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Immigration Daily March 14, 2003
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Editor's Comments

ILW.COM's Top Five

The February numbers are in. The most popular articles for the month of February were:

  1. Criminal Prosecution for Visa Fraud by Thomas W. Dean
  2. A Firsthand Account Of A Special Registration Experience by Gregory Siskind
  3. Improvements Are Coming by Asa Hutchinson
  4. More Troubling Ashcroft-isms by Jose Latour
  5. Obtaining An H-1(B) Visa For A Professional Nurse by Michael F. Hammond


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Featured Article

Labor Certification Processing Times And Strategies
Cyrus D. Mehta writes despite the current backlog, practitioners could well adopt smart strategies to help their clients remain in status.

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Immigration Law News

DOS Seeks Request For Educational Grant Proposals
The Department of State Bureau of Educational and Cultural Affairs sought requests for grant proposals for two programs: Central and Eastern European Professional Exchanges and Training Program and Fulbright Teacher and Administrator Exchange Program. Both programs must comply with J-1 visa regulations.

Congress Examines Border Technology Issues
The Senate reports that the Subcommittee on Border Security, Immigration and Citizenship and the Subcommittee on Terrorism, Technology, and Homeland Security concluded joint hearings to examine the role of border technology in advancing Homeland Security.

Whitley Selected As White House's Choice For DHS General Counsel
President Bush stated his intention to nominate Mr. Whitley as the Department of Homeland Security's general counsel. Whitley is currently a partner with Alston & Bird in Atlanta, Georgia, and has had an extensive career, serving as the third highest ranking position in the Department of Justice, as its Acting Associate Attorney General.

BCIS Launches Pilot To Standardize Citizenship Test
The BCIS announced the first phase of a two-stage pilot to standardize the test administered to citizenship applicants. Gerri Ratliff, the BCIS project director for the test redesign effort said, "Whether you're a citizenship applicant in Sacramento or San Antonio, you should have the same set of expectations about what kind of test you will experience."

ICE With Pakistani Government's Cooperation Repatriates 103 Pakistani Nationals
The Bureau of Immigration and Customs Enforcement (ICE), issued a new release stating that 103 Pakistanis, who were illegally present in the US and had exhausted their legal avenues of appeal, were repatriated successfully.

Secretary DHS Ridge Says Entry/Exit System Is Needed
During a chat session with MSNBC, Secretary Ridge said, "There are estimates in the hundreds of thousands of people who have stayed once their visa has expired. ...Clearly an entry/exit system we need not only to help us do a better job of monitoring our borders and identifying people who come into this country, but the system is also needed to monitor those who stayed longer than the invitation was extended."

DOS Says No Immigration Deal With Mexico In Exchange For UN Resolution Vote
During a press briefing, the Department of State spokesman responding to a question on whether the US was more willing to engage in immigration talks with Mexico for its UN vote said, "[immigration] is not the context of our discussions with Mexico about the UN resolution.

Yemeni Fails To Establish Well-Founded Fear Of Persecution
In Alhag v. INS, No. 02-1569 (4th Cir. Mar. 11, 2003), the court said that substantial evidence suppported the conclusion of the Immigration Judge and the Board of Immigration Appeals finding that Petitioner failed to establish a well-founded fear of persecution.

Guatemalan Denied Asylum Where Inconsistencies Exist Between Asylum Application And His Testimony
In Navarijo-Barrios v. Ashcroft, No. 02-2463 (8th Cir. Mar. 12, 2003), the court said that the inconsistencies between Petitioner's application for asylum and his testimony supported the Board of Immigration Appeal's determination that Petitioner failed to establish past persecution or his well-founded fear of future persecution.

DHS Lacks Resources To Track Those Who Stay Beyond 90 Days
The Long-view News Journal reports that DHS officials told Senate subcommittees the Department doesn't have the resources to hunt down foreigners who for those who enter without a visa and stay beyond the 90 days allowed.

