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Immigration Daily October 30, 2002
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Editor's Comments

In answer to a reporter's question at a press briefing, Secretary of State Powell said "both Presidents [Bush and Fox] came into office the beginning of last year committed to migration reform. They both remain committed and they reaffirmed that commitment this morning. Nine-eleven clearly has slowed down the momentum, and we hope that as the effects of 9/11 pass and as we get back to a more normal life, and as we bring our homeland unto a firmer basis of security, we have a better idea of how to protect our homeland. And with the emergence of a homeland security department, I think that some of the concerns that Americans have and the Congress has had with respect to migration issues, we might be in a better position next year to deal with their concerns and to move forward with our migration agenda. Foreign Minister Castaneda and I, Foreign Secretary Castaneda and I will be meeting in November with a binational commission and we will review the bidding at that time and see what we can do over the next year."

The above makes two things apparent: (a) that President Bush remains committed to immigration reform; and (b) post 9/11, this administration continues to view immigration through a security lens. There appears to be reason for cautious optimism that a massive legalization program will be in the cards for the next Congress.


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Featured Article

Administrative Law Judge Hits Employer Hard For H-1B Visa Violations
Cyrus D. Mehta discusses the recent landmark LCA decision the Matters of Wage and Hour Division v. Mohan Kutty, Nos. 2001-LCA-00010 through 2001-LCA-0025 (OALJ, Oct. 9, 2002), and writes "the decision creates an unfavorable precedent for employers with regards to the payment of attorney fees and the ability of the DOL to pierce the corporate veil to hold the shareholder liable."

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Immigration Law News

Presidents Bush And Fox Reaffirm Commitment To Immigration Reform
In answer to a reporter's question at a press briefing, Secretary of State Powell said "both Presidents [Bush and Fox] came into office the beginning of last year committed to migration reform. They both remain committed and they reaffirmed that commitment this morning. Nine-eleven clearly has slowed down the momentum, and we hope that as the effects of 9/11 pass and as we get back to a more normal life, and as we bring our homeland unto a firmer basis of security, we have a better idea of how to protect our homeland. And with the emergence of a homeland security department, I think that some of the concerns that Americans have and the Congress has had with respect to migration issues, we might be in a better position next year to deal with their concerns and to move forward with our migration agenda. Foreign Minister Castaneda and I, Foreign Secretary Castaneda and I will be meeting in November with a binational commission and we will review the bidding at that time and see what we can do over the next year."

DOJ Offers VAWA Grants
The Office of Justice Programs of the Department of Justice issued its Fiscal Year 2003 Application Guidelines for its STOP Violence Against Women Formula Grant Program; included among the Program Purpose Areas is "Providing assistance to victims of domestic violence and sexual assault in immigration matters."

Offense Of Attempted Entry Is Included In Offense Of Actual Entry
In US v. Fellows, No. 01-4444 (3rd Cir. Oct. 29, 2002), the court said that the offense of attempted entry into the US without the consent of the Attorney General following deportation was included in the offense of actual entry, and the government did not have to specifically indict the Defendant for attempted entry, and said that his chance of receiving a 212(c) waiver, were he eligible for one, was less than sterling since he was arrested no less than 11 times for offenses ranging from disorderly conduct to attempted robbery to sale of controlled substances between the ages of 19 and 34 and was not employed nor did he have any dependents.

BIA Did Not Abuse Discretion In Denying Motion To Reopen
In Macaspac v. INS, No. 02-1699 (4th Cir. Oct. 29, 2002), the court said the Board of Immigration Appeals did not abuse its discretion in declining to grant Petitioner's motion to reopen due to her failure to demonstrate prima facie eligibility for asylum.

