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Immigration Daily May 6, 2002
Previous Issues

Editor's Comments

There is plenty of news to report in today's Daily. There are no less than eight cases from the courts, TPS for Nicaraguans and Hondurans has been extended, the Senate introduced its version of the bill to abolish the INS which differs from the version the House passed - setting the stage for complicated negotiations between the two bodies, and President Bush reiterated his support for a 245(i) extension. The news item today that might attract the least notice, but which might be the most important is an introduction of a House Bill to tie visa expiry to documents presented for identification. Proponents of a national ID card are using the current climate of suspicion of immigrants to introduce proposals, which, though they may be superficially tied to immigrants, in fact lay the technological, legal, and institutional foundation for a national ID card for every American, including those native-born.


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Featured Article

INS Now Processing Employment Authorization Applications for E and L Nonimmigrant Spouses
George N. Lester IV writes about employment authorization for E and L Non-Immigrant Spouses.

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Immigration Law News

Lack Of Criminal Intent Not Basis For Downward Departure
In USA v. Alejo-Alejo, No. 01-4548 (4th Cir. Apr. 16, 2002), the court held that the District Court erred when it departed downward in sentencing Petitioner for being an illegal alien found in the US after deportation for an aggravated felony, since Petitioner did not meet all the specified criteria for downward departure mentioned in the Sentencing Guidelines, despite Petitioner statement that his crime did not involve criminal intent.

Gaps In The Transcript Do Not Require Remand To BIA
In Dodaj v. INS, No. 01-2126 (4th Cir. Apr. 19, 2002), the court found that the record did not show any error by the Board of Immigration Appeals (BIA) and waived Petitioner's claim that gaps in the transcript require remand since it was not raised before the BIA.

Ineffective Assistance Of Counsel Claim Must Meet BIA Requirements
In Geletu v. INS, No. 01-2196 (4th Cir. Apr. 26, 2002), the court found no abuse of discretion in the Board of Immigration Appeals (BIA) refusal to reopen proceedings where the motion to reopen was untimely despite Petitioner's claim that the untimeliness was caused by ineffective assistance of counsel since he failed to meet the requirements for filing such as claim as set forth in the BIA's case law.

Suppression Is Not Remedy For Violation Of Vienna Convention
In USA v. Contreras-Cortez, No. 01-8030 (10th Cir. Apr. 26, 2002), the court stated that suppression of Defendant's inculpatory statements is not an available remedy for violation of Article 36 of the Vienna Convention on Consular Relations (the article requires that the Defendant be notified of his right to have notification of his arrest sent to the Consular Post of the country of which he is a national).

Utah Child Abuse Is An Aggravated Felony
In USA v. Saenz-Mendoza, No. 01-2083 (10th Cir. Apr. 26, 2002), the court held that an offense need not be classified as a felony to qualify as an "aggravated felony" as defined in the immigration statute and that since Defendant's Utah misdemeanor conviction for child abuse was a crime of violence, his offence level for sentencing should be the offence level for an aggravated felony.

Country Report Of Peace Accord Not Sufficient To Meet INS Burden Of Individualized Rebuttal
In Rios v. Ashcroft, No. 01-70836 (9th Cir. May 1, 2002), the court found that the Petitioner had suffered past persecution in Guatemala where she had been, among other things, subjected to death threats, had been severely wounded, and had been kidnapped; that her persecution was on account of her imputed political opinions since she was told by her kidnappers that she was abducted and wounded because her husband and brother were members of the Guatemalan army, and since her son's kidnappers verified who his father was before attempting to kidnap him; and that the Country Report submitted by INS reporting that country conditions had changed because a peace accord had been signed in Guatemala and that many of the disarmed guerilla forces were now a part of the government there was not sufficient to meet INS's burden of rebutting, on an individualized basis, her well founded fear of future persecution since guerillas continued to subject civilians with death threats and that same Country Report also stated that "lynchings, mob attacks and unsolved killings continue[]."

