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Immigration Daily August 23, 2002
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Editor's Comments

In today's Featured Article, Daniel M. Kowalski, Editor-in-Chief of Bender's Immigration Bulletin, writes that the legal interns at the Office of Immigration Litigation at the Department of Justice are being trained in the use of battering rams. Mr. Kowalski says "When using a battering ram is the "highlight" of a federal lawyer-in-training's summer, something is seriously wrong." Something is indeed wrong. If lawyers need to be trained on police tactics, then the rule of the law loses much of its meaning. The issue is might versus right. One would expect such things to happen in the Iraqi dictatorship, to find this happening in America is shocking. We hope that the Office of Immigration Litigation will not repeat this deplorable practice with next year's legal interns.


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Featured Article

Battering Ram
Daniel M. Kowalski writes that DOJ legal interns are being trained in the use of battering rams.

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Immigration Law News

DOS Note On DV-2004
The Department of State released a Media Note on the DV-2004 program.

Juvenile Does Not Mean Under 21
In M.B. v. Quarantillo, No. 02-2328 (3rd Cir. Aug. 22, 2002), the court held that it had jurisdiction to review the validity of the INS's refusal to yield jurisdiction over Petitioner to the juvenile court for the State of New Jersey, and rejected the Petitioner's contention that INS regulations required that an application for consent must be accepted for all petitioners under 21 years of age and that the District Director was thus denied the authority to consider the New Jersey jurisdictional limit of 18 years of age.

Two Year Suspended Sentence For Concealment Of Merchandise Is Aggravated Felony
In Ramtulla v. Ashcroft, No. 01-1958 (4th Cir. Aug. 22, 2002), the court said that since Petitioner was convicted of concealment of merchandise, a theft or burglary offense, and sentenced to two year imprisonment (suspended), she had committed an aggravated felony and thus the court did not have any jurisdiction to review a final order for her removal.

EOIR Corrects Proposed Rule
The Executive Office for Immigration Review published a correction to its proposed rule on 212(c) relief.

Employer Withdraws Review Request In LCA Matter
In the Matter of Wage and Hour Division v. ComWin, Inc., No. 2002-LCA-00022 (OALJ, Aug. 20, 2002), the Office of Administrative Law Judges dismissed the proceeding since the Employer elected to withdraw its request for review.

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America Resurgent Due To Immigration
The Economist reports on demographic trends in America and Europe and examines immigration's impact on both sides of the Atlantic.

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Letters to the Editor

Dear Editor:
David Murray's letter today commenting on your article "Lawyer Without Texas Bar Card Fights for Right to Practice", linked in the August 20, 2002 issue of Immigration Daily, is exactly correct. I wish I had written it myself.

Peter Williamson and the Texas Bar are completely wrong, both legally and morally, in trying to bully a New York- licensed lawyer from practicing solely federal immigration law in Texas. They are legally wrong because this issue is absolutely controlled by U.S. Supreme Court precedent. See Sperry v. Florida Bar, 373 U.S. 397 (1963) (the Florida bar had no power to discipline a lawyer residing in Florida who was duly admitted to practice before a federal tribunal, citing the Supremacy Clause of the U.S. Constitution). See also my article on this topic: "Counterpoint: State Bar Admission is Not Required to Practice Immigration Law In a State," 12 AILA Monthly Mailing 685 (Sept. 1993).

They are morally wrong because they should be aiming their big guns at incompetent con artists, consultants and notarios who really are engaged in the unauthorized practice of law, instead of trying to muscle competent and duly authorized competitors. The immigration bar should be an advocate for the underdog, but here the Texas Bar looks like a pompous, greedy, hypocritical pig.

I predict the Texas Bar is going to get annihilated in this stupid battle, unless they manage to squash a poor, self-employed lawyer who does not have the resources to fight indefinitely.

Bruce A. Hake
Attorney at Law
Damascus, Maryland

Dear Editor:
I would like to take a middle of the road position between Attorney Murray and Gisela Boecker with regard to the alleged impersonal and careless treatment they experienced at the hands of the Tampa INS office and Texas Service Center.