Imprisonment Substitutes May Not Be Practical For Illegal Aliens Since Home Detention Cannot Be Enforced Abroad And Since Illegal Aliens May Pose A Flight Risk In Community Confinement
In US v. Garcia-Ortiz, No. 01-51287 (5th Cir. Oct. 28, 2002), the court said that the District Court was aware that Defendant had a prior conviction for felony possession of less than a gram of cocaine, and that he had admitted to illegally reentering the US after deportation, and that the commentary to 5C1.1 of the Sentencing Guidelines said that imprisonment substitutes are not recommend for a criminal history category of III and above (Defendant's criminal history category was III), and that the District court exchange with defense counsel could have reflected the practical impossibility of granting community confinement or home detention to an illegal alien, since home detention could not be enforced in another country and since community confinement may be unrealistic since an illegal alien could be a flight risk, and remanded the case for reconsideration of the sentence in light of the ambiguity of the record, with the only issue on remand being whether the District Court recognized its discretion to sentence Defendant to a split sentence.

Counsel Unhelpful In Case Where New Evidence Before Circuit Court Appears To Conflict With Evidence Used By IJ And BIA
In Bosede v. Ashcroft, No. 01-3188 (7th Cir. Oct. 29, 2002), the court noted that Petitioner's counsel "was at best unhelpful" and said that although there appeared to be serious flaws in the INS's consideration of Petitioner's petition for withholding of removal, the court did not have jurisdiction since he had not exhausted his administrative remedies; in this case the Petitioner had produced the entire Cook County Certified Statement of Conviction and Order of Sentence and Commitment to the Illinois Department of Corrections which conflicted with the certified cover sheet introduced into evidence by the INS, the former being for simple possession, the latter for possession with intent to deliver.

Alien Under Observation Not Guilty Of Entry, But Guilty Of Smuggling
In US v. Gonzalez-Torres, No. 00-50543 (9th Cir. Oct. 28, 2002), the court withdrew its Dec. 11, 2001 opinion where it determined that Defendant could not be convicted for entering the US because he had never been free from observation by Border Patrol Agents, but upheld his conviction for smuggling because he had been observed directing aliens by hand and arm gestures and replaced it with the current opinion.

Government Can Waive Waiver
In US v. Garcia-Lopez, No. 01-50334 (9th Cir. Oct. 9, 2002), the court held that while as a general rule it would enforce a knowing and volutary waiver of the right to appeal, the government can waive the waiver. The Defendant in this case had pled guilty to one count of transportation of illegal aliens.

District Court's Failure To Indicate Defendant's Right To Persist In Not Guilty Plea Is Not Plain Error
In US v. Morales-Robles, No. 01-50419 (9th Cir. Oct. 29, 2002), the court held that the district court's failure to specifically indicate to Defendant that he had the right to persist in his plea of not guilty was not reversible under the plain error standard since it did not affect his substantial rights.

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200 Haitians Jump From Ship And Head For US Soil
CNN reports "more than 200 Haitians jumped from a 50-foot boat near Key Biscayne Tuesday afternoon, swimming to shore and swarming the highway leading into Miami." "If the estimate of 200 people on board the boat is accurate, it would be the largest single crossing of Haitian migrants to the United States in nearly three years."

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Help Wanted: Immigration Attorney
The law offices of Reeves & Associates (R&A) is a nationally known immigration firm that represents individuals, families and businesses for immigrant and non-immigrant visas as well as deportation defense and litigation in the federal courts. R&A was established in 1980 in Los Angeles and has offices in Pasadena, Orange, San Francisco, California and Beijing, China. We employ a professional staff of around 50 in various departments and use an advanced technology system. R&A has successfully represented hundreds of immigrant in the federal courts including national class actions. We help define the rights of immigrants. Our recent expansion to San Francisco - we are located at 580 California St. in the heart of the financial district near the courts and the Immigration Service - requires the addition of another lawyer to our team. Prospective applicants should be licensed and have a minimum of 2 years of full-time experience in deportation defense, business & family visas and appellate practice. The candidate must have excellent research and writing skills, the ability to work independently and supervise others. We offer a highly competitive salary, an excellent benefits package including medical, dental, vision, 401(k) retirement plan with matching dollars, 3 weeks vacation and a very congenial environment. Visit our website at Send resume with salary history to: HR, 2 North Lake Ave., 9th Floor, Pasadena, CA 91101 or fax to: (626) 795-6999 or email to:

