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Immigration Daily

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Immigration Daily
Arthur L. Zabenko, Esq., Legal Editor
February 14, 2002
Previous Issues

Editor's Comments

Two different Circuit Courts within two days have determined that not every drug offense is an aggravated felony under immigration law. In Gerbier v. Holmes, No. 00-2335 (3rd Cir. Feb. 8, 2002), the court concluded that a state felony drug conviction without a trafficking element constitutes an "aggravated felony" for immigration purposes only when the same crime would be punished as a felony were the alien prosecuted in federal court. The court in US v. Robles-Rodriguez, No. 01-10193 (9th Cir. Feb. 13, 2002), determined that a state drug conviction for which the maximum penalty authorized by state law is probation is not an aggravated felony for purposes of immigration law. As Thomas Dean points out in his letter to the editor, whether or not a drug conviction is an aggravated felony "will have limited applicability since drug related offenses, felony or otherwise, constitute a separate basis for removal." The real applicability may be in cases such as Robles-Rodriguez where the sentence for illegal reentry after removal can be greatly enhanced if there is a prior conviction for an aggravated felony.

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Only 1 Week Left for Adjustment Seminar!

You can still sign up for the 2nd and 3rd sessions of "Adjusting Your Thinking: Who Can, Who Can't and Who Shouldn't Adjust Status" with H. Ronald Klasko and guest speakers William A. Stock and Tammy Fox-Isicoff. If you like, you can also receive a tape of the 1st session. This seminar will help you in strategizing about: 1) The many complex legal and strategic issues which must be considered in determining eligibility for adjustment of status. 2) Issues regarding travel often arising when adjustment of status is chosen. 3) The many factors which go into advising clients whether to chose adjustment of status or consular processing.

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ILW.COM Featured Article of the Day

Conditional Residents May Seek Naturalization While I-751 is Pending
Cyrus D. Mehta writes about recent correspondence from the INS confirming that conditional residents may apply for naturalization while an I-751 is pending.

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Immigration News

Substantive Defense not Eliminated Retroactively
In Alvarez-Portillo v. Ashcroft, No. 01-1430 (8th Cir. Feb. 13, 2002), the court concluded that new procedures may be applied to expedite reinstatement proceedings commenced after IIRIRA, but substantive defenses to reinstatement eliminated by IIRIRA may not be retroactively denied to aliens who illegally reentered prior to enactment. The court has made available the Appellant's brief, Appellee's brief, and the reply brief.

Drug Possession Not an Aggravated Felony
The court in US v. Robles-Rodriguez, No. 01-10193 (9th Cir. Feb. 13, 2002), determined that a state drug conviction for which the maximum penalty authorized by state law is probation is not an aggravated felony for purposes of immigration law.

No Jurisdiction to Review "Extraordinary Circumstances"
In Molina-Estrada v. INS, No. 99-70216 (9th Cir. Feb. 13, 2002), the court found that is lacked jurisdiction to consider whether the Board of Immigration Appeals (BIA) correctly concluded that Petitioner's delay in filing an asylum application was not due to "extraordinary circumstances," and that substantial evidence supported the decision not to grant withholding of removal.

INS Memo on Removal of Conditional Status for Spouses of Military Personnel
Michael Pearson, Executive Associate Commissioner, Office of Field Operations, has published a memo regarding removal of conditional resident status if the conditional resident is the spouse of an individual serving abroad in the US armed forces as part of operation Enduring Freedom.

INS Office Closings
The INS has published information about upcoming office closings.

Empty Seats in a Lifeboat: Are There Problems with the US Refugee Program?
At the "Empty Seats in a Lifeboat: Are There Problems with the US Refugee Program?" hearing the Senate Subcommittee on Immigration heard testimony from Arthur Gene Dewey, James Ziglar, Lenny Glickman and Bill Frelick, and statements from Patrick Leahy and Orrin Hatch.

Rep. Tancredo Calls INS Incompetent
In addressing immigration reform Rep. Tancredo said the INS, "is absolutely incompetent, incapable of doing what we ask of them in the area of enforcement of immigration law."

Facilitating Entry for Family of Sick and Deceased
Rep. Hastings introduced H.R. 3714, a bill to facilitate entry into the US by nonimmigrant aliens for brief temporary stays for the serious illness or death of a member of the alien's immediate family.

