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Friday, November 22, 2002

Holiday Inn Airport

El Paso, Texas

10:00 - 2:00

Regular Business Meeting

The meeting of the State Bar Committee on Laws Relating to Immigration and
Nationality was called to order at 10:05 a.m. by Paul Parsons, Chairman.
The committee is a standing committee established in 1982 to study current
and proposed laws pertaining to immigration and nationality and to make
recommendations for any improvements in such laws. The committee is
comprised of private immigration lawyers, an immigration judge, the
director of a pro bono asylum project, an INS attorney, a representative
from the Association of International Educators, the director of an
immigration civil rights project, the director of an INS regional service
center, an INS district director, a certifying officer of the U.S.
Department of Labor, accredited representatives of non-profit organizations
recognized by the Board of Immigration Appeals, a U.S. consular officer and
other public representatives.

The following persons were in attendance:

Committee Members:

Rebecca Burdette

Magali Candler

Bruce Coane

Ouisa Davis

Silvia Graves

Robert Loughran

Catriona Lyons

Stanley Mayfield

Paul Parsons

William Puplampu

Debra Rodriguez

Vanna Slaughter

Matt Trevena

Paula Waddle

Kathleen Walker

Deane Willis


Ben Aguirre, INS Officer In Charge, Cd. Juarez

Santiago Burciaga, Immigrant Visa Chief, Cd. Juarez

Lynn Coyle, Texas Lawyers' Committee for Civil Rights

Ninfa Luna, Product Line Manager, INS Texas Service Center

Joyce W. Namde, American Citizen Services Chief, Cd. Juarez

Christine Osage, Nonimmigrant Visa Chief, Cd. Juarez

Maurice Parker, Consul General, Cd. Juarez

Michael D. Puccetti, Deputy Consul General, Cd. Juarez

Art Silva, INS Officer, Cd. Juarez


Mr. Parsons asked for recommendations for any changes to the minutes from
the last meeting held in Austin, Texas. The minutes were accepted with no


U.S. Consulate in Juarez

Maurice Parker, Consul General and his Staff reported about the operations
and policies of the U.S. Consulate in Juarez.

There are a lot of changes anticipated under the new Homeland Security Act.
Cd. Juarez is one the world's largest consular operations. Over 1.2 million
border crossing cards replaced last year.

Looking back on 2002: Cd. Juarez started the year trying to figure out how
to operate after 9/11. They increased security. It became more difficult
for applicants to get into the building for their appointments. The laser
replacement program was more challenging due to the lack of accurate
records of the old local crossing cards. That program has been nearly

Cd. Juarez is looking at how they are conducting their workload.
Unfortunately, there were some legal and ethical violations found which
resulted in some convictions. As a safeguard, many systems were revised to
insure nothing will happen again. There has been a major change in
staffing. Mr. Vasquez finished his assignment and received a well-deserved
promotion to Washington, D.C. This left a four-month staffing gap. Several
other key positions have been vacated and there have been other staffing

Homeland Security: This year the Consulate in Cd. Juarez was visited by 17
individuals from the Office of Management and Budget whose primary
responsibility is to determine staffing requirements. They looked at all
consular operations. They also visited other law enforcement agencies in El
Paso including the Immigration and Naturalization Services, Border Patrol,
and Customs. They conducted a survey of how they operate abroad and
coordinate activities with other agencies.

Assistant Secretary of Consular Affairs, Mary Ryan, resigned her position
after 9 years. Two weeks ago the Senate confirmed the appointment of Mara
Hardy. Her past experience was discussed which included having been the
previous Consul General in Bogota, Colombia.

Immigrant Visa Section: They are required to conduct interviews of almost
100% of V visa applicants (used to be only 30%). Have issued almost 50,000
V visas. Only 250,000 left to issue, but there are staffing problems. It
takes approximately 6 to 12 months to replace a vacated position. There is
a staffing gap of 14 positions. This is frustrating since it slows the
entire process. Currently, there are seven positions allotted for the
processing of V visas, but there are only three positions filled.

Nonimmigrant Visas: Current procedures are posted on the website. These are
unlikely to change unless serious staffing improvements occur. Although the
Post is trying to get more people, this situation could easily last more
than a year. Given the demand for 100% interviews, and a reduction of
staff, they have had to reduce the number of third country nationals (TCN)
cases accepted. There is up to an eight week waiting period because the
post is missing so many visa adjudicators. The post's primary
responsibility is to attend to Mexican citizens.

