Courts Want Statistics Before Striking AWO Down
Today's Court of Appeals case centers on the issue of the affirmance without opinion procedure, this time in the 6th Circuit. The American Immigration Law Foundation, in its amicus curiae brief, argued that the failure of the BIA to issue an opinion made it impossible for a reviewing court to determine whether the Alien received due process. The court, while joining its sister circuits in concluding that the BIA's streamlining procedures do not themselves violate an alien's right to due process, warming to Albathani's (the leading opinion on AWO, from the 1st Circuit) analogy of "one swallow does not make a summer", wanted tangible statistics before finding AWO improper. The 6th Circuit in this case said, "we will not assume a complete breakdown in the system in the absence of tangible evidence to support such a conclusion." For the original opinion, see below.
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Immigration Law News
6th Circuit Finds AWO Constitutional, No Statistics To Show Breakdown In System
In Denko v. INS, No. 02-3746 (6th Cir. Dec. 8, 2003), the court said that the BIA's affirmance without opinion procedure (AWO) was constitutional and said that it would not assume a breakdown in the system absent tangible statistics that the AWO procedure caused the BIA to disregard its review responsibilities.
O Visa Denial Leads To Suspension Of Kidney Transplant Program
The American Medical News reports "Dr. Lal, originally from India, is one of a handful of foreign-born transplant surgeons in the US who have been denied work visas. So far no transplant programs have had to close permanently as a result, but Dr. Lal's employer in Akron, Ohio, was forced to suspend kidney transplants in July."
Walmart Suit Reflects Nation's Ambivalence About Immigration
A New York Times op-ed by an immigration attorney says "We really need to ask ourselves some tough questions. What do we want our immigration policy to be? What do we want from our employers? What do we owe those who work for a living? And last but very far from least, who should pay?"
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Letters to the Editor
Andrea Wisner states in her letter to the editor, about the article "Never Fear: The Old H-1(b) Wage Rules Are Still In Effect,"
by Linda M. Keck, Esq., "stated that the employer must still pay the prevailing wage. That is misleading. The correct statement is that the employer must pay the "Required Wage," which is the greater of the "Prevailing Wage" and the "Actual Wage."
Well, I'm afraid that if Ms. Wisner finds Ms. Keck's statement misleading, then I must confess that I find Ms. Wisner's statement downright confusing, and perhaps a misstatement. It has always been my understanding that the wage required to be paid by the H-1B employer is required to be not less than 5 percent below the prevailing wage in the geographic area, as determined by a wage survey. What is all this "Required Wage" needing to be the greater of the "Prevailing Wage" and the "Actual Wage"? It sounds like a story problem in math class. And why this dwelling on semantics and formulas? If a formula is to be used, perhaps we could write it this way: H-1BW = NLT-5%PW.
David D. Murray, Esq.
Newport Beach, CA
The following press release was submitted by the Lutheran Immigration and Refugee Service on available grants for support services for immigrants and refugees. http://www.ilw.com/immigrationdaily/News/2003,1209-lirs.shtm
Lutheran Immigration and Refugee Service
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