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Immigration Daily October 25, 2002
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Editor's Comments

Six Judges at the Ninth Circuit Court of Appeals today issued a strongly-worded dissent against an order denying rehearing en banc in US v. Sigmond-Ballesteros, No. 00-50408 (9th Cir. Oct. 24, 2002). A few quotes from the dissent:

  • " ... a stop isnt much. Its just a chat, not an arrest ... Sure, some innocent citizens may be stopped for a chat. But whats so bad about a brief chat with a policeman at four in the morning?"
  • "Whats the matter with a tried-and-true, reasonably reliable profile? A profile is a checklist, nothing more. Pilots use checklists, people packing for a trip use checklists, people going to the grocery store use checklists, so why not Border Patrol Agents?"
  • "anyone going 55 miles per hour on an interstate where everyone else is going 70 might reasonably be considered suspicious given the context precisely because he is abiding by the law. Its suspicious because most American drivers obey the speed limit on the open road with a degree of looseness."
For the 10/24/2002 order, please click here.
For the 4/12/2002 decision, please click here.
For the 4/23/2001 decision, please click here.
For our Editor's Comments on the original decision, please click here.


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Featured Article

Have We Learned The Lessons Of History? World War II Japanese Internment And Today's Secret Detentions
Stanley Mark, Suzette Brooks Masters and Cyrus D. Mehta write about the lessons of the WWII internment of Americans of Japanese ancestry.

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Immigration Law News

EOIR Announces Disciplinary Action
The Executive Office for Immigration Review announced a final order of discipline against a Florida attorney and immediate suspension of attorneys in Texas, Pennsylvania and California.

Dissent By Six Judges Slams Ninth Circuit Order Against Rehearing En Banc
In US v. Sigmond-Ballesteros, No. 00-50408 (9th Cir. Oct. 24, 2002), the court denied a petition for rehearing en banc. Their is no opinion, only a dissent by six judges from the order. For more on this, please see Editor's Comments above.

Circuit Court Does Not Have Jurisdiction To Look At Underlying Removal Order When Such Is Reinstated
In Gomez-Chavez v. Perryman, Nos. 01-3068 and 01-3454 (7th Cir. Oct. 24, 2002), the court considered a Petition to Review a Decision of the INS and found that when an INS order reinstates a prior order of removal, the court's jurisdiction extends only to the question whether the reinstatement order was properly entered and that the court could not look behind that order to the underlying removal order; and remarked that while immigration inspectors may not be granted the same fact-finding deference as immigration judges, there would be a presumption that immigration inspectors are unbiased.

Employment At Low Wages Of Illegal Aliens And Housing Them Is Harboring For Private Financial Gain
In US v. Zheng, No. 00-00038 (11th Cir. Sep. 17, 2002), the court held that Defendants' provision of housing and employment facilitated their employee-aliens' ability to remain in the US illegally; and held that the housing and employment prevented the government from detecting the illegal aliens' unlawful presence; and held that the Defendants obtained private financial gain by employing the aliens at lower wages at an average of $4/hour and also gained financially by failing to withhold federal taxes and Social Security payments, and by failing to pay unemployment taxes, failing to pay the employer's portion of Social Security payments.

Secretary Powell Alludes To Immigrant Parents And Says Immigration Is Part Of The American Experience
In remarks with Mexican Foreign Secretary Jorge Castaneda, Secretary of State Powell said "America is a nation of immigrants my parents were immigrants. We are enriched by immigrants. We could not survive without immigration, and so we want to remain a society that is open, a society that encourages people to come, to visit, to perhaps live for the rest of their lives in the United States, to become Americans, or to come and enjoy and earn a living for a while, and then return to your country. This will never be far away from our whole national purpose. Its part of our being immigration and people coming and living in our country and finding new lives in our country is part of our total experience."

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Demographics Trends: A Fundamental Force For Election 2002
United Press International reports that demographic changes due to the overall impact of immigration will be crucial for the upcoming election.

Feds Request For Sniper Leads Sends Mixed Message To Immigrants
The Washington Post reports that some immigrants have been turning to Spanish-language radio to report tips on the sniper and did not want to call the police" for fear they would be deported".

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Letters to the Editor

Dear Editor:
I read with great interest ILW.COM's articles/comments concerning the AR-11 issue.

