THE MANIFEST BORDER

   


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Monday, April 28, 2003
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NOW I'M SCRATCHING MY HEAD: The Miami Herald reports that State Department officials have no idea where the AG got his information:

Ashcroft made the claim in a ruling Wednesday that Haitians need to be detained while they seek asylum.
Among other reasons, Ashcroft cited national security concerns. A State Department declaration, he said, "asserts that it has `noticed an increase in third country nations (Pakistanis, Palestinians, etc.) using Haiti as a staging point for attempted migration to the United States. This increases the national security interest in curing use of this migration route.''

A spokesman for the State Department's Consular Service said his agency is puzzled by Ashcroft's comment.
''We all are scratching our heads,'' said spokesman Stuart Patt. 'We are asking each other, `Where did they get that?' ''

It should have occurred to me earlier but is it possible to confuse a Palestinian or Pakistani for a Haitian? Unless an inspector is visually impaired, probably not. Ethnically, Haiti is virtually homogenous, according to the CIA Factbook. Because Haiti is 95% black (with 5% making up mulatto and white) and 80% Roman Catholic, and because Haitians can be readily indentifed from Pakistanis and Palestinians, I don't see how a middle-eastern Muslims entering the U.S. from Haiti could form a national security basis to detain and deny bond for all Haitian refugees.
(Thanks to Ibidem for the link.)

posted by Randy at 7:16 PM


REMEMBER WHEN IT LOOKED LIKE THE U.S. was piling on the Haitians? In today's LA Times, it reports that Bermuda is piling on the Haitians, too.

posted by Randy at 6:02 AM

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Saturday, April 26, 2003
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BUT WHERE'S THE REST OF THE STORY?: In an article that tugs on the heartstrings, the DenverPost wrote about an illegal alien who was arrested, detained for 99 days without a charge, and later released:

In November 2000, Chacon-Corral began applying for permanent residency. His petition was approved in April 2001, so he filed the next step, including the payment of $1,245 in fees, which the INS accepted.

Translation: His U.S. citizen spouse filed a Petition for Alien Relative, Form I-130. When it was approved, Chacon-Corral filed an Application to Register for Permanent Residence, Form I-485. It was the latter submission that starts the process for Chacon-Corral to gain legal status, i.e., the green card.

Incidentally, of the $1,245 he paid in fees, $1000 was paid for the "fine" imposed on him for entering the country illegally. Known as 245(i), certain applicants can waive the legal entry requirement but only if they can meet 245(i) conditions. One of the conditions required filing the I-485 before April 30, 2001. Here, it looks like Chacon-Corral was one of these applicants.

The story continues:
During an interview in December, INS officer Janet Gibson told him to return Jan. 15, which he did. He was promptly arrested and transferred to the INS detention facility in Aurora, without being charged and without being offered an attorney or bail.

Generally, applicants appearing for an adjustment interview will not be arrested and detained. In other words, the adjustment interview will not normally be used to lure illegal aliens for arrest and removal. But if it is revealed that when released, the applicant poses a danger to the community, the case will be referred to either BICE or BCPB agents. One good example would be a warrant for his arrest by a local law enforcement agency. Another referral example would be violent behavior during the adjustment interview.

In Chacon-Corral's case, I seriously doubt his illegal entry in 1998 was the only reason he was arrested and detained. If a general policy existed that scheduled illegal aliens for adjustment interviews to arrest on-the-spot and later remove them, the IJ courts would simply crumble under the strain.

posted by Randy at 9:58 AM


WP IS ON A ROLL: The Washington Post reported three newsworthy immigration articles. In one, special registrants face a Catch-22. In the second, an immigration judge ordered the removal of a University of Idaho student linked to Islamic extremists. And in the last, immigration advocates decry the AG's recent ruling that denied bond to a Haitian refugee.

posted by Randy at 8:01 AM

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Friday, April 25, 2003
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MORE ON THE ATTORNEY GENERAL'S DECISION TO WITHHOLD BOND: Howard Bashman linked to a Washington Post article that reported the AG's decision to deny bond for a Haitian who evaded the Coast Guard and landed on Florida shores. Among the reasons for overturning the BIA was to stem the use of Haiti as a departure point for illegal entry into the United States:

The declarations submitted by INS also substantiate a national security concern raised by the prospect of undocumented aliens from Haiti being released within the United States without adequate verification of their background, associations, and objectives. Thus, the State Department declaration asserts that it has “noticed an increase in third country nations (Pakistanis, Palestinians, etc.) using Haiti as a staging point for attempted migration to the United States. This increases the national security interest in curbing use of this migration route.”

