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Immigration Daily January 16, 2003
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Editor's Comments

Gary Endelman's thought-provoking article "Earned Legalization: A Points System for Essential Workers" has prompted three letters to the Editor today. We have four more letters to the Editor on a variety of topics in immigration. Immigration Daily is happy to serve as a forum for the exchange of opinion for the immigration law community. Scroll down to read the notable letters today, and better still - write a Letter to the Editor yourself - our email address is


Deadline Is Monday, January 20th!

Monday, January 20th is the deadline to register for ILW.COM's seminar "Immigration Consequences of Criminal Convictions: Problems, Solutions and Best Practices" led by Angelo Paparelli. The gradual "criminalization" of immigration practice, including business immigration practice, makes this a subject that immigration attorneys need to stay on top of to propel their practices forward in 2003. The high-power panel hardly needs introduction:

  • Dan Kesselbrenner is the Director of the National Immigration Project at the National Lawyers Guild.
  • Lory Rosenberg is the Director of the Defending Immigrants Partnership at the National Legal Aid and Defender Association (NLADA), a joint initiative with the Immigrant Legal Resource Center, the Immigrant Defense Project of the New York State Defenders Association, and the National Immigration Project of the National Lawyers Guild, which engages in education and advocacy on the immigration consequences of crime and provides training and legal back-up to criminal defense counsel representing immigrants and refugees. She is also a featured columnist for Bender's Immigration Bulletin, a writer for Matthew Bender (LexisNexis), and an adjunct professor at American University's Washington College of Law. Ms. Rosenberg served as an appellate immigration judge on the United States Board of Immigration Appeals from 1995-2002.
  • Norton Tooby is a criminal defense attorney practicing in Oakland, California. He has specialized in criminal defense of non-citizens, both before conviction and in obtaining post-conviction relief to clear criminal records for immigrants in order to avoid or minimize adverse immigration consequences. He was recently awarded the Philip Burton Immigration & Civil Rights Award for Immigration Lawyering for his pioneering work in the field of post-conviction relief for immigrants.

For more info, including detailed curriculum, speaker bios, and registration information online, click here.
For more info, including detailed curriculum, speaker bios, and registration information by fax, click here.

Featured Article

INS Publishes Final Rule For Overhaul Of Foreign Student Visa Regulations
Christina LaBrie writes about the INS Final Rule affecting international students.

Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here:

Immigration Law News

DOL Issues TEGL 14-02 Notification of OMB Approval of State Alien Labor Certification Activity Report
The Employment and Training Administration of the Department of Labor issued TEGL 14-02, a notification of the Office and Management Budget's (OMB) approved extension of the State Alien Labor Certification Activity Report (Form ETA 9037) to State Workforce Agencies.

INS Communique
The INS Communique's July, August, and September/October issues are now available.

OIG Investigative Report On Norfolk Ship Jumping Incident
The Department of Justice Office of the Inspector General (OIG) presented its findings in a report describing its investigation regarding the actions of INS employees in connection with a "ship jumping" incident that occurred in Norfolk, Virginia, in March 2002.

Defendant's Mistaken Impression About Sentence Is Insufficient To Render Plea Involuntary If Court Advises Of Longer Sentence
In US v. Lupian-Barajas, No. 02-2777 (8th Cir. Jan. 14, 2003), the court said Defendant's reliance on attorney's mistaken impression about length of sentence was insufficient to render involuntary his guilty plea for illegal reentry as long as the district court had informed him of the maximum possible sentence.

Removal In 8 USC 1326 Is Physical Removal Not Order Of Removal
In US v. Luna-Madellaga, No. 02-10157 (9th Cir. Jan. 15, 2003), the court said Defendant was subject to enhanced penalties under 8 USC 1326(b)(2) for removal that was subsequent to a conviction for commission of an aggravated felony, where the removal that followed such a conviction was accomplished through reinstatement of a prior removal order pursuant to 8 USC 1231(a)(5). The court also said that "removal" mentioned in 8 USC 1326 refers to the alien's physical removal, not the order of removal.

Supremes To Rule On Indefinite Detention
The Houston Chronicle reports that the Supreme Court will rule on indefinite detention of permanent residents who have committed an offense.

