Saturday, May 31, 2003

"We don't like the sound of this one bit. In fact, it's downright scary."

So says Jeralyn Merritt of TalkLeft, a self-described non-neutral, liberal blog. What scares her? The idea of vigilantes conducting electronic surveillance along the Arizona border for "SBIs," short for suspected border intruders.

Merritt criticizes the operation. She even goes so far as attributing it to the Department of Homeland Security:

The Homeland Security Department has some private "patriots" using some serious high-tech surveillance and satellite equipment to help them find illegal aliens (called SBI's for ''suspected border intruders''.)

I blogged about this on May 14. The WP article hinted at governmental support. The New York Magazine article, which Merritt refers to, all but announces state action.

What bothers her, perhaps, is the apparent targeting of a specific demographic -- Mexicans traveling north. I suppose what might ameliorate Merritt's fright would be placing similar groups along the northern border so that law-breaking Canadians, too, could be handed over to DHS agents.

But two issues prevent the vigilantes from setting up operations along the northern borders of Washington and Montana. First, Canadians aren't even asked for visas and passports when entering the U.S. An exaggeration, of course, but it's long been known among immigration officials that our neighbor to the north is playfully referred to as "the fifty-first state." Is it racial? You bet. That's another discussion. So for here, migration from the north is of lesser concern, comparatively speaking.

Second, the numbers aren't there. According to the statistics, more enter from the south than from the north. From an resource allocation standpoint, the vigilantes seem to be using the little they have to the best use. Arizona is simply where the action is.

Race and resources, then, contribute to the vigilantes' preoccupation with Arizona's southern border. But is it plain wrong? One of TalkLeft's readers has this to say:
I can envision some troubling implications evolving from such a system, but if the sole purpose of the operation is to track the movement of people across isolated border areas, in actuality, fulfills a worthwhile public interest. I am not a big fan of borders, per se, but sneaking across in an attempt to avoid detection is a suspicious activity that merits attention.

The reader raises a point directly related to my first. Canadians who end up overstaying in the U.S. by and large make a legal entry. Why the same cannot be said for Mexicans is something better left answered by the historians, Congress, and of course, Mexico.

posted by Randy at 11:39 PM

FACT-CHECKING, COMING UP: Worldnetdaily, "A Free Press For A Free People," purports to expose "government waste, fraud, corruption and abuse of power." That's fine with TMB but if Worldnetdaily is to do its job properly, it ought to expose the failings of the right agency:

Local authorities are catching then releasing illegal aliens despite the nation's increased terror alert status because there are too few regional U.S. Bureau of Citizenship and Immigration Services agents to pick them up.

TMB is pleased to clarify things. The BCIS administers immigration and naturalization benefits. Despite the thinking of some legacy INS employees, interior enforcement duties now belong to the Community Response component of the Bureau of Immigration and Customs Enforcement.

posted by Randy at 12:31 PM

ALIEN'S REMOVAL DURING 30-DAYS FOLLOWING IJ'S DENIAL OF MOTION TO REOPEN does not trigger automatic stay: The U.S. Court of Appeals for the Third Circuit added Bejar v. Ashcroft to the well-settled law concerning removal during the time for which an appeal could be filed:

We are satisfied that the INS acted lawfully when it removed Bejar before her time to appeal had run. Under the governing regulations, Bejar’s removal was automatically stayed only during the time period that the motion to reopen her removal case was pending. 8 C.F.R. § 3.23(b)(4)(ii) (2002). This period ended on September 17, 2001, the date on which the IJ denied as untimely her motion to reopen. Neither the INA nor the regulations provides for an automatic stay of an alien’s removal during the 30-day period for an alien to appeal any decision by the IJ denying a motion to reopen.

Because other comparable sections of the INA expressly provide for automatic stays during the appeal period, we must assume that the lack of an automatic stay provision in this context was intentional. Compare 8 C.F.R. § 3.6(b) (requiring the stay of an alien’s removal during the 30-day appeal period from the denial of a motion to reopen filed in in absentia deportation and exclusion cases under 8 C.F.R. § 3.23(b)(4)(iii)) with 8 C.F.R. § 3.23(b)(4)(ii) (providing for no such automatic stay in in absentia removal cases). To be sure, an alien in an in absentia removal case may seek a stay of her removal pending the disposition of her appeal, and it is within the BIA’s discretion to grant such a stay. See 8 C.F.R. § 3.6(b) (2002) (“The Board may, in its discretion, stay deportation while an appeal is pending” from any order of the IJ denying a motion to reopen.). Here, however, Bejar did not request a stay of her removal, so the INS’s decision to enforce the IJ’s final removal order was lawful.

Because we conclude that the INS acted lawfully in removing Bejar before her time to appeal had lapsed, we will deny the petition to review the BIA’s order dismissing Bejar’s appeal.

Some context is in order. Bejar claimed that she didn't personally receive notice of hearing although her attorney conceded he did and despite repeated attempts to contact her by phone and letter, failed to notify her of the hearing. Consequently, she didn't appear for the hearing.

On her motion to reopen, the IJ denied it. It was during the 30-day period following the denial of the MTR that Bejar had the opportunity to file an appeal. Because she departed the U.S., she waived her right to appeal.

The INA makes no provision for the reason why the alien departed. Whether Bejar visited the Canadian side of Niagara Falls or was taken on a government bus to Nogales, it makes no difference.

