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Immigration Daily January 23, 2003
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Editor's Comments

A central definition in immigration law is the term "national." In fact, immigration law is often referred to as immigration and nationality law, and the main immigration statute is styled as the immigration and nationality act. Definitions are usually, and incorrectly, thought of as arcana. The Special Registration Circus has cast a spotlight on the definition of the term "national" inasmuchas it is "nationals" and not just "citizens" of certain countries who are required to register. The statute's definition of "national" is "a person owing permanent allegiance to a state." Increased enforcement by the INS is now beginning to test that definition. The Ninth Circuit granted a petition by the United States for a Writ of Mandamus turning on the definition of "national." The alien in that case In re: United States offered as proof that he was a US national, his withdrawn citizenship application from 1994 which bore in part an oath of allegiance required for citizenship. The holding in this case was narrow, and leaves much room for future litigation which is sure to ensue as the government continues its energetic initiatives which are supposedly part of an overall anti-terrorism strategy which is purported to have nothing to with immigration in general or the undocumented in particular. A dilemma which will surely come up for the government in this context is the nationality of dual citizens. The current operative definition of "national" in the Special Registration Circus appears to be "country of birth." In the dual citizenship context, particularly with our neighbors - Mexico and Canada - this may raise novel issues. Our copy of Black's Law Dictionary says that the term "national" is broader than the term "citizen" when used in the phrase "national of the United States." One thing is clear - developments in this area of immigration law may be just beginning.


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Featured Article

DOL Audits Part One - A Proactive Approach - Bingo
Alan Tafapolsky writes on how a proactive approach can be used effectively by companies preparing for a Department of Labor (DOL) audit.

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Immigration Law News

Senate Democratic Leadership Bills In The 108th Congress
The Office of the Democratic Leader of the Senate released a packet summarizing the 12 bills, including the comprehensive Homeland Security Act of 2003, that were introduced by the Democratic Leader and members of the Senate Democratic Caucus. The summary includes many legislative initiatives supported by the Senate Democrats including the authorization of $250M allocated to the INS for technology improvements for border security.

DOL Awards Back Wages Of $57,000+ For Benching Violation
In the Matter of Wage and Hour Division v. Novinvest, LLC, No. 2002-LCA-24, (OALJ, Jan. 21, 2003), the Office of Administrative Law Judges found Employer to be liable for back wages in the amount of $57,000+.

White House Says President Bush Welcomes Immigration
White House Press Secretary Fleischer during a news briefing said, "the President welcomes immigration to our country."

US-Canada Nexus Program
The US Customs Office released details of the NEXUS program, a joint customs and immigration program for frequent travellers that both the Canadian and American governments have implemented and which was designed to simplify border crossings for pre-approved, low-risk travellers.

Oath Of Allegiance On Withdrawn Citizenship Application Does Not Confer Nationality
In re: United States, No. 02-71549 (9th Cir. Jan. 21, 2003), the court, in granting a writ of mandamus sought by the US, held that no reasonable jury could conclude that the alien was a "national" of the US; the alien had argued that he was a "national" of the US based upon an oath of allegiance which was part of the application for seeking citizenship which he withdrew.

Defendant's Concerns About Deportation Do Not Affect Rule 11 Colloquy On His Guilty Plea
In US v. Pineda, No. 01-2240 (1st Cir. Jan. 21, 2003), the court said that the Defendant, who had sought the ability to appeal his deportation, understood the consequences of his guilty plea at his Rule 11 hearing.

Guatemalan Asylee's Petition For Review Of BIA Order Denied
In Juan v. INS, No. 02-1568 (4th Cir. Jan. 22, 2003), the court said that there was no error in the Board of Immigration Appeals's and Immigration Judge's conclusion that the Petitioner failed to establish a well-founded fear of persecution.