Undocumented Is All-American
The Wilminton Star of Wilmington, NC reports on an immigrant who is the beneficiary of a private bill

Special Registration Akin To Voluntary Registration Of Jews In 1930s Germany
An opinion column in the Des Moines Register compares Special Registration to the voluntary registration of Jews in Germany in the 1930s.

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Help Wanted: Immigration Attorney
The New York Association for New Americans, Inc. (NYANA) is the nation's largest provider of services to the foreign-born. Our Legal Services Department seeks a Staff Attorney to provide immigration-related legal services and consultations. Responsibilities include: preparing applications for immigration benefits and assistance, asylum, adjustment of status, and family and employment-based visas; preparing defenses in removal proceedings; researching and writing motions, briefs and memoranda; preparing clients for and representing them in interviews before the INS and providing technical assistance to NYANA staff on immigration-related issues. Qualifications: Juris Doctor degree and admission to a state Bar required. Two years of experience in immigration law strongly preferred. Experience in handling asylum, deportation and exclusion cases, as well as court experience is preferred. Fluency in a second language is a plus. Excellent communication and organizational skills and computer literacy is required. We offer competitive salaries and excellent benefits. Send resume, which must include salary requirements, to our HR consultants: HR Dynamics, (Dept. NYANA/LSA), 161 William Street, 4th floor, NY, NY 10038 or email

Web Technology For Immigration Attorneys
INS Experts is offering its services to law firms interested in establishing a visible presence online and specializing in US Immigration Law. INS Experts possesses the technology to enable organizations to create Immigration modules integral with each law firm's unique look and feel, as well as handle the e-mail and phone based customer. The cost of setting up this technology is minimal and the time required for implementation is a few months. Law firms focused on employment-based immigration or family-based immigration can utilize the INS Experts technology to prepare the INS applications without the need to hire additional paralegals for this service. Law firms can either offer this service directly to their clients through their internet/ intranet sites, or their internal staff can use the INS Experts site to prepare the applications. Your clients will benefit from our technology which appears on your website. Law firms can break away from the traditional, paper oriented, and change resistant image of the immigration law industry. For further information, visit our website: or if you have any questions, please contact: Puneet S. Parmar, Director of Business Development, INS Experts Inc., 12280 Saratoga Sunnyvale Road, Suite 116, Saratoga, CA 95070, Phone: 408-517-4212, Fax: 408-446-0771, Email:

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
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For a listing of current immigration events please click here
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Letters to the Editor

Dear Editor:
I applaud Gary Endelman's efforts to think out of the box on the legalization question but I do think the devil will truly be in the detail. The most obvious problem: how do we avoid becoming swamped with additional workers seeking to" earn" legalization. Recall, in a earlier article Gary argued persuasively for the repeal of IRCA's employer sanctions. With no inhibitions whatsoever on the employment of out of status workers why wouldn't the same dynamic the created the existing underground economy create a new one?. I don't think I'm being a racist or a troglodyte to suggest that there is essentially an unlimited number of third-world world workers (many in the Americas)who will to work at well below the prevailing wage. Without some control on the system, we are relegating unskilled workers to permanent wage stagnation or even depression and relieving employers of any incentive to develop more effecient labor saving technologies. This is not just an unskilled worker issue. Look at the nursing "shortage." I have read credible arguments that the nursing shortage is largely a result of low wages and poor working conditions. Do we continue to denude the third world of all its most skilled health care workers in order to keep our hospital bills down? However appealing it may seem, a world-wide free market in labor is neither desirable or realistic. That said, at least Gary is asking important questions which is more than can be said for most people in Washington.