So, here's an important lesson for immigration attorneys: upon a denial of a motion to reopen, immediately file an appeal. And include a request to stay. Failure to do so opens the door to removal, which in turns eliminates any discretion to execute a stay order.

posted by Randy at 7:19 AM


Friday, May 30, 2003

"Legal Residents Sue Over Green Card Delay" is the title of a Washington Post article. Lawyers from MALDEF filed a suit to force DHS and BCIS to issue the documents.

This really is laughable if it weren't sad. These plaintiffs appear to be so-called "judge grants" -- aliens who successfully sought relief after an inadmissibility issue during the initial I-485 pendancy resulted in denial of the application. I'm thinking that each case somehow ended up in immigration court and the IJ granted adjustment of status relief.

If the facts in the WP article and MALDEF press release are to be taken as true -- name checks and other agency checks are completed -- then the only conceivable hold-up has to be manpower, or lack thereof. And I find that difficult to believe. There simply has to be something more going on. Judge grants are so simple that the most unseasoned adjudicator can process it.

posted by Randy at 8:57 PM


Wednesday, May 28, 2003

BEER IN HAND + SITTING IN THE CAR + KEYS IN IGNITION + suspended license = crime of moral turpitude? Not according to the U.S. Court of Appeals for the Ninth Circuit, where it decided in Hernandez-Martinez v. Ashcroft that drunk driving is morally turpitudinous and is distinguishable from physically controlling a vehicle while drinking:

[1] Under our precedents, as the Board has acknowledged in Torres-Varela, supra, when the statute is divisible the Board must determine whether any conduct violative of the statute is a crime within the meaning of the relevant immigration law.
[2] The statute is divisible. One may be convicted under it for sitting in one’s own car in one’s own driveway with the key in the ignition and a bottle of beer in one’s hand. We defer to the Board in interpreting terms in the immigration law. But we find it difficult to believe that our society holds conduct in one’s own backyard to be “inherently base, vile or depraved and contrary to the accepted rules of morality,” as the Board in Matter of Lopez-Meza found Aggravated DUI to be. Drunken driving is despicable. Having physical control of a car while drinking is not. The Board’s error of law was not to treat the statute as divisible.

As a matter of law, the court reasonably arrived at its result by dividing the statute. In the off-chance that an alien is found either inadmissible or with faulty moral character because he sustained an Arizona Revised Statute § 28-697 conviction as a consequence of the unusual scenario the court paints, then society faces "no inherently base, vile or depraved and contrary to the accepted rules of morality.” [ed: § 28-697 is now § 28-1383.]

Insofar a DUI statute is divisible and where a conviction sustains for actions that can be set apart from drunken driving, In re Jose Luis LOPEZ-MEZA is inapposite. Hernandez-Martinez now adds Lopez-Meza to the growing trash heap of CIMT tools the BCIS/BICE, at least in Arizona, no longer deign to use for removing aliens.

posted by Randy at 8:13 PM


Q: President Fox says that it is time again to discuss the immigration issue with the President, after 20 months from 9/11. What is the President's position on the future of the immigration accord? And second question, do you think it's fair for some members of the U.S. Congress to trade immigration versus the opening of the oil sector of Mexico to the U.S. investors?

MR. FLEISCHER [press secretary]: Well, the President's position is he remains committed to improving border safety and advancing our bilateral immigration agenda with Mexico, of course, consistent with the United States' security concerns and needs. There continue to be ongoing conversations through the State Department. And we continue to press Congress to make advancements on issues such as 245 I, and of course, the Mexico trucking issue, if you remember, is something that the President worked to make progress on.

(Emphasis added.) If a 245(i) bill passes during a Bush Administration as the president hopes, then it'll truly be an issue that transcends party lines. (Scroll to the end of the press briefing to see the quote in context.)

posted by Randy at 7:12 PM


Tuesday, May 27, 2003

L-1s THREATEN TO SUPPLANT H-1Bs and ultimately, U.S. workers: The San Francisco Chronicle ran an article that explains why some think L-1 abuse is coming to a head:

Not even immigration attorneys who specialize in procuring work visas can agree.

Memphis immigration lawyer Gregory Siskind said, "It's largely inappropriate for companies to be using the L-1 to bring in workers that are being contracted out to other companies. I would be very surprised if it continues for very much longer without a crackdown."

If using L-1s for outsourcing is legal now, it won't be under legislation introduced last week by Rep. John Mica, R-Fla. Calling L-1 "a back door to cheap labor," Mica said his bill would ban L-1 visa holders from being transferred to client companies.

I have a few thoughts, so first things first. One, the L-1 visa spoken of here is really the L-1B for specialized knowledge workers. The umbrella term "L-1" is generally thought of as the intracompany transferee visa which in the past was reserved for executives and managers. To be more specific, the BCIS calls the intracompany executive or manager an "L-1A." The special knowledge worker is an "L-1B."

Second, the fact that competing interests between corporate decision makers and the proletariat exist is to state a reality that most school children know. As long as industry captains continue to search for ways to trim the bottom line and employees continue to safeguard their jobs, separate will the twain be.

Here, the nexus between immigration and labor cannot be more apparent. But whatever the solution, I just don't see how government bearing down on commerce can result in anything good in the long term.

And that's what Rep. Mica intends to do with H.R. 2154, the L-1 limiting bill.

posted by Randy at 9:59 PM

SEARCHING FOR THE STATUS OF 245(i): After April 30, 2001, any alien who is out-of-status or made an illegal entry cannot adjust status. There was a provision, however, that provided the means for a category of out-of-status aliens to apply. Known as 245(i), it permitted certain applicants to apply to adjust status without leaving the U.S. Why? Because ordinarily, one need be in a lawful status to adjust.