Summary Dismissal After Failure To Submit Timely Brief Is Not Abuse Of Discretion
In Rioja v. Ashcroft, No. 02-60212 (5th Cir. Jan. 22, 2003), the court said that it was within the Board of Immigration Appeal's discretion to summarily dismiss Petitioner's appeal after he indicated on the notice of appeal form that a separate brief or statement would be filed and then failed to submit such brief or statement before the lengthy period of time between the withdrawal of his counsel and the summary dismissal of his appeal.

Transfer And Possession Of A False I-94 Is Not A Conspiracy
In US v. Shi, No. 02-2241 (7th Cir. Jan. 22, 2003), the court held that Defendant's crime to transfer, and to possess, a false I-94 document was not a conspiracy between the defendant (seller) and buyer because "a seller and buyer do not compose a "group" in the sense relevant to conspiracy law, because they do not have a common aim; they act at arm's length rather than cooperatively, each trying to get the better of the deal" and said that the appropriate sentencing guideline would be USSG 2L2.1 which relates to "trafficking in a document relating to naturalization, citizenship, or legal resident status, or a US passport."

INS Scapegoats Immigrants In So-Called Anti-Terrorist Round-Up
The San Diego Union Tribune reports on an INS sweep of immigrants saying "Some of those arrested are suspected of being in the United States illegally. Others have green cards but are slated for deportation because they have criminal records. None is suspected of terrorism."

Registration Confronts Attorneys With Hobson's Choice
The San Jose Mercury News quotes Randall Caudle, the chair of the Santa Clara chapter of AILA saying of Special Registration "It makes advising very difficult ... You're advising someone to go into a situation where they could be deported. But on the other hand you can't advise them not to register and violate the law because that's unethical."

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Web Technology For Immigration Attorneys
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Letters to the Editor

Dear Editor:
Thanks Gary Endelman for another thought provoking article. I totally support a points system as an alternative to the current, thoroughly bankrupt, permanent labor certification program. But as I pointed out in a letter last week, I think Gary's analytical framework is slightly out of kilter because of his suggestion for dropping employer sanctions. I don't think you can have it both ways. However creative and well thought out a program for "legal" immigration, the logical flip-side is that some people are illegal. Until you address that reality, we are never going to solve the problem. Unless one believes that economic development in the Third World will, anytime soon, reach a level where the lure of employment in the US will not draw tens of thousands of people across our borders, there must be a vehicle to address "illegal" immigration. Employer sanctions? a tamper-proof national ID card? Pick your poison. There ain't no such thing as a free lunch.

Harry Sheinfeld
Springfield, VA

Dear Editor:
I have many questions for Gary Endelman with respect to his proposal for a points system to replace the current family-based immigration system. I think he raises some very valid points - particularly the travesty of separating nuclear families of lawful permanent residents. I agree that we can stem the tide of illegal immigration only by enacting some concomitant reforms in legal immigration that support our humanitarian, economic and security agendas. We cannot continue to have this absurd situation where the illegal beneficiaries of 245(i) are allowed to work and apply for permanent residence, and yet during the several-year-long process are not permitted to obtain social security cards, or driver's licenses. While acknowledging the need for their labor, we are in essence relegating them to invisibility, or worse yet, criminalizing them. This clearly cannot go on, as it endangers society as a whole. Despite the obvious need for reform, the "earned legalization" system outlined by Mr. Endelman seems to be designed to address primarily skilled labor shortages (English proficiency, skills that the economy needs, ties to the US), when, in fact, many of our present day labor shortages, as evidenced by 245(i), as well as our undocumented work force, are in the unskilled area - cooks, busboys, janitors, factory workers, fast food workers, landscapers, horse groomers etc. How is a points system going to address such realities? Of course, there are those who say that these shortages only exist because certain employers/industries are unwilling to offer adequate wages, benefits or working conditions to US workers. Highly skilled nurses have the same complaint about the perceived shortage of nurses. How will these concerns be handled? What bureaucratic body will be charged with the task of determining which skills are indeed in short supply? Can this debate truly be devoid of such polemics, as Mr. Endelman suggests?