Waivers (INS): They are down to only a 1  to 2 months backlog for
immigrant waiver cases. They are not receiving many nonimmigrant waiver
recommendations. The numbers are down on receipt of immigrant waiver cases
to 200 - 300 per month. They will lose their overseas specialist in
December. With only two Officers, they think they can maintain the
processing time frame. They should be able to obtain an A file on a case in
a matter of a few days.

Visa Waiver Program: There are no plans to entertain a Visa Waiver entrant
applying for an Nonimmigrant Visa.

TCN: They do not plan to accept TCN investor (E) applicants again. It is
possible to apply for TCN Es in Nogales, but appointments through the
Minacs system in Mexico City are not plentiful. Matamoros and Nuevo Laredo
will accept some appointments directly. Tijuana only does TCN Es for those
residents of their district. The anticipated 250,000 V visa interviews have
created the absolute necessity to curb TCN processing.

Fingerprints: Cd. Juarez is to receive two new digital fingerprint machines
in January which allow for a turnaround of 1 to 48 hours on a print check
versus the current 4 to 8 weeks. This same machine is also at the Paso del
Norte Bridge (El Paso) as a pilot. This means rolled digitized prints,
which directly interface with FBI print records, versus the flat prints
previously taken through INDENT, which did not.

Santiago Burciaga, Immigrant Visa Chief

Mr. Santiago reported that the face to face interviews are slowing the
system down a bit.

V Visas: For those approved for V visas in the U.S., applications may be
mailed to the IV section. Expect a rapid turn around (2-3 weeks) on an
appointment date versus several months for those originally applying for V
status at Post. They require DS 3052, proof of employment and tax returns
(public charge grounds still apply).

Medical exam: doctors will not see them unless they have on appointment
letter from the Consulate. Same requirements need to be fulfilled as with
original application.

V Visa Appointments: mail in I-797, DS 3052 and an appointment will be

Child Status Protection Act: they have to send all Section three
application issues off for SAOs and right now they are being told by the
visa office that these SAOs are not being accepted. Expectation of a cable
to the field on this are imminent. Steve Fischel indicated in the next week
or two.

Patriot Act: Presently, they see about 5 or 6 cases per week. They were
issuing manual visas before because they did not have capability, but they
do now.

CSS, Life Act cases. They have only received about 200-300 cases. They have
had a few people show up for fingerprints. Have been asked to hold off for
two weeks awaiting further information from the INS.

Social Security issues: 40 quarters: Applicants show up with proof of
completion of the 40 quarters. Although they are exempt from the I-864,
Affidavit of Support, the public charge requirements still must be met.

Inadmissibility issues:

10 year bar with re-entry attempt: If entered or even sought to enter U.S.
unlawfully after triggering the 10 year bar, must then stay out 10 years.
No waiver available!

Alcohol Abuse: A person convicted of driving under the influence (DUI) may
be ineligible, because pose threat to self or others. CSC has determined
DUI as evidence of medical disorder if it has occurred within last two
years. Medical guidelines -irrebuttable. Applicants can file waiver. Public
intoxication may be a problem if associated with harmful behavior (assault,

Drugs: In October 2000, the Center for Disease Control representatives came
and implemented new technical guidelines. Previously, anyone who had used
drugs (as determined by medical exam) were asked if they were an abuser. If
applicant answered "yes," they were told to come back within 1 year to be
re-evaluated. This year, there was a change in personnel. They were
referred back to old guidelines, which state that any person who has used
drugs within last 3 years, if a pattern is established, will be determined
to be a drug abuser. A pattern is defined as using drugs more than two
times. This finding is an irrebutable presumption.

Joyce Namde, American Citizen Services Chief

General processing: They are required to send all passports back to
Washington. This has enhanced the security of all passports. Passports are
sent to Washington, D.C. for processing, but there is a two week delay
assuming there is no criminal history. This is the worldwide procedure. The
application process has not changed: $85 for first time adult, $70 for
child (5 years) and $55 for adult renewals. The information is now sent to
D.C. for general processing. Applicants are required to personally pick up
their passports at the Consulate.