Read the April 17 decision by accessing it here.

posted by Randy at 7:55 AM


IN TODAY'S NEWSPAPERS: According to the LA Times, replacing a green card or an employment authorization card will be done digitally, in an article here. The Washington Post reports a Cuban visa backlog. And finally, the San Francisco Chronicle reported on Wednesday that Mexico will assist with border security in exchange for immigration reform.

posted by Randy at 6:00 AM

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Wednesday, April 23, 2003
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NEWS OF THE CURRENT SANTORUM AFFAIR GRIPS ME more than anything going on in immigration. That's not to say there's nothing newsworthy in immigration. There's the immigration counselor ripping-off vulnerable illegal aliens; there's the fear of more Cubans arriving at our shores; and then there's the 51st state that defends its lax border enforcement efforts. (Pointers via the Stein Report.)

As I said earlier, the Santorum saga is much more interesting. Glenn Reynolds at InstaPundit blogged a reader's email that praised the English of immigrants' children. The reader wrote to InstaPundit in the context of Santorum's mangling of a sentence that raised Glenn's ire:

It is painful to listen to him, and to many other office holders, mangle the language. Among the undergraduates that I teach at CUNY, a sizeable minority are immigrants or children of immigrants. I insist that they read, write and speak college-level English. Might we not hold members of the House and Senate to such standards? While the Constitution prohibits religious tests, I don't see any prohibition for fluency tests.

Read the whole post.

posted by Randy at 10:31 PM

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Monday, April 21, 2003
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ANOTHER STATE IS ON TRACK TO ENACT A LAW to protect mail-order brides.

On the surface, laws requiring matchmaking companies to disclose background information on U.S. citizens using its services to foreign brides seem like a good idea. Hawaii and Washington, two states to consider such laws, are free to enact safeguards for its residents. It's interesting to note that these protective measures are not gender neutral but instead set aside foreign brides for protection.

These laws should not offend any except the most ardent legislative minimalist. On the surface, it is odd that a state will enact a law to protect a segment of society residing outside of its border. There can be no doubt that a state has a variety of interests. For example, a state has an interest to legislate the maximum speed limit within its borders because its peculiar geography mandates slower (or faster) maximum speeds. Here, a speed limit requires drivers within a state to observe a maximum driving speed. Presumably, speed limits form part of a state's police interest.

But what interest exists for a state to pass a law to protect a segment of society residing outside of its borders? A corporation basing itself in a state is bound by the laws of that state. Of the state laws binding a company, all are rationally related, at a minimum, to a state interest. A state's interest, it follows, derive from the interest of its residents. Accordingly, a voice has to exist for an interest to exist.

Therein lies the rub: there are no foreign brides within a state unless they are present in the state. If they are present, perhaps one of three scenarios arises. They could be still married to their spouses without having suffered abuse. Or they could have suffered abuse but opted to remain with their spouses. Or finally, they could have taken advantage of the provisions for permanent residence under the Violence Against Women Act. If the latter occurred, the price a foreign bride pays for permanent resident status is credible and documented battering from either a U.S. citizen or legal permanent resident spouse.

Thus, a segment of society outside of a state's border, abused or not, discovers a way to both enter and reside in the U. S., and affect immigration laws and policy. Again, not an offensive result, except to the most ardent legislative minimalist.

posted by Randy at 9:19 PM


FOX NEWS REPORTS THE TENSION BETWEEN securing the borders on one hand and fueling an additional $300 million dollars to the coffers on the other.

Of course, this is no surprise to immigration practitioners on either side of the issue. The State Department, however, sees no dichotomy.

posted by Randy at 7:55 PM

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Saturday, April 19, 2003
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PHILADELPHIA IJ COURT DENATZ'D AND DEPORTED NAZI GUARD:

Theodor Szehinskyj, 79, deported from the United States because he had served as an armed SS guard of civilian prisoners at the Gross-Rosen, Sachsenhausen and Warsaw concentration camps from January 1943 until February 1945.

In a written decision, Judge Honeyman, quoting the district court, stated: "[T]he horror of the [concentration] camps cannot be overstated: they were places of utter, devastating persecution," and "Most people placed in the camps were there because of their ethnicity or religion, persons considered to be untermenschen, or ‘sub-humans.'"