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Letters to the Editor

Dear Editor:
I am responding to the piece on the Acosta Doctrine and the future of gender-based asylum. It strikes me that if relying on persecution to prove the existence of the group would involve circular reasoning, then relying on the patriarchal (contextual) society to formally acknowledge its right to inflict unrestricted domestic abuse on women with impunity from the government would involve a nearly impossible burden for the victim. It seems to me that regardless of whether the right to abuse/torture/mutilate is codified in tribal or religious law, as with FGM or shahriíah, its existence should be as easily defined by the absence of protections or laws prohibiting it as by the explicit legal, cultural or governmental sanction of those practices. In order to prove the absence of legal protections, you would first have to show a pattern of persecution of a particular social group, followed by the lack of prosecution of the perpetrators. In this sense, then, relying on evidence of persecution to prove the existence of the group is in fact, a necessary first step in the process. Expert witnesses to corroborate the lack of prosecution of the perpetrators, as well as the lack of protections for the victims in that particular social group, as a pervasive societal phenomenon, would serve to close the loop. After all, isnít that how the conclusion was drawn that "Driving While Black" seems to have become a punishable offense in some states? To be successful, given this new standard for gender-based asylum claims, immigration attorneys will have to be more creative in their evidentiary approach. For example, they might consider hiring an anthropological expert witness to produce historical evidence of persecution of women in the indigenous cultures that make up the majority of the Guatemalan population. Furthermore, they might bring in studies of how years of military dictatorship and the suspension of civil rights have further institutionalized both gender and class-based persecution. I canít imagine such studies do not exist. In the end, though, asylum will always be highly politicized, and third world women do not have much clout - except when itís politically expedient for them to have it Ė as was the case post 9/11 when we fancied ourselves "liberating" Afghan women from the brutal repression of the Taliban. For a fleeting moment in time, we saw photos of women ripping off their burdas on the front pages of our newspapers, and we were led to believe that centuries of institutionalized repression had been wiped away in a month. The film Kandahar had a brief run in our theaters. Certainly, allowing victims of horrific domestic abuse to qualify for asylum cannot be any more of a legal stretch than allowing the little Cuban boy, Elian Gonzalez, to get asylum because he couldnít have the toys and "things" under Castro that he could have a few miles away in Miami. The Guatemalan children of the asylum applicant in Matter of R-A- donít have the ability to acquire those things either. Since when do we consider giving someone asylum simply because they canít buy everything they want? Only if they hail from a Communist country. If you donít believe me, take a look at some of the flimsy asylum claims during the Cold War. I also think that the disposition of Matter of R-A- involving a Guatemalan woman has to be looked at in the larger context of the denial of asylum claims involving Guatemalans in general. See Paz v. INS, No. 02-1892 (8th Cir. Mar. 10, 2003) and Ramos v. Ashcroft, No. 02-2818 (8th Cir. Mar. 10, 2003) as reported in the March 11th issue of ILW.COM. If our government's position is that guerrilla warfare has ended, democracy has been restored and refugees are being repatriated, then they are less likely to look at Guatemala as a hotbed of terror and injustice. I believe this will negatively impact the exercise of discretion in favor of Guatemalan asylum applicants of all types.


Dear Editor:
My personal feelings about the "immigration mess" are expressed very well by the postings of Ali Alexander and RL Ranger. I'm a retired Border Patrol Agent and a union officer and am very enforcement-minded. Still, I agree with the latest post by David D. Murray, Esq. If we each continue to insist that our individual point of view is the only legitimate one, we'll never come close to cleaning up the "mess". If we can't compromise a little so that we can reach some kind of national consensus, the arguments and acrimony will continue. Consensus, as I understand it, means that none of the parties in a dispute may be entirely happy with the solution, but all agree that it's the best they can do, given the circumstances.

John H. Frecker
Baileyville, ME

Dear Editor:
In response to Dr. Baer's comments on deportation, while formal deportation proceedings are lengthy, costly, and impractical given the large number of illegal aliens in this country, other government actions are having the same result. The special registration program, which the government says will be extended to all nationalities which require visas to enter the US, has resulted in thousands of Pakistanis here illegally either decamping for Canada or returning to their homeland. It will also be interesting to see if successful prosecution under the RICO Act of companies employing large numbers of illegal aliens dries up the market for such labor, particularly in industries such as janitorial services, construction and meat packing.