Harry Sheinfeld
Springfield, VA

Dear Editor:
Gary Endelman's article, Earned Legalization: A Points System for Essential Workers, is an interesting thought, but falls flat on its face for two key reasons. First, Gary bases his assumption that there need not be any direct connection to an individual employer on the following statement: "There would be no requirement for any employer to demonstrate they have been unable to recruit US workers or have been paying the prevailing wage. Everyone knows this has not been happening. Indeed, this is precisely why most undocumented workers were hired in the first place." He refers to this as a "cycle of exploitation." Gary forgets that the Social Security Administration has sent out "mismatch" letters regarding, what was that now, eight million employees? We also have heard of a recent proposal for a "totalization" agreement with Mexico. The anti-immigrant forces bemoan the fact that this would give U.S. social security benefits to those who worked in the U.S. illegally. Think about that for a minute. How does one get on the social security rolls if they were working illegally, under the table, as Gary suggests? They don't. They get on the rolls by working with a social security number that is either not valid for employment or not their social security number and they pay Social Security taxes. How does an employer "exploit" someone they do not know is illegal? Attorneys across the US have had employers bring in someone to see the lawyer to "do something." They have just gotten a "mismatch" letter and the employer does not want to lose that worker. The lawyer explains the labor certification process and the employer is ready to go forward. Why? Because they are paying the person above the prevailing wage already and there is really a shortage in the particular occupation. But the lawyer has to then inform the employer about the lack of
245(i), the 3/10 year bars, and the fact that due to the alien constantly traveling, he has a "permanent" bar under INA 212(a)(9)(C). Add to that the fact that, as was the case with so many individuals from Mexico during the last amnesty, the alien doesn't want a green card. He just wants to work here until he can finish building that home he has under construction in Mexico. Gary states that the "marketplace, not another layer of DOL regulations" should govern and I agree. The problem is, and this is the second reason this proposal will fail, is that he wants to create bureaucracies is every State of the union. That is the last thing we need. A simpler solution would be to move up the Registry date making it permanently 14 years (and at the same time change Cancellation back to the old 7 years/extreme hardship). Then remove the double temporary requirement from theH-1A and H-1B category, at least as far as NAFTA countries are concerned, if not for all. Remove the H-2B cap and also amend the INA to say that 212(a)(9) does not apply to citizens of NAFTA countries.

Eugene J. Flynn

Dear Editor:
Mr. Endelman claims it is necessary to free the "essential", i.e. unskilled, uneducated worker, from wage bondage to an unscrupulous employer. To this end, he proposes not only a program to legalize illegal workers, but to facilitate the legal importation of such workers. Mr. Endelman ignores the obvious implications of a virtually unlimited supply of such labor for (1) wage levels and living conditions of such workers, and (2) the social costs for the US taxpayer. Employers are able to take advantage of unskilled and uneducated illegal immigrants not only because of their illegal status but because there are so many of them ready, willing and able to bid down the price of the work. If one illegal worker displeases, there are thousands more to replace him or her, at a lower wage. Legal or not, an essentially endless supply of fungible labor can only drive down the employees bargaining position with the employer. It is employers only who benefit. It would also be employers who benefit when the burden of caring for the working poor immigrant becomes the responsibility of the State and Federal governments. Already, even with limitations on the importation of unskilled workers, we find that large numbers of legal immigrants are qualifying for welfare programs, when, historically, we have required that immigrants be self-supporting. Two years or so ago, when Congress was considering welfare reform, there was discussion of decreasing the number of years an immigrant had to be here to collect welfare from 10 to 5. President Bush (who supported the move) and his team offered data that that one change would place 360,000 more immigrants on the welfare roles. And that was before the economy dipped. Not to mention the additional medical and educational costs of importing low-wage workers and their families. And of course, Mr. Endelman wants to focus only on the economic, not the social implications of importing large numbers of workers from primarily Third World countries, many of whom will retain "traditional" ideas such as female circumcision, bride buying, female subjugation to man, slavery, and religious intolerance. "Legalization" of any type, be it a blanket amnesty or a "points system", is simply a bad idea. It encourages more illegal immigration by offering an alternative route to legal status in the USa route which penalizes immigrants who follow the rules and attempt to immigrate legally from the start. Then, theres the little matter of fraud. Fraud was rampant in the much smaller 1986 amnesty program. The GAO has also found that the H1-B program for importing skilled immigrants had high levels of fraud by both employers and employees. There is no reason to believe that authorities could any better administer a legalization program, especially without detracting from the processing of applications for legal immigrants. "Legalization" will only hinder security efforts, by diverting resources, and by having to deal with even more people who try to immigrate illegally.

