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Immigration Daily

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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
January 17, 2002
Previous Issues

Editor's Comments

Recently a "faithful reader" wrote about how evolving interpretations of the definition of aggravated felony have broken up her family. The writer's husband had was removed for three convictions of driving while intoxicated (DWI). Subsequent to his removal several courts have addressed the issue of whether DWI or driving under the influence (DUI) offenses are aggravated felonies for purposes of immigration law. See, e.g. Dalton v. Ashcroft, No. 00-4123 (2nd Cir. July 20, 2001), US v. Chapa-Garza, No. 99-51199 (5th Cir. Mar. 1, 2001), Bazan-Reyes v. INS, No. 99-3861 (7th Cir. July 5, 2001), US v. Trinidad-Aquino, No. 00-10013 (9th Cir. Aug. 8, 2001), In re Olicares-Martinez, 23 I & N Dec. 148 (BIA 2001). The Ninth Circuit now adds to the line of cases addressing the issue with Montiel-Barraza v. INS, No. 00-70784 (9th Cir. Jan. 16, 2002).

In Montiel-Barraza the court holds that a state conviction for Driving under the Influence (DUI) with multiple prior DUI convictions not involving injury to others does not constitute a crime of violence and so is not an aggravated felony. Unfortunately the decision will probably only add to the frustration "faithful reader" feels at having her family split up while others have been successful at remaining in the US.

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Outline of Seminar by Ron Klasko "Adjusting Your Thinking: Who Can, Who Can't and Who Shouldn't Adjust Status"

FIRST Phone Session on January 25th:

I. Eligibility for adjustment of status (includes: inspected and admitted or paroled - including "arriving aliens" rule, quota issues including crossing-chargeability, priority date issues, including upgrading and downgrading and retention, admissibility issues, discretion issues, jurisdiction issues, adjustment "portability", maintenance of status issues, "unauthorized employment" issues, immediate relatives, 245(c)(7) and 245(c)(8))

SECOND Phone Session on February 25th:

II. Adjustment of status for status violators (includes 245(k), 245(i) - grandfathering issues, including spouses and children)
III. Travel by adjustment applicants (includes travel with H or L visa, travel with advance parole by H/L aliens, H-4s and L-2s, consequences of parole)
IV. Adjustment vs. consul processing (includes advantages and disadvantages -- factors for choosing, concurrent processing, impact of 3/10 year bar issues)

THIRD Phone Session on March 25th:

V. Adjustment of specific classes of aliens (includes asylees, fiancs/fiances, conditional residents, visa waiver entrants, exchange visitors, healthcare workers, Cubans/Haitians, S nonimmigrants)
VI. Adjustment denials/Judicial review (includes motion to reopen, renewal in proceedings, rescission)
VII. Issues specific to consular processing (includes documentary issues, admissibility issues, waiver processing, reviewability, representation before and after interview)

For more info, or to sign up online, click here.
For more info, or to sign up by fax, click here.

ILW.COM Featured Article of the Day

American Dream - Indians Can Fulfill Through Intra-Company Transferee L-1 Visa
Mumbai attorney Sudhir Shah writes about the L-1 visa from an Indian perspective.

Get new clients & keep them happy by staying on top of the latest! Adjustment is now quite complex & involves weighing many issues. So does Consular Processing (& traveling is a monkey wrench!) Noted attorney Ron Klasko (former AILA National President) will share his unique insights & guide you through the new subtleties & nuances in his seminar. Don't delay! Read all about it! For more info: Or:

Immigration News

Multiple DUIs Not a Crime of Violence
The court in Montiel-Barraza v. INS, No. 00-70784 (9th Cir. Jan. 16, 2002), held that a state conviction for Driving under the Influence (DUI) with multiple prior DUI convictions does not constitute a crime of violence and so is not an aggravated felony.