Comment Request on Student Immigration Status Confirmation
The Department of Education has published a request for comments on the extension of the "Student Assistance General Provisions--Subpart I--Immigration Status Confirmation."

Information about CSS, LULAC/Newman and the LIFE Act
Peter Schey, CSS/LULAC Class Counsel, Center for Human Rights and Constitutional Law, provides information for late-amnesty applicants, advocates and lawyers.

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Immigration in the Press

Private Eyes Bid for INS Business To Help Track Foreign Students
The Salt Lake Tribune reports that background-check companies and gun-toting bounty hunters are just two of the businesses vying for contracts from the INS to help track foreign students who come to the US on student visas.

Migrants Speed up Bids to be Citizens
According to the Chicago Tribune thousands of immigrants have been rushing to apply for US citizenship in recent weeks, motivated by an impending fee increase and a changed climate for the foreign-born since the September 11 terrorist attacks.

Letters to the Editor

Dear Editor:

Gerbier v. Holmes, No. 00-2335 (3rd Cir. Feb. 8, 2002), will have limited applicability since drug related offenses, felony or otherwise, constitute a separate basis for removal. With the exception of a single offense of personal possession of 30 grams or less of marijuana, all controlled substance convictions will result in deportation under INA Sec. 237(a)(2)(B). Apparently, in Gerbier, the INS decided to allege that the offense was an aggravated felony, a separate basis for deportation, but did not allege that it was a drug related offense. In my opinion, if the INS initiates new allegations of removability for conviction of a drug related offense, Gerbier will end up being deported anyway.

Thomas Dean, Esq.

Dear Editor:

I am responding to the letter from Bruce Hake, published in Immigration Daily on 2/13.

Mr. Hake makes a statement that it is "racist" to use the term illegal aliens. He states that "undocumented" aliens are not illegal. He then compares being undocumented to speeding and parking illegal.

There is an important distinction between speeding and being in the country illegally. When I drive faster than the speed limit (and I occasionally do), I am driving illegally. However, I am not an "illegal driver," since my driving privilege is in good standing. If I park my car in someplace where it is not permitted, I am an "illegal parker." but still not an "illegal driver." If I should choose to leave my driver's license at home, I am an "undocumented driver", but not an "illegal driver", since my state allows driving without the license present (though you do have to produce it later if necessary).

In the case of illegal aliens, their right to be an alien present in the United States is the issue at stake. An "undocumented alien" is an alien who is not carrying his or her passport and I-94 form (or green card, or other documentation). In the US, that act is also illegal, but that's not the issue that we are concerned with at the moment. If an alien is in the United States without permission (by entering without inspection or overstaying a visa), that person's alien status is illegal - an "illegal alien." It is possible to become an "illegal driver" by having your driving privilege revoked or just failing to renew it. In most states, that opens you up to a charge of "unlicensed driving." Similarly, a non-citizen in the US can become illegal through government action, or their own action or inaction. Is that fair? Maybe not. But the person is still an "illegal alien." The term "undocumented alien" is not appropriate when referring to people who do not have the right to be present in the United States. If they are here without permission, they are breaking the law - it's that simple.

This represents my personal opinion, and does not necessarily reflect the opinion of my employer.

Mark Smith
Hamilton, NJ

Dear Editor:

In his letter of February 13 Mr. Hake refers to "reputable" studies supporting the economic contribution of immigrants to the US economy, and says these justify "open borders." In fact, there are reputable studies which refute the contribution of immigrants to our economy, and which point out that most of the supposed benefits these immigrants provide go to themselves, not the US as a whole. In fact, one of Mr. Hake's "reputable" studies places the contribution of immigrants at $10 billion, insignificant in a multi-trillion dollar economy, and roughly the amount that Mexicans alone repatriated to Mexico last year from the US. In fact, ANY additional workers, native born or not, legal or not, "add" to the GNP--the question is, do they add more than they take. Unfortunately, it is becoming evident in immigrant-heavy states such as California that continuing to import large numbers of illegal immigrants or poorly educated and low-skilled legal immigrants is severely straining education and social welfare programs to the detriment not only of the immigrants, but of the native population as well.