Now, a few readers of this blog are wondering if a move is afoot to revive 245(i). According to Thomas, the answer is yes. It is H.R. 85 and you can access the status and history here.

One thing to bear in mind is that the deadline extension is not unlimited. H.R. 85 merely extends 245(i) to April 30, 2002.

posted by Randy at 7:04 PM


Monday, May 26, 2003

WHAT'S CLOBBERING BLOGGER?: Lately, Blog*Spot is doing all it can to drive TMB to another host. My template has disappeared. The page loads excruciatingly slow, if at all. If I didn't dread having to learn how MT works, I'd be moving away from the Blogger tool as well. I'm getting the feeling that Blogger/Blog*Spot will go the way of AOL -- easy, huge, and popular, but clumsy and tiresome.

posted by Randy at 7:40 PM


Sunday, May 25, 2003

MAN WITH MULTIPLE DATES OF BIRTH AND COUNTRIES OF ORIGEN seeks release from detention: The New York Daily News has this story of a mystery man arrested during post 9-11 sweeps.

He's been detained for over a year. He's claimed six birth places and 11 birth dates. Removing him presents a challenge for the government. As TMB readers know, aliens under deportation orders cannot be detained beyond 90 days unless, inter alia, removal is not reasonably imminent or if the alien thwarts his own removal. (I covered the "thwarting" exception a few days ago, here.) By providing a history clouded in mystery, Abdel-Muhti contributes to his detention.

I'm in a wagering mood. Prediction: My view is that he'll remain in detention. Confidence: Extremely high. Near certainty.

posted by Randy at 10:17 AM

FRENCH JOURNALISTS SENT PACKING: Matt Welch blogged about an incident occurring during the weekend of May 10 at the LA International Airport. Bureau of Customs and Border Protection inspectors denied entry to six French television journalists covering the Electronic Entertainment Exposition. It looked like the six journalists attempted to enter under the Visa Waiver Program rather complying with I-visa requirements.

Reporters without Borders are making the most noise about it. I don't see a big problem immigration problem. A small political one, but not an immigration one. One of Matt's weblog readers left this comment in response to the post:

Journalists without Borders gets a lions share of their funding from the EU and much of the rest from UNESCO. They bad mouth our country and press, ranking us 17th in terms of press freedom behind France, Iceland (you have to be kidding), Norway?? etc. They are [sic] slso the people accusing the U.S. military of shooting at journalists---the ones in the Palestine Hotel who were taking bribes from Saddam or bribing Saddam and who allowed snipers into the hotel to shoot at our troops; to be fair most were not involved in that but four of them were. This is an anti-American organization. They want anybody who CLAIMS to be a journalist into any country they choose. We choose to live, thank you very much. If you read the source story most of the French Journalists had no press visas at all.

Matt asks:
Enforcing the regulation also puts Homeland Security Officials in the curious position of deciding who is and is not a "journalist." Does writing personal travel stories on a website count, if your audience occasionally leaves you tips? What if L.A. breaks out into another riot during your trip, and the newswires are desperate for eyewitness testimony?

No to the first question. Irrelevent to the second. Now and in the future, immigration inspectors aren't forced to discern, for purposes of admitting for entry, who's a journalist covering a future event (I visa) and who's visiting for business or pleasure (visa waiver, B1/B2).

So, the problem is what?

posted by Randy at 9:37 AM

MEMORIAL DAY WEEKEND BOATERS HAVE 24 HOURS to report to the nearest immigration office. The Orlando Sentinel has the story here; the Naples Daily News reports it here; and the Tampa Tribune covers the story here. [ed: I've linked articles from three separate sites to reduce the odds of a 404 error.]

I took a look at the information the Bureau of Customs and Border Protection provides for vessels arriving from a foreign port. After navigating through all the customs and duty material, I found a document that boaters ought to be familiar with. Simply called "Pleasure Boats," the 11-page Word document is worth reading. It outlines what a pleasure boater must do upon arrival to a U.S. port. Another guide, although much longer, is the "Notice to Masters of Vessels." In the latter document, it distinguishes between "report of arrival" (simple notification by telephone) and "entry" (a formal documentary process):


The following vessels must make formal entry at the Customhouse within 48 hours of arrival (19 U.S.C. 1434(a):
- Any vessel from a foreign port or place;
- Any foreign vessel from a domestic port;
- Any vessel of the United States arriving from another U.S. port and having merchandise on board being transported in bond (this does not include bonded ship's stores or supplies), or transporting unentered foreign merchandise; or
- Any vessel, either U.S. or foreign, which has visited a hovering vessel (19 USC 1401(k)), or has delivered or received merchandise or passengers outside or U.S. waters.

Formal entry may be made for all vessels by filing the following documents:
- The original and one copy of a complete manifest;
- Any bills of health issued at the foreign port or place from which the vessel arrived;
- U.S. vessels must also file a Customs Form (CF) 226, a foreign repairs declaration, indicating any repairs that were made abroad. A negative declaration on CF 226 is required if no repairs were made.

Important: If a vessel which has arrived from a foreign port or place departs or attempts to depart from a Customs collection district without report of arrival or without making entry as required, the master will be subject to a penalty of $5,000 for the first of each of the arrival or entry violations and $10,000 for each subsequent violation. The vessel may be subject to arrest, seizure, and forfeiture (19 U.S.C. 1433, 1436). (See also Foreign Repairs & Equipment).