Read yesterday's Department of Justice press release.

posted by Randy at 9:29 AM

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Wednesday, April 16, 2003
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HERE'S THAT RARE INSTANCE WHEN ONE SOVEREIGN NATION DETERMINES AT WILL who among its citizens may or may not need passports when crossing the border of another sovereign nation.

Heh.

posted by Randy at 10:21 PM


I'M SURE HE HAS A LAST NAME YET EVEN a congressional resolution can't identify it:

Mr. FLAKE submitted the following resolution which was referred to the Committee on International Relations:

RESOLUTION

Commending Mohammed, an Iraqi lawyer, for his fearless and courageous actions in helping to save the life of an American solider.

Whereas the Iraqi lawyer known as Mohammed was born in Najaf, Iraq, a holy city to Shiite Muslims;

Whereas he studied law and English in Basra to become an attorney;

Whereas in late March 2003, during Operation Iraqi Freedom, he became aware of the presence of an American soldier in the hospital in the town of Nasiriyah while visiting his wife, a nurse in that hospital;

Whereas he risked his life and walked six miles from Nasiriyah to reach elements of the United States Marine Corps in that area to inform them of the location and condition of the American soldier;

Whereas upon being asked by the Marines to do so, he returned to the hospital two more times to map the layout of the facility and the exact location of the American soldier, again risking his life in the event his mission was discovered;

* * *
Resolved, That the House of Representatives commends Mohammad, an Iraqi lawyer, for his fearless and courageous actions in helping to save the life of Private First Class Jessica Lynch, United States Army.

You'll recall that the subject of the resolution is the same guy that some think to whom conferring U.S. citizenship wouldn't be a bad idea. I blogged about the legal basis here. (Resolution quoted from an article by U.S. Department of State's Office of International Information Programs.)

posted by Randy at 10:05 PM


THE STANFORD DAILY REPORTS on the current look by Congress concerning H-1B visas. The so-called "tech visa" was the center of attention on campus back in early March when posters appeared in student residences that warned "BEWARE! H-1B and L1 visa programs forcing Americans into unemployment."

I recently blogged about the topic and I'm not convinced that there has to be a zero-sum result when discussing H-1Bs and American workers. Despite the doom and gloom articles that point to low wages paid to these tech visa holders, many earn very generous incomes. I'll bet most. Ok, darn near all of them:

The employer must state that it will:

Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;

Provide working conditions for nonimmigrant workers that will not adversely affect the working conditions of workers similarly employed . . . .

These workers make up a very small percentage of hi-tech workers. Sites like hireamericancitizens.org exaggerate the dubious negative impact of H-1B workers.

There are cheaper and more time-saving ways to achieve the same end. What incentive is there for a company to jump through all the Department of Labor, state employment security agency, and Bureau of Citizenship and Immigration Services hoops just to hire a $50K a year engineer? Nothing, unless the company can discern a tangible return on their investment. That usually spells Q-U-A-L-I-F-I-C-A-T-I-O-N-S.

posted by Randy at 8:24 PM

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Tuesday, April 15, 2003
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WHAT DID THEY KNOW AND WHEN DID THEY KNOW IT?: That's the question the dissent asked in a case that analyzes an alien's right to due process. In an recent opinion by the U.S. Court of Appeals for the Ninth Circuit, it denied a petition to review a BIA decision relating to reopening a deportation proceeding.

The facts in Manjiyani v. INS are straightforward. A Seattle immigration court deported an alien in absentia. The alien had earlier moved to Upland, California. While the Seattle immigration court, a component within the Executive Office of Immigration Review, attempted to contact the alien to appear for a deportation hearing and failed, the alien later applied for adjustment to permanent residence in Los Angeles, California. In the documents to adjust status, the alien provided a local address from nearby Upland but failed to indicate it as a change of address. (The EOIR, by the way, is not the INS but a separate entity. It is, like the former INS, under the Attorney General.)

The question presented is whether an address provided in the adjustment documents compelled the INS office in Los Angeles to forward an alien's change-of-address to the EOIR Immigration Court in Seattle. The emphasis is important because the change-of-address regulations refers to agencies within the Department of Justice as the "Attorney General."

The court correctly noted that failure to receive notice, by itself, does not prove fatal to an alien's right to due process. Indeed, the agency's service efforts simply has to be reasonably calculated to notify the alien.

