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Immigration Daily January 28, 2004
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Editor's Comments

AWO And Legalization

There are two views on immigration in America. There are those who want to deport all immigrants, as fast as possible. And there are those who want to welcome as many immigrants as possible. These two camps are at war, one battle in this war is over the BIA's Affirmance Without Opinion (AWO) procedure. The anti-immigrationists hope to use the AWO procedure to deport immigrants expeditiously while the pro-immigrationists hope to frustrate this strategy by convincing the federal courts to find the AWO procedure illegal or unconstitutional. The unfortunate and innocent victim in this crossfire is our federal judiciary. The courts have been flooded with immigration cases as a direct result of the AWO procedure. This flood currently swamps several circuits and threatens to drown the federal courts in a couple of years.

Some pro-immigrant advocates had argued that Dia v. Ashcroft, No. 02-2460 (3rd Cir. Dec. 22, 2003), a case argued en banc before the 3rd Circuit, could result in a victory over the deport-em-all gang. However, the court found the AWO procedure legal and constitutional (see item below). Albathani v. INS, No. 02-1541 (1st Cir. Feb. 6, 2003) is the leading case on AWO, and in this case the 1st Circuit took the position that while AWO was a proper procedure and while it was clear that specific instances of injustice-through-streamlining exist, "one swallow does not make a spring" and that it was prepared to do "a more searching review of the ... AWO regulations" IF there was "evidence of systemic violations". The First Circuit may not have to wait long. Judge Posner (of all people) in Niam v. Ashcroft and Blagoev v. Ashcroft, Nos. 02-4292, 03-1115 (7th Cir. Jan. 7, 2004), said that there is "a pattern of systematic misapplications by the [BIA] and [IJs] of elementary principles of adjudication." We believe that the swallows will pile up fast and furious and that the judiciary will likely have to say that spring is finally here.

It is unfortunate that events are proceeding in this fashion. The judiciary is not the instrument to make political decisions. The root cause of the entire AWO brouhaha is that Congress has abdicated on making the difficult political choices on immigration reform. Legalization would settle this unseemly battle by getting many if not most of the AWO cases out of the judicial system. If the anti-immigrationists wish to do battle, the correct forum is Congress, not through the regulatory fiat of the Attorney General. Likewise, the pro-immigrationists should not expend excessive resources over this battle in the federal courts, and should work to get legalization enacted instead.


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Featured Article

Immigration and Offshoring: The Graying of America
Gary Endelman writes "...Far from stealing US jobs, as the nativists would have an unsuspecting public believe, immigration actually acts as a brake on off-shoring."


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Immigration Law News

43,500 H-1B Cases Filed In 1st Quarter FY '04
The USCIS announced that the total number of H-1B cap case approvals and those pending for adjudication account for 43,500 that could count against the H-1B Cap for FY 04.

7th Circuit Finds Pattern Of Serious Misapplications By BIA And IJs
In Niam v. Ashcroft and Blagoev v. Ashcroft, Nos. 02-4292, 03-1115 (7th Cir. Jan. 7, 2004), the court consolidated the decisions of two petitions for review by the BIA denying asylum and said that the petitions raised different issues, but were related in suggesting, together with other recent cases in this and other circuits, a pattern of serious misapplications by the BIA and the IJs of elementary principles of adjudication.

3rd Circuit En Banc Upholds AWO Procedure
In Dia v. Ashcroft, No. 02-2460 (3rd Cir. Dec. 22, 2003), the 3rd Circuit sitting en banc found the BIA's AWO procedure based on its streamlining regulations were not unfair in a constitutional sense.

BALCA Cites OOH In Upholding CO's Denial
In the Matter of Discpak, No. 2002-INA-303 (BALCA, Jan. 22, 2004), the Board of Alien Labor Certification Appeals said that the Certifying Officer's Final Determination stated that semi-conductors and CD-ROMs were both classified in the electronics industry in the Occupational Outlook Handbook, and therefor the Employer had the duty to contact Applicant for an interview to further investigate his credentials in a labor certification for Wholesaler II.