Ali Alexander

Dear Editor:
David Murray's letter suggests that we put to rest the ideological arguments and attempt to find a solution to illegal immigration. I, for one would love that, but the problem is that the ideological arguments by the liberals and the bigots and everyone in between, are not just being presented here on ILW.COM. These same arguments are being made in Congress and by powerful lobbying groups on both sides. If a real solution is to be reached, logical unbiased facts and numbers will have to rule the day and not the hatred or love in a personís heart. Unfortunately, I donít think that we are at that point in our country. We still put people to death even though the numbers say it doesnít stop crime. We still fail to recognize the systemic discrimination against women and minorities in our country even though the numbers and facts prove it exists. Our government denies global warming even though the numbers show that it is a fact. Our government wants to attack Iraq even though the facts show that there are bigger threats to us out there and the numbers show most people on this globe are against it. Anti-immigrant groups still want to end immigration even though the numbers show it is an important factor in our prosperity as a nation. This is a country full of people that decide what is "right" without caring what is true. Until we, as a people, can see the truth in a thing we will still have these ideologically based arguments and wonít reach the practical decision making stage. Additionally, I think that it is a duty of every good and intelligent person to point out bigotry and hate wherever it exists so that it can not hide and fester and cause more deep-rooted problems than this country already has.

Chicago, IL

Dear Editor:
First, why is ILW.COM publishing word one from FAIR? I wholly support balanced reporting from people with different viewpoints, but certainly not from an organization with a history of misrepresenting numbers and inflaming public opinion with baseless rhetoric Limbaugh-style. Integrity in journalism does not require you to give space to other voices just for the sake of hearing them rant. It requires giving space to legitimate writers with reasoned and differing opinions who are not biased by ultra-restrictionist, sexist, racist, and classist motives. Though I am no fan of Spencer Abraham, and I was delighted to see him defeated by Debbie Stabenow, in the 2000 election FAIR disgracefully circulated outrageous pictures of Senator Abraham with a known terrorist-- I believe Osama bin Laden if memory serves. Their tactics are reprehensible and for ILW.COM to give them web-space is quite puzzling. Second, only a sexist could define women's lives as "ideological 'mission creep.'" If you were to replace "women" with the Somali Bantu or Serbian Muslims, his arguments would receive the immediate (and warranted) charge of racism. Given Mr. Hethmon's association with the restrictionist FAIR, he may very well favor denials to these groups as well. BIA's decision of Matter of R-A- only serves to display the majority's appalling inability to understand domestic violence, and based on Mr. Hethmon's article, it appears that he fails to "get it" as well. Domestic violence victims are not members of a social group solely by virtue of their persecution, as he claims is the argument of the applicant in R-A-. No, as Mr. Hethmon demands, the inverse is actually the case: DV victims are persecuted precisely because they are a member of a social group--women. If you read the briefs, you would see very clearly that domestic violence victims quite plainly meet both tests of being a "recognized segment of the population" and are "understood to be a societal faction." Finally, once again, Mr. Hethmon reveals his complete disrespect for refugee women by referring to them as "collateral consequences." Does he know why the majority of women seek refuge in the countries he's listed? Simple geography, Mr. Hethmon. The fact that they flee to societies as repressive as their own does not discount their membership in a social group. Their flight merely reflects their desperation. We do not and should not base our humanitarian goals of asylum law on what may happen in the future should we recognize gender asylum claims as viable. Using the example of Saudi Arabian withdrawal from conventions is a disingenuous argument. Whether they are in or out, their treatment of refugees- of all its citizens, especially women-- is still unacceptable. I can say one thing for sure, though: denying women asylum in the U.S. is certainly not going to make Saudi Arabia or any other such odious regime start reflecting on their human rights sins and suddenly become a beacon of humanitarianism. Perhaps, if the international community were to "attack" (I would choose to say "challenge", Mr. Hethmon's very use of the charged word "attack" shows he does view such states and their treatment of women as legitimate. Perhaps if he were a woman living in such a society-or even in this society for that matter- he'd have second thoughts about accepting such repression as merely "cultural") the legitimacy of such states, 52% of the population on Earth would be able to enjoy life without fear. Mr. Hethmon, notwithstanding his lip service, cares more for his "lofty" arguments and legal acrobatics than a refugee woman's true fear and real experience of persecution. We should base our laws on legal precedence and what is fair and just under the Constitution and laws of Congress. It is not a leap of jurisprudence to recognize women as a social group. The premise at issue in gender asylum laws is basic. By analogy, if a black national from South Africa came to the US during apartheid, he would have a very clear claim of asylum under both race (naturally social group, and/or political opinion would also apply, but for purposes of my argument, race is the most analogous). Yet, if a woman came from Afghanistan during the Taliban rule, she would have no such protection, even though gender is every bit as immutable as race. Yet, sexism, the last bastion of bigotry, prevents people such as Mr. Hethmon from seeing the two "isms" on the same continuum of hatred and persecution. Women are treated as the mules of the world, and they certainly don't need Mr. Hethmon's philosophy when they are face to face with US asylum law and a return to their country is tantamount to a death sentence. Mr. Hethmon may be right on one issue--although I do believe that women as a social group is on strong legal ground-- perhaps a better answer does exist. The truly equitable solution would be to add gender as a sixth recognizable category in asylum law. Women are targeted and persecuted because they are women, whether the persecution involves attempted murder, torture, domestic violence, FGM, rape, or rape as a weapon of war. They deserve the protection of asylum law on the basis of the immutable characteristic of gender, the characteristic for which they are persecuted (as distinguished from Mr. Hethmon's red-herring discrimination argument), on the same level of someone who is persecuted on the basis of race or national origin.

