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Immigration Daily November 5, 2003
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Editor's Comments

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Featured Article

Bar None: An Evaluation of the 3/10-Year Bar
Jessica Vaughan for the Center for Immigration Studies writes "The point of the 3/10-year bar was to punish and deter illegal immigration, a goal for which there has been consistently broad public support over the years. By every measure, the 3/10-year bar has failed to make a difference."

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Immigration Law News

USCIS Director Aguirre Says Posthumous Naturalization Is Most US Can Offer In Return
USCIS Director Aguirre during his "Irish in Korea" posthumous naturalization ceremony remarks said, "There is no more fitting way, for a grateful nation, to pay homage to these fine soldiers than to bestow them with posthumous citizenship, the most that we can offer in return."

DOL Says Equitable Tolling Does Not Apply In LCA Matter
Waskileh v. Western Kentucky University, No. 2002-LCA-23 (OALJ, Oct. 6, 2003), the Office Of Administrative Judges said that Petitioner's cross-country move was not an extraordinary event and did not justify the invocation of the equitable tolling doctrine. The matter concerned an alleged LCA violation which the Wage and Hour Division had determined that a failure existed but for which it had not imposed any monetary penalty.

8 CFR 1003.4 Makes No Exceptions For Brief, Casual, Innocent Departures
In Aguilera-Ruiz v. Ashcroft, No. 02-57212 (9th Cir. Nov. 4, 2003), the court said that under 8 CFR 1003.4, any voluntary departure from the US following entry of an order of deportation would be deemed to withdraw a pending appeal and to render the order of deportation final, regardless of whether the trip was "brief, casual, and innocent".

ICE Seeks Comments
The ICE sought comments on Immigration Bond, Form I-352. [ corrected 11/06/03 Ed. ]

Attorney General's Office Alleges Immigration Violations Against Walmart
The Houston Chronicle reports "Wal-Mart Stores Inc. said today it has received a "target letter" from the U.S. Attorney's Office saying the world's largest retailer allegedly violated federal immigration laws."

New Border Policy Leaves Undocumented Parents With Difficult Choice
The New York Times reports "Parents living in the US illegally find increasingly that they can no longer afford the growing risks and expense of returning home to retrieve their children. They face a harsh choice: either they allow others to raise their children far away, or they hire strangers to smuggle their children into the US."

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Letters to the Editor

Dear Editor:
There doesn't seem to be any connection between fraudulent religious worker cases described by Ben Garcia and denials or redundant requests for evidence that afflict legitimate religious worker cases. Is Mr. Garcia telling legitimate applicants that they are mistreated without evidence against them because some petitions are fraudulent? The examples Mr. Garcia cites can clearly be denied as fraudulent. If a case is denied because the adjudicator thinks there was not enough proof of a bona fide religious organization, this can be clearly stated in the decision. What does suspected fraud have to do with telling a church or religious school that a choir director or music teacher is not a traditional religious function? Sometimes a storefront church is really a church.

Eleanor Kaplan Adams, Attorney at Law
San Diego, CA

Dear Editor:
What a powerful message from Mr. Seven Hawks. I am a Suisse-American and could feel the depth of his message. Despite being born in the US from a generation that came here in the 1700.s, I myself now feel like an invader and would gladly leave if everybody that is part of that historical invasion agrees to live. I apologize, Mr. Seven Hawks, for my invasion of your land, and your message made me having the Latinos immigrants as a mirror when I look at them on the streets, and now I see in them my own ancestors invading your land. I feel the shame of ever complaining about the immigrants that made to this land and wishing them removed, when I should also be removed for the sins of my ancestors because the papers that I have stating that I belong here was not issue by a Native American Chief but the white people that established the society I live in today. I thank you for voicing your cry and bringing me back to reality. I now agree with you. Those that are now here, and working hard and have no criminal records should be given a chance to integrate our society, the same way we the European invaders stayed and established ourselves here.

Monica Schwartz

Dear Editor:
In your Curt Review Timebomb editorial, you cry and whine about how the foundation of immigration law is broken. However, you fail to propose how to fix the problems. I think that new legislation, including the DREAM Act goes a long way to recognizing that some of the children caught up in their parents illegal activity, need the help of American generosity and open-armed spirit. I don't see these illegal aliens going to South America, Africa, or Southeast Asia. They come to the US, by the millions. While they are here, the fact remains that illegal immigration puts economic strain on our infrastructure including, education and health care, as well as, the court system. Yet Americans still welcome these people to the US and also reach out across the world to help those in need to achieve a better way of life and standard of living. For lack of a better word, it is charity. For each person you can name that illegally entered the US for economic reasons and achieved acclaimed success, I could probably find a thousand illegal aliens who were wanted by authorities in their home country and have reached our shores and are taking up valuable time in our criminal and Circuit Courts, not for immigration reasons, but because they have committed crimes against the very society which opened its arms to greet them. I agree with you that the majority of illegal aliens come here for economic reasons. They are not here to commit crimes. However, the economic contributions made by the majority of illegal aliens is that of working below minimum wage so US companies can compete with each other by offering services for lower than standard prices. The problem is that we are going after the aliens, when we should be going after the employers. Not companies like WalMart because they have deep pockets, but the thousands of smaller subcontractor businesses who rely on the illegal aliens in order to bid a lower than standard price to companies like WalMart. The USCIS and the Department of Justice can deport illegal alien workers, but these companies will replace those workers tomorrow with other illegal aliens, and the deported ones will be back in a very short time. The USCIS and DOJ should levy heavy fines at employers who knowingly hire illegal aliens. If economics works properly, hiring legal aliens, or even US citizens, at prevailing wages will certainly force employer costs to rise. However, by driving out some of the businesses who rely on illegal aliens, the income of the remaining employers will also rise, negating any increase in wages. Therefore, companies like WalMart wouldn't be put in the position of defending itself because of the glamour and publicity of grounding a corporate giant. There will be a few less companies making more money, providing better pay for hard-working legal employees, who in turn will provide better service because they are out from under the cloud of potential removal and have only the sky to limit their own achievement.

