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Immigration Daily May 7, 2002
Previous Issues

Editor's Comments

Today's Daily is full of immigration law news - the US Department of Labor has proposed for comment the so called "PERM" regulations to fundamentally reshape the way in which labor certification applications have been processed for over two decades - there are no less than eight federal court cases again today - Gary Endelman writes about the DOL's proposed PERM regulations in today's Featured Article - and of course there is more including several letters to the Editor and Classifieds.

Recent comments by Judge Robertson of the District Court for the District of Columbia (corrected May 8, 2002) might be of interest to our readers. The case before him concerned Canadian truck drivers in the US on B visas. Here is what Judge Robertson had to say: "Most federal agencies have accepted and seem to understand that they exist to serve the public. The INS, however, exhibits quite a different attitude, at least to the non-U.S. public, and its position in this case gives new meaning to the term bureaucratic frustration. The INS insists that determining which trucking activities are legal is so intensively fact-specific that the only way to make authoritative decisions is through one-by-one exclusion adjudications ... the INS's refusal to work with parties who are in good faith attempting to comply with American law seems contrary to the spirit of NAFTA and is needlessly wasteful of the resources of the courts, the plaintiffs, and the INS itself." (The entire decision appears below.)

This is the INS that Congress proposes to abolish. What will take its place? Here is what Rep. Langevin (D-RI) said on April 25th in the House of Representatives: "Splitting a bureaucracy into two only creates two bureaucracies. I have to laugh as I am reminded of the perils of Hercules as he tried to slay Hydra, the nine-headed snake, which grew two heads for every one that was chopped off."

In providing a forum for the dissemination and discussion of fact and opinion in immigration law, Immigration Daily does its bit in helping in the Herculean task of making immigration policy based on immigration reality.


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Featured Article

Innovation Is Not Normal: DOL And The End Of Business Necessity
Gary Endelman writes that in its proposed regulations (the so called PERM regs), the Department of Labor, in setting itself up as the High Priest of Normalcy, will stifle innovation which is at the heart of our economic competitiveness and in doing so will hurt the very American workers it seeks to protect.

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Immigration Law News

DOL Proposes PERM Regulations
The Department of Labor (DOL) published a proposed rule for amending the labor certification program, and asked for comments from the public. DOL expects that this rule will eliminate the need to periodically institute special, resource intensive efforts to reduce backlogs which have been a recurring problem by instituting a combination of prefiling recruitment, automated processing of applications, and elimination of the role of the State Workforce Agencies in the processing of labor certification applications.

District Court Cannot Make Declaratory Judgements
In Transport v. INS, No. 01-0158 (D.D.C. Apr. 17, 2002), the court held that the Declaratory Judgement Act did not authorize the court to compel final agency action or to promulgate rule or to issue advisory adjudications when the Petitioner had sought declaratory judgements in different scenarios for Canadian truck drivers entering the US on B visas.

Failure To Inform Client Of Vienna Convention Is Not Ineffective Assistance Of Counsel
In Murgas v. USA, No. 99-CV-1723 (N.D. New York, Apr. 10, 2002), the court denied Petitioner's claim of ineffective assistance of counsel holding that the mere fact that the Petitioner's attorney failed to inform him of the Vienna Convention on Consular Relations did not imply that the outcome of his case was tainted, and that the consular notification provision of the Vienna Convention and its related regulations did not create any "fundamental rights" for a foreign national.

Soccer Team Is Not A Social Group
In Diabate v. INS, No. 01-2243 (1st Cir. Apr. 3, 2002), the court found that the evidence presented by the Petitioner was insufficient to compel a finding that his membership in or defection from Guinea's national soccer team constituted a political opinion or membership in a particular social group.

St. Cyr Not Applicable To Those Convicted
In Gomes v. Ashcroft, No. 01-30160-MAP (D. Massachusetts Apr. 9, 2002), the court held that since Petitioner had not pled guilty, but had instead been convicted by a jury prior to the enactment of AEDPA and IIRIRA, he could not complain that his plea was premised on the availability of discretionary waiver of deportation.

Child Citizenship Act Of 2000 Is Not Retroactive
In USA v. Arbelo, No. 01-00286 (11th Cir. Apr. 15, 2002), the court held that the facts that the Defendant's father naturalized in 1980 and that Defendant had been in his father's custody from 1982 to 1984, did not make him a citizen as a consequence of the Child Citizenship Act of 2000 since that act specified that its amendments to prior law would take effect 120 days after the date of its enactment in February 2001.

