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Immigration Daily

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Immigration Daily May 16, 2002
Previous Issues

Editor's Comments

We have no less than seven Letters to the Editor today. One is a comment on a recent BIA decision. An attorney writes to criticize our carrying recent Letters to the Editor, another attorney writes to praise our carrying those recent Letters. Yet another attorney writes to express his views on a candidate he would like to see elected to organizational office, and three correspondents write to express their views on immigration policy. Immigration Daily is proud to serve as a platform for information in the immigration law field. However, some clarification of our policy here may be helpful. We recognize that not all our readers are interested in Letters to the Editor, but also realize that some of our readers love that section. To accomodate both groups, we reorganized the Daily a few weeks ago, and moved Letters to the Editor to the bottom. That way, those who want to ignore the section can ignore it, and those who like it can still read it. Another thing that may bear clarification is that ILW.COM does not endorse any opinion of any author of Articles or Letters to the Editor (the opinions of ILW.COM are expressed only by the Publisher and the Editor). We are happy to carry letters expressing all points of view, even those opposing our own. We sincerely believe in freedom of expression and speech, and are proud to carry on this distinctly American tradition.


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Featured Article

Dramatic Changes To Labor Certification Proposed By Labor Department
Greg Siskind and Amy Ballentine provide a detailed summary of the proposed "PERM" regulations and say "as the regulations currently stand, there will no doubt be protracted litigation challenging several of the provisions."

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Immigration Law News

Texas Possession Of Marijuana Is Not Aggravated Felony
In re Santos-Lopez, 23 I&N Dec. 419 (BIA 2002) Interim Decision #3474, May 14, 2002 (en banc), the Board of Immigration Appeals (BIA) said that since the fifth circuit court of appeals has said that whether the criminal convictions are for felonies depends on the classification of those offenses under the law of the convicting jurisdiction, therefore the respondent's Texas misdemeanors of possession of marijuana are not aggravated felonies.

Jury Conviction Precludes St. Cyr Claims
In Carey v. Ashcroft, No. 01-3182 (3rd Cir. May 14, 2002), the court held that since Petitioner had proceeded to trial rather than plead guilty and had been convicted by the jury of offenses related to drug trafficking for which he served more than five years imprisonment, he could not claim 212(c) relief according to the Supreme Court's precedent in St. Cyr; and that his argument that denying him the opportunity to prove he is entitled to 212(c) relief violates the constitution is without merit since it is well established that the prohibition against ex post facto laws does not apply to deportation proceedings since they are civil in nature.

Minutes Of Texas Meeting From State Bar Of Texas
The State Bar of Texas Committee on Laws relating to Immigration and Nationality minutes include updates from AILA, DOL, TSC, DOS (Ciudad Juarez), INS District Office, NAFSA, ProBAR and many other organizations.

Tancredo Comments On Immigration Legislation
Rep. Tancredo (R-CO) speaking in the House said "... the reality is we passed a very tepid bill designed to reform the INS...We have to reduce immigration into this country. We have to reduce legal immigration to a manageable number; 300,000 a year is plenty."

Gephardt Says Bush Support Needed For 245(i)
Rep. Gephardt (D-MO), in a press statement said while President Bush has repeatedly indicated his support for Section 245(i), he has not been able to convince Congressional Republicans to work with him in securing a more meaningful extension of the provision. We will need nothing less than the President's full support and strong leadership to pass this legislation."

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Other Items

Serrano Amendment to make 245(i) Permanent Defeated
By a 32-27 vote, the House Appropriations Committee defeated an amendment introduced by Rep. Serrano that would have made 245(i) permanent.

Houston Police Shun Immigration Enforcement
Houston Chronicle reports "Avoiding immigration questions is not merely routine practice at the Houston Police Department, it's official policy"

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Letters to the Editor

Dear Editor:

I am an attorney member of ILW.COM and would like to comment on your news item in the Daily of May 15, 2002. The BIA has recently held in In re Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002) (en banc) (May 13, 2002), that whether a state drug offense constitutes a "drug trafficking crime" such that it may be considered an aggravated felony shall be determined by reference to decisional authority from the various federal circuit courts of appeals.

The impact of this case will be felt by one group of offenders: marijuana users. To understand why, it is necessary to review the two separate grounds for removal based on a drug conviction.

First, any person who is convicted of "a violation...of any law...relating to a controlled substance offense" is grounds for removal (deportation). The only exception to this rule is specifically set forth in the INA as a "single offense involving possession for one's own use of 30 grams or less of marijuana," (INA section 237(a)(2)(B)).

Secondly, the commission of an "aggravated felony" is also grounds for removal. One species of aggravated felony under the INA is "drug trafficking as defined in Sect. 802 USC section 924(c). At first blush, this type of aggravated felony would seem to exclude simple possession offenses. However, checking the statute reveals that it includes "ANY felony punishable under the Controlled Substance Act" (or its state equivalent).

