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Immigration Daily April 12, 2002
Previous Issues

Editor's Comments

We are aware that not every issue of Immigration Daily has items of interest to every reader, but today's issue is one of the largest yet and we hope everyone will be able to find something of interest. Bini v. Aljets, Akinwale v. Ashcroft, and Jama v. INS are cases involving habeas claims. US v. Favela-Favela addresses the standard for questioning by police if transporting illegal aliens is suspected, which may have increased importance if local police becomes active in enforcement of immigration laws. The INS has clarified the proposed changes to the rules for visitors, and provided an overview of the agency in INS by the Numbers. On the political front the House Judiciary Committee has recommened a split of the INS into two agencies. And the letters to the editor address some of the social and human aspects of immigration law. Some days there is hardly any immigration news; today there is a surfeit. Enjoy!

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ILW.COM Featured Article of the Day

The ABCs of Immigration - Losing US Citizenship
Greg Siskind and Amy Ballentine write about seven possible grounds for losing US citizenship.

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Immigration News

No Habeas Relief without Petition for Review
In Bini v. Aljets, No. 01-3234 (8th Cir., Apr. 11, 2002), the court found that the district court had correctly determined that it lacked jurisdiction to entertain Petitioner's habeas challenge to the Board of Immigration Appeals (BIA) decision because the issue should have been raised in a petition for review by the BIA, that the INS had discretion to extend Petitioners detention because he was removable for crimes involving moral turpitude, and that Petitioner was ineligible for the requested relief because the statute had been repealed and it pertained to lawful permanent residents, not overstays. The court has made available the Appellee's brief.

Transporting a Group of Non-family Members Grounds for Police Questions
The court in US v. Favela-Favela, No. 00-6421 (10th Cir. Apr. 10, 2002), upheld a conviction for transporting illegal aliens in the US finding that negative answers to questions about whether passengers in a van were family members or a church group and the officers knowledge that other vans and large vehicles had been stopped and found to be carrying illegal aliens gave an officer grounds for suspecting illegal activity and asking more questions.

Habeas Denied for Alien Waiting Four Months for Removal
In Akinwale v. Ashcroft, No 00-12655 (11th Cir., Apr. 4, 2002), the court dismissed the Petitioners habeas petition since he had not been held beyond the six months period which is the presumptively reasonable period to detain a removable alien awaiting deportation and because he did not make any showing that there was no significant likelihood of removal in the reasonably foreseeable future.

"Clear and Convincing" Standard to Enjoin Removal
The court in Weng v. Ashcroft, No. 01-17214 (11th Cir. Apr. 10, 2002), denied Petitioner's request for a stay of removal pending the Board of Immigration Appeals' (BIA) review of a final order or removal because Petitioner had not met IIRIRA's "clear and convincing" standard for enjoining removal.

No Removal Unless Government Agrees to Accept Person
The court in Jama v. INS, No. 01-1172 (JRT/AJB) (D. Minn. Mar. 31, 2002), determined that it had jurisdiction to hear a habeas Petition challenging removal, and ordered that Petitioner not be removed from the US until the government of the country to which he is to be removed has agreed to accept him.

INS Clarifies Rule Changes
The INS clarifies that the proposed changes for visitors will not automatically limit B-2 visitors for a 30 day admission, but will put the burden on the visitor to establish why the period should be longer, and that that prohibition on change of status from B to student will not apply to those currently in the US or those who express their intent to change status at the time of admission.

INS by the Numbers
The INS Overview page provides a thumbnail summary of the agency's mission, responsibility, organization and history, and summary of relevant numbers.

INS Web Statistics
The INS web statistics for the first half of FY2002 show total a of 9,805,197 customers visited the Website.

FY2001 Asylum Statistics
The asylum statistics for FY2001 provide for each country the number of asylum applications received, granted, granted conditionally, denied, abandoned, withdrawn or otherwise disposed.

EOIR/AILA Liaison Minutes
The Executive Office for Immigration Review (EOIR) has made available the minutes from their March 7, 2002, liaison meeting with the American Immigration Lawyers Association (AILA).

House Judiciary Committee Recommends Split of INS
The House Judiciary Committee marked up H.R. 2321, the "Immigration Reform and Accountability Act of 2001," on April 10, 2002, and recommended by a 32-2 margin legislation dismantling the Immigration and Naturalization Service (INS) and creating two new agencies: one focused solely on immigration enforcement and the other responsible for citizenship and immigration services. The committee recommended an Amendment in the Nature of a Substitute, provided a Section By Section Summary of the Amendment in the Nature of a Substitute to H.R. 3231 "The Barbara Jordan Immigration Reform and Accountability Act", and offered the Chart of the Amendment in the Nature of a Substitute.

Interim Final Rule on Exchange Visitors
The Department of State is revising portions of its existing Exchange Visitor Program regulations to correct inaccurate references to related regulations and organizational offices and positions set forth in the regulations.

