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Immigration Daily February 18, 2003
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Editor's Comments

Primer On Deportation Courtesy The 9th Circuit

The 9th Circuit issued an en banc opinion which we recommend to attorneys, both new and seasoned. This 58 page opinion includes an excellent review of legal concepts connected to deportation from 1940 to present. Attorneys who are not very familiar with deportation may find the 9th Circuit's opinion a useful primer to learn about this area of immigration law (it is the only area of immigration law practice really booming right now). For veteran litigators - this opinion is remarkable in that it seems to sway two ways. On the one hand, the 9th Circuit uses harsh language in criticizing the BIA: "despite its responsibility to consider current relevant evidence in suspension cases, the BIA decided if and when it would accept evidence on a haphazard, irregular basis, without any written regulation or procedure, and with the rules changing from case to case. To be blunt, counsel for applicants were the marks in a [con game]." On the other hand, its concluding sentences are extraordinarily unopinionated: "We neither express an opinion as to whether the BIA should accept or reject the tendered evidence on any other basis, nor do we preclude the BIA from taking any other appropriate administrative action with respect to the evidence. We express no opinion on the ultimate merits of the petition." The lengthy dissenting opinion points out the unusual nature of this case: "The due process violation shoe does not fit [Petitioner's] foot, but nonetheless, we allow him to use it to kick open the door that he chose not to open with the handle he knew was there and which the INS explicitly brought to his attention." Perhaps the reason for the 9th Circuit's action and the unusual nature of the action, is the underlying tension between the Supreme Court and 9th Circuit following the Supremes' opinion in Ventura v. INS which was decided in November 2002. The 9th Circuit is bearing the brunt of the increased appeals to summarily processed denials issued subsequent to the new regulations adopted by the BIA in September 2002. These appeals reportedly amounted to almost 50% of all incoming cases of all kinds of law at the 9th Circuit recently. The 9th Circuit's view on immigration appeals is likely shaded by this unique perspective. It is possible that this case will be appealed and heard by the Supremes. Regardless of the how this case ends up, it highlights how immigration has increased in importance in our judicial system, as immigration becomes an increased presence in American society. Read the opinion here: Ramirez-Alejandre, v. Ashcroft.


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Featured Article

The H-1B Series: Part 5 of 6 (Encore)
George N. Lester IV offers Part 5 of his comprehensive look of the H-1B program.

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Immigration Law News

Rep. Crowley Says Republican Bill Ignores Legal Immigrants
During a debate in the House of Representatives concerning the Personal Responsibility, Work, and Family Promotion Act of 2003, Rep. Crowley (D - NY) said, "Moreover, immigrants, on average, contribute more in tax dollars than they get back through government services and benefits, and the bulk of the dollars immigrants contribute in taxes go to the Federal Government. Yet, when immigrants fall on temporary hard times, the Federal Government chooses to ignore them, and this Republican bill today ignores them as well."

DOS Seeks Grant Proposals On Educational Assistance Award
The Bureau of Educational and Cultural Affairs of the Department of State announced an open competition for the School Connectivity Program for Uzbekistan and Tajikistan. Programs must comply with J-1 visa regulations.

INS Repatriates 89 Illegal Aliens To Nigeria
The Department of Justice stated in a news release that through a cooperative multi-national effort, the INS earlier this week repatriated 89 illegal aliens to Nigeria, including several war criminals.

BIA's Statement Is Untrue - 9th Circuit En Banc
In Ramirez-Alejandre, v. Ashcroft, No. 00-70724 (9th Cir. Feb. 13, 2003) (en banc), the court held that the Board of Immigration Appeals's (BIA) categorical refusal to provide a procedure by which Petitioner might tender new evidence relevant to the establishment of prima facie eligibility for suspension of deportation violated his right to due process of law. The court remanded to the BIA for reconsideration of the tendered evidence and said that the BIA's statement, "this Board as an appellate body does not consider evidence submitted for the first time on appeal" was untrue.

Federal Courts Have Jurisdiction To Consider CAT Claims
In Wang v. Ashcroft, No. 02-2045 (2nd Cir. Feb. 6, 2003), the court held that federal courts had jurisdiction to consider Convention Against Torture (CAT) claims raised in 2241 habeas petitions. The court also said that Petitioner's continued detention without a bail hearing did not violate his substantive due process rights because his removal was imminent.

Entrance Via Visa Waiver Pilot Program Waives All Non-Asylum Rights
In Wigglesworth v. INS, No. 02-1209 (7th Cir. Feb. 14, 2003), the court found that when Petitioner entered the US pursuant to the visa waiver pilot program, and signed the waiver form clearly indicating her rights, she waived her right to a deportation hearing, she also waived all rights that she had to apply for non-asylum forms of relief from deportation.