Until recently, attorneys were confident that, since first time possession of less than 30 grams of marijuana is not a felony under federal law, then it could not be considered a felony for purposes of immigration law. However, Matter of Yanez disregards this common sense reading and now allows the INS to consider simple possession of marijuana to be considered a felony if it is treated as such under state law, regardless of the fact that it is a misdemeanor under federal law.

So who is impacted by this decision? Not users of cocaine, heroin, crack, LSD or ecstasy. Persons convicted for possessing these substances are already removable under the "violation...of any law...relating to a controlled substance offense" category. In fact, the only group of persons who will suffer under this new interpretation are noncitizen marijuana users.

I hope that this case is publicized for what it really is -- yet another attack on otherwise productive and law abiding members of our society who choose to use the relatively benign substance marijuana.

Thomas W. Dean, JD, International Law Group,
Miami Beach, FL

Dear Editor:

Enough already! Please no more sob stories from Richard Baer or the constant replies from Messrs. Frecker and Alexander and Ms. Flowers. is becoming their personal forum.

245(i) is a serious issue on which people can disagree. You are not advancing the debate by publishing this endless series of replies, counter replies, counter counter replies, etc.

Jeffrey A. Van Doren, Flippin, Densmore, Morse & Jessee
Roanoke, VA

Dear Editor:

This is just a note to let you know that I have been enjoying the Letters to the Editor in recent days and weeks. This is a wonderful forum for diverse opinions, often clashing but always interesting. And some of the letters are quite touching. The long letter this morning from Mr. Baer reads like a novel.

Carl R. Baldwin

Dear Editor:

I write as a board-certified immigration lawyer with 20 years experience in the field to recommend the election of Kathleen Campbell Walker of El Paso as the next Treasurer of the American Immigration Lawyers Association. Kathleeen has been active in AILA for many years and is known throughout the State Department for sterling character, comprehensive knowledge, scrupulous honesty and independent mind. She is a lawyer's lawyer. I urge all AILA members reading this to vote for her and tell others to do the same. We need leaders like Kathleen Walker to guide our Association in these very difficult times. Thanks.

Gary E. Endelman

Dear Editor:

Christine Flowers said that she was not aware of any law that favors Mexican immigrants. Section 245(i) is an obvious attempt by Congress to confer an immigration benefit on Mexicans without appearing discriminatory on its face. How many immigrants from Europe, Africa, and Asia can make truly credible claims that they entered this country without inspection. The fact is the vast majority of immigrants, in terms of both real numbers and proportionately, who qualified for the benefits of Section 245(i) were Mexicans. President Bush knows that 245(i) is a way of allowing Mexicans to adjust their status while excluding people from other parts of the world, and thats why he is supporting it so vigorously.

Connor Robertson
Martinez, CA

Dear Editor:

Dr. Baer wrote an extremely eloquent letter yesterday, one which I have downloaded for future reference. I, too, am the child of immigrants, or, more correctly, the great grandchild of immigrants. My great grandmother and her husband arrived in this country before the turn of the last century, traveling to the East Coast of the United States from a small town in Southern Italy. On the voyage to this country, my great grandmother's 6 year old child Antonietta became ill, and died before she reached these shores. Despite their grief, Lucia and Luigi realized that the only tribute possible to this lost child, would be to follow their dream, establish roots in this 'adopted country', and keep her memory alive in the children they would later have.

In much the same way, they inculcated in their sons and daughters, all American citizens, a love for the United States, a country which brought them very little sorrow and a great deal of joy and prosperity. Nonetheless, they made sure that their children, including my own grandfather, spoke the language of Dante Alighieri, as well as their own regional dialect, in the hopes that the memory of Italy, like the memory of Antonietta, did not die.

Unfortunately, my grandfather's generation came of age during the war years, and during World War II, it was not a wise thing to display your love for anything Italian. Italy was the enemy, as were Japan and Germany, and my grandfather thought it wiser to make sure his own children were 100%, patriotic citizens. This meant placing less emphasis on ethnic tradition, and more on assimilation. For this reason, my own mother does not speak Italian, although she understands it well. My mother's parents were extremely proud of their family history, but felt intimidated into minimizing their roots because of the (perhaps understandable) anti-immigrant feeling in the United States in the late thirties and early forties.

Although my mother considers herself an American with a capital 'A', she is also quite mindful of her roots, and raised me with an appreciation for my heritage. I grew up enjoying the fruits of her magnificent cooking, reveled in the close family ties typical of a Mediterranean family, and listened avidly to stories from the 'old country.' However, the one thing that was missing was the ability to communicate with older relatives in their native tongue, since no one in my very American household spoke a word of Italian. I (or rather, my parents) had to spend a good deal of money to send me to a college where I could learn Italian well enough to be able to converse. Today, I am fluent in Italian, but it took many years, and not a few tuition bills, before I obtained something which should have been my birthright.