I have been "practicing" immigration law for 15 years - first as a senior paralegal in a lawfirm and more recently as a corporate, in-house immigration specialist. If Mr. Murray has never seen anything like what Mrs. Boecker describes in 24 years of practicing, I would say he has been extremely fortunate. Far from a "bunch of bunk" misinformation and capriciousness reign supreme in INS district offices and service centers, and for a very understandable, if not justifiable reason. I would say that, with the exception of high-level supervisors, individual INS info officers do not have a grasp of all the laws and regulations and are not trained to provide legal advice and strategy. As Mr. Murray correctly points out, it behooves any would-be immigrant to seek competent, legal counsel - but finding it can present its own set of problems. As those who repudiate "unauthorized practice" well know, there is a big difference between simply helping someone to fill out forms and giving sound legal advice, which takes into account the totality of an alien's circumstances (such as children abroad) and all possible consequences. As a compromise, however, wouldn't it be nice if Service personnel would be humble enough to admit that they are not competent to provide legal advice, and refer people to the Immigration Bar, rather than arrogantly misleading those who are simply trying to do the right thing.

I know of what I speak. Recently I phoned the VSC to ask advice about concurrent I-140/I-485 filings - specificially which box to check on the I-485 form. The advice I received was that since the VSC has received no guidance from Washington and has no procedures in place, they are in fact rejecting concurrent filings. I was told only I-140's could be filed. Given the breadth of my experience I know better that to take one supervisor's remarks as gospel, and immediately set about to confirm these rumors with my colleagues in AILA. Two weeks ago, I spoke to an INS airport inspector about an erroneously executed L visa at a Consulate and subsequent I-94 problem. The officer proceeded to explain to me the admission period for L's issued under a Blanket petition. He was completely off base and I might add, erring on the side of giving much more time than that to which the alien was entitled. I had to explain the law to him - him, who is charged with determining an alien's period of lawful admission in the United States!! I later spoke to the Port Director, who of course knew exactly what I was talking about. However, the average Joe has no access to these high level INS officers, and they can't possibly service the general public. Last week a "client" of mine almost went beserk in a local INS office when he went to do his I-89 processing and get his passport stamped following the approval of his EB adjustment of status and was told they couldn't do it because he hadn't had an interview and they didn't have his file!! One shouldn't need to take a lawyer in to get a passport stamped! So, Mr. Murray, my hat's off to you, if you have no such vignettes to share.

Unfortunately immigration laws and procedures have become so complex as to require the assistance of legal counsel or an advanced degree to file even the most simple applications. There are those who would say that this is unfair, and we could debate that, but it won't change anything. They are only going to get more complex. I know this because I spend a significant portion of my work day reading to stay abreast of new developments.

I don't think it unreasonable for a visitor or would-be immigrant from a country like Germany to assume that an INS inspector or information officer (as the term implies) will be able to provide accurate information about filing procedures and updated forms, but not legal advice. Furthermore, I think it's logical from the Boeker's perspective, to have then consulted their congressperson. However, again, I would expect the congressperson to refer them to a competent attorney, rather than try to tackle the problem. It is regrettable that many well-meaning Americans, including nonimmigration lawyers and congresspeople, are too often cavalier in their assessment of immigration laws, and as a result downplay the importance of expert advice.

When Mrs. Boecker says they engaged a "professional" we don't know if this was a notary, a lawyer or a charlatan. The Boecker's, too, have to bear some responsibilty for their choices. If they had enough resources to apply for an investor visa, they had enough resources to hire a good lawyer. Mrs. Boecker's editorial does not provide us with enough facts to determine if in fact they were ever entitled to permanent residence in the first place, and does not even say how they determined that they qualified for the intial Alien Labor Certification. The one bad assumption that the Boeckers and many others make is that being good, law-abiding, tax-paying, family-oriented people somehow qualifies you for a green card in this day and age. Do the Turkish Gastarbeiters in Germany enjoy such rights? In response to such naivete, I would have to say, "Get over it!". And, please, leave the anti-terrorist rhetoric to the politicians.

Name Withheld On Request
Corporate in-house immigration specialist

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Marc Ellis, Gary Endelman

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