In the Pleasure Boats guide, a boater has to report immediately upon arrival, provided certain conditions are met. If any of the conditions are not met, then a formal entry has to be made. From the articles above, simply reporting arrival, even if the boater meets the "report of arrival" conditions, is not enough even for casual boaters who make a foreign port visit. It now appears that the report of arrival requirement has merged with formal entry rules.

For casual boaters to comply with the formal entry requirements, it's enough to stifle tourism:
In the meantime, some say undue hassles lead many to duck the new requirements. "You're really creating lawbreakers out of innocent people, and it's not really going to deter terrorists. Do you think they're going to drive over to Port Everglades and present themselves?" said Greg McLaughlin, a boater and attorney with Tripp Scott in Fort Lauderdale.

Through his marine finance work, McLaughlin said he has heard horror stories of interminably busy phone lines and hours-long waits at the Port of Miami.

Another says self-reporting burdens law-abiding citizens:
To pack ourselves up, go there, and go through immigration, it becomes a real nuisance . . . Let's say I do have an illegal alien or whatever on the boat, how ridiculous is it to say I have 24 hours to check in. I could just say I didn't have him. That person could've been in California in 24 hours.


posted by Randy at 8:53 AM


Saturday, May 24, 2003

"Smuggling Survivors to Remain in Custody": Read the FindLaw story here.

posted by Randy at 1:10 PM

"The Department has prevailed in every instance" -- concluded yesterday's DOJ media release. In what is the latest in a series of challenges to the DOJ's effort to reform how the BIA adjudicates immigration cases, the U.S. District Court for the District of Columbia decided that the DOJ did not violate the Administrative Procedures Act when it streamlined its procedures. In CAIR v. DOJ, here's what confronted the court:

Plaintiffs contend that the [streamlining] regulation was issued in violation of the APA. They allege that defendants, in deciding to promulgate these rules, failed to employ reasoned decisionmaking, failed adequately to respond to comments and adverse evidence cited in comments to the proposed rule, departed from previous practices and findings, and supported their result with inconsistent and contradictory reasoning. Compl. ¶ 81. Plaintiffs seek a declaration that the final rule is arbitrary and capricious under the APA, and that the issuance of three internal agency memoranda by the Board chairman in early 2002 also violated the APA. Plaintiffs request vacatur of the regulation and of the three challenged agency memoranda.

It's no wonder the rule has survived its court challenges. DOJ published the final streamlining rule in August 2002. It's a whopping 29 pages long. When the DOJ addressed the comments, it did so in a careful fashion. It categorized the comments into thirteen parts, with one part subdivided into ten. I'm baffled how CAIR and AILA saw how the DOJ "failed [to] adequately to respond to comments and adverse evidence cited in comments to the proposed rule." If the DOJ didn't adequately respond, then by CAIR and AILA standards, no agency does.

Though I think streamlining will survive further court challenges, there is one objection I happen to agree with: the danger of poorly developed case records reaching the appellate courts. In March 2002, Professors Schrag and Yale-Loehr submitted a draft response to the then-proposed streamlining rule. The identified "summary affirmances" as a big problem with the rule. Though it's too soon to tell, summary affirmances do not present the fully developed records that appellate courts customarily have before them. Because summary affirmances normally identify cases not needing lengthy analysis, the EOIR achieves its goal of reducing the case backlog. But by doing so, certain cases with legal questions reach the court of appeals and when it does, the summary affirmance detracts from the court's ability to properly review the case.

In fact, I've already blogged about the "poorly developed case" phenomenon facing the courts in many of the BIA cases before them. (Scroll to the end of the post.) In Manjiyani v. INS, the dissent questioned the government's version of events. In the end, the dissent didn't believe that the case was adequately developed for the court to properly decide it.

posted by Randy at 8:58 AM


Thursday, May 22, 2003

THWARTING REMOVAL TRIGGERS EXCEPTION TO 90-DAY DETENTION during the alien's removal period: The Court of Appeals for the Ninth Circuit denied a habeas petition when the alien stonewalled procedures to remove him:

It appears that we are the first Court of Appeals to confront the issue whether habeas relief is available when an alien’s indefinite detention hinges upon the provisions of § 1231(a)(1)(C). Having surveyed the legal landscape, we have found no authority in conflict with the cases discussed above. We therefore join the existing chorus of courts and hold that an alien cannot assert a viable constitutional claim when his indefinite detention is due to his failure to cooperate with the INS’s efforts to remove him.

A question to fans of Judge Alex Kozinski: do the witticisms in the opinion belong to him? Although he did not author it, he sat in the panel that decided the case. There are a few good ones:
"Although Pelich tries hard, he cannot squeeze his case into the confines of Zadvydas."
"[T]he detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock."
"Pelich’s “I Am Not A Polish National” Argument"
"In any event, even if the unclean hands doctrine applies, Pelich’s misinformation points a finger right back at him."

