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Immigration Daily

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Immigration Daily August 12, 2003
Previous Issues
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Editor's Comments

Babies, Reality, Justice

Immigration law, as we have often noted, is out of sync with reality. This is increasingly bringing matters to a head in all three branches of our government. Those working in the DHS and elsewhere in the Executive Branch must make daily decisions weighing the pursuit of terrorists against hounding the undocumented. Congress is considering a Republican bill proposed by Sen. McCain and others, which attempts to address the unsavory fact that we have millions of undocumented people who are quite obviously performing a useful economic function in the country. Our Judicial Branch is also at long last confronting daily the fact that application of our immigration laws as they currently stand results in injustice. In deciding Munoz v. Ashcroft, No. 01-71146 (9th Cir. Aug. 8, 2003), the 9th circuit was forced to deny the petition for review of an undocumented alien smuggled into the US when he was a one year old baby, who missed opportunity to legalize his status simply because he was a child and could not act on his own, and tried to bring himself into conformity with the law soon after turning 18, only to find that that very action will now likely result in his deportation. The concluding statement of the court is here worth quoting:

"We deny Munoz's petition because that is the proper conclusion under the statute and relevant precedent. But the result removal of Munoz from the only country he has ever consciously known appears pointless and unjust ... From the record before us, though, there is no indication that Munoz is anything other than a law-abiding, contributing member of our society. He cannot be faulted for the fact that his mother smuggled him into the country when he was a baby. His mother was the person who did something "wrong." Ironically, she is now allowed to stay here, while he faces exile to a country to which he is a stranger. Munoz's plight is made even more painful because he has missed out on opportunities to resolve his legal problem through no fault of his own. He cannot qualify under NACARA because his mother did not submit an application for asylum for him by the statutory deadline. His stepfather cannot serve as a qualifying relative because his mother and stepfather did not marry until after Munoz turned 18. Unlike some other petitioners who have come before us, Munoz gives no indication of doing anything to manipulate the system. Indeed, aware of his unlawful status, he appears to have applied for asylum after he turned 18 in a deliberate effort to bring himself within the law ... We are unable to grant Munoz's petition, but we hope that appropriate officials within the executive branch, or possibly Congress, will take a careful look at this case and, if the facts are truly as they appear to us, consider whether removal of Munoz is really the just and proper result here."

To that we can only add - how many more Munozs will it take before our laws are brought even roughly in sync with reality?


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Featured Article

America's Challenge: Domestic Security, Civil Liberties, And National Unity After September 11
Muzaffer A. Chishti et. al of the Migration Policy Institute provide a summary excerpt of an analysis to date of our government's immigration actions from three distinct perspectives.

Keep on top of the latest in immigration law! Attend ILW.COM seminars! You can attend ILW.COM phone seminars from the convenience of your office! For more info on the seminars currently available, please click here:

Immigration Law News

DOS Announces Two New Visa Classifications: F3 And M3
The Department of State amended its regulations to add two new nonimmigrant classifications: F3 and M3 for citizens and residents of Mexico and Canada who seek to commute to the US to attend an approved F/M school.

IIRIRA Time Limit Is Not Subject To Equitable Tolling
In Munoz v. Ashcroft, No. 01-71146 (9th Cir. Aug. 8, 2003), the court said that Congress's statutory cutoff date of April 1, 1990 for the asylum application deadline to qualify under NACARA was not subject to equitable tolling in a case involving a child who was smuggled into the country when he was a baby. The court noted that Petitioner's removal appeared "pointless and unjust" and urged Congress to consider whether removal of Petitioner was really the just and proper result here.

9th Circuit Says Ineffective Assistance Of Counsel May Constitute Exceptional Circumstances Beyond The Control Of The Alien
In Monjaraz-Munoz v. INS, No. 02-70227 (9th Cir. Aug. 8, 2003), the court amended its Apr. 28, 2003 opinion where it held that Petitioner's failure to appear at his deportation hearing was due to his reasonable and justifiable reliance on his attorney's agent that he travel to Tijuana the day before his hearing, constituted exceptional circumstances beyond Petitioner's control. The court also said that the attorney's response to the BIA on Petitioner's complaint never denied Petitioner's specific allegations and that the court expected more from an attorney faced with such serious allegations and said that the BIA abused its discretion in failing to credit Petitioner's allegations.

7th Circuit Notes "An American Army Stands At Syria's Back Door" In Denying Lebanese Asylum Claim
In Dandan v. Ashcroft, Nos. 02-1347, 02-1872, 02-4132 (7th Cir. Aug. 11, 2003), the court noted that "while it is distasteful to have to quantify suffering for the purposes of determining of asylum eligibility, that is our task" and concluded that "a three-day interrogation resulting in a "swollen" face does not compel us to conclude that the Board of Immigration Appeals (BIA) was incorrect."

US Cracks Down On Asylum Seekers Entering US With Fraudulent Documents
The San Francisco Chronicle reports "Bleus, a 26-year-old involved in the student movement against Haitian President Jean-Claude Aristide, is one of dozens of recent arrivals with legitimate asylum claims who have used fake documents, often the only way to get out of their country, and found themselves charged with impersonating a US citizen, part of a recent crackdown on illegal immigrants since the Sept. 11 terrorist attacks."

