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Immigration Daily February 11, 2003
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Editor's Comments

Immigration Items Of Interest

Today's issue of Immigration Daily has many items of interest. The INS released the complete edition of its 2001 Statistical Yearbook showing that 48% of H-1B workers were born in India (no surprise there), and also surprisingly showing that INS asylum officers approved 43 percent of asylum cases adjudicated in 2001, the second highest percentage since 1987. An LCA matter details a case where an Employer had offered a job as a favor to an alien, who subsequently filed for back wages. Carl Shusterman's article describes the suffering caused an alien entrapped in the Registration Program. In an important case in the First Circuit, the court upheld the BIA's new rubberstamping procedures (AILF had filed an amicus brief in this case). There's much more --just scroll down to find the items of interest to you.


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Featured Article

Special Registration: One Man's Odyssey
Carl Shusterman writes about one man's week-long experience with Special Registration.

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Immigration Law News

INS Seeks Comments
The INS sought comments on: application for citizenship and issuance of certificate under section 322, Forms N-600K; affidavit of support under section 213A of the Act, and contract between sponsor and household member I-864; historical records services request, G-1041 and G-1041A.

INS Asylum Officers Approves Highest Percentage of Asylum Cases Since 1987, 48% H-1B Workers Born In India
The INS released the complete edition of the 2001 Statistical YearBook (300 pps.). Highlights included the following: INS asylum officers approved 43 percent of asylum cases adjudicated in 2001, the second highest percentage since 1987 (54 percent) and the largest proportion of H-1B petition workers approved (331,206) was born in India (48 percent); the second largest proportion was born in the People’s Republic of China (9 percent).

DOL Says H-1B Application Approval Results In Employer/Employee Relationship
In the Matter of Chelladurai v. Infinite Solutions, Inc. No. 2003-LCA-00004 (OALJ, Feb. 7, 2003), the Office of Administrative Law Judges said that the facts, specifically lack of agreement on salary, did not support the existence of an employment relationship. However, by agreeing to file the H-1B application on Employee's behalf, Employer undertook the role of employer once the H-1B application was approved, and became subject to regulations requiring payment of wages to an H-1B worker in a non-productive status.

Rubberstamping By BIA Does Not Establish That Review Is Not Taking Place, An Alien Has No Constitutional Right To Any Administrative Appeal At All
In Albathani v. INS, No. 02-1541 (1st Cir. Feb. 6, 2003), the court saying that "an alien has no constitutional right to any administrative appeal at all", and "such administrative appeal rights as exist are created by regulations promulgated by the Attorney General" held that Petitioner's due process claim involving his challenge of the validity of the Board of Immigration Appeals's (BIA) streamlining procedures, where parties received one-line dispositions of their appeals failed, because there was a basis for affirmance and for summary affirmance. The court also said that were there evidence of systemic violation by the BIA of its own regulations, it would be a different case.

Due Process Not Denied Where Petitioner Waives Opportunity By Failing To File Motion To Reopen In Initial Proceeding
In Briones-Sanchez v. INS, No. 02-1287 (8th Cir. Feb. 10, 2003), the court said Petitioner was not denied judicial review in the original removal proceedings; rather he waived his opportunity for review by failing to file a motion to reopen the initial proceedings before he was initially deported, and then reentered the country illegally. The court also said that although the separation of a family was an unfortunate result, the Petitioner had ample opportunity to avoid the problem during his stay in the US for nearly 20 years before attempting to legalize his status, and that his choice to re-enter the country illegally effectively precluded any rights he may have had to seek review.

No Jurisdiction To Review District Court's Denial Of Downward Departure
In US v. Arrieta-Duran, No. 02-6131 (10th Cir. Feb. 7, 2003), the court said that the district court's refusal to grant Petitioner a downward departure was based on its belief that it had the discretionary authority to grant the departure but that the circumstances asserted by Petitioner did not justify the departure.

Amendment To 2L1.2 Is Not Merely Clarifying
In US v. Barraza-Rios, No. 02-2140 (10th Cir. Feb. 7, 2003), the court said that the amendment to the Sentencing Guidelines completely rewrote USSG 2L1.2 and was not "merely clarifying".

Arizona Conviction For Possesion Of Marijuana Is Not Aggravated Felony
In US v. Ballesteros-Ruiz, No. 02-10273 (9th Cir. Feb. 10, 2003), the court said since Defendant's Arizona conviction for possession of marijuana was not punishable by any term of imprisonment, and his second Arizona conviction for possession was not a felony and was not an aggravated felony for purposes of USSG 2L1.2(b)(1)(c).

Immigration And The Welfare State Cannot Co-Exist
United Press International quotes an immigration expert saying "On the one hand, as world gets smaller, we just can't stop [immigration]. As we grow richer and older, we can't live without [immigration]. At the same time, we cannot afford open borders and still provide a social safety net for our citizens."