Unsurprisingly, the left hand did not talk to the right, i.e., the Los Angeles INS office did not speak with Seattle EOIR office. Or did it? The dissenting judge thinks so:

[T]here is uncontradicted evidence that, at some point in the status-adjustment proceedings, the Los Angeles office learned that Manjiyani was in deportation proceedings and stopped its own proceedings. At oral argument, counsel for the INS conceded that, based on the record presented, he could not determine why and when this had happened. The easiest (but not only) explanation is that, contrary to the INS’s assertions, the Los Angeles and Seattle offices did communicate and became aware of Manjiyani’s identity, status, and her California address. I submit that it would be proper to remand to the BIA for further proceedings to determine when the Los Angeles office became aware of Manjiyani’s deportation proceedings in Seattle and the circumstances of their discovery. Of course, if the offices communicated about Manjiyani before her deportation proceedings in Seattle were completed, then her deportation in absentia plainly did not comport with the requirements of due process of law.

I have two thoughts on the case. First, I'm baffled that the record before the court would fail to zero in with specificity as to when the Los Angeles office contacted the Seattle office. I doubt that Manjiyani excluded any information on her adjustment application regarding her fraudulent B2 visitors visa or her deportation hearing notice. Indeed, two questions on the I-485 address these issues:
9. Have you ever been deported from the U.S., or removed from the U.S. at government expense, excluded within the past year, or are you now in exclusion or deportation proceedings?
10. Are you under a final order of civil penalty for violating section 274C of the Immigration and Nationality Act for use of fraudulent documents or have you, by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the U.S. or any immigration benefit?

I think that Manjiyani could not have truthfully answered these questions in the negative without further triggering 212(a)(6)(C) problems. Moreover, the opinion mentions that Manjiyani submitted an I-601, Waiver of Grounds of Excludability, along with her adjustment application. Based on what the opinion revealed, there would be no reason to submit such a waiver unless Manjiyani was excludable based on disease, crime, or misrepresentation. The waivers are found at 212(g); 212(h); and 212(i), respectively.

It's no wonder that she appeared at least twice before examiners at the Los Angeles office, once in March 1997 and again in September of the same year. Manjiyani probably had to produce additional documents to proceed with her adjustment application. Or maybe the Los Angeles office pursued the purported ground of inadmissibility and rescheduled her for an another appointment. Whatever the reason, it is unclear what was the ground of excludability.

What is clear, however, was knowledge on the part of the Los Angeles office. It knew Manjiyani's case was anything but clean and would involve grounds that might lead to inadmissibility and later, removal.

This leads to my second and closing thought. The INS wins -- and it did -- if the court analyzed Manjiyani's due process rights and correctly accords more weight for her procedural failure to notify the INS of her change of address, as the INS contends she should have. But Manjiyani wins -- at a yet-to-be-requested en banc hearing -- if the record before the court truly lacked the requisite development to properly examine due process, as the dissent argues.

Will the Ninth Circuit convene rehear en banc? Prediction: No. Confidence: Medium.

If the Ninth Circuit does convene rehear en banc, will it remand to the BIA? Prediction: Yes. Confidence: High.

posted by Randy at 9:22 PM

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Monday, April 14, 2003
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BIZJJOURNALS.COM REPORTS the number of nonimmigrant temporary worker visas issued in 2002, H-1Bs, dropped from 331,206 in 2001 to 197,537 in 2002. What's not reported, however, is that many of the H-1Bs were double-counted, i.e., extensions were added to first issues and therefore inflating the number of issued H-1Bs.

Read the short report.

posted by Randy at 6:47 AM

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Sunday, April 13, 2003
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IT'S SUNDAY AFTERNOON AT AUGUSTA, and I am of course watching on television the final round of the Masters. A Canadian, Mike Weir, tops the leaderboard. Watching the tape-delayed coverage of the second round on Friday over a few cold ones, I speculated with a fellow viewer what his (non)immigrant status is. I think he's competing on the PGA Tour on an O nonimmigrant classification with the very high possibility that he is a legal permanent resident. I'll bet the money in my wallet he's not a U.S. citizen.

I'll discuss my reasoning behind the O category, followed by my reasoning why he might be a legal permanent resident. I should preface the following by stating that I don't know him, don't know anyone who may have worked on his case, and I have no proprietary information on which to base my speculation.

