Wednesday, June 25, 2003


posted by Randy at 8:16 AM

THE NEW SITE IS UP BUT I'M STILL ADJUSTING A FEW THINGS . . . I'll have to create an archive page and a non-Yahoo email account.

In the meantime, read the Ninth Circuit's opinion on another failed attempt to equate owing allegience -- in the process of naturalizing -- and nationality:

In light of the historical meaning of “national” and the text and context of 8 U.S.C. § 1101(a)(22), we hold that a person can become a “national of the United States” under the INA only through birth or naturalization. Accordingly, Petitioner did not change his status from that of an alien to that of a United States national by filing an application for naturalization.

posted by Randy at 8:12 AM


Tuesday, June 24, 2003

WHEN THE PETITIONER DIES: In the event the petitioner dies before the beneficiary can be adjusted, ILW has a good article that discusses the humanitarian exception to automatic revocation here.

When read together with the BCIS memo elaborating on the 213A public charge issue, i.e., allowing a substitute sponsor, you pretty much have the information for dealing with a deceased petitioner case.

posted by Randy at 10:57 PM


Monday, June 23, 2003

ALMOST OPEN: The new site, that is. TMB will relocate maybe today, definitely tomorrow. Be sure to point your browser to

posted by Randy at 6:01 AM


Sunday, June 15, 2003

ASLEEP AT THE WHEEL? Either that or it's a slow immigration news day at the Immigration Portal. It lists as a headline for June 16, 2003 "INS Proclaims Zero Tolerance Policy" and points to the March 22, 2002 memo here.

It'll be interesting to see if zero tolerance will continue under Director Aguirre's regime.

posted by Randy at 2:57 PM

"DIRTY AND STINKY" HAIR BARRED FROM RESTAURANT: In an AP story reported in the Arizona Republic, accessed here, the owner of a popular St. Louis eatery didn't want dirty and stinky people in his restaurant:

Two black men, Brian Williams and Shelby Carter, were turned away from the restaurant by a doorman May 17 as they tried to join friends after a wedding and reception.

Restaurant officials said an employee was concerned with the length of the men's hair.

Shortly after the incident, Jack Lueders, president and general manager of the company that ran the restaurant, told the St. Louis Post-Dispatch the inn had a policy of excluding people with dreadlocks if their hair was determined to be "dirty and stinky."

"You can't wash that hair, and it stinks, and we're a crowded bar, and we don't want stinky people in the bar," he said.

Like it or not, dirty and stinky people applying for immigration benefits receive different treatment at the counter, at the ports of entry, and during at the adjustment interview. For one thing, many examiners wear gloves and use disinfectant liquid when dealing with questionable health situations. For another, examiners in general prefer to deal with clean people.

Is it a good thing current immigration laws don't require examiners and inspectors to deny admission to the U.S. on the basis of dirtiness and stinkiness? More to the point, lack of precision can't be the barrier to such laws. Immigration laws already impose many other vaguely defined bars of inadmissibility -- crimes involving moral turpitude being one good example. Opponents to "cleanliness" immigration laws might argue that determining objective standards of cleanliness might be difficult in an immigration examination setting.

But so what? Since immigrants as a whole do not belong to a class subject to strict or intermediate scrutiny, the government merely has to present a rational basis to justify denying admission to dirty and stinky people. Let me emphasize that so long as race, alienage, nationality, or gender do not factor into the calculation whether to admit or not, then as a legal matter, I'm inclined to disagree with opponents to "dirty and stinky" immigration laws. As to defining dirty and stinky standards, the difficulties may be put to rest by calling on Associate Justice Potter Stewart's observation regarding obscenity famously made in Jacobellis v. Ohio: I know it when I see it.


posted by Randy at 12:33 PM

MOVING UPTOWN! The Manifest Border will relocate to new newer and faster digs. Kevin J. Heller, IP attorney and blawgger at Tech Law Advisor brokered the move. Email will be shifting, so stay tuned.

I'm anticipating the housewarming to occur around Wednesday, June 18. The new address? Copy the link from here.

posted by Randy at 11:12 AM

ANOTHER FORMER INS COMMISSIONER LETS LOOSE: In today's Washington Post, an article ran on James W. Ziglar, Sr. who headed the legacy INS when the events of 9/11 took place. Shortly thereafter, he weathered a barrage of criticism from Capitol Hill. He later retired in November 2003.