Timing Of Proceedings Is Discretionary Decision Of Attorney General
In Villanueva-Herrera v. Ashcroft, No. 01-2415 (4th Cir. May 1, 2002), the court held that it lacked jurisdiction to review a decision by the Attorney General to commence deportation proceedings against the Petitioner at a delayed time when he was no longer eligible for suspension of deportation since the timing of such decision was at the discretion of the Attorney General.

Presence In The US After Deportation For Aggravated Felony Can Increase Criminal History Score
In USA v. Alcazar-Contreras, No. 01-3006 (8th Cir. May 1, 2002), the court held that Defendant's confirmed presence in the US on three occasions after having previously been deported following conviction of an aggravated felony could be used in calculating his criminal history score under the Sentencing Guidelines, since this was a continuing violation that is not complete until he was discovered by the immigration authorities.

Senate Version Of Bill Abolishing INS Introduced
Senator Kennedy (D-MA) introducing S. 2444, the senate version of H.R. 3231, the bill to abolish the INS, said "the overarching difference between our two bills is the power and authority vested in the agency head and the coordination between the two bureaus."

House Bill Ties Identification To Visa Expiry
The House Subcommittee on Immigration and Claims approved for full Committee action the following bills: H.R. 4043, to bar Federal agencies from accepting for any identification-related purpose and State-issued driver's license, or other comparable identification document, unless the State requires licenses or comparable documents issued to nonimmigrant aliens to expire upon the expiration of the aliens' nonimmigrant visas; H.R. 4558, to extend the Irish Peace Process Cultural and Training Programs; and H.R. 4597, to prevent nonimmigrant aliens who are delinquent in child support payments from gaining entry into the United States.

INS Extends Designation of Nicaragua and Honduras Under TPS Program
INS extended the designation of Nicaragua and Honduras under the Temporary Protected Status (TPS) Program for 12 months until July 5, 2003. The extension for TPS allows eligible nationals of Honduras and Nicaragua to re-register for TPS and extends employment authorization. INS issued a news release in English and Spanish and questions and answers about this matter.

President Bush Says 245(i) Extension Should Be Enacted
In a reception honoring Cinco De Mayo, President Bush said "the United States has no more important relationship in the world than the one we have with Mexico. I meant it then, I mean it now." He also said "I've asked our Congress to pass an extension of Section 245(i) of our immigration law to allow families to stay together while they become permanent residents. There is no reason why this law should not be passed."

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Other Items

Proposed INS Rule To Limit Visitor Stays Criticized
The Boston Globe reports on the INS's proposed rule to limit B visas to 30 days and quotes a Congressman who doubts "that the proposed rule would result in better national security."

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Help Wanted: Immigration Paralegal
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Immigration CLE Seminar
Year 2002 Immigration Law Update - Practicing Immigration Law in New York and Beyond Post September 2001: A Brave New World. Announcing a May 21-22, 2002, New York State Bar Association Continuing Legal Education Seminar. No area of practice has been more impacted by the events of September 11, 2001 than that of immigration and nationality law. We are pleased to present our traditionally popular, two-day program on the state of immigration law as critical issues relating to this practice continue to evolve on a day-to-day basis. 9/11 continues to significantly impact the practice of immigration law, the rights of legal immigrants and the way the power of the U.S. government is used to remove people from the United States. Attorneys are impacted by issues relating to national security and attorney-client privilege, access to clients and privacy and due process rights. In addition, policy, legislation, regulations and procedure relating to the H-1B program and all other components of "legal" immigration to the United States have changed the landscape. How immigration and nationality law will be enforced in this millennium is an important subject of review as Congress looks to restructure the Immigration and Naturalization Service itself. This program is designed to give the practitioner guidance and perspective with regard to all of these developments. The program's first day provides an update on late-breaking issues in the legislative and regulatory arenas and then deals with issues encountered in defense of aliens, in removal proceedings and what you need to know including procedures, cancellation of removal and other remedies and related issues. The program also reviews refugee and asylum law, and issues relating to documentation while in the United States for students and other visa holders, special security concerns and their impact on consular processing and admission to the United States. The program's second day focuses primarily on how to obtain immigration benefits and issues relating to the workplace. Ethics, liability and malpractice issues will be covered as well as projected trends in the practice given the after effects of September 11th. To register or for more information contact NYSBA's CLE Registrar at 1-800-582-2452 or at

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Letters to the Editor

Dear Editor:

This is to respond to some of the letters that have appeared opposing legalization of people who have been in the United States illegally.