Notwithstanding the foregoing, here are my thoughts. First, the O nonimmigrant classification. Immigration law allows certain aliens with extraordinary artistic or athletic ability. Among the criterions for qualification include "receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor"; "documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members"; and "evidence that the alien has either commanded a high salary." For these aliens, a U.S. employer, an agent, or a foreign employer through a U.S. agent can only be the petitioner in an O visa. Once the visa is granted, it's good for three years with an unlimited number of one-year extensions.

Mike Weir fits squarely within the O nonimmigrant classification. He's won national and international golf competitions. Playing in the Masters is reserved for professional golf's elite. He's an active member of the PGA tour, which is available for only 125 or so regular players. Currently, he's ranked tenth in the world. Oh, and he made more than $10 million in his short career, and over $2 million so far this year.

Since most professional golfers have agents and since he plays for prize money, it's likely he doesn't have a U.S. employer. Most likely, an agent petitioned for Weir. It bears mentioning that Weir joined the PGA Tour in 1998. Because O visas are good for three years and can be extended a year at a time, he'd be currently playing under an extension.

Could Weir be a green card holder? Yes, because his biography states he's a Brigham Young University graduate (1993 graduate). That means he's been here for over a decade. He presently resides in Draper, Utah. And more significantly, he's married to Bricia. Now, if Bricia is American, then that fact pretty much settles the matter, because through a family-based petition, Weir becomes a legal permanent resident. He also becomes a legal permanent resident under one of the priority employment-based classifications.

Why don't I think he's a U.S. citizen? One look at his website would seem to eliminate any chance he naturalized as a U.S. citizen. Moreover, every golf article about Weir seems to add the "Canadian" modifier to his name. During the launch of his Weir Golf line in Sears stores he said, “I’m proud to represent Canadian golf fans, and hope that they are all as proud and excited as I am in the Weir Golf lineup and the new products that are being offered." Given the statements he's made and the articles written about him, I doubt he's a U.S. citizen.

That's all for now. Weir is lining up his shot on number 12 and . . . just parred it.

posted by Randy at 2:30 PM


TAKE A LOOK AT GREGORY SISKIND'S overview of nonimmigrant visas. He wrote it for FindLaw and it quite nicely complements the quick references by the BCIS.

To the right, you'll find the link to Greg's overview titled "FindLaw's NI Visas."

posted by Randy at 12:45 PM

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Saturday, April 12, 2003
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HUGE NUMBERS OF IT JOBS REMAIN UNFILLED: Forbes.com ran an article titled "Immigration By Another Name" and U.S. companies face an information technology worker shortage:

In developed economies there is a large—and growing—gap between the demand for and supply of software engineers. In the U.S. alone, the Information Technology Association of America, an industry trade group, estimates that some 840,000 IT jobs stand unfilled. The Gartner Group predicts that 40% of U.S. software projects will have to be curtailed or canceled if the gap is not closed. The problem bedevils technology companies in Europe and parts of Asia as well.

The Gartner Group provides indepth analysis of IT trends. Their research is so valuable that one of its fact books, Business Process Outsourcing, sells for $10K. Of course, I won't purport to match the kind of detail the Gartner Group dispenses, but nonetheless, I'll blog on the matter for the price of exactly $.02.

Why are the jobs unfilled? Assuming the number is correct, there are a host of answers. It might be that companies aren't paying enough to interest U.S. engineers. Or it might be the arduous working conditions. Or it might be an unattractive work culture, i.e., the idea of a flat, non-hierarchal organizational scheme is unappealing. Or maybe the perks are inadequate. Or maybe the job locations are undesirable.

But maybe it might be the simplest answer. Qualified U.S. workers are unavailable.

posted by Randy at 11:37 AM


IN NEWS FROM BAGHDAD, A CULINARY WINDFALL: Aside from the inevitable skewering of Iraqi caricatures (also here and here), one universally positive outcome of Operation Iraqi Freedom might be the export of interesting recipes from the region. Try to Submerge Yourself. This version of braised lamb, Hamad, looks delicious. And here's a list of Persian recipes.

Lest you think there's no common culinary link between Iraq and Israel, think again. And again.

UPDATE: A food blogger linked to an site that discusses Iraqi cuisine in Canada.

PREDICTION: A growing trend in Persian cookery in the near and medium term. Confidence: High.

posted by Randy at 10:53 AM


IS THIS GUY RELATED TO BAGHDAD BOB?: A south asian-centered portal reports that a bill in Florida would cease footing the bill financial aid for certain nonimmigrant students:

Muslims groups have complained that the bill unfairly targets their community.

