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Immigration Daily July 16, 2003
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Editor's Comments

Summary Affirmance aka Curt Review

Yesterday, the 9th Circuit joined the 1st, 5th, 7th and 11th Circuits in holding that the "Affirmance without Opinion" (AWO) procedure of the BIA, aka the summary affirmance procedure, or the Curt Review procedure as we have called it, does not violate an alien's due process rights. Many now believe that there is no hope of relief from the courts on mitigating the effect of the regulation. We beg to differ. There are two reasons for our optimism. First, as both the 1st and the 9th Circuits have noted, the regulation shifts the cost and the backlog from the BIA to the courts - an unfunded mandate sure to make the courts unhappy. Second, and more importantly, the 1st Circuit has hinted that it is prepared to do "a more searching review of the ... AWO regulations" IF there is "evidence of systemic violations". Until then, "one swallow does not make a spring". The opponents of the Curt Review procedure believe that the BIA will increasingly make erroneous decisions, because of the limited resources devoted to review. If that happens, we believe that the swallows will increase in such profusion that the courts will declare that summer is here and come to the aid of the hapless aliens caught in the Curt Review nightmare. We therefore urge those petitioning the Courts of Appeal to continue to challenge the curt review procedure in appropriate cases, particularly in the 1st Circuit.

Notes: (i) Carl Baldwin writes about El Moraghy v. Ashcroft, No. 02-2606 (1st Cir. Jun. 12, 2003) in today's Featured Article. (ii) All quotes above are from the same case - El Moraghy v. Ashcroft, No. 02-2606 (1st Cir., Jun. 12, 2003). (iii) The 9th circuit in Carriche v. Ashcroft, No. 02-71143 (9th Cir. Jul. 14, 2003) at n.3 states "Although a stated goal of the the new regulations is to eliminate the BIA's backlog, we observe that the practical result may be to shift the backlog directly to the courts of appeal."


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Featured Article

First Circuit Rules IJ Should Not Have Denied Asylum and BIA Should Not Have Summarily Affirmed
Carl R. Baldwin writes "After what must have been a devastating courtroom experience for El Moraghy, the First Circuit remand to the Board holds out at least a glimmer of hope."

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Immigration Law News

EOIR Recognition And Accreditation Roster
The Executive Office for Immigration Review of the Department of Justice issued two updated roster lists. For a current quarter alphabetical listing of recognized organizations (69 pps.), please see here. For a current quarter alphabetical listing of accredited individuals, dates of accreditation, and any restrictions on practice (97 pps.), please see here.

BCIS Memo On Revised Form N-600, New Form N-600K
William R. Yates, Acting Associate Director of the Bureau of Citizenship and Immigration Services (BCIS) issued a memo to all regional, district, and service center directors, and all officers-in-charge notifying them of the significantly revised Form N-600, Application for Certificate of Citizenship, and the newly created Form N-600K, Application for Citizenship and Issuance of Certificate.

BCIS Says 1,063,732 Legally Immigrated To US In FY '02
The Bureau of Citizenship and Immigration Services (BCIS) announced legal immigration figures for FY 2002, including the fact that five countries accounted for 40 percent of immigrants: Mexico (219,380), India (71,105), The People's Republic of China (61,282), Philippines (51,308), and Vietnam (33,627).

BICE Arrests 27 Undocumented Workers At US Air Force Academy
The Bureau of Immigration and Customs Enforcement (BICE), working with the Social Security Administration and Air Force Office of Special Investigations today arrested 27 foreign nationals working illegally at the US Air Force Academy (USAFA) in Colorado Springs, Colorado.

GAO Report Says Interagency Visa Revocation Process Could Benefit From Clear And Comprehensive Procedures
Jess T. Ford, Director, International Affairs and Trade of the General Accounting Office appeared before the Senate Judiciary Subcommittee on Immigration, Border Security and Citizenship. His testimony concluded "our analysis of the visa process shows that the Departments of State, Homeland Security, and Justice could more effectively manage the visa process if they had clear and comprehensive policies and procedures and increased agency coordination and information sharing."

BALCA Says Food Industry Sees Frequent Job Movement
In the Matter of The Essential Baking Co., No. 2002-INA-199 (BALCA, Jul. 9, 2003), the Board of Alien Labor Certification Appeals said that "Employer has misstated the applicant's employment history and overlooked the fact that the majority of the applicant's job changes show a steady progressively increasing level of responsibility. Applicant [for the position of cook, pastry(lead)] did not "have about one job per year for the past twelve years" as Employer states, but rather held several positions for 2-21/2 to 3 years."

Guatemalan Guerilla Organization's Forced Recruitment Does Not Equal Persecution
In Dominguez v. Ashcroft, No. 02-3157 (8th Cir. Jul. 15, 2003), the court said that "a reasonable fact finder could decide from this record that the [Guatemalan] guerillas were simply trying to fill their ranks and were not concerned with Petitioner's political beliefs."

Failure To Comply With Lozada Requirements Results In Forfeiture Of Ineffective Assistance Of Counsel Claim
In Hamid v. Ashcroft, No. 02-3166 (6th Cir. Jul. 15, 2003), the court said that Petitioner's "failure to comply [with Matter of Lozada] results in a forfeiture of his ineffective assistance of counsel claim" in a case involving a Jordanian who was granted numerous continuances beginning in 1999.

