In unanimous decision in US v. Arvizu, No. 00-1519 (Jan. 15, 2002), the Supreme Court reiterated its "totality of the circumstances" standard for determining whether there is "reasonable suspicion" for a brief investigatory stop of a motor vehicle. A Border Patrol agent had stopped Defendant's van citing a list of ten factors which he claimed, taken together with his experience and training, gave rise to reasonable suspicion for a stop. The Ninth Circuit examined each of the factors enunciated by the Border Patrol Agent, and agreed with the Defendant that the stop was unreasonable since most of the factors could have a perfectly plausible innocent explanation. The Supreme court rejected this "divide and conquer" approach, explaining that the "totality of the circumstances' meant looking at all the factors taken together instead of examining each in isolation. The factors recited by the Border Patrol Agent included the driver's slowing of his vehicle when he spotted the Border Patrol, but failing to look at or smile at the Border Patrol agent, and the children waiving in an unnatural way, appeared to have their feet propped on something and the van was registered to an address in a neighborhood known for drug and alien smuggling.
What constitutes an unreasonable search has taken on increased importance in light of the the nation's increased awareness of security since September 11. A standard of "totality of the circumstances" sounds almost reassuring in that it implies viewing factors in the context of the particular circumstances. In practice it offers an extremely wide scope of action to, for immigration purposes, Border Patrol agents. If the driver in Arvizu had continued to barrel along while taking his eyes off the road to grin at the Border Patrol agent as the children played a game of hide and seek in the back of the van, would the training and experience of the Border Patrol agent have led him to find these actions less suspicious? Though not included as a factor by the Court, the "totality of the circumstances" in this case included the discovery of illegal drugs, leading to the reasonableness of the stop being examined in a suppression hearing. If the stop and search had not disclosed any illegal drugs, or illegal aliens, would it be as easy to say that the factors listed by the agent constituted reasonable suspicion for a stop? The decision offers little reassurance to those who live where alien smuggling has occurred that their innocent actions will not give a Border Patrol agent reasonable suspicion for a stop.
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ILW.COM Featured Article of the Day
Attack on America - Immigration Update
Greg Siskind and Amy Ballentine offer an update on the impact the September 11 attacks have had in the area of immigration.
Get new clients & keep them happy by staying on top of the latest! Adjustment is now quite complex & involves weighing many issues. So does Consular Processing (& traveling is a monkey wrench!) Noted attorney Ron Klasko (former AILA National President) will share his unique insights & guide you through the new subtleties & nuances in his seminar. Don't delay! Read all about it! For more info: http://ilw.com/seminars/adjustment.shtm
Totality of Circumstances Proper Standard for Vehicle Stop
In unanimous decision in US v. Arvizu, No. 00-1519 (Jan. 15, 2002), the Supreme Court reiterated its "totality of the circumstances" standard for determining whether there is "reasonable suspicion" for a brief investigatory stop of a motor vehicle.
INS Memo on I-539 Deadline
A memorandum from William Yates, Deputy Executive Associate Commissioner, Immigration Service Division, Office of Field Operations, instructs all field offices, service center and other offices that receive filed applications from the public to accept the 10/13/98N version of the I-539 through March 30, 2002.
Advisory on Asylum Cases
According to an INS News Advisory, in order to ensure utilization of all 10,000 asylum adjustment numbers, a new procedure for adjudicating these cases has been developed for Fiscal Year 2002.
DOJ Moves to Revoke Citizenship
The Department of Justice today initiated proceedings to revoke the US citizenship of Peter John Bernes (a/k/a Petras Bernotaviius), 79, based on his participation in the persecution and murder of Jews and other civilians during the Nazi occupation of Lithuania in 1941.
Immigration in the Press
Official Urges Combining Several Agencies to Create One That Protects Borders
According to the New York Times [registration required] the White House Office of Homeland Security has set off a storm inside the Bush administration with a broad proposal to create an agency that would consolidate border security efforts now spread across the federal government.
ILW.COM Chats and Discussions of the Day
Chat with Chris Musillo
Chris Musillo will answers questions on all aspects of immigration law on Wednesday, January 16, 2002, at 9:00 p.m. Eastern (New York) time. Questions will be accepted beginning 15 minutes before the start of the chat.