"What he's saying is if you're born in Libya or Syria you're more likely to be a terrorist than anyone else," said Hadia Mubarak, president of the Muslim Students Association at Florida State University.

Well, they aren't coming from Finland.

posted by Randy at 9:51 AM


POINT AND COUNTERPOINT: On April 2, BICE Director Johnny Williams testified before the House Subcommittee on Immigration and Border Security. He reported on the status of SEVIS -- the Student and Exchange Visitor Information System.

In an article by the Arizona Republic, it gave its version on the status of SEVIS.

posted by Randy at 9:22 AM

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Wednesday, April 09, 2003
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THERE'S MORE ON THE "GREEN CARD SOLDIERS," as reported by USA Today and the NY Times (may require registration).

In other news, the notices-to-appear are flying and the IJs are busy.

posted by Randy at 6:36 AM

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Tuesday, April 08, 2003
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BY THE COMPANY YOU KEEP: Based on this collection of links, I suppose readers can check what someone else thinks might interest me, and in turn, what might interest readers of this blog.

posted by Randy at 6:45 PM


SECOND CIRCUIT DECLINES TO READ RELIEF INTO LAW: In an opinion released yesterday, the U.S. Court of Appeals for the Second Circuit upheld a BIA decision on the 10-year bar:

Congress expressly relieved certain “short term” aliens of the re-admission bar. It omitted any such exception from Subpart II. This omission is not the product of inadvertence or oversight. When construing statutes, we look to the statutory language which, if clear on its face, ends our analysis. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1998). We presume that omissions of the sort at issue here are intentional, INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987), and we are withoutauthority, absent substantial evidence to the contrary, to “add terms or provisions where Congress has omitted them,” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 168 n.16 (1993).

Because we find no ambiguity or other indication that Congress intended Subpart II to mean other than what it plainly says, we decline Petitioner’s invitation to rewrite the statute. Even if there were some facial ambiguity in these provisions, however, the INS has similarly interpreted Subparts I and II in an agency-wide implementation memo, which was made a part of the record on appeal and considered by the IJ in rendering its decision. See INS Memorandum to Staff (March 1997). We find its interpretation reasonable and, affording it the deference warranted under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), we reject this claim.

Read the whole opinion here. (Pointer by Immigration Portal.)

posted by Randy at 8:02 AM

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Monday, April 07, 2003
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U.S. CITIZEN, MARINE LANCE CPL GUTIERREZ: The Washington Post reports in an article today that the BCIS granted posthumous U.S. citizenship to Lance Cpl. Gutierrez.

Lance Cpl. Gutierrez, you may recall, was one of the first Marines to die at the outbreak of Operation Iraqi Freedom. Unless he had a citizenship application was pending, I speculate a private bill or a posthumous request delivered citizenship to Lance Cpl. Gutierrez.

Of the two, it's probably the latter. On April 3, 2003, the Senate introduced S. 783, which expedites posthumous citizenship by amending INA section 329A. INA section 329A governs posthumous requests for citizenship.

Semper Fidelis.

UPDATE: It's the latter. According to an article by MilitaryCity.com, President Bush signed an executive order establishing the qualifying period of hostilities for allowing non-citizen U.S. armed forces members to benefit under INA section 329.

posted by Randy at 5:20 AM

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Sunday, April 06, 2003
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CARE TO GUESS?: The Executive Office for Immigration Review, through the Office of Planning and Analysis, publishes asylum statistics dating from 1997. In 2002, our neigbor to the south, Mexico, and the world most populous communist country, the People's Republic of China, boasted the most numerous asylum applicants. At 14,887 and 11,043, respectively, asylum applications from these two countries outpaced others by a large margin. How many were granted? 37 Mexicans and 826 Chinese.

Iraq sent 590 asylum-seekers to the U.S., of which 280 were granted.

posted by Randy at 1:06 PM


NEW GPO ACCESS PAGE: Just test drove the U.S. Government Printing Office's new website. I did a Federal Register search for the 2003 Poverty Guidelines and I found the new scheme much more intuitive and friendly.

(Link via LawSites.)