Adult Daughter Not a Child
In Montero-Martinez v. Ashcroft, No. 99-70596 (9th Cir. Jan. 16, 2002), the court rejected the argument that an adult daughter can qualify as a child for cancellation of removal purposes.

Jurisdictional Element Not Required for Aggravated Felony
The Board of Immigration Appeals (BIA) in In re Vasquez-Muniz 23 I & N Dec. 207 (BIA 2001), overruled its decision in In re Vasquez-Muniz, Int. Dec. 3440 (BIA Dec. 1, 2000), and determined that an offense defined by state or foreign law may be classified as an aggravated felony as an offense "described in" a federal statute even if if lacks the jurisdictional element of the federal statute.

INS Memo on Self Petitions for Divorce(e)s
A memorandum from the INS clarifies that if a divorced self-petitioner can demonstrate that the divorce from a US citizen or permanent resident is connected to battering or extreme cruelty, and is filed within two years of the divorce, the petition should not be denied on the grounds that a legal marriage no longer exists. [Courtesy of Gail Pendleton].

TPS Names Not Being Sent to FBI
The INS will not enter the names of Temporary Protected Status (TPS) applicants into the FBIs National Crime Information Center (NCIC) database. The advisory is also available in Spanish.

INS Memo on Suspension of Processing for Cambodian Orphans
A memorandum from INS Commissioner James Ziglar directs that as of the close of business on December 21, 2001, the INS will suspend the processing of orphan petitions from Cambodia.

INS Website Statistics
The statistics for the INS website show 1,306,685 users for the month of December 2001, including 630,549 unique visitors, and 4,431,630 users visited the site through the first quarter of FY2002.

Advance Consent for Aviation Training
The Department of Justice has temporarily granted advance consent for the training of certain categories of aliens, without requiring that they provide identifying information to the Attorney General, based on a provisional finding that they do not constitute a risk to aviation or national security at this time.

Immigration in the Press

Wanted: Legal Licenses to Drive
The Daily Camera reports that about 50,000 illegal immigrants in Colorado who could be eligible for licenses under proposed changes to the requirements for drivers' licenses.

Stream of Refugees to US Slows to Trickle
According to the Milwaukee Journal-Sentinel State Department figures show that since a ban on refugee admissions was lifted in November 2001, only 783 refugees had been allowed to enter the country.

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This Day in Immigration

From January 17, 2001

"In a recent decision the Board of Immigration Appeals ("BIA") agreed with an Immigration Judge that a Delaware conviction for driving under the influence of alcohol is not a crime of violence within the meaning of aggravated felony. This would seem to contradict the BIA's decision in Matter of Puente, Interim Dec. 3412 (BIA 1999) which held that a conviction for driving while intoxicated under the Texas Penal Code was a crime of violence and so an aggravated felony. The Board made the distinction that the Delaware statute covers not only driving and operating a motor vehicle, but also "having actual physical control of a vehicle." The Delaware Supreme Court interprets the statue to cover situations where a person is found in a parked car. The BIA found that the broader definition of operating a motor vehicle used by the Delaware court could include offenses which do not fit the definition of a crime of violence. Since the conviction record did not identify the circumstances of the driving under the influence offense, the BIA agreed with the Judge that the INS had failed to prove by clear and convincing evidence that the Respondent had been convicted of an aggravated felony.

ILW.COM thanks Thomas Hutchins who provided a copy of the BIA's decision. We encourage others to share cases, BIA decisions, AAU decisions, INS decisions or any other matter of immigration interest by FAXing to 212 563-4438." [Our FAX number is now 212 545-0869].

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:

ILW.COM Tip Legal Technology Predictions for 2002 offers list of ideas, forecasts and analysis for the year ahead, especially for firms struggling with what to do in a time of uncertainty and a slow economy.

Letters to the Editor

Dear Editor:

I hate to "wear out my welcome" but I'd like to respond to Mr. Richard Baer's letter published on January 16th explaining why, in his view, "three million Mexicans" in the US should be given legal status.