You can access Pelich v. INS at this link.

posted by Randy at 10:59 PM

CONGRESSMAN TANCREDO IS AT IT AGAIN: Via Eschaton, the readers of Atrios's popular left-of-center blog left several impassioned comments:

"The other day on C-SPAN Tancredo alleged that the Mexican government busses illegals up to the US border."
"Tancredo is highly disliked by Bush & Co. Karl Rove apparently told Tancredo to "never darken the door of the White House again" and is trying to find a primary challenger to knock him off. This guy could cause as much damage to the GOP's image among Hispanics as Pete Wilson did."
"God help us."
"This is just yer typical arrogance. Tancredo can often be seen talking rubbish on Special Orders on C-SPAN at the end of regular sessions. Yes he is an ignorant ass."
"But who does Tom Tancredo think is going to pick the potatoes and beans in the San Luis Valley, not to mention the peaches and corn around Paonia all the way over to Grand Junction?"
"This is the path that leads to a humilating demise in the Duck Pit." [ed: what's a "Duck Pit?"]

I've already had my say on the Colorado congressman. In my mind, his views wildly depart from a reasonable immigration policy.

posted by Randy at 10:16 PM

RESIDING WHILE VEILED: Matthew Yglesias commented on a case in Florida:

So there's a Muslim woman in Florida who had her driver's license revoked since her face was covered in a veil in her photo. She's suing on freedom of religion and due process grounds. I can't help but wonder, however, about this:
Her attorney, Howard Marks, argued driving is a right and not a privilege, as the state claims, and that Freeman has a constitutional right to wear a veil while driving.

I'm a bit confused by this. As I understood it, the state never denied that she has a right to wear a veil while driving. What they denied was that she has a right to wear a veil while getting her photo taken. If the state is really trying to prevent her from driving-while-veiled then I think she ought to win. If all they want is an unveiled photo and then want to let her wear what she wants, then I think the state should win. It seems to me that the government has a very legitimate interest in making sure that you can actually identify people based on their ID cards, but no interest at all in deciding what people wear while they drive as long as the outfit lets you see the road.

This tension between religion and security also exists within the BCIS. During an adjustment interview, it has been the practice in the legacy INS to honor a Muslim applicant's request to permit a female immigration officer to properly identify the applicant when the applicant unveils. After granting a case, problems sometimes arose when requesting a photograph for certain documents. Earlier this year, the legacy INS issued a memorandum that narrowly allows for a photo-less green card:
The regulations, at 8 C.F.R. § 264.5(e)(iii) for replacement of permanent resident cards provide that the photograph requirement may be waived only “in cases of confinement due to advanced age or physical infirmity.” However, the Alien Documentation, Identification and Telecommunication System (ADIT) manual states that “religious/ethnic reasons” as well as “physical disfigurement” may be acceptable reasons to waive the photograph requirement. Based on this statement in the ADIT manual, the Immigration and Naturalization Service (Service) has on occasion granted photograph waiver requests on religious grounds, in addition to the grounds specifically provided by regulation. However, in light of national security concerns arising from the events of September 11, 2001, and because Form I-551 is evidence of legal status to enter and remain in the United States, the potential for misuse were it issued without a photograph is too great to allow discretionary waivers beyond what is specifically provided by the regulations at 8 C.F.R. § 264.5(e)(3)(iii).

In addition, the purpose behind the waiver at 8 CFR § 264.5(e)(3)(iii) is to accommodate those who are confined due to advanced age or physical infirmity to nonetheless obtain a replacement of the permanent resident card. In light of the concerns mentioned above, the Service should seek to accommodate the applicant by a home visit to accomplish the photograph requirement, in lieu of granting the waiver under 8 C.F.R. § 264.5(e)(3)(iii). Only in extraordinary circumstances where no such accommodation is possible and when the Service officer is certain that the card will not be misused, should the waiver be granted pursuant to 8 C.F.R. § 264.5(e)(3)(iii). A supervisory approval is required for any such photo waiver.

So, a photo-less green card will be issued only after the BCIS has a chance to photograph the veiled resident during a home visit, where it is presumed she will unveil for the photographer. A presumably female photographer.

To date, there has been no reports of Muslim women invoking the waiver. I would be curious, however, if the BCIS office servicing the largest concentration of Arab Muslims in the U.S., as reported by Patrick Belton of Oxblog, has received such requests for the waiver.

posted by Randy at 9:18 PM

ADJUSTING THROUGH MARRIAGE: Via - Immigration Issues, well-known Los Angeles immigration attorney Carl Shusterman had this interesting exchange during an online chat:

Question #8: I got married with an American girl and 5 days before the interview, she just disappeared and not only she went away , but she also withdrew my petition , is there anything I can do? I already received a letter from the INS saying that my case has been denied due to withdrawn of petition... she's gone and she also doesn't want to get divorced? What kind of thing is this? Does the Law protect an American citizen for playing with people's lives like that? Please tell me what to do!

Carl Shusterman: I can't tell you what you can do without knowing more facts about your case, but I can tell you what you cannot do. You cannot adjust your status based on marriage to a US citizen. Once the citizen withdraws the I-130 on your behalf, you cannot adjust through her.

However, there is a limited exception, for battered spouses who may self-petition even after the I-130 is withdrawn. For more information about battered spouse petitions, see the alphabetical site map at and click on VAWA (Violence Against Women Act). This act applies to battered spouses whether they be female or male.

Carl's answer underscores the importance of the Petition for Alien Relative, Form I-130, in cases where the applicant desires to adjust to permanent resident based on a family relationship. Here, the inquirer is truly in a jam -- once the petitioner (spouse) withdraws the I-130, the applicant has no basis to adjust status. When the I-130 is withdrawn, the BCIS will deny the adjustment (I-485) application. Put another way, the applicant's path to green card-dom is at an end. Moreover, any ancillary benefits -- employment authorization and advance travel -- terminate when the BCIS denies the Application to Register Permanent Residence or to Adjust Status, Form I-485.