According to the Immigration and Nationality Act (INA):

Section 265, 8 USC 1305(a) Notification of Change - "Each alien required to be registered under this title who is within the United States shall notify the Attorney General [INS] in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General [INS] may require by regulation."

In addition, Section 265, 8 USC 1306(b) states: Failure to Notify Change of Address - "....any alien who fails to give written notice to the Attorney General [INS], as required by section 265, shall be taken into custody and removed in the manner provided by chapter 4 of this title, unless such alien establishes to the satisfaction of the Attorney General [INS] that such failure was reasonably excusable or was not willful."

I think it is interesting to note that the INS recently has attempted to prosecute (file charges alleging violations of this law) its NTAs in Atlanta. I think it is also interesting to note as well that the charges were brought, or the venue selected to bring the charges, were before a Judge who had been considered to be conservative, to say the least. While I disagree with what seems to be the common consensus about this Judge (in recent months I have practiced before him quite extensively), the INS did pick the right venue, but the wrong judge. Considered the "busiest" immigration judge in America [reportedly deciding a whopping 3,846 asylum cases over a five-year period], you would think that the INS picked the right judge at the right time. The use of AR-11 prosecutions did not receive a warm welcome, however. To the INS' chagrin, the IJ (Hon. William Cassidy) has flatly disagreed with the enforcement of the law as it was used by the INS, ruling recently on August 6, 2002 that the federal government cannot deport legal immigrants for not willfully failing to report a change of address (See Atlanta Constitution Article, entitled "Judge Prevents Man's Deportation Address Lapse Said To Be Not Sufficient Cause," August 6, 2002).

Practitioners in other jurisdictions should use this decision where the Service is attempting to initiate removal proceedings on this basis alone.

Christopher W. Helt, Esq.
Chicago, Illinois

Dear Editor:
In response to the October 24, 2002, letter submitted by J. Seyes, I agree with your frustration regarding the Adjustment and Family Unification Act of 2002, introduced by Rep. Gephardt, that appears to reward people who came here illegally with legal status if they meet very basic requirements. I, too, think this is unfair to those who have paid fees, struggled with INS forms and regulations, and have waited to come here legally. We must do something, however, about the millions of undocumented individuals whose wages go untaxed, whose medical bills go unpaid, and who do not carry auto insurance. Untold millions of dollars go untaxed each year that should be supporting our schools, police and emergency services, highway departments, and other public services, all of which illegals have access to, but are largely unsupported by the illegal population. We need to stop, or at least curb identity theft and make sure that payment of social security benefits to the legal owner of that social security number continues. All too often benefits stop because an illegal is using that social security number to earn money.

Overgeneralizing this issue is unfair to those immigrants who come to this country, work hard, pay taxes, are law-abiding members of the community, and contribute to this country. My hope would be that the passage of this act would enable the government to tax the millions who live in the shadows and make them obey the same laws that we are required to follow. I would also hope that by assimilating them into the U.S. culture and legitimizing their presence, that some of the resentment and prejudice against the immigrant population would stop. I'm sure my letter appears prejudiced to some, but facts are facts. Schools are overburdened, hospitals are overwhelmed, our population is increasing but our tax revenue is not, and all of this is unfair to U.S. citizens and legal residents. I am not opposed to immigration, only the continued support and allowance of unchecked illegal immigration that our government's inaction permits. I am grateful to those non-citizens who fought the paperwork and laws and made it here legally. I appreciate your making the effort to follow the law and come here legally, rightfully, and with good intentions. To those of you who have started this process and are waiting for legal status, I wish you luck. Fair or not, this country has a problem that we cannot continue to ignore. Passage of this act may help. J. Seyes is right - politics "ain't" great, and this act is unfair in many ways. I encourage everyone to bombard congress with letters, emails and calls and let them know your thoughts. If this act isn't the solution, let's come up with one that is.

Linda Davidson
Charlotte NC

Dear Editor:
Kudos to Commissioner Ziglar for his statement alluding to the potential use of the Special "Snitch" Status (S) Visa Category for undocumented workers providing information about the sniper. It is refreshing to see a government official creatively recommending the use of laws/resources to put an end to criminal/reprehensible acts. His gesture reminds us of the plot of the movie "Ransom" where the hunter becomes the hunted.

Attorney Name Not Supplied

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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