THE MANIFEST BORDER

   


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Wednesday, June 25, 2003
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THE NEW SITE CAN BE ACCESSED at manifestborder.com.

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

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Tuesday, June 24, 2003
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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

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Monday, June 23, 2003
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ALMOST OPEN: The new site, that is. TMB will relocate maybe today, definitely tomorrow. Be sure to point your browser to www.manifestborder.com.

posted by Randy at 6:01 AM

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Sunday, June 15, 2003
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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.

Heh.

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

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Friday, June 13, 2003
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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

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Wednesday, June 11, 2003
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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

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Tuesday, June 10, 2003
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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

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Monday, June 09, 2003
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VOLUNTARY MANSLAUGHTER = CRIME OF VIOLENCE: The U.S. Court of Appeals for the Ninth Circuit quickly disposed appellant's argument in United States v. Bonilla-Montenegro:

[4] Bonilla posits that voluntary manslaughter is not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) because § 2L1.2 requires a finding of specific intent, and the California crime of which he was convicted is only a general intent crime. We disagree, because our precedent instructs that designation of an offense as a “crime of violence” does not require intentional use of force. See Trinidad-Aquino, 259 F.3d at 1146; see also Park v. I.N.S., 252 F.3d 1018, 1022 (9th Cir. 2001) (holding that California’s involuntary manslaughter statute is a “crime of violence” and recklessness is a sufficient mens rea to so establish).
[5] 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).

Again, from the Immigration Portal.

posted by Randy at 10:43 PM


SRI LANKAN VISA SCHEME DRAWS TO CLOSE: From the Immigration Portal, the Justice Department announced a
guilty plea from defendant Rajwant S. Virk:

Virk, 46, of Herndon, Virginia, is one of nine defendants charged as part of an ongoing visa fraud investigation. Virk has agreed to cooperate with the government’s continuing investigation. He faces a maximum penalty of five years in prison at sentencing, scheduled for Aug. 22, 2003.

Seven other defendants charged in a May 1, 2003 indictment also appeared today before U.S. District Judge Garland E. Burrell. Judge Burrell also heard argument on a motion relating to the bail status of defendants Vinesh Prasad, 33, and Minesh Pradad, 28, both of Sacramento. Defendants Acey R. Johnson, 32, who until recently was a Consular Associate employed in the consular section of the U.S. Embassy in Sri Lanka, and his spouse Long N. Lee, a State Department Foreign Service Officer and career State Department employee, are also in federal custody. Defendants Narinderjit Singh Bhullar, 40, of Sacramento, Phuong-Hien Lam Trinh, 35, of Torrance, Calif., and Rachhpal Singh, 32, of Hayward, Calif., were previously released on bail.

Prediction: Recipients of the tainted visas will not be hunted down. Confidence: High. Rationale: India, Sri Lanka, and Vietnam are not on the list of countries known to sponsor terrorism.

posted by Randy at 10:23 PM


THREE IMMIGRATION OFFICIALS CONVICTED for ignoring illegal immigrant's broken neck that resulted from a house raid. The immigrant eventually died from complications stemming from his injuries.

The next question, of course, is whether the decedent's family can sue the feds. TMB readers, send your answers!

posted by Randy at 10:10 PM


IN A WASHINGTON TIMES EDITORIAL, calls for denaturalizing U.S. citizens involved in terrorism exposes the giant sieve:

The Salah and Sarsour cases point up a loophole in American immigration law: Once someone becomes a naturalized U.S. citizen, it is virtually impossible to deport them unless they commit fraud or misrepresent their background during the naturalization process. This is a dangerous loophole that must be closed.

Without elaborating more, the editorial does not convince me that the natz loophool, if one even exists, needs closing. How is the mechanism to denatz USCs when involving fraud or misrepresentation a loophole?

The land these two nasties need to be deported to is a U.S. prison. To let them freely walk around in another country to plot destructive acts is the real loophole.

posted by Randy at 9:27 PM

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Friday, June 06, 2003
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CAN YOU SPELL R-E-G-I-S-T-R-Y?: Ramon Saul Sanchez fled Cuba in 1967. Presumably, Sanchez has resided in Miami ever since then.

Earlier this week, the director of the anti-Castro group Democracy Movement appeared before immigration officials to apply for permanent residence. That's when he was arrested.

The AP article raises a few questions: if he was paroled into the country U.S., why was he arrested? What immigration violation did he commit?

Under the Cuban Adjustment Act of 1966, Cubans who arrive on U.S. shores are paroled into the country and may apply for permanent residence after a year.