UPDATE: For 2003 Poverty Guidelines relating to Affidavit of Supports, use the BCIS-adjusted version.

posted by Randy at 12:38 PM


IT'S GOOD TO HAVE A BASIS: Yesterday I claimed to operate from a "plain language" starting point. I've yet to fully articulate it, but it has to do in part to all that "normative" and "descriptive" business my immigration law professor expounded.

After researching something else, I came across a VC post, by Orin Kerr, that reports the exchange between Justices Scalia and Breyer in a bankruptcy case. It helps.

Read Orin's post here.

posted by Randy at 11:30 AM


MD. READY TO MAKE IN-STATE TUITION OFFICIAL: Today's Washington Post reports that the Maryland General Assembly passed a measure to allow in-state tuition for illegal immigrants. The cost of the measure could reach $1.6 million per year.

Read the article here.

posted by Randy at 10:24 AM

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Saturday, April 05, 2003
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SENATOR PAVES WAY FOR GULF VET U.S. CITIZENSHIP: The LA Times reports Senator Boxer (D-CA) co-sponsored a bill to ease procedures for Gulf War II legal permanent residents seeking citizenship. The bill would waive filing fees for members of the armed forces.

Near the end of the article, the LA Times reported that another non-citizen Marine was killed in action. So far, there approximately 37,000 legal permanent residents serving in the military.

posted by Randy at 7:44 PM


ONE WORD MAKES A DIFFERENCE, REDUX: The LitiGator has more to say on the difference one word makes. As a one who operates from a "plain language" starting point, I found the article makes a case, in rare instances, for handling seemingly unambiguous statutes. It's a good read.

posted by Randy at 10:16 AM


TO READ WHAT'S NOT THERE: Litigation units handle aggravated felonies and those who commit them, "ag fels," according to what the U.S. Court of Appeals for that circuit has pronounced. Yesterday, I blogged -- see my post below -- on how the Seventh Circuit defined "crime of violence" for the purpose of sentence enhancement in the case of an alien who illegally reentered the U.S. It its opinion, the court relied on other sister circuits that agreed with its reading of the statute. Specifically, the Seventh Circuit did not read the sentencing guideline as proposing a two-part test. Hence, the statute's use of the word "and" illustrates, not limits, the category of crimes of violence. See United States v. Hernandez-Gonzalez, 318 F.3d 1299 (11th Cir 2003); United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. 2003) (link via the Immigration Portal).

Now, the question arises: what does this have to do with immigration? Plenty. An alien seeking adjustment to legal permanent residence or an alien seeking relief from removal may experience different results depending on geography. Under INA 101(43), an aggravated felony is, among other things, a "crime of violence." The INA goes on to describe the sort of crimes that are aggravated felonies. Under the Act, what may be an aggravated felony may not necessarily be a crime of violence. But what is a crime of violence is what Congress said is an aggravated felony.

And that's the rub. To construe 101(43)(f), "crime of violence," one has to consult 18 USC 16:

Sec. 16. - Crime of violence defined
The term ''crime of violence'' means -
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense

All should be well and good but in some cases, the Board of Immigration Appeals has issued decisions that the circuits don't necessarily agree with. In other cases, the BIA's definition of a crime of violence did not comport with the circuit. When there's enough consensus among the circuits on a point of law, the BIA will overrule its prior decision. See Magallanes, 22 I&N Dec. 1 (BIA 1998), overruled by Matter of Ramos, 23 I&N Dec. 336 (BIA 2002); U.S. v. Trinidad-Aquino, 259 F.3d 1140 (9th 2001). In other words, the BIA defined certain crimes as aggravated felonies or crimes of violence and a circuit disagreed with their definitions. Litigation offices then have to apply what their circuit has held.

Where the circuit has not pronounced, the BIA stands.

posted by Randy at 10:00 AM

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Friday, April 04, 2003
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"CRIME OF VIOLENCE" DEFINITION TURNS ON THE MEANING OF ONE WORD: Yesterday a per curiam opinion from the U.S. Court of Appeals for the Seventh Circuit affirmed a lower court's construction of a crime of violence:

This appeal asks us to decide whether a prior conviction for domestic battery qualifies as a “crime of violence” under recently amended U.S.S.G. § 2L1.2, which applies to illegal reentrants. Although the Sentencing Commission’s explanation for its amendment suggests an intention to narrow the definition of crimes of violence to exclude offenses like domestic battery, the plain language of the definition compels us to conclude that domestic battery is a crime of violence under § 2L1.2. Accordingly, we affirm the district court’s sentencing of the defendant, German Alvarenga-Silva.