Our immigration system is entirely created by Congress, which has not considered honestly the labor and family reunification needs of our country, but has instead responded to political pressures of the moment. This has resulted in special programs for nationals of particular countries, and limits on immigration that are too low, thus creating a process with long delays. In addition, until the 2000 budget, the service functions of the INS were funded solely by user fees. Only the Border Patrol and jail facilities received money from U.S. tax funds. At the same time, Congress passed measures greatly increasing the workload of INS applications and adjudications sections.

Also, in designing the system, Congress has taken for granted that we will always have a large number of undocumented workers, especially Mexican workers, in the United States, and that they will provide the labor needed by countless U.S. businesses, even though both the workers and the businesses then have to break the law in order to function. In fact the U.S. economy, and all of us in the U.S. depend on the labor of immigrants, many of them illegal. Our food supply, our restaurant and hospitality industries, scientific research, many of the departments in colleges and universities, are just a few examples of sectors dependent on work done by foreigners in the U.S. and fees paid by them. Most people in the U.S. do not know or accept how dependent on foreign workers we are. But in many cases, there is no legal way to employ the foreign workers one needs. Many foreign workers who have provided labor for U.S. businesses, often under conditions that are very harsh, have been forced to endure long separations from their families parents unable to see their children for many years. This is a cruel system.

The writer who stated that U.S. citizens cannot be deported is sadly mistaken. In many cases, current law does not allow a court even to consider hardship to U.S. citizen children should a parent be deported. Sometimes courts have stated that deportation of the parents of U.S. citizen children is not a hardship to the children because the parents have the option of leaving the children in the U.S.

We need a system that deals honestly with the labor and family needs of people in the United States.

Carolyn Ann Killea

Dear Editor:

Mr. Alexander exhibits the same myopic vision that formed the roots of ethnic unrest in the former Yugoslavia, namely, a preoccupation with nationality. He discusses his 'Arab-American' background, and claims that the problems of individuals from the Middle East far outweigh those of Mexicans. He conveniently frames the difficulties faced by Mexicans as purely 'economic' in order to support his thesis. I find this statement, regardless of its accuracy, to border on arrogance.

Central Americans, of which Mexicans are one small group, have suffered just as much as those in Lebanon, Palestine, Afghanistan, etc. I would venture to say that the Bosnian Muslims and the Ethnic Albanians of Kosovo would also have a stake in the 'suffering sweepstakes.' Therefore, for Mr. Alexander to single out those of the Middle East as the ones that have suffered the most, and are therefore most deserving of preferential treatment (I apologize if I am paraphrasing) is inappropriate, offensive and incorrect.

Our country's immigration policies should not be nationality-based and, with the exception of the Diversity Lottery and Asylum, are not. I think that Mr. Alexander and I would agree on that one point. In fact, those nationals from Middle East have, perhaps, the greatest chance at obtaining refugee status and privileges precisely because of the political unrest in their part of the world. I can also assure Mr. Alexander that in my experience, and in my practice, Mexicans do not enjoy any special privileges above and beyond Europeans, Middle Easterners etc. They are certainly not eligible for refugee status based on a 'purely economic claim.' I presume that Mr. Alexander is referring to Section 245(i) when he singles out Mexicans for his ire, but the fact is, that provision of law (which has for all intents and purposes been eliminated) assisted all those of whatever nationality who entered the US illegally. Unless he has the statistics to prove it, I doubt that all, or even the majority, of illegal entrants are Mexican. Illegal entry from our Northern Border is almost as significant as that flowing from the South.

In closing, I share Mr. Alexander's desire that Immigration policies and practices be fairly applied. No one is 'more equal' than anyone else. I also applaud Dr. Baer on his compassionate reading of our immigration policy; a human being has the same intrinsic value, regardless of the passport that he or she bears.

Christine Flowers

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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