Immigration Measures Cannot Prevent Another 9/11
Government Executive Magazine reporting on the 9/11 Congressional commission quotes Mary Ryan, who was the US assistant secretary of state for consular affairs saying, "Even under the best immigration controls, most of the Sept. 11 terrorists would still be admitted to the US today...because they had no criminal records, or known terrorist connections, and had not been identified by intelligence methods for special scrutiny."

2004 H-1B Quota Nearly Exhausted
The Chicago Tribune reports "It's not even February yet, and the H-1B visas are nearly gone."


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Classifieds

Help Wanted: Immigration Case Manager
The law firm of Paul Hastings and its growing immigration practice seeks an immigration case manager for its Atlanta-based office. Interested candidates with immigration experience or business related working experience, strong organizational skills and communication skills, a high degree of professionalism and the ability to work with a team are part of the criteria for these positions. This position works with the senior attorneys and Office Management to develop and enhance all levels of management and operation in the practice group which will include: client and case management, management of all administrative functions including the billing, facilities, case staffing, client development and development of client services. Responsibilities include: management and supervision for all non-attorney personnel, training and development of all personnel, development of best practices and efficiency means of operations, further development of communication between all levels of personnel, firm management, clients and department are critical for this position. A working understanding of a law firm practice and its operations is critical for this position. Qualifications include: Bachelors degree, prior immigration or business related experience, solid work history and excellent professional references. Paul Hastings offers competitive salary and an excellent benefits package for qualified and selected candidates. Please indicate the job postion sought when submitting your cover letter, resume, salary history and references to paulalauhoff@paulhastings.com.

Help Wanted: Immigration Software Analyst
The law firm of Paul Hastings and its growing immigration practice seeks an immigration software analyst for its Atlanta-based office. Interested candidates with immigration experience or business related working experience, strong organizational skills and communication skills, a hire degree of professionalism and the ability to work with a team are part of the criteria for this positions. This technical position requires tremendous communication/training and user support skills which is then supported by clients and office personnel. The current technical tools include: technical support for Aria, including training and working with the web reporting module and advanced client technical support with intranet and website design, crystal report writing, and packaged software tools that require on a daily basis, support, training, understanding and development. The current web base design and portal will also require day to day development by both clients and firm personnel. A clear understanding of the immigration practice is critical in this position. Technical skills should include: proficient use of various report writing software applications and technical skills, ability to provide on-going training and troubleshooting. Three to five years of technical writing and administering of reporting software. Strong project management sills and the ability to manage multiple projects is required. Paul Hastings offers competitive salary and an excellent benefits package for qualified and selected candidates. Please indicate the job postion sought when submitting your cover letter, resume, salary history and references to paulalauhoff@paulhastings.com.

Help Wanted: Paralegal
The law firm of Paul Hastings and its growing immigration practice seeks an immigration paralegal for its Atlanta-based office. Interested candidates with immigration experience or business related working experience, strong organizational skills and communication skills, a hire degree of professionalism and the ability to work with a team are part of the criteria for these positions. This position works directly with the attorneys within the practice group and is a highly responsible administrative and paralegal position. Interested candidates must have a proven track record of attention to detail, dependability, ability to work independently and to meet critical deadlines. Communication with clients and office personnel are a major part of this position. Responsibilities include: sensitivity to the efficiency needs of a practice group while being supportive of the clients billing and collections. Approximately 25% of this position is working with the administrative functions of billing, case management, reporting to clients and the ability to compile, provide and discuss billing information. Prior immigration and/or practice support experience is a requirement for this position. Qualifications include: Bachelors degree, prior immigration or business related experience, solid work history and excellent professional resources. Paul Hastings offers competitive salary and an excellent benefits package for qualified and selected candidates. Please indicate the job postion sought when submitting your cover letter, resume, salary history and references to paulalauhoff@paulhastings.com.