Section 236(c) Is Unconstitutional
In El-Banna v. Hansen, No. 1:02-CV-501 (N.D. Ohio Apr. 26, 2002), the court held as unconstitutional section 236(c) of the Immigration and Nationality Act which mandates detention of aliens who have committed any one of a list of offences, since that section is not narrowly tailored to prevent aliens from absconding or to protect the community. (Provided courtesy of Scott Bratton of the Law Office of Margaret Wong and Associates.)

Iranian Christian Of Armenian Descent Eligible For Deferral Of Removal Under CAT
In re G-A- 23 I&N Dec. 366 (BIA 2002) (en Banc) (May 2, 2002), the Board held that an Iranian Christian of Armenian descent who had lived in the US for 25 years was eligible for deferral of removal under the Convention Against Torture based on a combination of factors including his religion, his ethnicity, the duration of his residence in the US and his drug-related convictions in the US.

No Jurisdiction When Petitioner Has Been Deported
In Miranda-Vidrio v. INS, No. 99-9519 (10th Cir. May 1, 2002), the court said that it lacked jurisdiction to review Petitioner's appeal from a final deportation order of the Board of Immigration Appeals since the Petitioner had been deported.

Bush Reiterates Support For 245(i)
In his radio address to the nation, President Bush said that he had "asked our Congress to pass an extension of Section 245(i) of our immigration law to let families stay together while they become permanent residents."

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Other Items

Proposed Visitor Visa Rule Is Punitive
The San Jose Mercury News reporting on the website says that INS's proposed rule on B visas will be "pointlessly punitive while doing little or nothing to enhance national security."

Controversy In New York Over Local Police Enforcement Of Immigration Laws
Quoted in the New York Daily News, immigration attorney Allan Wernick says "go after bad people, not immigrants who are only seeking a better life for themselves and their families."

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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:

Amid the growing discussion of plans to restructure the Immigration and Naturalization Service, both Bills H. R. 3231 and S. 2444, not much has been said yet about one of the more innovative concepts, namely the creation of the Office of an Ombudsman within the Department of Justice to make the new agency accountable for its actions. The term "Ombudsman" originated in Sweden in the 1700s and was formalized in the Swedish constitution of 1809. An Ombudsman deals with complaints received from persons affected by any administrative act or omission of a governmental organization, or investigations started on the Ombudsman's own initiative. There are currently general governmental Ombudsman offices in over 100 countries on all continents, and in North America several states and nearly all Canadian provinces have an Ombudsman, as do many counties, cities, corporations, professional organizations, and about 200 colleges and universities. The numbers of Ombudsman offices continue to grow as governments realize they cannot be judge and jury as well as defenders of their own interests.

Unfortunately, while the new bills and particularly the Kennedy-Brownback Bill in the Senate take the important step of creating this office, at the same time they fall short. They create an Ombudsman with responsibilities, particularly that of reporting to Congress, but fail to provide the Ombudsman with authority. As currently structured the Ombudsman merely receives complaints and requests for assistance, and then reports on how well the agency responded to what the Ombudsman forwards to it. Without authority to investigate, one cannot presume that the Ombudsman either can or will investigate, resolve complaints or be a true stimulus for systematic changes.

What is needed is an Ombudsman with clearly defined authority, in particular: a) The Ombudsman must be required to keep confidential information about complainants who contact the Ombudsman. Without this many complainants will be scared of coming forward, fearing it will prejudice their case. b) The Ombudsman needs to have specific authority to investigate and pursue resolution of complaints, and specific authority to access records.

Without these, I fear that the Ombudsman will end up as a hollow step, not a profound change to add true accountability in the new Immigrations Affairs Agency

Professor Laurence Marks
Northwestern University

Dear Editor:

I am not the one "singling out" Mexicans. Dr. Baer has, repeatedly, in his letters, which was what I was responding to. His concern seems to be only with Mexicans, and illegal immigrants at that. The thrust of my original response to him (and what Ms. Flowers was commenting on) was that in doing so, he treats would-be legal immigrants from other countries, which also have millions of poor people, and our own native poor, unjustly.