He spoke to a crowd of 900 at the first national membership conference of the American Civil Liberties Union in Washington DC. You can access the WP article here.

posted by Randy at 9:47 AM


Friday, June 13, 2003

PROCEEDINGS INSTITUTED AGAINST SOMALI WAR CRIMINAL: From the Immigration Portal, a San Diego IJ court terminated the status of Abdi Ali Nur Mohamed and placed him under deportation. You can access the DHS press release here.

posted by Randy at 7:12 AM

CUBAN POP STAR DEFECTS: Findlaw Immigration News reports Carlos Manuel Pruneda defected to the U.S. by walking over the bridge that connects Matamoros in Mexico to Brownsville, Texas. On Tuesday, U.S. officials granted Pruneda asylum. You can access more information on Pruneda's music here.

This case reflects the incoherent U.S. policy regarding asylum. The AP article writes that "[t]hough pop stars tend to live in relative luxury in Cuba, he said he found the tradeoff of personal and artistic restrictions unacceptable." Any "tradeoff" Pruneda suffers simply does not pass the smile test. What artistic restrictions does Castro impose on salsa artists? Doesn't Pruneda live large when compared to his countrymen?

Pruneda should be accorded all the opportunities a free market system provides an artist. It's just that I thought asylees had to establish "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." It's obvious he doesn't.

posted by Randy at 7:07 AM


Wednesday, June 11, 2003

SEVENTH CIRCUIT WEIGHS IN ON CRIME OF VIOLENCE: The U.S. Court of Appeals for the Seventh Circuit added to the growing chorus of circuit unanimity on treating the conjunctive "and" as a disjunctive. In United States v. Vargas-Garnica, an illegal alien who reentered the U.S. after being convicted for statutory rape. Under the Sentencing Guidelines, the government contended that the statutory rape conviction was a crime of violence and therefore merited an enhanced sentence.

One of the issues was Vargas-Garnica's claim that for the enhanced sentence to hold, the statutory rape for which he was convicted must contain an element of physical force. For statutory rape, no element of physical force exists in the California Penal Code. The court's opinion turned on how to construct "and" for defining crime of violence:

Vargas-Garnica’s principal argument is that a “crime of violence” requires that there have been an element of force specifically present in the conduct giving rise to the earlier conviction. This argument appears to be based on Application Note 1(B)(ii) to U.S.S.G. § 2L1.2, which reads
“Crime of violence”—
(I) means an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

U.S.S.G. § 2L1.2, cmt. n.1(B)(ii). The conjunctive “and,” between subparagraphs (I) and (II), says Vargas-Garnica, requires that the conviction satisfy both subparagraphs. Hence, Vargas-Garnica argues, all crimes of violence must have an element of physical force and also be one of the enumerated offenses in subparagraph (II).1 But, as we have noted elsewhere, the “and” in § 2L1.2 is followed by “includes,” which is an illustrative construction, not a limiting construction. See Alvarenga-Silva, 324 F.3d at 887; United States v. Vasquez-Abarca, No. 02-1727, 61 Fed. Appx. 243, 245 (7th Cir. Feb. 14, 2003). It is sufficient if the prior conviction either satisfies the general criterion involving the use of force as described in subparagraph (I), or is one of the specifically enumerated offenses in subparagraph (II). In this respect, our interpretation of § 2L1.2 is in accord with that of the Fifth, Eighth and Eleventh Circuits. See United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003); United States v. Vargas-Duran, 319 F.3d 194, 195 (5th Cir. 2003); United States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir. 2002).

So the Seventh is in accord with the Fifth, Eighth, and Eleventh Circuits. But wait a minute -- didn't the Ninth recently speak on this very same issue? Indeed it did. In fact, I blogged about it just a few days ago in a post titled "Voluntary Manslaughter = Crime of Violence" that mentioned another crime of violence opinion, United States v. Bonilla-Montenegro. The court in Bonilla agrees with the Seventh Circuit in Vargas-Garnica:
Bonilla’s fallback argument is similarly unpersuasive. Bonilla urges that because the Guideline lists the crime of violence definition in the conjunctive, the government must prove that the offense has a particular element and that the offense constitutes a specific type of crime. Contrary to Bonilla’s position, we have held that a statute’s use of disjunctive or conjunctive language is not always determinative. See Alaska v. Lyng, 797 F.2d 1479, 1483 n.4 (9th Cir. 1986). Rather, we must strive to give effect to the plain, commonsense meaning of the enactment without resorting to an interpretation that “def[ies] common sense.” Cook Inlet Native Ass’n v. Bowen, 810 F.2d 1471, 1473-74 (9th Cir. 1987) (citation omitted).