Ethiopian Government Distinguishes Between OLF Members And Leaders
In Rumicha v. Ashcroft, No. 02-2525 (3rd Cir. Jul. 14, 2003), the court in denying the petition for review of a Convention Against Torture claim said that the Ethiopian government distinguished between Oromo Liberation Front (OLF) members and leaders.

District Court Lacks Jurisdiction To Entertain Habeas Corpus Petition Where Petitioner Fails To Exhaust Adminstrative Remedies
In Duvall v. Elwood, No. 02-3829 (3rd Cir. Jul. 11, 2003), the court found that "the district court had no jurisdiction to entertain Petititioner's petition. Petitioner, as we have taken pains to point out, and as she has admitted, was not issued a final order of removal and has not exhausted adminstrative remedies which Congress, through its enactment of [8 USC] 1252(d)(1), required before a district court can acquire jurisdiction."

Sen. Cornyn's Guest Worker Legislation Raises Issues President Bush Working On
The Houston Chronicle reports "Texas Sen. John Cornyn introduced guest worker legislation on Thursday that would allow illegal immigrants to work legally in the US for three years, but falls short of a plan President Bush is preparing to unveil."

DHS Seeks Proposals For VISIT System reports "The race officially is on for the government's most anticipated, and potentially lucrative, homeland security contract."

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Letters to the Editor

Dear Editor:
The 18th Amendment to the Constitution passed in 1919, and commonly called Prohibition, made it illegal to produce, transport and sell alcohol in the US. Its purpose was to deal with crime but it resulted instead in a decade which was one of the most corrupt in our history, "The Roaring Twenties". Americans did not stop drinking over the following thirteen years because of this law; they went underground to seek their entertainment. refreshments and socialization. Claudescent bars and nightclubs ("Speakeasies") were the rage of society. The patrons of the Speakeasies did not consider themselves violating the law (i.e. as being criminals). They saw a law that did not work. That law that did not work was finally repealed in 1933. It seems that each decade in history brings its own laws that do not work. Prohibition today denies unskilled Mexican workers access to this country and to the jobs that need fulfillment. The prohibition does not work. The migrants come in anyway, often with peril to their lives, to fill these jobs. They do not consider themselves violating the law (i.e. as being criminals). They see a law that does not work. There is no legal way by which an unskilled Mexican worker can enter this country to find a job. There should be a way. As President Bush says: "When we find a willing employer and a willing worker, we ought to match the two."

Richard E. Baer

Dear Editor:
This morning I heard the news that Pat Robertson is calling for a 21-day prayer initiative asking God to provide for the "retirement" of unnamed Supreme Court justices who voted to overturn the Texas sodomy law. I think it's time to mobilize the immigrant community in a similar way. How about calling for a prayer initiative for passage of a legalization bill similar to the one proposed by Rep. Cornyn?

Carol Dvorkin, Immigration Attorney
San Francisco

Dear Editor:
The National Immigration Forum issued the following press release.

The Bureau of Citizenship and Immigration Services of the Department of Homeland Security today released statistics indicating that 1.063 million people were granted permanent resident status in the U.S. in Fiscal Year 2002 (Oct. 1, 2001 Sept. 30, 2002). The numbers, nearly identical to the figures for FY2001, indicate that the processing of applications for immigration kept pace with previous years. While the statistics measure paperwork processed, not the number of people arriving or seeking legal immigration status, the statistics released today indicate that not a great deal has changed regarding the numbers of immigrants granted permanent status (i.e., "green cards") in the US. "Immigration has been an overwhelmingly positive aspect of American society, past, present and future," said Angela Kelley, Deputy Director of the National Immigration Forum. "We are still attracting the best and the brightest, the hardest working, the most brave and adventurous people from around the world. They leave everything and everyone they know to seek the American Dream, just as generations of immigrants have done for 400 plus years on this continent." Almost two-thirds (63%) of those granted permanent status applied as the spouses or close family members of U.S. citizens or other legal immigrants. Another 17% were granted legal status because employers filling jobs were unable to find U.S. workers to fill them. "Since 9-11, a number of government actions have targeted all newcomers in the name of national security," Kelley said. "While some in America want to place the blame for 9-11 at the feet of all hard-working immigrants, the statistics released today show that we as a nation have not bought into that leap of logic. We must strive to be a safe and strong nation and still protect our winning tradition as a nation of immigrants." Kelley's organization has been a leading advocate for putting greater resources into the Department of Homeland Security's immigration functions, especially those functions that process the paperwork and run the background checks that allow immigrant families to be reunited and that match employers with workers. The Forum is also a leading voice for comprehensive immigration reform that would allow more of the immigration that happens to occur within the U.S.'s legal framework, rather than in the black market of human smuggling, document forgery, and undocumented immigration. "We know that laws and quotas made up in Washington are running smack in the face of the economic laws of supply and demand," Kelley said. "And the laws made in Washington are losing that battle. We need to reform our laws so that more of the immigrants that are coming are coming with a visa not a smuggler, so that people can live and work above board, not in the shadows or margins of our society. Reform is critical to our economic security and our national security."

Douglas G. Rivlin, Director of Communication
National Immigration Forum

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