Emergency passports are still issued and can be issued from the Consulate,
but they are only good for 1 year, and they can not be renewed or extended.
Right now, everything is physically sent to Washington. They are working on
transferring everything electronically, but the system is not yet in place.
The Consulate will no longer keep a record at the Post. Now records are
archived in DC at the National Passport Center.

Citizens with criminal records: It will be determined by data base whether
felons can receive a passport. This determination will be based on the
crime, sentence, judgment (order) and parole. Citizens may not be able to
leave the country in certain circumstances, including non-payment of child

Kathleen Walker stated that perhaps the Foreign Affairs Manual or 22 CFR
might have some guidance. The case would be forwarded to Dept of State, who
would then review it. They would then coordinate it with other agencies.
The National Passport Office, R. Betancourt, is dealing with this issue.

Social Security printouts: The Social Security Administration will no
longer provide printouts abroad. If you go to the consulate, be prepared to
provide 5 years of physical presence history. Do not allow naturalization
certificate to be the sole proof. There have been problems with
naturalization certificates out of California. It was suggested that this
information be obtained before they leave.

There is a big problem with fraud involving suspect midwives. Now the
children turning 21 are petitioning for their parents/spouses and these
birth certificates are surfacing again. It was suggested that attorneys
double check this. If the person also has a Mexican birth certificate, look
at the date of registry and if it is after the US birth certificate, then
it may still be ok because it is recognized that people register on both
sides of the border.

Totalization: An informal presentation regarding the following topic was
presented but it is important to note that the participants can not presume
to speak for Social Security.
Totalization refers to Social Security benefits, which are derived from a
combination of work efforts in two different countries. If an individual
can prove they worked at least 6 quarters in US, with contributions from at
least 36 quarters in Mexico, or vice versa, then Social Security and Mexico
will decide how much Social Security will be provided to applicant and the
percentages will be worked out between the agencies. This will require an
additional 200 federal employees in Mexico. Currently, there are 75,000
employees in Mexico and this is expected to triple. It has been discussed
that the program should be effective Summer/Fall of 2003. It depends on
negotiations in February, 2003. However, realistically, we should look for
a 2004 date.

Effects the following groups of people: Legally binding I-864s, retirement
benefits, workers who can obtain based on a combination of work of US and
other country. Also, affects derivative beneficiaries.

Christine Osage, Nonimmigrant Visa Chief

TCNs: They are no longer doing changes of status for TCNs, even if the
change was approved in the US. Eventually, they may renew TCNs who
originally got their visa in the home country.

214(b) Denial - to reapply you will need to make another appointment. Since
this is not a priority, the appointment might take longer.

Cancellation of tourist visa: the information is in the system until the
applicant is 90 years. Always 6c, always will need waiver. It is not a good
idea to come back immediately.

FOIA request: In a misrepresentation case, you should send the FOIA request
to the District Office where the port is. It was noted that perhaps you
would not get the records from the port.

Re-entry after 1 year unauthorized stay. There is no waiver available.
However, after 10 years, a waiver is available.

212(d) waiver: Normally, they will go along with recommendation.

Ben Aguirre, INS Office in Juarez

Many people don't tell about their attempted re-entry. Accrual of
unauthorized stays can result in permanent 10 year bar.

The waiver process takes about  to 2 months.

Paul Parsons commented on the importance of getting some of the current
laws changed because of the hardships to families.

Calculation of aggregate 1 year period: 4/1/97 forward.

Presently, the posts have to go through about 5 different systems to
approve some of the cases. Have had to go through a variety of systems
since 9/11. Takes about 10-15 minutes, if no hits, and no interruptions.

Mr. Aguirre has not seen any directive re: software that would involve only
having to check just one system that automatically links the 5 different

They process several hundred waivers per month. In the past, 500
applications per week. In 2000, the office processed about 5000 waivers, in
2001 about 4000, and in 2002, about 3000.

Lost one oversea agent. Only Ben Aguirre and Art Silva are there now.

Processing problems: people do not reveal all crimes they committed, omit
prior deportations, and don't have the correct documents, current police
reports, or hardship letters. Increases processing time.

U.S. Department of Labor - John Bartlett, Certifying Officer for our Region
IV, forwarded the following update:

Processing times:

RIR:  July, 2002.