I retired from the Border Patrol after 28 years and have a different view. Throughout his letter Mr. Baer seems to ignore the fact that the people he's referring to (and it may be a lot more than three million) have committed a crime by entering the US illegally. Granted, the vast majority of them are honest hard-working people who are coming here to make a decent living, which they apparently can't do in Mexico. I'd agree with Mr. Baer that these people don't "want to destroy us" and that they want to "share in our prosperity." I don't agree that they want "to join us," "to work with us," or "to help us." Most of them see the US as only a place to get a job: Mexico is their home and that's where their allegiance is.

I'd like to see the present level of legal immigration to this country drastically reduced and a "zero tolerance" on illegal immigration. If that makes me an "immigration restrictionist," so be it. But I was one long before September 11th.

If we need these people to do jobs in the US (and not everyone believes that we do), they should come legally. In my (extremely) humble opinion, this country has to look "down the road" 25 - 50 years to try to predict the effects of the present levels of immigration and then reach a consensus as to what we want to do about it.

John H. Frecker
Baileyville, ME

Dear Editor:

In his January 16, 2002, letter Mr. Richard E. Baer forgot to mention that many of illegal immigrants, including the Mexicans, were inside the towers in many different parts, such as basements, etc. They also died in that tragedy, but their relatives did not let the authorities know about it because they are afraid of being deported. I believe their family (wife or husband and children) should be given legal status to remain in the US, because they died in a dignifying way as many other legal citizens; working hard to make our nation the greatest one on earth!

Charles Schwartz

Dear Editor:

In his January 16, 2002, letter Mr. Baer is commingling opposition to ILLEGAL immigration with opposition to LEGAL immigration.

I have a friend in Turkey who would dearly love to come to the US. He's applied through the diversity lottery for several years unsuccessfully. He's waiting to come legally, is fluent in English and has the education (gained in the US), skills, and financial means to support himself. He won't come illegally. Yet, Mr. Baer would have us ignore such immigrants in favor of illegal ones, who have decided that our rules don't apply to them. There are literally millions of would-be immigrants at all skill and educational levels who would be every bit as hardworking as the illegal ones, less of a burden on our social programs, and more law-abiding -- if illegal immigrants hadn't claimed the spots which should belong to them through amnesty programs such as 245(i).

Next time Mr. Baer preaches fairness to illegal immigrants, he should think about the unfairness illegal immigrants are doing to those waiting to come legally.

Ali Alexander

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For information on advertising in the classifieds please click here.

National immigration law firm seeks senior level business immigration attorney, with 7+ yrs. exp. in all aspects of employment based immigration, for its Atlanta, Georgia office. The position requires strong writing and excellent verbal communication skills. The ideal candidate has had account management experience and is able to work independently in a team environment. Competitive salaries and excellent salaries offered, will relocate. Please send resume and writing sample to: Anne-Rose van den Bossche, Esq., Fragomen, Del Rey Bernsen & Loewy, 515 Madison Avenue, New York, NY 10022, or fax to (212) 750-1121 or e-mail No calls please.

The American Bar Association, Immigration and Nationality Committee of the Section of International Law and Practice, and the ABA Immigration Pro Bono Development and Bar Activation Project invite you to attend the following program and reception on Tuesday, January 22, 2002, "What Consular Officials Should Know About Recent U.S. Immigration Developments: A Dialogue With The Consular Corps And Legal Community," at the Canadian Embassy, 501 Pennsylvania Avenue N.W., Washington, D.C. 5:30-7:30 p.m. For details and registration form click here.

On January 31st & February 1st 2002, the National Immigration Forum will host its inaugural conference A Nation of Immigrants in the 21st Century: Moving Forward in a Time of New Challenges. The conference will be held at the Mayflower Hotel in Washington, D.C. For details, click here. For registration form, 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.
Editorial Advisory Board
Marc Ellis, Gary Endelman

Copyright 2002 American Immigration LLC, ILW.COM