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This Day in Immigration
From January 16, 2001
"DOS Launches Fulbright Senior Specialist Program
The Bureau of Educational and Cultural Affairs announces the inauguration of a new component of the Fulbright Senior Scholar Program, the Fulbright Senior Specialist Program, which will send US academic experts to overseas academic institutions to work with foreign counterparts."
Letters to the Editor
My sympathies also lie with the children of "faithful reader." However, my disgust is for the Circuit court who ruled that DWI is not a crime of violence. Obviously those judges have never lost family members to people who are too self absorbed, not to mention stupid, to refrain from drinking and driving. Her husband did this repeatedly and deserves every day of the time he is separated from his family. They at least have some hope of eventually being together again. Had he killed someone while committing his THIRD DWI, that family would have no hope of every spending time with their loved one again. Having lost a 19 year old niece and a 20 year old nephew to drunk drivers I consider DWI one of the most violent crimes someone can commit. Obviously, he didn't put his family first so why should the government?
"Faithful reader" put a message out there to hear some words of comfort and encouragement, but it seems that we are worse than those pigeons at the downtown square which once they see a hurt pigeon get together to peck at him, to hurt him even more, and perhaps kill him. My word to her is: Find a good lawyer and look for legal advice, and if necessary write a letter to president Bush and
president Vicente Fox. They will figure out a way to bring your husband back. Our country is a great country, but is not perfect.
Hopefully her husband will have learned the lesson and will stop drinking and use his experience to discourage others from doing the same thing. To me, the only difference between her husband and the drunk drivers born in America is that the American ones cannot be deported, and if they belong to a rich and famous family, even using false ID to purchase alcohol, they just get a slap on their wrist and are loose to do it again. The US immigration law most of the times, as in other areas of law, works better for the rich and famous. So appeal to the rich and famous and you will get the help you need.
I would like to say thank you for the responses to my letter submitted of 1/14/02. My husband has been sober for five years and obviously these people have not had someone they love torn apart with the disease called alcoholism. I am not ignorant....I realize that my husband could have hurt someone. I do not think what he did was right. I am not an advocate for drinking and driving. I am only asking for fairness in that INS and EOIR apply their guidelines uniformly. If the federal court says this offense is not a crime of violence, then my husband was deported on false grounds. Is everybody out there so perfect and free from making mistakes? I doubt it. And by the way, a wife can not rid a husband of alcoholism. I guess the entire point of my letter was overlooked.
The horrific event of September 11 not only changed forever the lives of the families and loved ones of the victims of this terrible tragedy; it deeply affected others too. This terrorist act dashed the hopes of over three million Mexicans who were expecting a legal resolution of their status in this country. They and their families too have been deeply affected. Many of them have been working in this country, paying their taxes and leading good lives for up to ten years or more....
[To read the whole letter, click here].
Richard E. Baer
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HELP WANTED: CORPORATE IMMIGRATION ATTORNEY, ATLANTA
National immigration law firm seeks senior level business immigration attorney, with 7+ yrs. exp. in all aspects of employment based immigration, for its Atlanta, Georgia office. The position requires strong writing and excellent verbal communication skills. The ideal candidate has had account management experience and is able to work independently in a team environment. Competitive salaries and excellent salaries offered, will relocate. Please send resume and writing sample to: Anne-Rose van den Bossche, Esq., Fragomen, Del Rey Bernsen & Loewy, 515 Madison Avenue, New York, NY 10022, or fax to (212) 750-1121 or e-mail email@example.com. No calls please.
IMMIGRATION PROGRAM AND RECEPTION
The American Bar Association, Immigration and Nationality Committee of the Section of International Law and Practice, and the ABA Immigration Pro Bono Development and Bar Activation Project invite you to attend the following program and reception on Tuesday, January 22, 2002, "What Consular Officials Should Know About Recent U.S. Immigration Developments: A Dialogue With The Consular Corps And Legal Community," at the Canadian Embassy, 501 Pennsylvania Avenue N.W., Washington, D.C. 5:30-7:30 p.m. For details and registration form click here.
On January 31st & February 1st 2002, the National Immigration Forum will host its inaugural conference “A Nation of Immigrants in the 21st Century: Moving Forward in a Time of New Challenges.” The conference will be held at the Mayflower Hotel in Washington, D.C. For details, click here. For registration form, click here.
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