The CAA of 1966 states that after one year following entry into the U.S., a Cuban can register for permanent residence. It does not compel him or her to. Now if he's never been paroled, then he had to surrender himself and receive a grant of parole. Then a year must elapse before he can apply for permanent residence.

The fact he's been in the U.S. for 36 years makes him prima facie eligible under section 249, which describes registry applicants. His biggest obstacle, though, is whether he has no other way to normalize his immigration status.

There's probably more going on to this story.

UPDATE: There is more. He's run afoul with the feds before. Rule out registry as a form of relief.

posted by Randy at 6:03 AM

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Thursday, June 05, 2003
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LACK OF DOCUMENTARY EVIDENCE CANNOT BE SOLE BASIS TO REJECT APPLICATION: The U.S. Court of Appeals for the Ninth Circuit answered the question whether the inability to produce documents establishing continual presence proves fatal to an application suspending deportation. In Vera-Villegas v. INS, the court said "no" when there's credible written and oral testimony:

. . . We hold that this is not an adequate basis for rejecting a petitioner’s application for suspension of deportation if the oral and written testimony offered is otherwise sufficient. The regulations do not impose any specific evidentiary requirements on applicants for suspension of deportation. See 8 C.F.R. § 240.65. The instructions that accompany the suspension application state that only two documents are “required,” and Vera submitted them. See Instructions, Application for Suspension of Deportation, available at http://www.visapro.com/US-Immigration-Forms/Suspensionof- Deportation-Form.asp (requiring a Biographic Information Form G-325A and a Fingerprint Card, FD-258). The instructions suggest that an applicant “should” submit documentary evidence to show that he has been present for the required statutory period, but they do not state that he “must” do so. Id. Although the general regulation creates a presumption of ineligibility for failure to file required documents, there is no such presumption for the failure to file suggested documents that are not actually required. See 8 C.F.R. § 103.2(b)(2).

[8] The decision of the IJ to reject Vera’s testimonial evidence because it lacked supporting contemporaneous documentation is unreasonable and contrary to the established method by which we litigate matters in our justice system, including in administrative hearings. Courts and litigants have long relied on testimony alone, whether in the form of affidavits, declarations, depositions, or live witnesses, to prove antecedent facts. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (relying on affidavits for factual support). While contemporaneous documentary evidence may add to the credibility of a witness, it is by no means indispensible. It is unreasonable to discredit the sworn testimony of a witness for the sole reason that there is no contemporaneous documentary evidence to support it, especially when there may be valid reasons why no such evidence exists. It is especially unreasonable to impose a contemporaneous documentation requirement on homeless people, who will likely never have documentation that they lived in a particular locale; on undocumented immigrants, who often work for low wages paid in cash and who seek to avoid creating official records of their presence; and on the mentally ill, whose disabilities often compromise their ability to comply strictly with evidentiary rules. Cf. Ladha v. INS, 215 F.3d 889, 900-01 (9th Cir. 2000) (holding that when an asylum seeker offers credible testimony, she need not support her claim with any corroborating evidence because “[a]uthentic refugees rarely are able to offer direct corroboration of specific threats”). Finally, it is unacceptable to require aliens (or others) to present evidence that they cannot readily obtain or to penalize them for failing to provide documentation that does not exist. There is no reason that Vera, a formerly homeless person and an immigrant who suffers from mental illness, should be held to so unreasonable a standard.

The Ninth spanks the BIA again. Via The Immigration Portal.

posted by Randy at 12:09 AM

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Monday, June 02, 2003
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E-FILING AVAILABLE FOR EMPLOYMENT AUTHORIZATION AND REPLACMENT GREEN CARDS: On May 29, BCIS announced e-filing for EADs and replacement I-551s (Permanent Resident Cards). BCIS
introduces the program this way:

Customers have the option of filing BCIS Form I-90, Application to Replace Permanent Resident Card, and Form I-765, Application for Employment Authorization (along with Form G-28, Notice of Entry of Appearance as Attorney or Representative) online using the Internet. As additional BCIS forms are available for E-Filing, you will be able to access them from this page.

E-Filing allows customers, or their representatives, to complete and file an application when it's convenient for them -- 24 hours a day, 7 days a week. Customers can schedule an appointment to visit an Application Support Center at a time that's convenient to them for collection of a digital photograph, signature, and fingerprint. No more standing in line to file at an office or mailing an application and waiting for confirmation that it was received. Not only will this new way of doing business improve service to BCIS' customers, it will facilitate processing within the BCIS.