I like Mr. Hake am a Democrat, but NOT a Catholic. I am also a unionist (with an MBA). Cesar Chavez himself opposed illegal immigration on the basis that an unending supply of labor helped to keep US wages down for the least skilled and the least powerful. Unending legal immigration has the same effect for virtually every level of ability.

Then, there are the social and cultural costs of importing large numbers of people and failing to assimilate them, which Mr. Hake ignores. My grandfather's country, Lebanon, fell apart due to jockeying for power between Muslims and Christians. This is an extreme, but possible, example of what can happen when cultures clash.

Ali Alexander

Dear Editor:

I suspect that my views are quite different from those of most members of "ILW," but I agree entirely with your "Editor's Comments." You have reason to be proud of the forum you provide. I'm a member of that "nativist" organization, FAIR, that one of the letter writers referred to. (Fearing I was one, I looked up "nativist" in my old dictionary, and it was defined as ..."favoring the native inhabitants of a country as against immigrants." I was relieved; I'm against massive immigration, not immigrants. We need to reduce the numbers no matter where they're from.)

Mr. Hake argued that studies which he has seen indicate that "undocumented aliens" contribute greatly. He offered no citations to support his claim (anymore than I am). But there are also studies which say that immigrants are a net drain when all is considered. Most of us tend to grasp at things that support our arguments.

The writer's worst "canard" was his statement that..."most reasons for being out of status are not crimes but civil status violations akin to parking violations...." It's believed that about 60% percent of the aliens illegally in the US entered EWI (Entry Without Inspection). That's a violation of 8 USC 1325, which is a criminal statute. There is also an "administrative" provision covering the same violations, which is the procedure under which most aliens illegally in the US are removed when apprehended - voluntary departure, deportation, etc. Aliens who obtain visas or admission to the US through lying or fraud, also are guilty of criminal violations. It's factually inaccurate to say that no crime has been committed.

To me, it seems that we need to tone down the rhetoric, stop worrying about "titles and turf" and to start talking about what we actually want to do about immigration.

John H. Frecker

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Representing Immigrant Children and Challenging Unlawful Arrests, El Paso, Texas-Ciudad Juarez, Mexico, February 20-22, 2002. Sponsored by the Lawyers Committee for Civil Rights Under Law of Texas, and the University of Texas, El Paso, Center for Law and Border Studies. Register early and save money. $200 for full three day conference if registration is received by January 30, 2002. To register by phone or for more information, contact the University of Texas, El Paso, Center for Law and Border Studies: Phone(915)747-8866 Fax: (915) 747-5538. The full conference agenda and registration information available on-line at: Texas and New Mexico CLE for attorneys available 0.6 CEU credits for social workers and counselors. Limited scholarship money available. For more information on scholarships, contact Sofia Munoz at the Lawyers Committee for Civil Rights:, (915) 532-3370. Of particular importance post 9/11, this conference will address the issues related to immigration stops, arrests, suppression and detention, with the focus on children. For additional information: In El Paso, UTEP: 915-747-8866 Sofia Munoz, Lawyers Committee, (915) 532-3370. In Dallas: Natalia Walter, (214)559-4130.

Immigration...The Times They Are A Changin' February 28, March 1 2002, SeaTac DoubleTree Hotel, 18740 Pacific Hwy. So., Seattle. This year's expanded seminar has been revamped to maximize information sharing with government speakers and experienced practitioners. More government speakers, larger facilities, and exciting new roundtable discussions will educate and challenge attendees of all experience levels. Attendees new to immigration will receive a comprehensive, practical and clear overview in virtually all areas of immigration law. Advanced attendees will learn how to incorporate the new laws and procedures into their daily practice. In addition, all attendees will learn to resolve complex matters so unique that they cannot be researched in traditional periodicals. To Register or view the full program brochure click here. For questions or more information call Denise at: (206) 340-2578.

The second annual New Jersey Institute for Continuing Legal Education (ICLE) Seminar that will be run in conjunction with AILA on Wednesday March 20, 2002, from 9:00 a.m. to 3:30 p.m. at the Gateway Hilton in Newark, New Jersey. Speakers include: Dolores DeHaan, Betty Manfredonia, Paul Novak, Andrea Quarantillo, Susan Rauffer and William Yates. 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.
Editorial Advisory Board
Marc Ellis, Gary Endelman

Copyright 2002 American Immigration LLC, ILW.COM