Check out the rest of the chat.

posted by Randy at 8:44 PM


Wednesday, May 21, 2003

ADVERSE CREDIBILITY FINDING BELONGS TO THE IJ: Yesterday, the Court of Appeals for the Ninth Circuit found that the BIA made the mistake of entering into the exclusive territory of the IJ -- resolving a credibility issue. It's apparently a no-no:

Because we conclude that the BIA violated Manimbao’s due process rights when it improperly resolved the issue of his credibility, we remand this matter to the BIA. On remand, the BIA can either accept Manimbao’s story as credible (and
determine on that basis whether he meets the statutory eligibilityrequirements for asylum, and if so, whether he should be granted asylum), or may conduct further proceedings consistent with this opinion.

In all, Manimbao v. Ashcroft reads 17 pages long. In case you already don't know this little trick, you can go straight to the dissent (2 1/2 pages) and pretty much get the gist of what the panel was trying to say.

posted by Randy at 7:36 AM


Tuesday, May 20, 2003

MORE ARRESTS IN DEATH TRAILER CASE: The LA Times has the story here.

posted by Randy at 5:53 AM


Sunday, May 18, 2003

GOVERNMENT SUCCESSFULLY DENATZ'D CITIZEN CONVICTED OF NATURALIZATION FRAUD: On Monday, the Court of Appeals for the Ninth Circuit affirmed the district court's revocation of naturalization because it had jurisdiction to reopen the underlying criminal case of naturalization fraud and because the government did not violate due process. Under 8 USC 1451, the U.S. Attorney filed suit to revoke naturalization after conviction for naturalization fraud, 18 USC 1425(b).

You can access the opinion here.

posted by Randy at 3:33 PM


Saturday, May 17, 2003

"TRAILER OF DEATH" PART OF AN ORGANIZED EFFORT to smuggle immigrant workers: In the Washington Times, the story of the ill-fated smuggling operation that ended at a South Texas truck stop has captured the interest of top Justice officials. It is reported that the AG "expressed his keen attention in the case."

Read the story here.

posted by Randy at 7:44 PM


Thursday, May 15, 2003

"PARTICULAR SOCIAL GROUP" INCLUDES FORMER CHILD SOLDIERS: The Court of Appeals for the Third Circuit released an opinion that remands an asylum case to the BIA. Judge Sloviter concluded:

We will remand for reconsideration by the BIA the remainder of Lukwago’s claim for asylum based on a well-founded fear of persecution in the future by the LRA because we hold that the class of former child soldiers who have escaped from the LRA fits within the statutory definition of a “particular social group,” because there is evidence that the class may be in more danger from the LRA than the general population, and because Lukwago may be in considerably more danger than most other members of the class on account of an anti-LRA imputed political opinion. On remand, the BIA should also reconsider Lukwago’s application for withholding of removal under INA § 241(b)(3) for the same reasons.

You can access the opinion at this link here.

posted by Randy at 7:18 AM


Wednesday, May 14, 2003

THIS FOX NEWS CHANNEL STORY of victims of an apparent alien smuggling activity that ended at a South Texas truck stop can be read here.

posted by Randy at 10:58 PM

IF IT COULD SUPRESS ITS SUPPORT ANY LESS, it would be helping them: The Washington Post reports on the efforts of an Arizona-based vigilante group along the U.S.-Mexico border. It is testing an unmanned drone, outfitted with GPS to "pinpoint migrants." BCBP notices the work:

Mario Villarreal, spokesman for the Bureau of Customs and Border Protection in Washington, said: "We appreciate the community's efforts in notifying us of suspicious activities... We encourage them to call the Border Patrol or law enforcement but those efforts should be within the law."

He refused to comment directly on the vigilantes or their planned use of drones.

Read the whole article here.

And what would this post be without a link to the subject of the WP article, the American Border Patrol?

posted by Randy at 10:50 PM

THE MOST COMPELLING REASON WHY IN-STATE TUITION for illegal immigrants is a bad idea: Mark Krikorian, executive director for the Center for Immigration Studies, sympathizes with the students but adds a parenthetical:

Krikorian, of the Center for Immigration Studies, said he sympathized with young students, many of whom were brought to America by their parents. But he insists that immigration laws should be enforced: "Sometimes kids pay for their parents' mistakes."

Did you read that last quote? While we're at it, we should start jailing children for their parents' crimes, too.

Read the rest of the article here.

posted by Randy at 6:45 AM


Tuesday, May 13, 2003

AUTISTIC SEVEN-YEAR OLD CROSSES BORDER and eludes heat sensors, video surveillance, and motion detectors: Via Ibidem, a DHS spokesperson looks into the incident.

In light of the unfortunate breach, we can be sure it won't happen again anytime soon. On May 19, security at the bridge will be at its highest possible level:

Temporary Closure of Pedestrian Walkway at the Whirlpool Rapids Bridge Announced
May 13, 2003....The Niagara Falls Bridge Commission announced today that due to construction taking place at the Whirlpool Rapids Bridge, the pedestrian walkway will be closed beginning Monday, May 19th. The walkway will reopen to pedestrians on Monday, June 16th. The Bridge Commission regrets any inconvenience the walkway closure may cause.

posted by Randy at 10:17 PM

"ONE CRIME" MEANS ONE "SUCH" CRIME: The BIA clarifies the petty offense exception in a precedent decision, which can be accessed here.

posted by Randy at 6:13 AM


Sunday, May 11, 2003

DOES THE ANSWER TO REPEALING 8 USC 1623 LIE IN THE STUDENT ADJUSTMENT ACT?: In the San Jose Mercury News, Jessie Mangaliman reports that a bill is in the House of Representatives that "would grant legal status to any child of undocumented immigrants who is pursuing a college education in the United States." This proposed change to immigration law is called the Student Adjustment Act. (H.R. 1684 can be accessed here, courtesy of the Library of Congress.)