Basic Cases:   January, 2000

H-2A:   Current

H2-B:  10-21-02

At 11/01/02, the Dallas Regional Office had on-hand 4,158 Permanent cases.
They are reporting staying within 30 days of receipt for processing of

INS Texas Service Center: Ninfa Luna, Product Line Manager

Case On-line status. This has been a big help. She's not sure how far back
these cases go, but she will check.

There has been a freezing of adjustment applications, but the problem is
expected to be resolved soon.

The TSC and District Offices have experienced recent delays related to new
security checks.

I-130s are taking more than 1 year, even for "immediate relatives" of U.S.
citizens.   Something is in the works to attempt to reduce the backlog of
cases for the spouses, unmarried children under age 21, and the parents of
U.S. citizens over age 21.     We will be hearing something soon.

I-140 / I-485: going through re-structuring. - 60 days processed, or prima
facie finding issued.

Premium Processing will not be offered on I-140s in the foreseeable future.

Association of International Educators (NAFSA) (Deane Willis)

As of Wednesday, 9/11/02, No F, M or J visas may be issued unless
sponsoring institutions provide consular officers with electronic
notification that the visa applicant has been issued visa documents.

Problems: Not completely secure, school codes are incorrect, not all
consulates have access to ISEAS.

E-mail follow-up by sponsors to the consulates are frequently needed.

Should sunset 1/30/03 with full implementation of the SEVIS.

Visa Issues: On November 7, 2002, NAFSA joined other organizations in a
letter to Colin Powell concerning interviews for all applicants for visas.
There is extreme concern over the backlog and delays this would create in
visa issuance.

September 25, 2002: INS published the SEVIS "Interim Certification Rule"
References important deadlines in the enrollment process:

November 15th last date to apply for SEVIS to insure approval by 1/30/03
(likely mandatory compliance date).

Schools not approved by the mandatory compliance date 1/30/03 must stop
issuing I-20s, DS 2019s.

Set fee: $580.00

Requires site visit (by contractor)

New J and F regulations have not been published yet, and may not be out
until 1/30/03 although there is a rumor that J regulations may come out
next week.

President Bush signed the Border Commuter Student Act on November 2, 2002
(H.R. 4967) which creates new F-3 and M-3 nonimmigrant statuses
specifically tailored for students from Canada and Mexico who commute
across the border to attend institutions of higher education. NAFSA worded
closely with the bill's sponsor, Rep. Jim Kolbe (R-Ariz) to advocate for
quick passage of the legislation.

NSEERS registration: Higher education institutions are trying to facilitate
registration for students and scholars who are required to register before

Great NAFSA Regional Conference turn-out of INS District Schools Officers
from the state of Texas. Houston, San Antonio, El Paso and Dallas were all

Economic impact: $12 billion. Texas was 3rd in the US) $738,026.00, (44,192

Pro Bono Asylum Representation Project (ProBAR) (Meredith Linsky)

See attached report.

Immigration Litigation Update (Greg Ahlgren)

See attached report.

The next meeting of the Committee on Laws Relating to Immigration &
Nationality will be held from 10:00 a.m. to 2:00 p.m. at the Catholic
Charities Offices, 5414 Maple Ave., Ste. 400, in Dallas.

After expressing appreciation on behalf of the Committee to Maurice Parker
and to all the consular officers who took time to meet with us, as well as
to Ben Aguirre, Art Silva, and Ninfa Luna from the INS, the meeting was
adjourned by Paul Parsons.


Pro Bono Asylum Representation (ProBAR) Project's Report

To: Paul Parsons
From: Meredith Linsky
Date: Nov. 21, 2002
Re: ProBAR Update

1. Great News!!!!!

ProBAR's biggest news over the past few months is that Norwich University
awarded us a sub-contract to maintain and expand our legal rights
presentation project. Congress appropriated one million dollars to fund
rights presentation projects for immigration detainees throughout the
country. We were selected as one of the first two locations to receive this
funding, approximately $100,000. ProBAR began providing daily, live legal
rights presentations to detainees at the Port Isabel Service Processing
Center in August of 1998. We have continued for over four years making
daily presentations, providing one on one interviews, and recruiting pro
bono attorneys. Receiving this contract is a tremendous validation of the
work we have done thus far. With these additional resources, we hope to
take our "legal rights presentation project" to the next level and
incorporate new and innovative services like group workshops for pro se
representation and improved written materials. ProBAR will now have the
resources to hire an additional full-time attorney and paralegal to
coordinate this project.