***

Alvarenga does not dispute that domestic battery meets the first subsection of § 2L1.2’s definition of “crime of violence” because the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See U.S.S.G. § 2L1.2, comment. (n.1(B)(ii)(I)). Rather, the only question that Alvarenga raises on appeal is whether a prior offense can qualify as a crime of violence under § 2L1.2 if it is not among those enumerated in the second subsection of the definition. He asserts that § 2L1.2’s definition requires an offense to meet the description in both subsections to qualify as a crime of violence because the word “and,” as opposed to “or,” links the two subsections. He argues further that his position is strengthened by the purpose underlying the 2001 amendment of § 2L1.2—a reduction of instances where a defendant previously convicted of a less-serious felony, like assault, receives the same increase as a defendant previously convicted of one of the more-serious (and enumerated) felonies, such as murder. The government responds that Alvarenga has ignored the word “includes” in the second subsection and that this term is illustrative, rather than exclusive. Furthermore, the government argues, if only enumerated offenses qualify as crimes of violence, the Sentencing Commission would not have needed to define crimes of violence generally in the first subsection. The government asserts that the two subsections are therefore disjunctive.

Rejecting legislative intent, the court suggests that the job of judicial legislation is rightfully beyond its reach:
And if our reading is indeed at odds with the Commission’s apparent intent in amending § 2L1.2 to provide more graduated increases for different types of offenses, it must be left to the Commission to clarify or redraft § 2L1.2 to achieve the desired result.

Read the opinion here. (Via the Statutory Construction Zone.)

posted by Randy at 7:53 PM


IRAQI LAWYER -- FUTURE U.S. CITIZEN?: Over at OxBlog, Josh Chafetz proposes U.S. citizenship for the Iraqi lawyer who tipped off U.S. forces which led to Pfc. Lynch's remarkable rescue.

Before all the naturalization adjudicators at the BCIS shout $%@#, rest easy. Notwithstanding INA section 300 et seq, Congress can exercise, and has exercised, its plenary power over immigration and citizenship. How? It's called a private bill. It's been done before. At least 17 private bills granted green cards last year when all other forms of relief failed. Although rare, private bills for legal permanent residence or citizenship seem to favor the well-known. Noteworthy examples include a repressed scholar and a Nobel Peace Prize winner. But movement toward a private bill can fail, as the Elian story proved.

But it is possible.

posted by Randy at 7:25 PM


IMMIGRANT SULLIVANS: Three immigrant brothers are all in the Navy, each on a separate ship, in the Persian Gulf. The LA Times has their story here.

posted by Randy at 5:17 AM

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Thursday, April 03, 2003
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ASYLUM THEN, ASYLUM NOW: Today's Christian Science Monitor ran a story where the gist is found at the middle of the article. It ties the relative ease of granting an asylee's application to current U.S. policy. During the Cold War, asylees from communist countries enjoyed a higher approval rate. Asylees from African countries, on the other hand, didn't fare as well.
Today, asylees from mideast countries find a parallel with their African predecessors.
Read the whole article here.
(Via How Appealing.)

posted by Randy at 6:12 PM


BRILLIANT PEOPLE, BRILLIANT SOLUTIONS: As usual, Eugene makes a great point.

. . . [A] huge number of the scientists working on the Manhattan Project were immigrants, many from enemy nations. Einstein (who didn't work on the Project but whose letter to Roosevelt helped prompt the American nuclear program), Teller, and irrational were the obvious names, but there were many others, too.

(Emphasis added.) He essentially says not to allow xenophobia to blind us to what others from abroad can contribute here. But I think xenophobia is less to worry about; rather, an irrational protectionist policy that unduly hampers qualified employment-based applicants from entering the U.S is to blame. What else could explain a paltry 17 percent of all employment-based immigrants out of the more than one million who adjusted in 2001? And how soon before something in the order of a Manhattan Project-styled innovation is credited to someone from an enemy country?

posted by Randy at 5:46 PM

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Tuesday, April 01, 2003
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FOURTH CIRCUIT OKs AIRPORT SWEEP: The Virginian-Pilot reported in a story here that the Fourth Circuit reinstated the arrests of two former airport employees. "Operation Plane View" intended to flush out criminals and immigration violators.

Read the Fourth Circuit opinion here.

posted by Randy at 5:00 AM


_______________
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.
     
 

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