Neg Reg In Immigration
In a recently concluded two-part article, Gary Endelman advocates the view
that Negotiated Rulemaking should be used in immigration law. Setting forth
its advantages, he quotes the Congressional Findings:
"Agencies currently use rulemaking procedures that may discourage the
affected parties from meeting and communicating with each other, and may
cause parties with different interests to assume conflicting and
antagonistic positions and to engage in expensive and time-consuming
litigation over agency rules;
Adversarial rulemaking deprives the affected parties and the public of the
benefits of face-to-face negotiations and cooperation in developing and
reaching agreement on a rule. It also deprives them of the benefits of
shared information, knowledge, expertise and technical abilities possessed
by the affected parties;
Negotiated rulemaking can increase the acceptability and improve the
substance of rules, making it less likely that the affected parties will
resist enforcement or challenge such rules in court. It may also shorten
the amount of time needed to issue final rules."
Commenting on the chaos in immigration rules, Mr. Endelman says:
blindingly transparent, however, is that what we have now simply has broken
down . Years pass after Congress enacts major immigration legislation and,
time after time, implementing regulations are nowhere to be found. Is there
anyone who knows anything about immigration policy or practice who would
not acknowledge a real and present need for rules that are clear, specific
and technically accurate? Does America require earlier implementation of
regulations or a higher compliance rate? Would our economy benefit from a
more cooperative relationship between regulators and those they regulate?
In the traditional adversarial process, do most commentators join in a
creative exchange about possible solutions to ultimate problems or do they,
instead, devote virtually all of their energies to probe the most arcane
details of the agency draft? Does adversarial rulemaking facilitate mutual
education on the proposed rule's practical effect? Does it help to keep
jobs in the United States, protect American workers, or enrich employers?
What is the cost to the parties and the rulemaking process itself arising
from the perpetual cycle of adversarial research and positioning? Are the
parties encouraged by traditional rulemaking to focus on the best way to
formulate honest strategies most capable of resolving fundamental
differences? The questions literally answer themselves."
"So long as we instinctively focus on how immigration affects
immigrants, we will not think long and hard on how the immigrants are
affecting us. For negotiated rulemaking to gain a greater measure of
immigration-related acceptance, Americans must shift from thinking of
immigration as a form of international social work to a recognition that
immigration is central to the health of our national economy and vital to
the ability of that economy to dominate the global marketplace. Until we as
a nation wake up to the fact that we have serious immigration problems and
need serious procedures to solve them, negotiated rulemaking will remain
what it is now, namely an intriguing illusion whose time has not yet come."
With PERM looming, the immigration bar is faced with the prospect of
aggressive litigation as a necessary practice tool. Perhaps Neg Reg may
avoid numerous trips to the Court House for both the Bar's clients and the
DOL (to say nothing about Neg Reg's advantages for DHS). Those interested in this subject will find Mr. Endelman's articles fascinating reading. For
Part 1, see:http://www.ilw.com/articles/2003,0717-endelman.shtm. For Part 2, see:http://www.ilw.com/articles/2003,0718-endelman.shtm
Registration Deadline Is Monday, July 21st
Monday, July 21st is the deadline to register for an important seminar on
of Status. This is a critical and perennially important part of the
immigration process which has become unexpectedly and surprisingly complex.
Recent developments in this area involve concurrent processing,
and travel, status violations and the infuriatingly complex Child Status
Protection Act. Being on the cutting edge will give you a competitive edge - just one case justifies the cost. The seminar includes an in-depth
Q&A period where you can pose questions regarding your cases to the panel.
This seminar is also a great training tool for the entire law firm staff
(one registration covers everyone sharing a speakerphone). A word about the
panel: Ron Klasko is one of the most popular speakers on immigration law in
the country and will generously share his wisdom and experience with you.
Joining him is Tammy Fox-Isicoff, who is an accomplished lawyer, and an
energetic and dynamic speaker. The seminar is offered by phone, so law
offices around the country can participate. The deadline to register is
Monday, July 21st. For more info, including detailed curriculum, speaker bios, and registration information, please see: http://www.ilw.com/seminars/may2003.shtm. For the fax version, please see: http://www.ilw.com/seminars/may2003.pdf.
