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Immigration Daily August 29, 2003
Previous Issues
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Editor's Comments

Arnold Schwarzenegger And Immigration

Austrian immigrant Arnold Schwarznegger is one of the leading contenders for Governor of California in the recall election scheduled for October 4th in that state. Being the largest state in the nation, and in many ways the front line in the unfolding story of immigration today, the role of immigration in that election bears notice. Mr. Schwarzenegger voted for Proposition 187, the notorious anti-immigrant measure that apparently cost the Republican Party dearly in California. However, in recent days, he has sounded somewhat less anti-immigration, e.g. the following quote on undocumented immigrants in the San Francisco Chronicle: "These are people that are working here, many of them are working here for many, many, many years, and doing a great job. And so we have to figure out how we handle that." It appears that Mr. Schwarzenegger is looking for ways to include the 10,000,000 undocumented into our polity in recognition of the fact that they are already de facto Americans. In this he joins many ordinary Americans, who do not like undocumented immigration, but cannot stomach the Gestapo-style techniques that would necessarily be required if the anti-immigration lobby's dream of mass deportation were to be realized. According to current polls, it appears that either Mr. Bustamante, the current Lt. Governor of California (and son of immigrants) or Mr. Schwarzenegger will succeed Mr. Davis as Governor of California. In either event, California will see either an immigrant or son of immigrants elected Governor of our nation's largest state, home to almost 1 in 8 Americans.


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Immigration Law News

Final Rule Issued Delegating BCBP Authority
The Bureau of Customs and Border Protection promulgated a final revising Title 19 of the Code of Federal Regulations and the delegation of authority from the Department of Treasury to the BCBP caused by the creation of the Department of Homeland Security.

BALCA Says SCA Wages Apply For Mexican Specialty Cook, Supervisory Duties In ETA-750A Notwithstanding
In the Matter of Azteca Mexican Restaurant, Inc., Nos. 2003-INA-282 thru 286 and 2003-INA-291, (BALCA, Aug. 13, 2003), the Board of Alien Labor Certification Appeals said that "although Employer amended the [non-supervisory cook] job description to include purported supervisory duties, it is apparent that this amendment was solely done for the purpose of attempting to remove the position from a [Service Contract Act] SCA wage. More is required of Employer than simply stating that the position is supervisory and amending the ETA-750A." The BALCA apparently believed that Employer's organizational chart was not on point and/or not sufficient to document that SCA wages did not apply.

Petitioner's Failure To Attend Removal Hearing Is Due To Ineffective Assistance Of Counsel, An Exceptional Circumstance
In Lo v. Ashcroft, No. 02-70384 (9th Cir. Aug. 27, 2003), the court said that the Board of Immigration Appeals abused its discretion in denying the Petitioner's motion to reopen the in absentia removal hearing because their failure to attend their removal hearing was due to ineffective assistance of counsel which was an "exceptional circumstance" within the meaning of 8 USC 1229(e)(1), requiring rescission of their removal order pursuant to 8 USC 1299a(b)(5)(C)(i). The court also noted that despite Petitioner's failure to register a complaint against counsel with proper disciplinary authorities there was no suggestion of collusion between Petitioners and counsel to achieve delay.

Exceptions To Exhaustion Requirement Are Absent In Petitioner's Claim
In Madkour v. Ashcroft, No. 02-2781 (2nd Cir. Aug. 26, 2003), the court said that Petitioner's habeas petition must be dismissed because his failure to exhaust administrative remedies deprived it of subject matter jurisdiction.

Man Convicted Of Alien Worker Fraud Faces Penalty Of Up To $6.25M
The South Florida Business Journal reports a man pled guilty to faking visas for alien workers, the government said, adding the man's maximum penalty could be up to 245 years in prison and fines of up to $6.25 million.

Immigration Consultancy Business Folds, Leaves Immigration Documents Behind
The Record of Stockton, California reports that what appears to be an abandoned immigration consultancy practice, left behind in plastic garbage bags, many immigration documents containing important personal documents of people who used its immigration services.


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Letters to the Editor

Dear Editor:
There are instances where merely filing a lawsuit results in approval of long overdue actions on petitions/ applications. I would like to share a recent success story with Immigration Daily readers. Earlier this month, I filed suit regarding the denial by the BCIS of an I-539 on behalf of a domestic servant of a US citizen residing abroad. The client did not file for an EAD until she had been in the US for 2 months, and therefore, although the INS had belatedly granted the EAD, it subsequently denied the I-539 based on unauthorized employment. A second I-539 was filed prior to a decision on the first one, but later was also denied because it had been filed after the period requested in the first I-539. I alleged in the complaint that since the consulate had issued the visa for the specific purpose of working in the US, the EAD was only evidence of employment authorization and not a prerequisite. The complaint also charged that because no decision had been made on the first I-539, the fact that the second was filed "late" was a wrong application of the law. Today we received approval of both I-539s. The client is now free of the 3 year bar that was looming over her head. This example may encourage others to turn to relief in federal courts.

Aggie R. Hoffman, Esq.
Los Angeles, CA


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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