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Letters to the Editor

Dear Editor:
I liked a lot of the letter by David D. Murray, Esq., on 10/28/02, but I'm not sure about his solution to the "immigration problem". He wrote that (paraphrasing) we should concentrate on "filling the needs of America's employers". That mindset is a large part of the reason why the immigration laws aren't being enforced.

Why I really wrote was to "quibble" with some of his definitions - "immigrants", "non-immigrants", "illegals", etc. He wrote: "Definitions must be clear and their meanings correctly applied." I agree, and would like to offer the following.

Under Title 8, Chapter 12, Subchapter 1, Section 1101, of the United States Code, the following definitions apply. (I'm not good at this stuff, but I believe it can be found at:

Paragraph (15) says that the term "immigrant" means "every alien except an alien that is within one of the ..." classes of lawfully admitted nonimmigrant aliens. Not all immigrants have complied with the law; many are illegally in the U.S. And, those who are here on valid nonimmigrant visas and are maintaining status are definitely not immigrants. The nonimmigrant classes are all listed under paragraph (15). Mr. Murray wrote that "nonimmigrants are actually temporary immigrants". But, under the law, I believe that's oxymoronic.

Paragraph (3) says that the term "alien" means "any person not a citizen or national of the United States". Mr. Murray seems to avoid the use of the term "alien", as do most others in the pro-immigration camp. Still, like it or not, it's the proper term.

As far as "illegals" goes, I don't think it much matters what they're called; they're still in this country illegally. Probably the closest legal term would be: "aliens illegally in the United States". We all know the "PC patrol" won't let that be used.

I hope Mr. Murray won't mind my "quibbling" and that he will correct me if I'm in error. I think his letter would be a good place to start a discussion about what this country is going to do about immigration.

John H. Frecker
Baileyville, ME
U.S. Border Patrol (Ret.)

Dear Editor:
In R. L. Ranger's response to Mr. Murray's letter he suggests that we look at, and I just wanted everyone reading this to know that the groups and individuals associated with those websites have been designated as hate-groups by the Southern Poverty Law Center so it might be advisable to take whatever they say, and accordingly, whatever Mr. Ranger has said with a grain of salt.


Dear Editor:
The Lone Ranger was correct, my commentary was not intended to be an attack on the Bible and was indeed "an inquisitive reflection on the numerous discrepancies contained therein". But my intent to influence is limited to awakening those who would subscribe to dogma, whether religious, social or political, in the hope that logic will prevail and the world will not perish in a fiery ball of atomic blast, over population, or environmental ruin.

I take umbrage at the Lone Ranger's applaud concerning my "refreshing position of not endorsing any further amnesty for illegals.", since although I do not subscribe to the limited vision proposals that have been made by traditionalists, neither do I believe that anti-immigrant positions presently being taken by so many are the answer either, and to this degree the Lone Ranger and I are most likely at opposite ends of the political spectrum. I further disagree that "we need to look to a higher authority", but believe man is his own salvation, or destruction, as the case may be, and no "higher power" has the capability of changing anything, but change is ultimately left to the decision of man - just watch the popular TV show "Touched By an Angel" to confirm that message. Although using our collective belief in a higher authority to provide moral and ethical guidance in our quest to resolve the world's problems, looking for a higher authority to solve the world's problems will leave us Waiting for Godot.