Although the bill's introduction is not as late-breaking as the San Jose Mercury News would suggest, it is nonetheless a radical step in the current in-state tuition debate for illegal aliens. It bears mentioning that the Student Adjustment Act considerably broadens the scope of an illegal alien's ability to qualify for in-state tuition. Not only does it repeal 8 USC 1623 which forbids in-state tuition for illegal aliens, it also regularizes immigration status. Right now, states authorizing in-state tuition, while seemingly violating federal law, include California, Texas, Utah, Washington, and New York. So far, Illinois, and Maryland are considering similar proposals. And in a twist to the movement to increase the number eligible for in-state tuition, Gov. Warner of Virginia recently vetoed a state assembly measure that would have denied in-state tuition to illegal aliens.

I've previously discussed my policy reasons here and here. In short, I balanced notions of fairness with Congress's unbridled authority to determine the makeup of our population. I therefore opposed laws allowing in-state tuition to anyone other than permanent residents and citizens. Other bloggers have also opined on this issue, I think, on legal terms. Xrlq fisked the DREAM Act, S.1291 (the Senate version of SAA) here. The Angry Clam translated California's AB540 here. And Chris Kelly stated his view on the in-state tuition matter here.

But more to the point, the Student Adjustment Act would modify the INA in a novel way. Together with the DREAM Act, it expands the list of categories eligible to adjust status as a permanent resident. Generally, immigrants obtain residency either through family members or through employment. In some cases, documented cases of abuse may provide the doorway to residency. In others, emigrating from certain countries (Cuba, Vietnam, Laos, and Cambodia, to name a few) may also allow one to regularize immigration status. The Student Adjustment Act would be the first time an applicant's academic status served as a basis adjust status to permanent resident. Moreover, it is a hyper-245(i) of sorts, an amnesty for out-of-status persons to adjust to permanent resident status. Currently, there is no blanket amnesty program for illegal aliens.

Normatively, the idea of extending permanent residence to selected students should only perhaps elicit a wince, and not a grimace. All the talk of producing an educated and skilled workforce militates against the concerns of "sending the wrong message" or "rewarding lawbreakers." For the 18 year old who's lived in the U.S. since childhood -- what message could be important enough to countervail the one deporting him or her to a country they know nothing about?

On the other hand, passing the SAA or DREAM may expose immigration policy to a slippery slope, an environment that makes passing other amnesty laws somewhat easier. What's more, by stamping up more permanent residents (many whom will become U.S. citizens down the line), their immigration law-breaking parents will have a potential qualifying relative to whom an avenue for legalizing will exist.

It seems that with the abysmal secondary education completion rates of the group members who stand to benefit the most from SAA or DREAM, "amnesty" simply overdescribes. The fear that massive numbers of beneficiaries will subvert reasonable immigration policies is unsupported. Put another way, the number of truly qualified beneficiaries are simply not there.

The most troubling aspects of these "student amnesty" initiatives are the same as the other amnesty objectives introduced before it: fraud and abuse. The special agricultural program (sec. 210) was one example where adjudicators encountered fraud fairly often. But fraud pervades in virtually all of the immigration and citizenship services. Troubling, but not a deal closer.

posted by Randy at 5:16 PM

NYC INDIAN RESTAURANT "PATRIOT RAID" COVERAGE: Instapundit's Glenn Reynolds displayed a little skepticism after reading an LA Times editorial recounting the plight of a U.S. citizen detained by local and federal officials while dining at an Indian restaurant in NYC. It reportedly went down like this: on March 20, the aggrieved person sat down with his roommate at an Indian restaurant in the heart of Manhattan. Shortly thereafter, NYPD and federal agents stormed into the restaurant to execute a search. Law enforcement officials detained everyone in the restaurant, including several U.S. citizens, until their identities and immigration statuses was confirmed. One of the officers reportedly said that all was perfectly legal under the Patriot Act.

Others are skeptical, too. Orin Kerr of the Volokh Conspiracy fleshed out the story and blogger Chris Kelly conducted a phone interview with the detainee who later wrote the account for the LA Times. (Kelly's earlier suspicion of the story is blogged here.)

It now appears the raid did in fact occur. My two questions are whether one of the agents actually made statements connecting the raid and the Patriot Act, and second, whether there is a connection between the two apart from the agent's purported statements. That's the real story -- did the government in fact conduct a search of the restaurant under a section of the Patriot Act? If one of the "raiders" misspoke and the government conducted the search because of suspected immigration law violations, then from an intrusive Patriot Act standpoint, I find the story less compelling.

posted by Randy at 1:52 PM

FAMILIES FILE A $42 MILLION LAWSUIT AGAINST the government for negligent actions relating to the May 2001 deaths of 14 men who crossed the Arizona desert while attempting to illegally enter:

The lawsuit contends that the immigrants' deaths could have been prevented if a humanitarian group had been allowed to install water stations in the desert. A month before the 14 crossers died, the group Humane Borders requested permission to put water stations in the "exact area" where the men died in the Cabeza Prieta National Wildlife Refuge east of Yuma, according to the lawsuit. That request was denied.