Requests for Grant Proposals for J-1 Programs
The Department of State., Bureau of Educational and Cultural Affairs requests for grant proposals for J-1 programs for Three Curriculum Development Projects for the Armenia-Civic Education, Pre-Service Education and School Administrator Training program, the Afghanistan Women's Teacher-Training Project, the Burma Refugee Scholarship Program, the Youth Leadership Program for Bosnia and Herzegovina and the Armenia School Connectivity Program.

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Immigration in the Press

Immigrant Legalization Plan Stalled
The Atlanta Journal Consitution reports that an immigration measure that once seemed on track to ease legalization for as many as 300,000 foreign residents has been put on indefinite hold in the Senate.

Letters to the Editor

Dear Editor:

It appears that the INS has finally realized that no one really visits the US for a period of 6 months so they are about to implement a 30 day maximum for most tourist issued B-2 visas and it only makes sense. Has any American ever "visited" a foreign country on vacation and stayed for 6 months! I only wish I had the time and the money to be able to do so.

The B-2 tourist visa is the most commonly abused visa for those that intend to remain in the US illegally because they have been relatively easy to obtain. Hopefully this will change and less people will be getting these visas issued unless they can clearly prove they do intend to obey the immigration laws of the United States and return to their place of residence prior to the expiration date as the B-2 mandates. Of course there will be abuse but it is a step in the right direction.

J. Seyes

The following are in response to the Editor's Comments in the April 8, 2002, issue of Immigration Daily.

Dear Editor:

I have taken a look at United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984), to see whether it might support the apparent DOJ plan to have local police enforce the immigration laws on a broad front. In my opinion, it cannot support the proposition that local police have the authority to roam at will and check on the credentials of persons who, in their view, may be EWIs or out of status aliens.

Salinas-Calderon arose from a motion to suppress statements made to a state trooper who had stopped a pickup truck that that was being driven erratically. The driver, Salinas-Calderon, was questioned by the trooper, and it was clear that he did not understand English. The wife of Salinas-Calderon, a passenger, stated that he was a Mexican national. The trooper noticed that there were six other passengers under a camper shell, and found that they did not understand English. Salinas-Calderons wife stated that they, too, were Mexican nationals. She also said that neither her husband nor his passengers had identification papers or green cards. The trooper did not know how to proceed, and contacted the INS. The motion to suppress was granted by the district court, and that decision was reversed by the court of appeals. The key question was whether the trooper had probable cause to stop and question in the first place, and then to make an arrest on the basis of the information the questioning provided. The reviewing court held that he did: Applying the objective probable cause test, it is our view (that the trooper) had probable cause to make a warrantless arrest for violation of the immigration laws at this point in time.

The case suggests this rule: unless an alien is engaged in some conspicuous and unusual behavior (the equivalent of driving erratically) there is no probable cause to stop and question him or her, much less to make an arrest for violation of the immigration laws. Salinas-Calderon does not provide authority for the sort of random stopping and questioning of aliens by the local police that the DOJ may have in mind.

Carl R. Baldwin

Dear Editor:

Its interesting that no one has actually seen the Ashcroft proposal to allow state and local police officials to "enforce" immigration laws. That might be because he can't figure out how to write it in a manner that would be constitutional. We should not be intimidated. The Salinas decision is nothing to worry about, because the issue in that case was only a question of whether there was probable cause to make a stop. That isn't new or different and the case isn't even an expansive interpretation of existing law. Actually, there are several other decisions "out there" that would support what Ashcroft wants to do much more than the Salinas case. That's why I think none of this is really serious.

But even if it is serious -- what is meant by "enforcement" of the immigration laws? Does that mean that the police will have the authority to apprehend individuals who have final unexecuted orders of deportation and turn them over to the INS? I see no problem with that.

Does it mean that the police will have the authority to make the determination in the first place whether or not an individual's presence is lawful or, maybe better put, whether the individual has a right to remain in the US? That cannot possibly be, as that is contrary to law and would negate those court cases that require at least minimal levels of due process in deportation hearings.

Does it mean simply that the police will apprehend "suspects" and turn them over to the INS? Let's say that is the case, and now all of these "suspects" will be in line for their deportation hearings. Instead of 4 year backlogs, we will have 10 year or 15 year backlogs in deportation cases (not to mention appeals). The aliens will still remain in the US -- for years -- while waiting for their day in court (even if its just Immigration Court), their labor certs can continue to be worked on, and, well, the laws will change. They always do.

So, I, personally, am not going to get bent out of shape over this proposal. I am more concerned about the things Ashcroft is not seeking publicity about.

Laura Jasinsky

The following is in response to the Editor's Comments in the April 9, 2002, issue of Immigration Daily.

Dear Editor:

I am not a lawyer. I am a candidate for a Master's of Divinity at a seminary in New York. An ethics course introduced me to the gross injustices perpetrated by the INS even before 9/11--of course it is ten times worse now. I value highly the information provided by Immigration Daily, and I archive Immigration Weekly. I say to that lawyer whose mouse finger is getting tired from scrolling to the end of each day's offering: it may not seem relevant to you, as you attempt to justify billing somebody $200 an hour for your background reading, but you never know, someday you may be in a position where you are the subject of gross injustice in the name of good government, and I hope you have someone on your side with the information you need.

Margaret Wise

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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

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