Ali Alexander

Dear Editor:
The letter of "angie" is based on personal observation and fact and should not be misconstrued as disgruntlement. The views are well expressed. Your editorials sometimes favor immigration. Your are priviledged to your own opinion and I have never known it to interfere with a fair and unbiased presentation of news and opinions of others, even those that are prejudiced and unsigned.

Richard E. Baer

Dear Editor:
I sadly disagree with Panravee Vongjaroenrat's assertion in the 1-15-2003 issue of Immigration Daily that people with ties to terrorist groups are unlikely to rush to register. If the recent history of Immigration Canada is any indication, truth is truly stranger than fiction and terrorists have been registering AS terrorists in order to enhance their odds of their acceptance into the Dominion and it has made sense to do so. I am not making this up. For a recent article on the practice, see The National Post of Thursday, January 9, Mark Stein, "Terrorist Class Immigrants", which discusses the practice and refers to a previous article on it way back in 1999. (One can see more evidence of the practice showing up in Canada's late 1990s trial of the Air India Bombers, who stressed they were Sikh militants in their immigration applications.) The Post article makes for tragicomic reading. I would also like to apologize to those readers who may have been left with the impression that I advocate police state tactics in my letter in the 1-14-03 issue. My point was only that registration is required by states with serious security concerns, like police states and states at war. Just because the police states are evil and states at war may be paranoid does not mean they are always stupid. Unfortunately, they are often highly effective. Therefore registration should not be dismissed out of hand as stupid. Like any public policy it has costs and benefits, including costs to human dignity. These should be weighed. Dismissing the policy out of hand gives its proponents a free ride because they do not have to respond to a thoughtful critique.

Honza J. F. Prchal
Birmingham, AL

Dear Editor:
I'm not surprised that, as "Justin" noted, the Southern Poverty Law Center (SPLC) "linked" Tom Tancredo to "neo-Nazi and other anti-immigrant hate groups". They are, after all, "devoted to tracking hate-groups of all kinds". They're able to spot 'em anywhere. Anyone, or any group, who is moderate or conservative would probably be a good candidate for "hate" scrutiny, using the standards of the SPLC.

John H. Frecker
Baileyville, ME

Dear Editor:
To set the record straight, Douglas G. Rivlin, Director of Communication National Immigration Forum in his letter to the Editor states: "The Public Agenda and the Carnegie Corporation of New York are releasing a poll of immigrants with interesting results on assimilation, integration and other issues (click here for Public Agenda's press release)." However, reading that press release (if it is credible - sorry, I'm a cynical old lawyer) actually, although cryptically claims only that the Carnegie Corporation ( ) provided grant money to them, but does not claim the Carnegie Corporation participated in the poll, released the poll, or endorsed the results of the poll, which the press release seems to suggest. In fact, although cryptically noted, the survey and its results appears from the press release to be fully the work of an organization called "Public Agenda", which claims in the release to be " . . . a national nonpartisan, nonprofit public opinion research organization located in New York City, is well respected for its influential public opinion polls and its balanced citizen education materials." Whatever that rhetoric means. Furthermore, the release goes on to say that the source of the data is apparently contained in a publication entitled "Now That I'm Here", authored by Steve Farkas, Ann Duffett and Jean Johnson, and claims that it is based on a national telephone survey of 1,002 foreign-born adults aged 18 or older who came to live in the US when they were at least 5 years old. Now, obviously, this is an unabashed plug for the sale of the publication, but hey, this is capitalism at its best . . . get a grant from a charitable institution, conduct a survey, write about it, and sell it anywhere you can - and pocket the cash, but let us not be misled into thinking the Carnegie Corporation endorses the poll, but rather accept or reject the poll's purported results based upon the credibility of the grant-hungry organization who claims they took the poll . . . . misleading, poorly written press release and all. You'd think that if grant money paid for the research that they would release the data on the internet for free but hey, even students need to eat. Unrevealed in Mr. Rivlin's letter is that his organization, Communication National Immigration Forum, which can be accessed at is that the Forum is an organization dedicated to "embrace and uphold America's tradition as a nation of immigrants" and "advocates and builds public support for public polices that welcome immigrants and refugees that are fair and supportive to newcomers in our country."

David D. Murray, Esq.
Newport Beach, CA

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