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Immigration Daily

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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
Marc Ellis, Esq., Chat Transcripts Editor
June 26, 2001
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Editor's Comments

The Supreme Court has spoken. In INS v. St. Cyr, and the related case of Calcano-Martinez v. INS, the Court made clear that AEDPA and IIRIRA do not eliminate habeas review for aggravated felons. Both were 5 to 4 decisions with Justice Stevens writing for the majority joined by Justices Kennedy, Souter, Ginsburg and Breyer. The majority found that to prevail the INS would have to overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction. Construing AEDPA and IIRIRA to preclude court review of pure questions of law would give rise to substantial constitutional questions. Concluding that habeas is no longer available for aggravated felons would be a marked departure from historical immigration practice. Finally, the Court found that neither AEDPA nor IIRIRA express a clear and unambiguous intent on the part of congress to eliminate habeas petitions. While the congressional intent was that aliens who have committed crimes be removed from the US quickly, the Court has found that that does not mean that INS actions are not subject to habeas review.

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ILW.COM Featured Article of the Day

Foreign Language Requirement in Labor Certifications
Cyrus D. Mehta writes that requiring a foreign language in a labor certification application may often prove fatal, unless it can be justified through business necessity.

Immigration News

Habeas and 212(c) Survive AEDPA and IIRIRA
In INS v. St. Cyr, No. 00-767 (June 25, 2001), the Supreme Court held that habeas jurisdiction in immigration cases was not repealed by AEDPA or IIRIRA, and 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who would have been eligible to apply for 212(c) relief at the time of their plea.

Habeas Remains in District Courts
The Supreme Court in Calcano-Martinez v. INS, No. 00-1011 (June 25, 2001), that while IIRIRA removed jurisdiction from the court of appeals to review final orders of removal for aliens removable for having been convicted of an aggravated felony, but that as explained in INS v. St. Cyr they can pursue their claims by means of a habeas petition.

Lifelong Resident Not a National
In Hughes v. Ashcroft, No. 99-70565 (9th Cir. June 22, 2001), the court found that because Petitioner was not born in a territory of the US and did not apply for citizenship to demonstrate objectively an allegiance to the US, he was not a noncitizen national of the US.

Biased Immigration Judge Violates Due Process
The court in Sanchez-Cruz v. INS, No. 99-70044 (9th Cir. June 25, 2001), found that Petitioner raised a colorable due process violation claim based on the IJ's bias, but Petitioner had nor exhausted her administrative remedies because she had not raised the claim before the Board of Immigration Appeals (BIA).

INS Memo on AC21
Michael Cronin, Acting Executive Associate Commissioner, Office of Programs, has issued an memorandum providing initial guidance for processing H-1B petitions affected by AC21. [Long download].

Immigration in the Press

Court Grants Reprieve to Immigrants
According to the Washington Post a 5-4 majority of the Supreme Court disagreed with a provision of a 1996 law that barred court review of removal orders for immigrants convicted of aggravated felonies.

This Day in Immigration

From June 26, 2000

"Jurisdictional Change for the Los Angeles and San Francisco Asylum Offices Effective July 24, 2000, the INS will transfer asylum office jurisdiction over the State of Hawaii and the Territory of Guam from the San Francisco Asylum Office to the Los Angeles Asylum Office."

The ILW.COM archive of immigration information is 20,000 pages and continually growing. To search the archive by date, click here, or search by entering a keyword:

Letters to the Editor

Dear Editor:

Once again let me thank you for the invaluable service you are providing through your web site. Information is freedom. You can imagine how many lives you have already positively impacted through your immigration website.

I will keep my views brief and concise. America is no doubt the best and most blessed country in the world. It strength came from diversity of people, talents, views. It defeated the British, helped defeat Hitler, stood up to Russia, and has the best economy of the world. God bless America.

Despite America greatness, one thing stood out - Justice. The forefathers of the great nation made it the bedrock of its own existence. All were born free before God. This was the land of the brave and the free. God bless America. Refuge was given to the oppressed and hunted - even from other countries. God bless America.

The oppressed Irish fled their homeland. America gave them sanctuary. The Mussolini-oppresed Italians fled and made America their refuge. America provided refuge. America even provided refuge to Jews and even Germans alike. Diversity was bred and greatness, innovations and economic fortunes were increased.

Then came the boom of the 90s. Hi-tech workers were needed but were scarce. America reached out to the abundant foreign pool of talent. A process was set up and a lot of great talents were brought in, sometimes with the promise of a legal permanent residency in America. Foreign hi-tech workers responded. On arrival things were not what they seemed. A worker was bound to the employer, couldn't leave for another employers without serious obstacles, etc.. His wife was allowed to come with him, but she couldn't work unless she got an H-1B herself leading to truncated and careers, etc. Everyone blamed the H-1B worker for everything. Those who lost their jobs blamed H-1B workers, even those that had non-hi-tech jobs.

If the H-1B worker got laid off, he had 10 days to leave the country. INS saw them as a necessary evil and treated them as such. The hi-tech boom went bust and workers were laid off. People who couldn't find jobs soon enough had to leave for their home countries. to pick up where they started.

Anyway, to cut the long story short, I think the INS and some people are forgetting that American greatness lies in diversity. They may ride on the wave of the moment due to the economic boom, but those that ride on the back of the tiger eventually end up in the tiger's belly.

Justice is justice, fair is fair. If today, injustices are permitted to happen to any class of people, what goes around will come around. Already the same injustice is already threatening to undo the very fabric of the American society. The society is highly suspicious of Asian-Americans which will only reduce their loyalty to the nation anyway. Gay people are being marginalised, so are Hispanics. Blacks are stereotyped and assumed to be criminal.

I pray people take an inside look at all these signs and do something about it. Let us tolerate each other, but let us accommodate each other. That will strengthen the great American spirit.

God Bless America, H-1B Holder


ILW.COM carries classified ads for immigration related positions. $100 for single insertion, $250 for five consecutive insertions, payable in advance. Contact us for details. We will also carry for no charge announcements such as immigration related events. We reserve the right to refuse any ad and to make minor editorial and formatting changes. Send to

Fragomen, Del Rey, Bernsen & Loewy, is the largest law firm in the country practicing exclusively in the area of immigration and nationality law. In order to meet the demands of our growing business, the firm is actively recruiting for experienced paralegals in its ATLANTA, NEW YORK, NEW JERSEY,and CHICAGO offices. The ideal candidate has business immigration experience or a human resources background dealing with immigration issues. Must have excellent verbal and written communication skills and be able to perform multiple tasks in a fast-paced environment. The firm offers superior salaries and exceptional growth opportunities. Please submit cover letter and resume to Anne-Rose van den Bossche, Esq., Fragomen, Del Rey, Bernsen, & Loewy, 515 Madison Ave, New York, NY 10022 or fax 212-750-1121 or

Saturday, June 30, 2001, 9:00 a.m. to 1:00 p.m. at DoubleTree Suites, Falls Conference Center, Mt. Laurel, NJ. A panel of experienced immigration lawyers and paralegals will explain how the administrative system operates and present the information you need to handle basic immigration matters. Youll also hear directly from several agency representatives about the procedures you need to follow when dealing with these agencies. For details click here.

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. Correspondence to Letters may be edited and may be published and otherwise used in any medium.
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Marc Ellis, Gary Endelman

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