Glenn Harris, Paralegal

Dear Editor:
In response to Mr. Murray's letters, granting asylum to people in the US who have been persecuted based on their race, religion, nationality, membership in a particular social group (gender is a social group under the law), or political opinion in the past or have a well founded fear of persecution based on one or more of these characteristics in the future. There is not even a need that the person be abused for them to be granted asylum here in the US. They do not even have to have been touched. Not a smack. Not a pinch. Not a harsh word or bad look. The granting of asylum is part of this countrys obligation to the world under international treaties that we have signed. It is one way our country shows the world that we are a leader in human rights. So, if a person is persecuted or reasonably fears being persecuted because of one or more of the previously mentioned grounds, it is our legal obligation to grant them asylum. That is the law and a violation of that law may in fact be unconstitutional. Asylum law is complex and our obligations are based on many international treaties as well as domestic law so it is not surprising that people who do not work on asylum cases do not understand this. However, I believe (I apologize if I am mistaken) that Mr. Murray's letters have previously advocated the removal of all undocumented people as they have violated the law, so I assume he must want the US to follow the law with regards to asylum.

Justin G. Randolph
Carpenter & Capt, Chtd., Chicago, IL

Dear Editor:
The discussion about the Alvarado case has degenerated, unfortunately, into a sarcastic gripe session, which has lost sight of the some of the fundamental legal principles underlying gender-based asylum cases. I'm surprised to see an immigration attorney engaging in the debate at the same level as those who do not understand the first thing about political asylum law. Assuming Mr. Murray is sarcastic when he refers to Communism as the scourge of the earth, is he saying that the prostitution of asylum law began with its misguided application during the Cold War? If so, I agree with him, but I don't hear too much public outcry against this. The same "blanket" asylum was granted to people from behind the Iron Curtain as he fears being granted to abused women today. During the Cold War, all someone from a Communist country had to say to get asylum or refugee status was that they did not feel free to live as they chose. What if they had all tried to leave - could we have, should we have, supported them all? I think the answer is quite obvious. At the same time, more technically deserving applicants from right wing dictatorships supported by the US had a much harder time proving their claims. Even recently, in the Elian Gonzalez case, one of the claims stated was that Elian didn't have any toys in Cuba. Lots of 3rd world children don't have any toys - are we going to bring them all here? Certainly not. Nor do the proponents of gender-based asylum propose to bring all the abused women in the world here either. Instead they are claiming a political, rather than a personal basis for the abuse in countries where male dominance and violence against women is institutionalized. I think it behooves anyone who feels strongly about this case one way or the other, to read the transcripts and get some background in asylum law. Perhaps in the end, those, like Mr. Murray, who are so outraged about the Alvarado case really believe that no asylum is justified, not even on any of the noncontroversial grounds such as membership in a political party, membership in a social group, race, ethnicity or religion. They may feel that we have enough problems of our own to take care of. But, that is not an option, because asylum law is here to stay, and it is up to the CIS and the courts to interpret it. I would hope that in a country with democratic ideals, we opt to safeguard the human rights of the truly persecuted, rather than damn everyone in order to prevent a few "freeloaders" from getting over. In the end most of the "freeloaders" have probably become great assets to this country.


Dear Editor:
It is mind boggling that over 100 immigration practitioners have been disciplined by the BIA and none of those attorneys have appealed due to fear, intimidation or lack of knowledge of the new Fed. regulations regarding discipline of immigration practitioners. I am a solo practitioner that appealed what I believed was right and now find myself in a precedent decision by the BIA. In re Miguel Gadda, Attorney, 23 I&N Dec. 645 (BIA Sept. 25, 2003). This amended published decision is different from the original decision. The issues decided by the BIA are 1. The State Bars have the authority to discipline immigration practitioners in immigration matters. 2.The BIA can increase discipline from a one-year suspension to expulsion from practice. The posting of my letter received a comment from Bruce A. Hake who validated the importance of this decision as precedent. His letter stated that the arguments of preemption, Supremacy Clause, Due Process, Abuse of Discretion, etc., fly in the face of the fundamental organization of the US legal system. What does this mean? Is this not simplistic and too broad? He also recommends that lawyers read the BIA's decision, which is clear, correct, and instructive. We agree. Lawyers should read this decision and see the glaring errors in the BIA decision. His recommendation seems to be an endorsement or a commercial for the BIA's decision. The BIA's decision relies heavily on Waters v. Barr, 747 P. 2d 900, 902 (Nev. 1987)(finding that assistant US attorneys who were admitted to practice or engaged in practice of law in Nevada were subject to discipline by the state's Supreme Court and stating there is no question that an attorney may be subjected to discipline from any bar association to which he is a member"). I am not an Assistant US attorney connected to the Department of Justice or any governmental agency. I am not a member of the Nevada State bar or practice in Nevada, therefore neither Nevada nor California should discipline me on immigration matters. Mr. Hake and the BIA rely on the above cited case which is 16-years old, over-broad, scarcely touches the issues, inaccurate, inapposite and not cited correctly. While an analogy may be permitted, the BIA and Mr. Hake, by relying on this case are "trampling on graves." I am still wondering why none of the 100 attorneys that were disciplined did not exercise their right of appeal. If you are in that group, please send a comment.

Miguel Gadda

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