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) (errata sheet), the court issued an errata sheet for its February 6, 2003 opinion where 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.

Texas AG To Crack Down On Notarios, Part Of Problem Is Mistrust Between Immigrants And Government
The El Paso Times of El Paso, TX reports "The Texas attorney general visited El Paso on Wednesday to warn consumers about a scam in which con artists posing as immigration experts offer advice to hopeful immigrants -- then take off with the fees paid to them." The paper also reported "Juan Carlos Cue Vega, Mexican consul general in El Paso, said that part of the problem has been a lack of trust between immigrants in the United States and the authorities."

INS Sweep In Alaska Nets Fewer Undocumented Workers
The Anchorage Daily News of Anchorage, AK reports "A recent sweep by the U.S. Immigration and Naturalization Service of the four main seafood processors and fishing fleets in Dutch Harbor netted fewer than 20 illegal immigrants, compared with about 60 arrested in a similar operation in 2000."

Editorial Says Undocumented Workers Should Be Legalized
An editorial in the Arizona Republic says "Millions of undocumented workers are filling jobs around the country: cleaning rooms in hotels, cutting meat in slaughterhouses, trimming trees in your neighborhood ... But the market can't resolve the issue of illegal immigration. It's up to the government to end this shadowy world of workers who do the job and pay taxes when they spend the money, but remain on the margins of society."

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Letters to the Editor

Dear Editor:
Ali Alexander's Feb. 14th letter to the Editor misstates the law on the H-2B options available to employers to hire non-agricultural non-professional workers. H-2B is by regulation available only for a small group of seasonal and temporary workers. This is known to the immigration lawyers in the ILW.COM readership, but is not known to the nonspecialist readers -- and is unbelievable because it is so idiotic The only option available to the employer who wants to hire a non-professional skilled or unskilled worker is permanent labor certification. This is a process that takes two or more years and does not confer any reight to work or to be present in the US while the application is pending at the Department of Labor. Because of the "gotcha" rules in the 1996 act, an employee who is not eligible to adjust status under 245(i) cannot get permanent residence based on such a labor certification, even if the employer holds the job offer open for the necessary years. A person who was illegally inside the country cannot travel to a consulate abroad to get the immigrant visa, because overstays of more than 6 months are barred from reentering for 3 years and overstays of more than 1 year are barred for 10 years. Immigration restrictionists castigate "illegal immigrants" and their employers as not wanting to follow the law. These restrictionists have intentionally written the laws so that there is no legal option for many. Having written such inhumane laws, they then deceive the public by stating that the law-breaking desires of the immigrants are to blame. It appears that Mr. Alexander was unaware of the availability of a legal option for non-professional workers in the H-2B category.

Eleanor Kaplan Adams, Esq.
San Diego, CA

Dear Editor:
In response to Mr. Alexander's letter to the Editor, I wish that he would share the experiences of his grandparents with us. I bet they didnít make a million bucks straight off of the boat. I also bet that their English remained sketchy for a very long time after they learned it. If the Mexican folks in his neighborhood are driving SUV's I guess they are doing just fine (better than I am) and he has no reason to complain about them leaching off of anyone. Undocumented people can only receive emergency treatment at hospitals not regular care. This kind of emergency care is available to everyone without health insurance which includes millions of US citizens. There are also plenty of well educated Americans without jobs (ask people who worked for Arthur Andersen LLP) so I am not sure Mr. Alexanderís insistence on proper English is all that itís cracked up to be. I think Iíll go learn Espanűl.

In response to Mr. Prchalís letter, I am not sure that I would compare the Czech language, spoken by a very small percentage of the population of the world on a whole I am guessing, and Spanish, spoken by hundreds of millions of people around the world. Nevertheless, he has given me an interesting history lesson on the Czech language but I fail to see how that applies to Spanish. Spanish is spoken a bit differently by every country where it is the native language. I am sure that one canít be termed the correct way anymore. Perhaps one can say that a certain way is closer to the roots of the language but thatís it. Letís take English. Are the British the only ones that speak English properly making the US and the Aussies seem like uneducated serfs? I would hazard a guess that the answer would have to be no. How about just sticking within the US. Can you tell from someoneís accent that they are uneducated? Letís say I am from Texas. Does my southern twang equal a lack of education? Perhaps where Mr. Prchal is from, with a population of less than that of New York City, you can peg a personís education level in 10 minutes just from the way that they talk but that wouldnít hold true everywhere. Also, as far as Mr. Alexander's letter to the Editor referring to McDonaldís goes, who cares what the employees speak? They got the job didn't they? That's up to McDonald's management.

Chicago, IL

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