Introduction To Representing Noncitizens In Removal Proceedings: Part 1 Of 5
Michael J. Boyle offers a detailed primer on removal proceedings and other forms of relief to noncitizens.
Staying Out Of Harm's Way: Immigration Pitfalls That Employment Lawyers And Their Clients Should Avoid: All Parts Compiled
Angelo A. Paparelli and John C. Valdez provide an overview of the immigration consequences of a variety of employment decisions.
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Immigration Law News
DOS Seeks Comments
The Department of State sought comments on nonimmigrant V visa application, Form DS-3052.
BICE Announces Removal Of A Specially Designated Global Terrorist
The Bureau of Immigration and Customs Enforcement (BICE) announced that an order by the Sixth Circuit cleared the way for the BICE to remove the former President of Global Relief Foundation, an organization that has been designated by the Department of Treasury as a "Specially Designated Global Terrorist".
New Statistical Yearbook Section Says 63% Of All Legal Immigrants Were Family Sponsored In FY '02
The INS released the Immigrants Section (46 pps.) of its 2002 Statistical Yearbook Section which presents information on the number and characteristics of persons who immigrate to the US.
BALCA Says Regulations Prohibit Attorney From Interviewing Unless Such Is Normal For Job
In the Matter of Chicken George, No. 2003-INA-247 (BALCA, Jul. 14, 2003), the Board of Alien Labor Certification Appeals said that no response was given to the question of whether the attorney who interviewed the prospective US applicant normally interviews prospective job applicants.
BIA Can Define Hardship Narrowly But Courts Retain Jurisdiction To Review BIA's Interpretation
In Ramirez-Perez v. Ashcroft, No. 02-71038 (9th Cir. Jul. 18, 2003), the court said that although the Board of Immigration Appeals (BIA) will consider the fact that the country of return had a lower standard of living, such a fact would normally "be insufficient in [itself] to support" a hardship determination and said that the BIA did not exceed its broad authority by defining "exception and extremely unusual hardship" narrowly and emphasized that it retained jurisdiction to review whether the BIA's interpretation of the hardship standard violates due process.
Indian's Asylum Claim Denied For Lack Of Corrobating Evidence
In Malhi v. INS, No. 02-71609 (9th Cir. Jul. 18, 2003), the court said that "given the lack of corroborating evidence, we cannot say that we are "compelled" to believe Petitioner's story where the the Board of Immigration Appeals found it implausible that Petitioner, a university-educated man who spoke Punjabi, Hindi, Bengali, and English, could not read or write Punjabi if he had in fact lived in Punjab and operated a business there for eight years."
Guatemalan Fails To Respond To IJ's Finding Of Changed Country Conditions
In Quevedo v. Ashcroft, No. 02-2227 (1st Cir. Jul. 17, 2003), the court said that "while [Petitioner's submission] supports the claim that conditions in Guatemala are not completely settled, it does little to confirm Petitioner's argument that apolitical members of agrarian cooperatives face continued dangers."
Petitioner Is Not Prejudiced By Omission Of Year In NTA
In Elbaz v. Ashcroft, No. 02-60616 (5th Cir. Jul. 18, 2003), the court said that the Petitioner was not prejudiced by any omission of the year in the date of issuance of the notice to appear and said that his advance parole documents legally did not serve to effect entry and ceased to be valid for any purpose once the charging documents were served.
Petition For Review Of Guatemalan Asylum Claim Denied
In Gonzalez-Hernandez v. Ashcroft, No. 02-72178 (9th Cir. Jul. 18, 2003), the court citing the Supreme Court's opinion in INS v. Ventura said that "it is entirely appropriate for the [Board of Immigration Appeals] to "bring its expertise to bear upon the matter", and decide which portions of the report are relevant to the applicant.