Cuban-American Supporters Ask Bush Administration To Revise Cuban Migration Policy
The South Florida Sun-Sentinel reports "Under the US wet-foot-dry-foot immigration policy, most Cubans intercepted at sea are sent back while those who reach US soil are allowed to stay. On "wet foot, dry foot," Reich [President Bush's special envoy for the Western Hemisphere] said the administration had to hold the current line to avoid another mass migration."

Controversial Pilot Program Has Law Enforcement Enforcing Immigration Laws
The South Florida Sun-Sentinel reports "In the year since 35 Florida police officers were trained in a controversial pilot program to enforce federal immigration law, they have made more than 165 arrests, and officials here and in other states want to expand the program."

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Books - 8 CFR, Includes 2003 BCIS Changes
We are pleased to announce that the latest edition of the Immigration & Nationality Act (INA) is now available. This reference tool is invaluable while writing to the INS about a RFE or preparing a petition. Attorneys have been using the exhaustive topic indices in the 8 CFR Plus and The Whole ACT - INA (Annotated) to do just that for years. Whether you are a seasoned practitioner or a less experienced attorney entering the immigration law field, these books are a must-have. For information on our various publications, see here. (A Supplement is provided Free of cost updating the 8 CFR Plus as of June 1, 2003. All BCIS related changes have been included in this Supplement as well as a complete index to ALL 8 CFR Sections updated as of June 1, 2003.)

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Letters to the Editor

Dear Editor:
I found the article entitled, NCSC Method of Handling Customer Service very useful, particularly the part about when it is appropriate to make an inquiry given the different processing times for the various procedures at the Service Centers. However, my experience has been that each time I speak to a new officer at the NCSC I get a different story. For example, one officer told me that I-140's were currently taking 13 months, so it was inappropriate to do a service referral, while the next day, another officer told me they were taking 11 months, and it was appropriate to do a referral. The second officer then told me that most likely that the case in which the I-140 was just approved after 13 months, would see the I-485 approved soon as well because they were now working them together. I don't know whether this is true, but I'll believe it only when I see it. I still have an I-485 pending from December of 2001. Each time the processing time is reached on I-485's I call the NCSC, and they simply respond that the processing time has been extended 1 month, so in essence, a service referral is never appropriate. The other nagging problem with the service is that sometimes they let you wait in queue on the line, while other times they disconnect you. When I called on Thursday it was 3:45 p.m., within the supposed "ideal times" to call, and the automated system told me that no officers were available at that time, and then proceeded to tell me the ideal times were Tues-Fri 8-10 a.m. and 2- 6 p.m. and I should call back during those times, thank you, goodbye. I was calling during that time. So then I called the special line for employer/investment related cases, 800 357-2099. The first tier told me I needed to speak to an INS officer because my I-140 had been miscoded as a National Interest Waiver, but when I got to the officer, who apparently was in L.A. while the 1st tier was in Kentucky, he said his system was down and he couldn't help me. The one bright spot on the horizon is that this time when I called the 357-2099 line they had direct access to the computer system and could look up cases. This is a definite improvement, but it remains to be seen whether they can work out the other kinks such that the system will actually be as efficient and useful as they are touting it to be.

As a follow up, I have again, carefully combed this article, and need to request a clarification on one item. Under Error correction referral for service center filings only, there are two bullets, one for Typgraphical Errors on a Service-center issued document or associated I-94 and one for for Typographical Erros or quality control issues on a BCIS document. What is the difference between a service center-issued document and a BCIS document? Aren't they both issued by the BCIS? What kind of document, for example, would fall under Bullet #2? The reason I ask is that the procedures are drastically different for #2. #1 prescribes that a referral be taken if a customer claims that a receipt notice contains errors, while #2 prescribes that the customer file a new application with an explanation of the problem, and using procedures for requesting special handling. I had the experience of calling the NCSC when an I-140 approval notice for an EB-3 Software Engineer was issued in error, stating the Beneficiary was an NIV Physician and had to wait 3-5 years to adjust. The first two NCSC officers I spoke with advised me to refile the I-140 - a petition, mind you, which took almost 360 days to be approved. The third person told me to send a fax to the expedited special handling number, which was subequently rejected by the Service Center - for good reason. I now see where these instructions came from. I refused to refile the petition, and instead kept calling until I got someone to take a referral. Now, I see, in fact that the officers were acting under their written guidelines, but these guidelines appear to be quite confusing, not to mention impossible to comply with. How can the BCIS instruct a customer to refile an application with filing fee and all in order to correct a Service error? That doesn't make any sense. I therefore would like guidance as to how to distinguish between #1 and #2 so as to assure that every time one calls with a typographical or substantive error on an approval notice it can be amended through a referral.


Dear Editor:
I'm a daily subscriber to Immigration Daily. I appreciate so much your efforts and the professionalism that I find everyday when I read your articles and information. I just looked at a website featured in your useful links section under the heading, "Immigration - Information" - Illegal Alien. You might want to take a second look at this website, as it is very anti-immigration and quite racist. I was very surprised to find this link coming from ILW.COM. I would compare the site to the "American Border Patrol" website and the "work" that they do.