BCIS will phase in other applications over the next several years. The convenience benefit is apparent. No one, however, should take this move to mean that processing times will correspondingly shorten. E-filing or not, processing EADs or I-90s is measured in weeks and months. Convienience, then, is offset by security. "E-Filing is part of our ongoing effort to provide simpler, more convenient ways for customers to interact with BCIS while meeting our national security objectives," said Director Aguirre.

posted by Randy at 12:03 AM

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Sunday, June 01, 2003
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I COULDN'T HAVE SAID IT BETTER MYSELF: From InformationWeek, an article on congressional debate over the H-1B and L-1 visas. Legislators have to tread a fine line between advancing the interests of American workers on the one hand, and pissing off the companies that would hire and keep them on the other. Here's the money quote from Rep. Mica (R-FL), the author of a bill to limit companies from transferring out L-1s:

Lawmakers understand that asking companies to use fewer foreign workers is tricky. "We don't want to create a situation where companies' costs become so prohibitive that they don't have some alternatives and move the whole operation offshore," Mica says. That's already happening at many large companies. Just last week, Hewlett-Packard said it would continue to slash U.S. jobs while growing operations at its Indian subsidiary.

Last week, I blogged about L-1s and how they affect American workers here.

posted by Randy at 8:34 PM


SAUDI STUDENT ARREST CLAIMED "SUSPICIOUS" -- Volokh blogged the Saudi student arrest story and asked if what the student did was criminal:

Sami Omar Al-Hussayen, a Ph.D. computer science student at the University of Idaho, raised funds ($300,000 over five years) and provided computer services for the Islamic Assembly of North America. IANA sites apparently contained various pro-jihad and pro-suicide-bombing items, though there has apparently been no allegation that Al-Hussayen actually provided this material; he seems to have just run the site. The federal government also claims that IANA funds were being funneled to terrorist organizations.

But Al-Hussayen isn't being prosecuted for knowingly aiding a terrorist organization; rather, as best I can tell from reading the Journal article and the federal government's criminal complaint against the him (Sami Omar Al-Hussayen), the criminal charges are that:
1. Al-Hussayen lied on his visa application, because he signed a document (form I-20) saying "I certify that I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study," and wrote on his form DS-156 that the purpose of his entry into the U.S. is "study." This, the government says, was a lie, because he was entering the U.S. not solely to study, but also to help IANA.

2. Al-Hussayen fraudulently omitted IANA from form DS-1257, where he was told to "[l]ist all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)."

But is this conduct really criminal? First, "solely for the purpose of" can't literally mean "solely" in the sense of "I plan on doing nothing except studying." Students don't just study: They engage in hobbies, they participate in various organizations, they enjoy the beach, they goof off, they fall in love. Presumably the government can't prosecute someone saying "Aha! You said you came here solely to study, but your buddies will testify that you told them that you also wanted to find some American women to have sex with. You're going to prison for that." Why? Because people who are signing these forms will understand "solely for the purpose of . . . study" in its normal, commonly understood sense of being a student and doing the sorts of things that students do, such as trying to get sex, or seeing the sights, or engaging in political or religious activities in your spare time.

If the facts alleged in the complaint are true, then "yes," he did.

Misrepresentation to the U.S. government and visa fraud are federal crimes. 18 USC 1001(a) is the relevant statute for misrepresentation. 18 USC 1546 covers visa fraud. The penalties are severe. For example, visa fraud for which the Saudi student is charged carries a term up to 25 years:
Shall be fined under this title or imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929(a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facility [1] such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.

I don't think the Saudi student's situation turns on whether he entered the U.S. "solely" to pursue his studies. The complaint appears to allege enough facts to cause the reader to conclude that the student engaged in an unreasonable amount of extra-curricular activities -- activities for which he was paid (a no-no while on an F-1 visa) and activities which happen to be a very sexy topic today: terrorism.

Do F-1 students as a whole recieve this kind of attention? No. But keep in mind that the Saudi student belongs to the category of special registrants. He undoubtedly attracted attention because of his immigration status, place of birth, citizenship, age, and sex. "Special Registration" was one component of the so-called National Security Entry-Exit Registration System (NSEERS) that mandated registration from all males over sixteen years of age from countries known to sponsor terrorism.

It's unclear whether he was snared as a result of special registration because the complaint was date February 13, 2003 and his call-in group deadline expired February 19, 2003. It's possible he did. Then again, he could've been taken into custody apart from special registration.

posted by Randy at 4:06 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.
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