2. Recent Volunteers

ProBAR hosted a student group in October from Ohio State University led by
Jill Fleishman, an Ohio attorney, and Juan Lozada, an OSU student. Juan was
inspired to come to ProBAR when he heard Carol Wolchok speak at a minority
student conference in California this summer. The students worked on a
variety of cases including a motion to terminate due to eligibility for
acquired citizenship, a 212(c) case, and some bond motions and parole

In October, Lisa Koop, a second year student at the University of Indiana
Law School, and former ProBAR paralegal, returned to Harlingen to take a
Guatemalan asylum case. Our client, Marvin, was tortured by the Guatemalan
army as a suspected guerrilla member and later, in 1996, was kidnaped and
shot in the arm, resulting in the loss of his left arm. Lisa worked
intensely with our client in detention -- putting together a declaration
and supporting documents, and writing a brief. She also successfully
advocated for his release from detention due to health problems. Marvin is
currently living with friends in McAllen, Texas and wants to remain in
South Texas. Lisa hopes to return to ProBAR for Marvin's asylum hearing.

Paul Baumann, an attorney from Missouri, came to ProBAR for a week in
September. He read about ProBAR in an ABA publication back in 1996, and
saved the article for future reference. While at ProBAR, he prepared a
detainee for a 212(c) hearing. Unfortunately, immediately preceding the
merits hearing, the case was pretermitted due to ineligibility for the
relief. Paul was very understanding and later wrote me a thank you letter
which included the following: "For my part, I probably learned more from
the case I had than if I had won a case. Seeing a man deported from a
country he has called home for fifteen years, and knowing a lot of people
would rather face incarceration than live outside of the US is an
education. Seeing and learning about the kids from the juvenile centers was
also something special."

Bill Conwell, an attorney from Portland, Oregon, returned to ProBAR in
October to represent an Das, Indian national, in his request for Torture
Convention Relief. Bill first volunteered with ProBAR for about 8 months
back in 1996 and 1997. At that time, he represented Das at his asylum
hearing. Though it was denied, Bill appealed and in 1999 ProBAR filed a
motion to remand for Torture Convention relief. The BIA granted the motion.
Fortunately, Bill was available to return and represent Das again in
Harlingen. They had kept in contact over the years. Bill and his family had
even visited Das in New York a few years ago. Das traveled from New York
and Bill came from Oregon. They worked together for several days at the
ProBAR office. Unfortunately, the Immigration Judge denied the case and it
is presently on appeal again at the BIA.

At the end of November, Patricia Kerns, an attorney from Turlingua, Texas,
came to ProBAR seeking court experience. I assigned her a 212(c) case set
for November 5. Her client was Isabel Juarez, a thirty four year old
Mexican national, who has been a legal permanent resident for twenty seven
years. I first saw Isabel when she was in detention asking for a removal
order from the Judge. She was desperate and just wanted to get released,
even if it meant being deported. I just happened to be in the courtroom on
another matter and the Judge told her that she could apply for relief.
Isabel had a drug conviction from 1994, served time in state prison, but
had no further arrests or convictions. I offered to represent Isabel and
convinced her to pursue her case. At a bond hearing the next week the Judge
released her on her own recognizance. Patricia worked closely with Isabel
and her family -- preparing a brief and supporting documentation and all
witnesses. After a short hearing the Immigration Judge found that Isabel
showed significant rehabilitation, and granted her case.