Name Not Provided

Editor's Note: Thanks for your kind words. As for the links featured in our useful links section, we encourage open debate and discussion and welcome all points of view on ILW.COM.

Dear Editor:
I just clicked on to your immigration links page, the "Illegal Alien" site is a real dilly. As infuriating as it may be, to those who are truly knowledgeable about immigration, to see this kind of thing getting any kind of attention, it's equally important that everyone realize that it is getting attention. Ignoring this stuff as the self-evident ravings of the lunatic fringe allows it to gain credibility, look what happened when liberals ignored right-wing talk radio.

Jane A. Hanson, Attorney at Law
Sacramento, CA

Dear Editor:
I am not sure what kind of submissions you are looking for, but I have a story to tell regarding how the INS made repeated mistakes in my H1B visa petition and then refused to take responsibility for it. If such an article is of interest to you, please let me know. I could then give details about my case.

Name Not Provided

Editor's Note: Immigration Daily invites articles written on substantive immigration law, immigration and public policy or technology and marketing articles of interest to immigration practitioners. We limit articles on specific immigration cases, however, to exceptional cases, describing unusual circumstances. Send submissions to

Dear Editor:
Concerning the recent subject matter on the English language and why it should be made official by the US, an extremely interesting article and perspective can be viewed at: While this is an important, but a peripheral issue, the problem is much larger and the many manifestations of too much immigration are legion and have reached crises stage in California. See: All of the benefits and good that can be said about immigration are primarily seen only with limited, controlled, allocated entry policies with secured borders with sufficient sanctions swiftly applied to violators which is not what we have at present with record levels of legal and illegal immigration.

R. L. Ranger

Dear Editor:
Like Mr. Skip Tollifson, I too retired after 27 years of government service and saw then as I continue to see the injustice of the BCIS, BICE and BCBP in their everyday decisions. I occasionally do immigration consulting for attorneys and experience the arbitrary and capricious decisions of immigration officers that rest not on what the law allows, including discretionary authority, but on their fundamental belief that they have the power to decide a person's fate and that of an entire family tree by the flick of the pen. To give you an example, a gentleman married a woman from Mexico and adopted her two teenage children. She is ineligible to file for adjustment because an immigration inspector at a border port decided that the woman was not entitled to enter and initiated expedited removal proceedings against her knowing that she was married to a US citizen. A family cannot stay apart for long so she reenters the USA and filed prior to 4/30/2001. They are invited to the Dallas office and she is immediately arrested, the order of removal is reinstated and swiftly transported to Mexico. They thought that the interview was for the purpose of granting her permanent residence status. A year later, after contacting BCIS and petitioners attorney (but without them responding to the requests made) she is interviewed at Ciudad Juarez, Mexico where her hopes are again severed without recourse for 10 years and then she must request a waiver. As a practice, and before going to her interview, the petitioner calls on his doctor to get a letter of his mental state and physical condition. The outcome darkens his hopes. He learns that he has advanced cancer of the liver and colon. He is undergoing therapy and the doctor gives him six months with a possibility of extra time with proper therapy. Does immigration care? As before the split, it remains heartless, the humanitarian parole is denied twice in Washington with the same canned language. In the meantime a man goes through chemo daily and once a month is hospitalized for five days straight, as he loses hope of ever seeing his wife again before his last breath. I have always been a fair man and believed in the words of Commissioner Meissner whose motto was 'enforcement with compassion'. I was once investigated because I responded to the people's needs as if they were my own. I was accused of giving preferential treatment to Hispanics. I was asked why I made the decisions I made and I told them that because the issues presented were in the gray area of the law and because the law did not say that I couldn't. Mr. Tollifson hits the nail on the head when he says the DHS is still plagued by many incompetent managers and officers who remain in authority and nothing will change. If anything, things have gotten worse and the Bureau appear to be losing respect. This is not to say that there aren't a great number of good employees within the aforementioned Bureaus. I know many but they are not the decision makers. It seems that now everyone points to the top as an excuse not to do the right thing. The government is separating families. I see it daily. Families told that a wife or husband, father or mother, brother or sister, son or daughter has been banned for 10 years or life because of one or all of the following: Illegal presence of over 1 year and attempted reentry, reentry after deportation, false claim to US citizenship. Was this the intent of Congress? How would our lawmakers feel if they were suddenly told that they could not see their family for ten years or for life; a family begun one or 20 years before? Is this fair? Is this a law that we the people of this country want? I never did and I wouldn't wish it on my worst enemy. How can we change this attitude? What can be done to eliminate these obstacles against the masses of aliens living desperately apart or risking their lives to get back to their loved ones? Who has the answer?

Victor W. Johnston
(INS OIC retired 2000)

An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Send Correspondence and articles to Letters and articles may be edited and may be published and otherwise used in any medium. Opinions expressed in letters and articles do not necessarily reflect the opinion of ILW.COM.

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Marc Ellis, Gary Endelman

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