Recently, one of our sister circuits expressly considered and rejected Bonilla’s contention. See United States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir. 2002). As the court noted in Gomez-Hernandez:
[C]onstruing “and” as a disjunctive in the new application note is consistent with the principle that courts avoid a statutory construction that would render another part of the same statute superfluous. See Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). The crimes enumerated in subpart (II) include “burglary of a dwell-ing.” The crime of burglary is defined differently by the laws of the various States, but burglary, or at least “generic” burglary, has never had as an element “the use, attempted use, or threatened use of physical force against the person of another.” See Taylor v. United States, 495 U.S. 575, 580, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Therefore, if [the defendant’s] construction of the “and” in application note 1(B)(ii) is correct, “burglary of a dwelling” would not be a crime of violence, despite its inclusion in subpart (II), because it does not contain the physical force element required in subpart (I). Thus, his interpretation would render part of the application note surplusage. Id. at 978-80.

We find the Eighth Circuit’s logic persuasive. As that court also observed, “the word ‘includes’ that introduces subpart (II) of application note 1(B)(ii) strongly suggests an intent that the enumerated crimes always be classified as ‘crimes of violence.’ ” Id. at 979. We conclude that, because manslaughter is specifically enumerated in Section II, it is a “crime of violence.” In doing so, we reiterate that a “crime of violence” does not require specific intent. See, e.g., Park, 252 F.3d at 1022. The district court properly construed § 2L1.2.

Makes sense to me.

posted by Randy at 7:57 AM


Tuesday, June 10, 2003

OVER THE WEEKEND, the NYT reported "More Than 13,000 May Face Deportation" -- all Arab and Muslim nonimmigrant men called in for Special Registration. I saw the program up close and personal and what struck me about it was that not one U.S. citizen or legal permanent resident was required to come in.

That is an important fact to remember. Only visitors registered. Just visitors. Does it really shock the conscience that in the days following the most deadly terrorist attack on U.S. soil that the government reacted in the way it did? Each and everyone of the 13,000 guests were nonimmigrants -- visitors present for a limited duration. Should not a host determine how long his guests remain in his living room? Since when do guests dictate the terms of their stay to the host?

That said, I thought I'd have a little fun with the NYT article by posting links to what others, left and right, have to say on the subject. Jeralyn Merrit of TalkLeft says:

The deportations are a striking example of how the Bush administration increasingly uses the war on terror as as a weapon against the nation's immigrants.

On the other end, Rush Limbaugh has this to say:
I guess this [deportation of Arab-Muslim men] is going to make the much-ballyhooed "Arab Street" mad at us. Because, you know, they love us now, and if we make them angry they may someday express that anger by flying jets into the Twin Towers.

And finally, Tacitus has the last word:
. . . there are a few caveats here. The first is that some of the immigrants are illegal because of governmental inefficiency rather than by their own fault. Difficult though it may be to weed out such cases, it's entirely just that it be done. The second is that there is a measure of long-term self-defeating insincerity at play: since the immigrants registered voluntarily and are being repaid thus, INS/BCIS's one shot at building trust has been expended. It doesn't strike me as a wholly honorable tactic, but now that it's done, it's unreasonable to expect the government to not act on the information.

As InstaPundit might say, read them all.

posted by Randy at 10:18 PM

INTERVIEW WITH DORIS MEISSNER: Newsweek's Malcolm Beith interviewed former INS Commissioner Doris Meissner to seek her comments concerning the recently released DOJ Inspector General review of September 11 detainees, accessed here (short press release HTML) and here (full report pdf).

Interesting read. I've been told that it was under her watch when applicants seeking benefits from the legacy INS where referred to as "customers."

posted by Randy at 7:09 PM

PHOENIX SKY HARBOR AIRPORT HUB FOR SMUGGLED ALIENS: The Arizona Republic reported smugglers have cased out Sky Harbor International Airport, pegging it as "the nation's most popular transportation hub for smuggling undocumented immigrants throughout the United States."

posted by Randy at 6:37 PM

Comments appearing on The Manifest Border belong exclusively to me. They neither represent specific legal advice nor do they reflect the position of my federal agency employer. I try to provide quality immigration information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to from The Manifest Border.
Disclaimer courtesy of Denise Howell.

Email your comments
(replace "_at_" with "@")


TMB Archives

____________________ ARCHIVES

March 2003
April 2003
May 2003
Web Sites
BIA Decisions
FindLaw's NI Visas
Homeland Security
EOIR Library
Immigration Portal INA
Policy Memos
DOS Visa Services

Recommended Blogs
Actual Malice
Bag and Baggage
The Blawgregator
Ernie the Attorney
Daily Whirl
How Appealing
Inter Alia
The Paper Chase
Sgt. Stryker
Tech Law Advisor
Volokh Conspiracy

Powered by 

Blogger Pro™

< ? law blogs # >

Blogroll Me!