And contrary to the Lone Ranger's position, I do not underestimate "the magnitude of the invasion problem", but neither do I believe that, "the mass numbers coming now constitutes an invasion and a real threat.", so I do not believe there is an "invasion problem". This is hysterical rhetoric and while the numbers are a statistical reality, there is no credible authority to support the position that these numbers result in "a real threat". . . . . a "threat" to whom? To we good old WASP's, Daughters of the American Revolution, Skinheads, bigots, white supremacists? No, I see no "threat" and I love the diverse cultural enrichment people from other lands have brought to my Southern California region, and enjoy their food and their company. I do, however, oppose illegal immigration, law breakers, scofflaws and criminals, and do not believe in amnesty because it is a reward for breaking the law while those who abide by the law are given no opportunity for such reward.

As to not attaching his or her name to what he or she writes, and proudly calling himself or herself the "Lone Ranger", I believe that this is akin to holding closed immigration hearings. If Tonto is running the casinos, I guess that leaves the Long Ranger without a faithful companion. My sympathies to the Lone Ranger and to others who would skulk in the night, garbed in secrecy.

David D. Murray, Esq.
Newport Beach, CA

Dear Editor:
In response to the letter using the "pen name" of "R.L. Ranger:" (Oct. 29, 2002 Issue): The author is exercising his/her Constitutional rights to freedom of speech, and he/she is to be commended for that. He/She is entitled to his/her opinion and to share it. In the Oct. 2002 Washington Lawyer magazine, (DC) a well-written and interesting article on "Security versus Privacy," discussed on p. 23, the ability of people to protest anonymously (upheld by the United States Supreme Court 2x during the 1990's). The article cites the decision of McIntyre v. Ohio (1995), as an example, where the Court found an Ohio law unconstitutional because it prohibited distribution of political leaflets not disclosing the name and address of the circulator. Anonymous speech was supported as honorable and as a tradition for people to advocate views and express dissent. Anonymity shields us against "tyranny of the majority." The Bill of Rights and specifically, the First Amendment right in focus-- protect unpopular views and their proponents from suppression and/or retaliation of those intolerant to them.

After a community meeting one time, where I mentioned my name and was asked to list some details, including that I practiced immigration law, my office received unusual "crank" calls within 24 hours for the first (and only time to date)-- which conceivably had come from an anti-immigrant group member. Therefore, anonymity be praised! If I can express my views without intimidation and fear of reprisals--I shall! I vehemently disagree with the author of the letter who supports separating cultural, ethnic and religious groups so that we do not interfere with the "Tower of Babel," and in turn, segregation. (If he/she means this). However, I do believe and support in his/her right to express this viewpoint. Each wave of natives, and immigrants have almost always faced a "melting pot," and opposition to it in America, and throughout the world. Purity of the royals led to shocking birth defects.

Switching the subject entirely, I would like to point out that possibly 100% of the September 11 terrorists were "not immigrants!" Arguably, they were "visitors" and/or other "temporary stay" non-citizens" Controlling our "visitors" violating the conditions or overstaying visas is an entirely different matter than who we let become lawful permanent residents in this country, which is literally "immigration." "Aliens" (per the INA) or if you prefer a Euphemism, such as "non-citizens" are lawful permanent residents or others-- but arguably, those present on a non-immigrant visa, or visa waiver visitors, are not "immigrants" until they adjust status or are issued an immigrant visa. True, there are people "illegally present" in the United States, even without entry documents, and some are later, able to become "immigrants." However, the Sept. 11 terrorists, I believe, were not exactly "illegal immigrants" but rather people who were able to enter our country by subterfuge and fraud, or "visa violators" on non-immigrant visas, present in the U.S. on "temporary stays" but not necessarily planning or attempting to become permanent residents. These non-citizens rather than "immigrants," violated conditions of various student visas and overstay provisions. Additionally, the Christmas "shoe-bomber" on an airplane coming from England on a visa-waiver basis would have been a "visitor," not an "immigrant" causing "problems."

Thank you for allowing me a forum to express my opinion. I'm certain that I will receive adversarial and educational responses.

An Immigration Atty.

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