These relatively unskilled 245(i) workers do not need, nor do they generally have English proficiency. They often have no ties to the US except the ones that are established after years of residing here illegally. Under the plan, must would-be immigrants earn points while abroad, or do they have to be physically present and "undocumented" in the US already, as Senator Brownback implies? In the latter event, it begs the question of how they would get here in the first place - if not EWI or by fraud. Hence, natives of contiguous territory would be favored over those who live in S. America, Africa or Asia in non visa waiver countries. How is this going to balance the immigration books? IRCA's failure to provide a permanent solution to illegal immigration is not due to a lack of core criteria. As someone who processed hundreds of IRCA applications in California in the late 1980's, I can honestly say that most amnesty applicants were hard-working, law-abiding and tax-paying, even before IRCA passed. And, I believe, if memory serves, that evidence of employment and tax returns were among the required supporting documentation. If not actually required, in practice, tax returns and social security earnings statements were one of the most objective means of establishing the required period of unlawful residence. In fact, many amnesty applicants paid taxes under false SS numbers, which only deprived them, not the US government, of social security benefits. Those who did not file tax returns did so mostly out of fear of listing a false social security number, not out of a lack of civic responsibility. And, again, the only ones who lost out were the aliens themselves, as taxes were withheld from their paychecks; they simply never got the refund owed to them. IRCA applicants did contribute to their communities and local economies, and they yearned for American citizenship - but they had to get permanent residence first, and to do that they had to be present in the US unlawfully since before January 1, 1982. I therefore fail to see how Senator Brownback's "earned 'regularization' for undocumented people" is any different from IRCA.

If instead, people must earn points from abroad in order to gain entry into the US legally from the get go, we still have to contend with the institutionalized bias against people of modest means and limited education in many US consulates around the world, not to mention the virtually unbridled discretion consular officers enjoy. Even those who meet the eventual criteria may face great obstacles in obtaining visas. This in turn will ensure that corruption and fraud remain unchecked, and only those with "connections" or the ability to purchase the proper documents will get visas, as is the case in large part today. Furthermore, I wonder what effect this new system would have on 214(b) - the hoops that would-be tourists have to jump through to visit the US If we are no longer going to guarantee that married children or siblings of USC's can immigrate to the US are we going to make it any easier for them to visit? These and many other details need to be worked out, as we separate historical fact from wishful mythologizing, before I can buy into "earned legalization".

Name Not Supplied

Dear Editor:
I generally am in full agreement with Mr. Endelman's column. I would, however, add that for any legal system of immigration to work, other avenues must be closed off, i.e. there must be strict enforcement of the rules. Even our present system of immigration could work if the laws were enforced. As it is, I have read more than one interview with immigrants who were followed illegally by their brothers, sisters, and assorted in-laws, who Mr. Endelman would not include in his points system. Mr. Endelman's scheme does nothing to discourage this kind of illegal immigration. In fact, dropping the family reunification policy without stepping up enforcement is likely to divert extended family members into illegal channels.

Ali Alexander

Dear Editor:
An issue which has attracted my interest lately is the relative frequency of seeing clients who have supposedly gone through the so-called immigration and travel consultants. It is painful to watch how this practice has permeated large cities and mainly pockets of ethnic communities. Besides, some of them even establish websites to drum up businesses. Although the INS just recently disavowed several of these immigration consultants. With the new Patriot Act being implemented in earnest, is it not likely we will see more of these consultants who play the role of lawyers? They do more harm than good. If they are automobiles, they would be like what a popular consumer advocate calls "unsafe at any speed."

A. Olusanjo Omoniyi, Esq.
Springfield, IL

Dear Editor:
By the way, I think ILW.COM and Immigration Daily are truly the best out there. Most of us here in Chicago agree--hands down. Keep up the great work.

Christopher W. Helt, Esq.
Chicago, Illinois

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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