American Health Care Would Suffer Without Immigration
The St. Petersburg Times (of St. Petersburg, FL) reports "Most of the doctors practicing here came from outside the United States. Without that diversity, the quality and availability of health care would suffer."

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Letters to the Editor

Dear Editor:
Several letters to the Editor this week discussed "English as the Official Language" in the US. Federal and state legislation has been introduced, and there have been some enactments passed by state legislatures, (including state constitutional amendments) addressing the language and English-plus issues. For example, in Hawaii, English and Hawaiian are "official languages." (I had read, but I have not reconfirmed, another state, New Mexico had designated both "English and Spanish" as official languages or at least an "English-plus" initiative-(encouraging people to learn English, plus a second language). There are some state statutes enacted and/or state constitutional amendments passed designating English as the official language in some states. Diversity and tolerance (indigenous languages and English, German, French, Spanish, etc. being spoken by immigrants) led to historical reasons for the English language treatment as "quasi-official" in the past. Readers interested in finding references including state and federal legislation introduced and/or passed, and historical information, etc. can easily find more detailed information such as a random search led to: (or)

E.S., Esq.
Minneapolis, MN

Dear Editor:
Regarding, Mr. Anderson's comments on Mr. Greenspan, what is ignored, and what Mr. Greenspan did not bother to point out, is that those who benefit from immigrant labor were not the public as a whole, but top corporate executives and major shareholders of corporations. Sure, immigrants increase the size of an economy--just as increasing birthrates increase the size of an economy. They do not, however, necessarily improve the per capita income of a country. (Consider highly populated countries such as India or China or Mexico--if sheer numbers are so wonderful, why aren't most individuals in these countries better off?) Ordinary individuals are not necessarily any better off (except for immigrants, of course, who earn more here than they do at home while undercutting US labor). Also, Mr. Greenspan indicated that immigrants did help keep inflation down--by keeping wages down. As one might expect, this is exactly why some Republicans want more immigrants, particularly from Third World countries: cheap labor.

What has been overlooked in Mr. Anderson's letter is the news all around us. In fact, it's hard to read a major newspaper without seeing it. You will find that the unemployment figures include not only formerly highly paid technical people, but lower- and middle-income people. Factories shutting down or being moved overseas-to Mexico, to Guatemala, to China. Instances such as Enron, where the rank-and-file employees lost not only their jobs, but their retirement savings. Layoffs of average workers at companies such as AOL, US Airways, United Way and so on. The hotel industry here on the East Coast still hasn't recovered from 9/11--service jobs as maids, busboys, taxi drivers, etc. have been lost. High school students, particularly minority students in urban areas, with high unemployment. And unemployment figures don't even include discouraged workers--those who have been out of work for over a year and have basically stopped looking, believed to be at a 10-year high. Welfare figures are also turning up again, after declining at the end of the 1990s--low skilled legal workers who found jobs in the boom and got off welfare are being laid off and finding it hard to get new jobs. These especially are the people illegal immigrants compete with. Bear in mind, too, that when the highly paid and middle income people are out of work, or fear they will be, they cut back on the very things that lower income workers provide them with: lawn services, nannies, retail help, new houses, and so on.

Ali Alexander

Dear Editor:
Now the US is unfortunately at a higher state of alert (orange) due to an increased terrorist threat. This sad news is the world we now live in and for those that propose to open the doors to immigration they need to re-examine their priorities. The US, with the soon to be defunct INS, has failed to keep accurate information on those that enter and exit our country legally so how can anyone justify rewarding those that enter illegally? Just say no to amnesty. Just say no to 245(i) and say yes to tightened security which is our only chance of survival.


Dear Editor:
In response to Ali's letter , if these people being "imported" can't support themselves or their families, they must be making that often deadly trip crossing the border only to become vagabonds then because every undocumented I know does a pretty good job supporting himself and his family. Especially without the benefits Americans are granted. I haven't seen an undocumented with a health plan or 401K yet. Every undocumented I know, Central Americans at least, maintains at least two jobs, not only supporting theirself and/or their family, but their family back in their native country too.

Amen to Richard E. Baer's letter. What you've written is all too true. How would you readers like it if you had to be separated from you spouse for more than 10 years? Well, that's what our government does to any US citizen who is married to an undocumented immigrant who only wants to become legal here. And 10 years is only the penalty for being here illegally, not to mention the years long waiting list to immigrate here legally after that. And you wonder why starving people come here illegally. Or why spouses stay here illegally. Hath not an undocumented eyes, etc.? Is the love any less that what it would be between two Americans? Apparently, it's worth less to to our government. It reminds me of US slavery days when white-black unions were illegal. Only now, they remove the "inferior" party from the country.


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