Read the Arizona Republic article here.

UPDATE: Overlawyered, a web log "chronicling the high cost of our legal system," first reported this lawsuit a year ago when it was in its early stages :
Two Yuma, Ariz. lawyers have filed wrongful death claims with the federal government's Fish and Wildlife Service demanding $3.75 million each for the families of eleven illegal immigrants who died in May 2001 while being smuggled through a desolate section of the Cabeza Prieta National Wildlife Refuge in southern Arizona near the Mexican border. The suit charges the government with failing to authorize the placement of water stations intended for use by unlawful visitors, though it knew smugglers of immigrants were active in the desert area.

Give Walter Olson at Overlawyered a visit and read the rest of the story.

posted by Randy at 11:18 AM

IMMIGRATION NEWS WRAP-UP: The Washington Times reports here that "U.S. black leaders have failed to get African and Caribbean immigrants to think of themselves as 'black' and have created a rift among the groups." Stephen Dinan reports "House panel eases citizenship rules."

In the Miami Herald, John Rice has a piece purporting to link U.S. immigration policy and privatization of Pemex, Mexico's state-owned oil company.

The Washington Post carried an AP article exposing an immigration smuggling ring and the conviction of a Nicaraguan woman and her two accomplices. The tuition issue for illegal aliens in Maryland has paired up conservative republicans and the state NAACP in an article titled "Tuition Issue Makes for Unusual Alliances."

And finally, the Arizona Republic has O. Ricardo Pimentel's review of an independent film, The Gatekeeper.

posted by Randy at 10:15 AM


Thursday, May 08, 2003

NO GREEN IN GREEN -- that is, in business immigration. reports that attorneys practicing business immigration may have a tough time ahead:

Even before 9/11, many business immigration lawyers were struggling. With the downturn in the economy came smaller caseloads, as American companies stopped recruiting droves of tech-savvy foreigners. Then came the national security crackdown, which shook up the immigration landscape even more. Nowadays, more time and more sweat goes into each case. For a practice that operates largely on a flat fee basis, hours spent don't always translate into money earned. And as though the practice weren't troubled enough, there remains the question of how things will change now that the U.S. Immigration and Naturalization Service has officially rolled its functions into the Department of Homeland Security.

Since when did immigration practice become easy money? I still vividly remember the words of my immlaw professor who announced on the first day of class that next to the tax code, immigration is the most complex area of law. He described is as one of the most focused niches of legal practice. Only the brave dare enter. I agree.

posted by Randy at 7:51 AM


Sunday, May 04, 2003

REMEMBER THE IRAQI LAWYER WHO TIPPED OFF US FORCES, leading them to Pfc. Jessica Lynch? He's now an asylee. He'll soon be employed, too. (Scroll to the WP article's penultimate sentence.)

UPDATE: More on the man behind the lobbying firm that hired Mohammed Odeh Rehaief.

posted by Randy at 2:12 PM

DOJ HAILS NSEERS A SUCCESS: In a recent briefing, the U.S. State Department gives a short overview of NSEERS and reports that the program snared 11 suspected terrorists and 108 convicted felons:

NSEERS consists of three components: Point-of-Entry (POE) Registration, Special Registration and Exist/Departure Controls. At POE registration, temporary visitors entering the country who are identified as "presenting an elevated national security concern" are fingerprinted, interviewed and photographed. With special registration, nonimmigrant visitors staying more than 30 days are required to check in with the Department of Homeland Security and report where they are and what they're doing. By 2005, NSEERS aims to become a comprehensive entry-exit system that applies to almost all foreign visitors, said Kobach.

With Special Registration, also called "Domestic Call-in Registration," the Attorney General has directed nonimmigrant men 16years of age or older who are nationals of specified countries to
register at immigration offices within a certain time period.

Divided into four "Call in Groups," nonimmigrant visitors from the following 25 countries were required to register: Afghanistan, Algeria, Bahrain, Eritrea, Iran, Iraq, Lebanon, Libya, Morocco, North Korea, Oman, Qatar, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan and Kuwait. The first two groups' registration deadline ended February 7. Registration closed for the third group on March 21 and for the forth group on April 25.

Calling the program a great success, Kobach said that 11 suspected terrorists have been apprehended through NSEERS. Several of thesuspected terrorists had ties to al Qaeda and were located through
domestic registration, he said. One hundred eight convicted felons also have been apprehended through domestic registration, added Kobach.

Although a large immigration advocacy group objects to this aspect of Congress's plenary power over immigration, it's hard to argue against results.

posted by Randy at 1:44 PM

SEC. RIDGE IDENTIFIES SUCCESSOR TO NSEERS or technology meets immigration:

Drawing heavily on developing technologies and scientific capabilities, the system will utilize a minimum of two biometric identifiers, such as photographs, fingerprints or iris scans, to build an electronic check in/check out system for people coming to the U.S. to work, study or visit. The U.S. VISIT system will replace the currently existing NSEERS program, integrate the SEVIS program, and encompass the Congressional requirements of the automated entry exit system.

Read the DHS press release here.

posted by Randy at 1:11 PM


Saturday, May 03, 2003

I'M BACK . . .
There's a blog convention that says if the blog is to gather dust for a time, then the owner ought to tell everyone. Yes, I took the work-week off and didn't update TMB. And to make the sin even worse, I really didn't have a good reason. But you probably already knew that . . . .

posted by Randy at 9:43 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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