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Immigration Daily

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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
June 29, 2001
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Editor's Comments

The Supreme Court speaks again. For the second time in a week the Court has delivered a decision affirming the constitutional rights of aliens. In Zadvydas v. Davis, Nos. 99-7791 and 00-38 (June 28, 2001), the majority held that habeas proceedings remain available as a forum to challenge post removal period detention. Justice Breyer, joined by Stevens, O'Connor, Souter and Ginsburg, found that a statute permitting the indefinite detention of aliens would raise serious constitutional issues. The Court drew a distinction between the situation of aliens who have been admitted as permanent residents and subsequently ordered removed and those aliens who have never made an entry. Despite the potential consitutional problems, if the court had found a clear congressional intent to grant the Attorney General the power to indefinitely detain aliens ordered removed, it would have given it effect, but the court found no clear congressional intent to authorize permanent detention. The Court adopted a "reasonable time" standard. If removal is not reasonably foreseeable, continued detention should not be authorized. If it is foreseeable, the reviewing court should consider th risk of of the alien's committing further crimes as a factor potentially justifying continued detention. The Court decided that for the sake of a uniform administration of the courts, after a 6-month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence to rebut that showing.

Yesterday's e-mail version of the Daily had a mistaken title for Carl R. Baldwin's article. The correct title is Failure to Exhaust Remedies Bars Ninth Circuit Review of Claim of Due Process Violation by Immigration Judge.

Tip of the Day

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ILW.COM Featured Article of the Day

Immigrants and Health Insurance: Many Workers in Jobs That Offer No Medical Benefits
The American Immigration Law Foundation writes that the problem of a large uninsured population in America is not caused by immigration, but rather by escalating costs of the entire US healthcare system.

Immigration News

Supreme Court Limits Indefinite Detention
In Zadvydas v. Davis, Nos. 99-7791 and 00-38 (June 28, 2001), the Supreme Court held that the indefinite detention of aliens awaiting removal to countries that will not accept them raises serious constitutional issues, and it is not clear that congress intended to grant the Attorney General such power. The Court decided that for the sake of a uniform administration of the courts, after a 6-month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence to rebut that showing.

Immigration-Related "Status Offense" a Civil Matter
The court in US v. Tejada, No. 00-1461 (1st Cir. June 27, 2001), concluded that the provision of the Speedy Trial Act mandating that an arrested person be brought before a magistrate judge within 48 hours was inapplicable to the Defendant since he was arrested for an immigration-related "status offense" and was thus civilly detained.

Burden on INS to Establish Country-Wide Persecution
In Manzoor v. INS, No. 00-1971 (1st Cir. June 26, 2001), the court found that the Board of Immigration Appeals (BIA) had committed a legal error when it placed the burden of showing that his well-founded fear of persecution was country wide on the Petitioner rather than the INS.

No Right to Effective Assistance of Counsel
The court in Stroe v. INS, No. 00-2934 (7th Cir. June 26, 2001), found that the Board of Immigration Appeals (BIA) did not err when it denied a motion to reopen on the basis of ineffective assistance of counsel where a previous attorney filed a brief more than three months after the deadline.

Adjustment is Admission to US
In Ocampo-Duran v. Ashcroft, No. 99-70981 (9th Cir. June 28, 2001), the court rejected Petitioner's argument that since he had entered the US illegally and later adjusted he had never been admitted, and that an "Order of Probation" and minutes of a pronouncement of judgement were not clear and convincing evidence that he had been convicted of an aggravated felony.

Bills Sent to Committee on the Judiciary
The House Subcommittee on Immigration and Claims approved for full Committee action H.R. 2278, to provide for work authorization for nonimmigrant spouses of intracompany transferees, and to reduce the period of time during which certain intracompany transferees have to be continuously employed before applying for admission to the US, H.R. 2277, to provide for work authorization for nonimmigrant spouses of treaty traders and treaty investors, H.R. 2276, to amend the illegal Immigration and Immigrant Responsibility Act of 1996 to extend the deadline for aliens to present a border crossing card that contains a biometric identifier matching the appropriate biometric characteristic of the alien, and H.R. 1840, to extend eligibility for refugee status of unmarried sons and daughters of certain Vietnamese refugees.

Communications from Executive to Senate
Communications sent from the Executive to the Senate include the report of a rule entitled "Children Born Outside the United States; Application for Certificate of Citizenship", and the report of a rule entitled "Removing Russia from the list of countries whose citizens or nationals are ineligible for transit without visa (TWO) privileges to the United States under the TWOV program."

Tancredo Continues Remarks on Immigration
Rep. continues his remarks on the floor of the House linking the energy crises in California to immigration, both legal and illegal.

Operation Crossroads International Nets 7,898
According to a fact sheet from the INS nearly 8,000 migrants from 39 countries destined for the US were interdicted by Operation Crossroads.

Operation Firm Grip Targets Alien Smugglers
The INS announced the successful completion of Operation Firm Grip, past of a series of operations designed to disrupt the activities of alien smugglers worldwide.

Operation Global Reach
A fact sheet from the INS describes Operation Global Reach as an extension of INS's strategy of combating illegal immigration through emphasis on overseas deterrence.

Immigration in the Press

Elians Saga, a Year Later
MSNBC reports that a year after being returned to Cuba Elian Gonzalez is back in his hometown, taking his second-grade final exam in math.

This Day in Immigration

From June 29, 2000

"A common misconception is that an employee who is waiting for his green card is required to work for the petitioning employer. There is nothing in the law which requires this. The labor certification process is prospective. It is based on what the person will do at the time he gets the green card, not what he is doing while the process is going on. Given the problems with the cap on H-1Bs and the delays in processing a company could make a decision that it did not want to file for an H-1B, but it still would be willing to obtain labor certification and get an I-140 approved to allow someone to enter as an immigrant to fill a position. The alien does not need to work in the job while the process is going on, but he does need to fill it at the time he gets permanent resident status. Some consider H-1Bs to be a form of indentured servitude binding the alien to an employer. The reality of the business world may be that an employer would not continue the labor certification process for someone who is not a current employee. This is a business decision. It is not the law."

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Employers and attorneys for employers can now electronically complete a form I-9 (employment eligibility verification) via LOOKOUT SERVICES INC. at Get tips and alerts to guide employers through the I-9 compliance maze. We track employment eligibility expiration dates and provide three (3) prior notices of expiration dates beginning four (4) months in advance. Notices will be provided to employer directly or to the attorney for employer. With LOOKOUT SERVICES INC., employers have peace of mind that company I-9 forms are in compliance. Use our internet based software to complete an I-9 at the time of hire or audit an existing I-9. Call today to receive a password & user i.d. or for a demonstration. Call toll free 1-888-522-6704.

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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