And this is my point. Any attempt to elevate 'assimilation' over an appreciation of one's roots is doomed to failure, since people who are totally divorced from their ethnic beginnings are antithetical to the principles upon which this great country was based. We are who and what we are precisely because our ancestors had a tolerant vision, and a realization that a culture which culls the best aspects of other cultures is infinitely enriched.

Many of the readers of this excellent website will disagree with my position, and will find in my letter an excess of 'idealism.' I have often been told that these sentiments are the product of an overly romantic mind, which believes in a 'utopia' that cannot exist within the limits of present day society. As an immigration attorney, I have heard criticisms of immigration and immigrants on a daily basis, and the virulence of the attacks against immigration has measurably increased since September 11. How convenient for Pat Buchanan, and those of his ilk, to have such a tragic event to validate their views that we have too many of 'them' coming into the country, placing 'us' in contraposition.

Let's remember one thing. This is a global society. One dollar out of every three made in the United States is the result of foreign investment. We have grown stronger because, and not despite of, the contributions of immigrants over the past two centuries. If we close our borders, and that is what many people out there seem to want, we will place our country at a great disadvantage both economically, diplomatically and, on a more personal level, socially. The European Union has created a symbiosis between countries which heretofore operated separately, and will inevitably become an important force on the world stage in the years to come. If we decide to hermetically seal our borders, we will sink to an unprecedented level of stagnation, and will be unable to compete at an international level.

I am not saying that the borders should be opened to everyone. In fact, contrary to popular belief, it is extremely difficult to immigrate to the United States today. Section 245(i) is a smokescreen for those who oppose immigration at all levels. I simply feel that those who consider 'assimilation' to be a quasi sacrament and those who talk about the 'integrity' of the United States are foolish if they think that we have any hope for survival without a healthy, balanced level of immigration and a concomitant respect for the traditions and legacies of the foreigners who brought us to these shores.

Christine Flowers
Philadelphia, PA

Dear Editor:

Dr. Baer's letter yesterday had a very sentimental view of "multiculturalism" which is at odds with the way it appears to be presented by its advocates and its practitioners.

Certainly, there is nothing wrong at all with remembering one's roots, or maintaining a sentimental attachment to one's homeland, but that's not "multiculturalism" or "cultural pluralism". Even though I never knew my grandparents, who immigrated about 1901, I learned Arabic in college, have visited their village in Lebanon, etc.

But I still identify myself primarily as an American. The problem is when we absolve immigrants of any responsibility to learn our language, our laws, and our customs. Of developing any sense of patriotism or loyalty to the U.S., of identifying first and foremost as "Americans". It seems that in multiculturalism everyone's culture is "respected" but our own. Ethnic advocacy groups demand "rights" to be taught in their own languages, and to have services, even welfare, delivered in those languages. Yet, language is a key manifestation of a culture, and being truly fluent in a language involves understanding the culture behind it. (Why do many ethnic advocates want so-called bilingual education? To maintain their cultures.) Rejection of English is, in effect, a rejection of our culture. However, even knowledge of English probably isn't necessarily sufficient for someone to truly identify as "American". After all, for example, many Indians are fluent in English, but continue to identify primarily as "Indian" and to prefer their customs even after years of living here, and even when these customs violate accepted norms here. Multiculturalists would have us ignore or excuse on "cultural" grounds violations of social norms, and especially laws, such as those against DUI and spousal abuse, or those regulating housing occupancy, intended for the protection of safety of our society. We are also supposed to accept the breaking of immigration laws by illegal immigrants, even though law and order (and "fairness") are important values in our society.

Just this morning, I was reading a column by Linda Chavez about American-born Palestinians in Northern Virginia who were not merely sympathizing with the suicide bombers in Israel, but who were willing to become bombers themselves. Then, there are people such as the convicted spy Jonathan Pollard, who placed his loyalty to Israel above that of his country, not to mention a Puerto Rican analyst for one of our intelligence agencies, born and raised in Germany, who was recently found to have been passing on intelligence to Cuba for a number of years. We also have the interesting problem of the prisoner of war captured in Afghanistan who may be an "American" simply because he was born here to Saudi parents. He was raised in Saudi Arabia, and apparently has never had anything to do with the US except to fight it. Is he an "American"? Does he share our core values as a society, or even want the US to survive as a nation? It is U.S. culture and interests which should be placed above those of other countries or groups if our society is to function as a cohesive whole, rather than a polyglot collection of ethnic, racial, and religious interests.

Ali Alexander

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. Send Correspondence and articles to Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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