Secretary Ridge said, "Welcoming new citizens to the US is one of the most important things that we do as a nation. Immigrants invigorate our national spirit and reinforce the ideals and principles that are the foundation of our great nation."

New Local Operating Procedures For Buffalo And Batavia Immigration Courts
The Executive Office for Immigration Review of the Department of Justice released new local operating procedures for the Immigration Courts in Buffalo and Batavia, New York.

BALCA Says Applicant's Spouse Is Third Party
In the Matter of Emmanuel Health Care Center, No. 2002-INA-135 (BALCA, Jun. 30, 2003), the Board of Alien Labor Certification Appeals decided a case involving a nurse and said that "third party communication such as leaving a telephonic message with an applicant's spouse is insufficient to establish that the applicant is not interested in the job, unless the employer proves that it made contact with the applicant."

Judicial Review Can Survive 8 USC 1252(a)(2)(C)
In Alvarez-Santos v. INS, No. 01-71478 (9th Cir. Jun. 20, 2003), the court said that 8 USC 1252(a)(2)(C) precludes judicial review only when an alien is actually determined to be removable and ordered removed on the basis of a covered criminal act.

BIA Errs In Providing Minimal Analysis On DRC (Zaire) Petitioner's CAT Claim
In Zubeda v. Ashcroft, No. 02-2868 (3rd Cir. Jun. 23, 2003), the court said that the Board of Immigration Appeals (BIA) erred in providing only a minimal analysis of Petitioner's claim.

Entire Criminal History Can Be Considered For Sentencing
In US v. Corona-Arreola, No. 02-4196 (10th Cir. Jun. 23, 2003), the court said that "it was proper for a sentencing court to consider a Defendant's entire criminal history in determining whether the enhancement was applicable."

No Jurisdiction To Review Removal Proceeding After Removal
In Patel v. Attorney General, No. 02-12662 (11th Cir. Jun. 27, 2003), the court dismissed a petition for review to reopen a removal proceeding filed after the removal order had been executed for lack of jurisdiction and said that "there could be no doubt that the removal order [which had been executed] was an order which Congress intended to shield from judicial review."

10th Circuit Reverses Based On Demore v. Kim
In Sosa v. Greene, No. 00-1339 (10th Cir. Jun. 20, 2003), the court reversed the district court's rulings that 8 USC 1226(c) was unconstitutional as violative of both substantive and procedural due process in light of the Supreme Court's holding in Demore v. Kim.

BICE Says Misunderstanding Regarding War On Terrorism Hero's Immigration Problem
The Contra Costa Times of San Mateo, California reports Kwame James, a basketball player, traveled the world in search of games. "What's not typical is how he got tangled up in immigration red tape, especially since he happened to be a hero in the war on terrorism."

Secretary Ridge Says Talks With Mexico On Migration Pact Could Restart Soon
The New York Times reports "The Department of Homeland Security head Tom Ridge said Monday Mexico's collaboration with Washington on drugs, terrorism and other issues could pave the way for talks on a migration pact to re-start soon."


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Classifieds

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Letters to the Editor

Dear Editor:
I thank Justin for his comments and the questions he raised, which I will now address. The point made by Mr. Devaronkonda in the quote I cited concerned the green card process, not the H-1B visa directly. Note that that was my point as well, i.e. that the de facto indentured servant nature of the visa, at least for those who are being sponsored by their employers for green cards, stems from de facto immobility (even in terms of promotions) of the H-1B during the multi-year green card process. Concerning Justin's letter wondering why so much of the H-1B debate focuses on IT workers, the INS data show that more than half of H-1Bs are in that field. Moreover, that field has been the growth area for H-1Bs in recent years, and the IT industry has dominated the lobbying of Congress to expand the H-1B program. However, that doesn't mean that abuse is limited to that field, and I would particularly object to Justin's claim of a shortage of bilingual workers. There are plenty of naturalized citizens and LPRs with bilingual skills who would love to get many of the non-IT jobs now going to H-1Bs, again due to the exploitability of the latter. Continuing his earlier objection to the description of the H-1Bs as de facto indentured servants, Justin's letter counters that it is simply a "voluntary undertaking on both sides." But that was also true of the original (de jure) indentured servants of the 18th century. And again, whatever name ones gives it, the bottom line is that the employer has tremendous leverage over the workers, resulting in wage exploitation and other types of abuse. Justin's letter finds it contradictory that I decry the exploitation of the H-1Bs on the one hand, while on the other hand supporting the employment-based immigration of "the best and the brightest." His letter states that if the first of these harms individual citizens of the given H-1B-sending nation, the second harms that nation as a whole by slowing its technological development. But first of all, this is certainly not a contradiction in the legal sense; the law makes it illegal (though unfortunately commonplace) to underpay an H-1B but the law also encourages the immigration of top talents through various fast-track provisions. The governments of the immigrant-sending nations support the outmigration of their top talents, reasoning that it is actually a long-term investment for their nation, as the outmigrating stars often later help to develop their home countries after they have established themselves in the field in the US. The immigrating stars, for their part, point out that their home countries simply do not have the infrastructure, resources and so on to make much use of their talents; a Third World country cannot afford to do highly expensive "big science."

Norm Matloff


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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