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Immigration Daily May 21, 2002
Previous Issues

Editor's Comments

The Office of Inspector General (OIG) of the Department of Justice released a report on the INS's approval of change of status for two 9/11 terrorists. The report may offer an opportunity for immigration attorneys to work with 70,000+ local educational institutions to help them comply with the Niagara of pronouncements to be expected as INS begins implementation of the SEVIS program. The report may also offer an opportunity for the organized bar to liaise with the schools and the government to mediate the complex system to come.

As the Daily has reported in recent weeks, Congress is in the middle of "abolishing the INS" while the agency itself is in the midst of unprecedented restructuring. On top of all this upheaval, the beleaguered management of this beleaguered agency now has to absorb the public slap-in-the-face administered by the OIG while attempting to implement the myriad recommendations of the report.

Some snippets from the report may be of interest:

"The INS needs to develop a training program for INS and schools officers, and provide clear guidelines describing their responsibilities and INS requirements...


The INS should develop a plan for training both INS employees and school employees on how to use SEVIS...

We also set forth recommendations related to the INS's proposed regulatory and processing changes aimed at increasing scrutiny of foreign students. As one example, the INS has proposed to require that aliens who apply to change their status to that of students be approved before they are eligible to enroll in classes. For this to work the INS must maintain a fast processing time for student change of status applications, which historically it has not been able to do, in order to avoid penalizing students. The INS also should determine how it will handle aliens who have applied to become students but whose applications have not been adjudicated prior to the start of their classes. The INS should advise I-539 applicants for student status of the requirement that their applications must be adjudicated prior to beginning school and also advise the schools of the procedure to be followed if the INS has not adjudicated the application prior to the start of school.

The INS policies and guidance necessary to implement these changes should be expeditiously and clearly communicated to INS employees across the country. We have noted in this report, as well as in many other OIG reports, problems with INS policies not being known, written, widely disseminated, or uniformly enforced throughout the INS. Although INS Field Manuals are a logical repository for policies and procedures, the Inspector's Field Manual and the Adjudicator's Field Manual are not comprehensive or complete. In addition, in this and other OIG reviews, we found that adjudicators and inspectors often are not made aware of changes to the manuals because policies distributed via memoranda often never reach line inspectors and adjudicators. As a result, field offices develop their own practices that are sometimes inconsistent with INS policy or the law.

The INS must improve its systems for disseminating policy memoranda and for ensuring that line employees become aware of and follow these policies. We recommend that the INS expeditiously complete and update its field manuals. In addition, it should implement a more effective system for disseminating policies and procedures other than sending the documents to the head of an INS field office. Only if the INS has a system in place that ensures that policies and changes are received and understood can employees be held accountable for following them.

We believe that implementation of these recommendations will help address significant problems with the INS's foreign student program, which has been dysfunctional for many years..."


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Featured Article

Magistrates Recommendation On Attorney Fees Brings Franz Kafka To Mind
Carl R. Baldwin writes that a recent decision on EAJA Fees for an immigrant who had filed a mandamus petition against the INS "is Kafka-like."

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Immigration Law News

Inspector General At DOJ Criticizes INS For Terrorists' Student Visas
The Inspector General of the US Department of Justice issued a press release, an executive summary, and a 212-page report finding "widespread failures in the INS's mailing of immigration documents for two September 11 terrorists six months after the attacks."

BALCA Says CO Ignored Plain Language On 750A
In the Matter of Formosa Plastic Corp, the Board of Labor Certification Appeals (BALCA) said that the Certifying Officer ignored the plain language in the ETA 750, as well as Employer's rebuttal arguments an incorrectly interpreted Employer's requirements extremely narrowly. The BALCA reversed the CO's denial and granted the labor certification.

BIA Determination On Extreme Hardship Is Not Reviewable
In Akinmulero v. INS, No. 02-9530 (10th Cir. May 17, 2002), the court said that "a determination by the Board of Immigration Appeals that one seeking suspension of a deportation order has not shown "extreme hardship" is a discretionary decision that this court may not review."

District Court's Ambiguous Language Renders Refusal To Depart Downward Unreviewable
In USA v. Flores-Venegas, No. 01-2259 (10th Cir. May 17, 2002), the court held that because the District Court did not unambiguously state that it lacked authority to depart downward for all defendants who illegally reentered the country because of their ties to the country, it did not have jurisdiction over the Defendant's departure request.

Florida Supreme Court Rules On Guilty Pleas By Aliens
In State Of Florida v. Seraphin, No. SC01-1344 (Supreme Court of Florida, May 16, 2002), the court said that it was incorrect to view previous Florida Supreme Court precedent as creating a "per se" rule permitting a defendant threatened with deportation to withdraw his plea any time a trial court fails to provide the information required by the Florida Rule of Criminal Procedure.

INS Seeks Comments
INS is seeking comments on Form I-912, Request for Fee Waiver and memorandum of understanding to participate in an employment eligibility confirmation pilot program.

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Other Items

INS Visitor Visa Rule Would Imperil $0.5 Trillion Industry
The Miami Herald reports that INS's proposed rule on Visitor Visas "stands to imperil the country's $545 billion tourist industry."

Tancredo Says 245(i) Probably Has House Majority
Human Events, a "Conservative Weekly" reports "Tancredo said that supporters of the 245(i) amnesty "probably have a House majority."

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Letters to the Editor

Dear Editor:

Keep up the good work. One suggestion: we don't need so much reporting on illegal re-entry. If immigration lawyers had to pay their bills with illegal re-entry cases, we would all be filing Chapter 11.

Greg Berk Esq.,
Irvine, CA

Dear Editor:

Let me compliment you on the excellent news service, which frequently scoops the AILA Infonet, & on your scrupulous attention to customer service, as in the instant case. I also am one of those who loves the Letters to the Editor, but just skips them when I'm short on time--your format provides maximum freedom of choice, one of the things (besides immigration) which makes this country great.

Jane A. Hanson, Attorney at Law
Sacramento, CA

Dear Editor:

I used to like to read "Letters to the editor" because it reflects, to some degree, public attention on certain issues. Now I have stopped because there is no one sentence summary to guide me to the topic I am interested in. No one has that much time to finish the whole letter, some are really long, to find out what the writer was talking about. Suggestion: have a one sentence topic summary for each letter, short or long. Thanks and we love you!


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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