Ms. Flower's states that Mexicans do not enjoy any "privileges" beyond those of Europeans or other ethnic groups. This is open to debate. Our immigration policy, by emphasizing family reunification, favors recent immigrants, particularly those with large families. It de facto favors Mexican immigrants.

If Ms. Flowers cares to check the Statistical Abstract of the US, 2001, published by the US Census Bureau, she will find on pages 10-12, listings of immigrants by country. Mexico far and away is the largest single sending country of legal immigrants to the US. For 1998 alone (the latest date for which figures were given), Mexico accounted for 20 percent of legal immigrants to the US, or 131,600 of 660,500 immigrants from all countries. For the period 1991-96, Mexico accounted for 27 percent of all legal immigrants. Coincidental that this burst in immigration follows the 1986 amnesty, and comes about when these "legalized" immigrants would be able to sponsor other family members? In other words, those Mexicans Dr. Baer and Ms. Flowers see as disadvantaged actually have the greatest opportunities to enter the US through family reunification. (The employment-based visas account for about 140,000 entries; family reunification, several times that.)

I'm sure Ms. Flowers realizes that accurate figures on the number of illegal immigrants are impossible given the very nature of illegal immigration. The best guess the Census Bureau will admit to is 8 million illegal immigrants in the US, though others might say the figure is closer to 11 or even 13 million. I've seen guesses that Mexican immigration accounts for anywhere from 30-50 percent of illegal immigrants. The lower figure might be most reasonable, in that it's close to the percentage of legal immigrants. However, even two million illegal Mexican immigrants is still a number greater than the population of some US states. If Ms. Flowers and Dr. Baer truly believe that the number of illegal Mexican immigrants is so small, well, why then should the US government do anything to "regularize" their status. After all, we've had illegal Mexican immigrants for decades and never singled them out for favor. If they get caught up in today's heightened security, well, are we supposed to ignore their illegal status, because, after all, they're "hard-working Mexicans" and not "terrorists"? That, Ms. Flowers, is profiling, and discrimination.

As for the "diversity" programs and refugee programs--those admit relatively small numbers. There are something like 50,000 diversity visas for the entire world (Mexico is not included in this program precisely because it already accounts for so many immigrants). Political refugees to the US from everywhere in 1998 (the latest year for which the Abstract offers figures) were 54,645. Since 9/11, that figure has substantially decreased (according to press reports).

Ali Alexander

Dear Editor:

It is a waste of time, in my opinion, to plow the same ground over and over so I refrain from commenting on criticisms that are repetitive. I prefer discussions, not debates. I want to move forward in these discussions with the planting of new seeds of hope and the harvesting of possible solutions to the immigrant problem.

I am encouraged when I read: I personally am not necessarily against finding methods of legalizing illegal residents in this country. This particular writer continued in his letter: What I am opposed to and frustrated with is the how part of the equation. I, too, am frustrated with this how part but I am not opposed to searching for a solution.

Other writers fill their letters with a myriad of comments with every phrase and comment being speculation about something different---so much so that were I to reply to all the insinuations, Immigration Daily would have to resort to the use of the Adobe Reader to publish my comments.

For example (quote): Ive also (?) experienced first hand in the Middle East the problems of terrorism and political disruption which make the problems of illegal Mexican economic migrants insignificant. What does that mean? Can the sufferings of anyone from any place, legal or illegal, economic or not, be deemed insignificant! This is lack of compassion. Regarding border security, (quote): Careful scrutiny and control of our immigration process are essential. I agree and I can assure the writer that should terrorists ever be apprehended crossing the Mexican border, they wont be of Latin descent. As a last example, I find an assertion, being raised in poverty is beneficial, to be somewhat ludicrous.

This is the extent of the discussion that I wish to put into the above subjects.

If anyone wants to comprehend further my philosophy on immigration, particularly Mexican immigration, I refer him or her to two excellent articles recently reviewed in Immigration Daily. The first is the Karmell Bowen letter (Immigration Daily, 4/26/02) and the other is the more recent Gerry Chapman article, Immigration Laws Stymie Our Growth (Immigration Daily, 5/1/02). There can be found some of the best commentaries on Mexican immigration that I have been privileged to read. I agree completely with these two authors. A careful study of both communications is recommended.

Richard E. Baer, D.V.M.

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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