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Immigration Daily

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Immigration Daily November 6, 2002
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Editor's Comments

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INA And INS Regulations At Your Fingertips

While writing to the INS about a RFE or preparing a petition, how do you keep the INA and all the relevent regulations of the INS at your fingertips? Attorneys have been using the exaustive topic indices in the 8 CFR Plus and The Whole ACTINA (Annotated) to do just that for years. To read more, please click here.

Featured Article

The Diversity Visa Lottery Program: A Genuine Attempt to Diversify The Immigrant Pool or A Security Trap for Visa Violators?
Bernard P. Wolfsdorf and Naveen Rahman write about the DV lottery.

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Immigration Law News

Supremes Say Ninth Circuit Committed Clear Error When Deciding Asylum Claim Instead Of Remanding To BIA
In INS v. Orlando Ventura, No. 02-29 (Sup. Ct. Nov. 4, 2002), in a Per Curiam decision, the Court held that the Ninth Circuit Court of Appeals committed clear error when it disregarded the Board of Immigration Appeals's (BIA) legally-mandated role, and instead created potentially far-reaching legal precedent about the significance of political change in Guatemala, a highly complex and sensitive matter and did so without giving the BIA the opportunity to address the matter in the first instance in light of its own expertise. The Court pointed out that the 1997 State Department Country Report quoted by the Court of Appeals said that violence in Guatemala in the recent past appeared to stem from common crime and/or personal vengeance, not politics, and noted that remand could lead to the presentation of further evidence of current circumstances in Guatemala, five years after the Report quoted in the record. Both parties to the matter had requested the Ninth Circuit Court of Appeals to remand the case to the BIA.

Both Post- And Pre- November 2001 Sentencing Guidelines Warrant Sentence Enhancement For Illegal Reentry Following Deportation After Conviction For Aggravated Felony
In US v. Sojos, No. 02-1493 (8th Cir. Nov. 5, 2002), the court said that Defendant's prior conviction for criminal sexual conduct met the requirements under both the post- and pre- November 2001 versions of section 2L1.2 of the Sentencing Guidelines for sentence enhancement for illegal entry following deportation.

212(c) Relief Availability Ordered To Remedy Violation Of Equal Protection
In Servin-Espinoza v. Ashcroft, No. 01-16225 (9th Cir. Nov. 5, 2002), the court held that the INS's application of AEDPA 440(d) by barring 212(c) relief against deportable but not excludable aliens during the time period between a BIA decision on this subject in 1997 and a Ninth Circuit decision on the subject in 1999, violated Petitioner's equal protection rights and said that the only feasible way to remedy the discrimination suffered by Petitioner was to grant him the same opportunity to apply for 212(c) relief which was systematically granted to excludable aliens at the time.

INS Fiscal Year Monthly Statistical Report Reports Key Statistics
The INS Fiscal Year Monthly Statistical Report for the third quarter ending June 2002 reports several key statistics on inspections, southwest border applications, immigration benefits, naturalization benefits, removals, investigations, asylums. Specifically, receipts were down 9 percent while approvals were up 8 percent for the first nine months of FY 2002 when compared to the same period in FY 2001 for applications for immigration benefits; the number of pending naturalization cases (N-400) increased 23 percent compared to one year ago; Nationals of the People's Republic of China submitted the most asylum applications in June 2002, followed by Mexico and Colombia; and for the first nine months of FY 2002, criminal alien cases decreased 8 percent, employer cases increased 40 percent, fraud cases decreased 50 percent, and smuggling cases decreased 27 percent compared to the same period in FY 2001.

INS Seeks Comments
INS sought comments on request for verification of naturalization, Form N-25; HRIFA Supplement to Form I-485 Instructions, Form I-485C; Certificate of Satisfactory Pursuit, Form I-699; Petition for Approval of School for Attendance by Nonimmigrant, Form I-17; and Affidavit of financial support and intent to Petition for Legal Custody for Pub. L. 97-359 Amerasian, Form I-361.

Supremes Say Ninth Circuit Was Wrong
The Star Tribune of Minneapolis, MN said "The Supreme Court said Monday that a lower court was wrong to allow an immigrant who feared mistreatment in his home country to stay in the United States."

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Letters to the Editor

Dear Editor:
John K. Webb's article is a valuable source of information, and Immigration Daily quite correctly posted it for wide circulation. However there is a draconian aspect of Webb's mindset and the implications of his article, upon which Immigration Daily remained silent -- a treatment which might be taken for acquiescence in Webb's perspective. Therefore it would be good for Immigration Daily to balance Webb's piece with something from an immigrant rights specialist, about the misuses and excesses of Social Security fraud prosecution, and how to counter those abuses and excesses. In my view:

There is nothing laudable or constructive about Webb's punitive, selective prosecution of immigrants for the inoccuous faking a social security numbers - an understandable expedient for any undocumented person trying to get by and get work. Americans are happy to have a vulnerable, and therefore cheap, undocumented workforce available, because cheap labor cuts the cost of farm produce, nursing home care, child care, gourmet restaurant meals, building construction and maintenance, etc. However Americans are stymied, by the contradiction between their desire for this economic payoff, and their delusional vision of America as an affluent, predominantly white-skinned oasis, insulated by divine right from a surrounding morass of corrupt savagery. To assuage this cognitive dissonance, we establish punitive immigration policies and agencies, to back with one hand what we grudgingly dole out under the table with our other hand. Nor should readers be taken in by Webb's trumpeting of this new brand of discriminatory legal abuse, as a supposed blow against terrorism. The Bush regime's relentless flogging of the "terrorism" shibboleth is an ugly, stupid and shameful blot on our history and national character. Granted, we should expect the kind of personalities who currently inhabit the White House and the upper tiers of federal agencies to conduct themselves like the heavies they are. However that does not excuse us attorneys - as highly educated, literate, supposedly ethical and sophisticated, self-styled servants of the Constitution -- to jump on their bandwagon.

Attorney Name Not Supplied

Dear Editor:
I have to agree with R L Ranger. We have to be careful of allowing lazy cultures to infiltrate our country. Also, in this time of a failing economy we should purge our country of those lazy influences that are already here. I say as a start we kick out those lazy European types who were so lazy that they had to enslave people to pick their cotton instead of doing it themselves.

Name Not Supplied

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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