Marisa A. DeFranco, Esq.
Peabody, MA

Dear Editor:
The latest news release from informs US that at the unprecedented, mass immigration invasion level that we now experience will result in 139 million more "Americans" in the next 50 years, according to the Census Bureau, mostly from immigrants. We can become fixated upon the past and debate various points forever, but the relevant topic now, when population related stresses and budgets are already severe problems, can only be: Is this the future we want for America regardless of our present societal mix (or how it came to be)? Indeed, some seem to relish engaging in such non-productive, often petty, nitpicking, giving credence to yesterday's comment of the same, stale letters. (i.e. -- the site is an advocacy site, DHS is and INS were responsible for the plan; also, my general, qualified references to early Indians never mentioned any "right" of entry, only the lack of any modern law, thus they could not be illegals. To compare conditions then to today's codified law is ludicrous.) Why is it considered bigotry when limited immigration advocates seek to reduce entry, but not irresponsible and damaging to hold the unlimited view, or is this just another diversion? It may be helpful to reveal such absurdities by comparing speed limits to entry limits. Why would an opinion of a lower, prudent speed limit which would result in safety and order be labelled as bigotry or intolerance? Would it not be more appropriate to say that those advocates of unlimited or very high speed rates should reconsider their views in respect for the rights and safety of others? Deportation laws are to illegal immigration what citations are to traffic violators. Neither one may ever completely eliminate the problems, but a vigorous enforcement is required to minimize them. Imagine the chaos if traffic laws were not enforced or were ignored by many. While I am not an immigration lawyer, skilled in your procedures, maybe some of you "can't see the forest fires, because of the trees". Our southern border is being invaded by large groups of 50 to 100 illegals every day, hundreds of thousands every year. It has been characterized as a war zone. Our northern border is also violated. Visa overstays are routine and other illegal acts are deliberately planned, some by terrorists. While this may benefit some agendas, who among you can seriously claim this is good for America? Has 9-11 taught us nothing? Have those lost lives and untold other sacrifices to build America been in vain? Has citizenship become so cheap and meaningless? Will personal interest and gain ever be set aside for principle again? The question: "Have you no sense of decency, sir?"(or madam?) is relevant today. The right to control entry rests with our sovereign nation, not with any presumptuous "right" assumed by foreigners or utilized by others and not all can come or should. A legitimate concern and opinion of lax immigration policies and loose border control is not hate, bigotry or racism, it's more like a righteous indignation and concern that millions of Americans of all backgrounds have that policies are not serving their interests nor the best interests of other nations.

R. L. Ranger

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