3. Children's Cases

Lisa Villarreal-Rios, ProBAR's Children's attorney, has been bombarded with
children at both detention facilities in South Texas. Currently there are
150 children detained in South Texas. The reunification process has slowed
down substantially due to approval that is now required for release from
the Office of Juvenile Affairs in Washington, DC. Consequently, the
children are detained for longer periods and require more representation in

In spite of a growing caseload, Ms. Villarreal-Rios has significant
successes to report. During the month of October, she won two asylum cases
on behalf of street children. The first case was on behalf of Gonzalo, a 16
year old Nicaraguan child, who was abandoned by his family at birth. As a
street child with little formal education he was forced to prostitute
himself in order to survive. Gonzalo was diagnosed with post traumatic
stress disorder while in detention. He is a very creative young man who
choreographed and performed a RAP song and dance, which detailed the lives
of street children for an event celebrating Central American independence

The second case was on behalf of Jose, a 16 year old Guatemalan youth,
whose mother abandoned him at birth. Jose was 13 years old when he
witnessed his father's brutal murder. Jose became a street child and came
to the United States on his own. He was detained in a juvenile jail in
Texas for almost one month before being transferred to a shelter facility
in Los Fresnos, Texas.

Not only did Ms. Villarreal-Rios win these two cases, but due to her
outstanding advocacy, the INS Trial Attorneys declined to appeal. These
children will soon move to a permanent foster care home in Seattle,
Washington, sponsored by the Lutheran Immigrant and Refugee Services.

Ms. Villarreal also gained certificates of citizenship for a 17 year old
girl, Juana, and her two adult brothers. Juana and her family live in
Brownsville, Texas. She and her brothers had been undocumented for their
whole lives. It wasn't until one of the brothers was detained by INS and
attended a rights presentation that he learned of his eligibility for
citizenship through his US citizen father. ProBAR was able to secure his
release from detention. When he visited our office, we learned of his minor
sister and adult brother and decided to pursue an N-600 for all three.
Recently, after an interview that lasted all day long, the INS granted
certificates of citizenship for all three siblings.

4. Conclusion

These are some of the highlights from our last two months. We thank all
Committee members for your continued support and advocacy on behalf of
immigrants and asylum-seekers. We expect to have more successes to share
with you throughout the coming year.

To: Paul Parsons

From : Greg Ahlgren

Date: November 20, 2002

Subject: Federal Immigration Litigation Update

These are some recent developments - -

Aparicio v. Blakeway, 302 F.3d 437 (5th Cir. 2002) (decided August 15,
2002) - -

Naturalization applicants brought a class action against the INS and INS
officials from the San Antonio district office, alleging improper reliance
on confidential information in their applications for special agricultural
worker status. Judge Biery of the U.S. District Court for the Western
District of Texas dismissed the case, and Plaintiffs appealed. The Fifth
Circuit, affirming, held as follows: (1) that the claims of applicants
whose applications had not yet been decided were not ripe for judicial
review, (2) that the applicants whose applications had been denied were
required to exhaust administrative remedies before seeking judicial review,
and (3) that the applicants whose applications has been granted were not
entitled to judicial review.

Guadarrama-Garcia v. Acosta, F. Supp. 2d 802 (S.D. Tex. 2002) (decided
August 29, 2002) - -

Prospective adoptive parents and a Mexican birth mother sought a
preliminary injunction enforcing a Texas family court's order requiring the
INS to release the child in question to the custody of the prospective
adoptive parents. US District Judge Hittner held that to enforce the family
court's order would be tantamount to condoning child smuggling, therefore
injunctive relief. Peter Williamson was counsel for the birth mother.

INS v. Ventura, 123 S.Ct. 353 (2002) (decided November 4, 2002) - -

Guatemalan asylum seeker, who claim was denied by the INS, sought relief
from the 9th Circuit after his appeal was dismissed by the BIA. The 9th
circuit reversed and rendered in favor of the asylum applicant. The
government appealed to the Supreme Court, which reversed the 9th Circuit.
The Supreme Court held that the 9th Circuit should not have determined the
asylum issue de novo, but rather should have remanded the asylum question
to the BIA, in order to give this decision to the administrative agency
charged with such decisions.

Lopez de Jesus v. INS, - - F.3d - - , 2002 WL 31492438 (5th Cir. 2002)
(decided November 7, 2002) - -

A lawful permanent resident petitioned for review of the BIAs decision
upholding the decision of an immigration judge, which found him excludable
as illegally re-entering the US after a three-day trip to Mexico. In a
matter of first impression for the 5th Circuit, the appellate court held
that due process rights were not violated by the retroactive application of
the IIRIRA provision limiting the Attorney General's discretion to grant a
waiver of inadmissibility to an alien who assisted the alien's spouse or
other family member in illegally entering the country to cases in which the
familial relationship existed at the time of the smuggling.

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