Specifying Particular Aggravated Felony Is Unnecessary In Indictment Under USSG 2L1.2
In US v. Almarez-Ramirez, No. 03-4210 (4th Cir. Jul. 17, 2003), the court said that "because the indictment need not have specified the particular aggravated felony for which Defendant was previously convicted, we find this claim meritless."
Jury Instructions In Transportation Of Undocumented Alien Case Upheld
In US v. Guerra-Garcia, Nos. 02-1906, 02-1930 (1st Cir. Jul. 16, 2003), the court turned down Defendant's challenge of the jury's instructions and said that "we believe the court's use of "probably" in the instruction was a reference to [an illegal alien's] status, and not to the likelihood of the Defendant's knowledge of that status, in a case involving transportation of an undocumented alien.
200 Service Members Benefit From Expedited Citizenship
The Navy Newsstand of Washington, D.C. reports "It was awesome to witness so many servicemembers become US citizens, particularly those Sailors just returning from the Iraqi War. They are all so deserving of US citizenship. Since the inception of streamlined US citizenship processing for servicemembers, NRSW has become a role model for other regions and departments by making US citizenship a reality for thousands of servicemembers."
Two Brothers Charged With Fabricating Transcontinental Love Matches For Profit
The Washington Post reports "Families in China each agreed to pay the Cheng brothers $20,000 to $60,000 to help them line up phony fiances in the US so that their young sons and daughters could get visas to enter the country, prosecutors have charged."
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Letters to the Editor
Have you received any comments on the proposed L-1 Nonimmigrant Reform Act Introduced by De Lauro (D-CT)?
Name Not Provided
Editor's Note: We publish about 90% of the letters to the Editor that we receive so please be on the lookout for future issues in case some of the other 12,000+ readers of Immigration Daily decide to respond to your query.
Richard Baer did not recognize that my tongue was in my cheek. As Mr. Baer indicates in his letter to the Editor, I do not believe in open borders, and he misinterprets my satire. And like Mr. Baer, I do see a need for the US and Mexico to cooperate with each other for the benefit of both countries. And like Mr. Baer, I see a need for a controlled work authorization program from Mexico, but perhaps not exclusively from Mexico, unless they will give us some modicum of control of their oil in return. However, I fear that in the long run, this may just maintain the status quo in Mexico and not really benefit either country long term, although it will immediately benefit a few on both sides of the border. I wonder just how a line in the sand drawn from San Diego to Brownsville can be the dividing line between rich and poor? For Pete's sake, Mexico is a democracy that is rich in natural resources, natural beauty, strong religious heritage, a rich cultural heritage, with strong family values. Why is it desperately poor, while the US is so obscenely rich? What would have happened if in 1848 the Treaty of Guadalupe Hidalgo had not secured California, Nevada, Arizona, New Mexico and Texas for the US? Would "the line in the sand" merely be a few hundred miles further to the North, with no difference in the Mexican economy? My point that Mr. Baer obviously seems to have missed, is that there is always someone who believes some law is not working - at least for them, the problem is, who is going to decide just what laws "work" and what laws do "not work" for the US? Well, perhaps it should be George and his band of merry men of Sherwood Forest, D.C, who seem to have no trouble robbing from the poor to give to the rich, now actively scanning the globe, determining what despots should fall and which should be left to rule over another day of tyranny, and in passing legislation like Patriot I (thank goodness Patriot II did not pass), and establishing closed-hearing policies that erode the basic freedoms on which we Americans pride ourselves. But why do guest workers need to come only from Mexico? Liberia anyone? Sierra Leone? How about the Lost Boys of Africa, or North Korean refugees who are waiting in refugee camps, eager to come to America for a better life? And so I again ask, why Mexico, a democracy with some of the wealthiest individuals in the world and an oil reserve owned by a corrupt government controlled cartel that even the Bush Administration has been unable to uproot? If we are going to open our borders to guest workers, even on a controlled basis, should we not be fair and distribute the benefits equally around the world?
David D. Murray, Esq.
Newport Beach, CA
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