Help Wanted: Paralegals
Are you looking to join a fast-paced, dynamic and friendly team that provides first-rate immigration legal services to global businesses and individuals? Paparelli & Partners LLP, a leading immigration law firm with an established national practice, located in Irvine, California, has immediate openings for two experienced Immigration Paralegals to work at our office in Irvine, California. If you have what it takes, you will work under the supervision of attorneys to serve multinational companies and high-achiever individuals in both employment-based and family-based immigration-related matters. You will use computer software extensively (research databases, Internet, MS Word, MS Outlook, Excel, ProLaw, Immigration Tracker, Power Point, etc.), and become immersed in cutting-edge immigration projects. Please contact us if you have six months or more of US immigration experience, are a multi-talented, multi-tasker, detail oriented, express yourself well in person and on paper, work well on a team, love challenges, are willing to work hard, have a spotless ethical record and character, have a paralegal certificate or are otherwise qualified as a paralegal under California law. To pursue this exciting opportunity, email your resume to Chris McCoy at cim@entertheusa.com. For background, see our web site: http://www.entertheusa.com.

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Immigration Law Books
Immigration attorneys need look no further than Patel's complete reference library for their primary resource needs. Patel's library consists of (4) books: The Whole ACT—INA (Annotated), 20/22/28 CFRPlus, 8 CFRPlus, and Patel's Citations of Administrative Decisions under Immigration and Nationality Laws. Each book contains a detailed topical index, is annotated and is updated annually to reflect the latest changes in regulations. These four books will keep you abreast of the status and standing of all immigration citations, cover the history and treatment of all reported administrative decisions under immigration and nationality law, and provide you with the latest immigration-related regulations of the DOL, DOS, and DOJ. Patel's 4-set library is an indispensable reference tool for any immigration practitioner. For more information or to purchase these books see here.

We carry advertisements for Help Wanted: Attorney, Help Wanted: Paralegal, Help Wanted: Other, Positions Sought, Products & Services Offered, etc.
For information on advertising in the classifieds please click here

For a listing of current immigration events please click here
For services/products of use in your law practice please click here


Letters to the Editor

Dear Editor:
The following statement announcing the approval of a nationwide settlement in the case entitled Catholic Social Services, Inc. v. Tom Ridge, Secretary, U.S. Department of Homeland Security was released to the press.

Peter Schey

Dear Editor:
Putting H cap issues in March is like putting the cart before the horse.

Scot A. Silzer
Winter Park, Florida

Dear Editor:
The following statement providing a list of district directors was released to the press.

Paul Parsons
Chairman State Bar of Texas Committee on Laws Relating to Immigration & Nationality

Dear Editor:
I completely agree with the letter writer who asked, "Who benefits from the unsolved problem of illegal immigration?" There is a huge amount of money "laying away" in the Social Security financial system, that were paid by illegal immigrants who work and pay taxes through their Federal Tax IDs. Most of that money will be never claimed, since illegals don't have rights to claim anything especially once they were deported from this country. Since a general amnesty is not a popular or a winner subject neither in the conservative nor in the democratic party, no wonder, why no one is offering one. Bush and the Democrats both have a suggestion for fixing this problem, but neither of them offers a permanent solution for solving the problem of 6-10 millions of illegal immigrants. Can anyone come up with a feasible solution to this problem, considering the current performance of DHS in any application processing and the current rate of unstoppable flow of immigrants from Mexico, Central and South America through Mexico?

Name Withheld Upon Request

Dear Editor:
I am calling your attention to Niam v. Ashcroft and Blagoev v. Ashcroft, Nos. 02-4292, 03-1115 (7th Cir. Jan. 7, 2004), consolidated cases from the 7th Circuit. In his decision remanding both cases, Judge Posner excoriates the Board, as well as the IJs. Posner starts by severely critcizing the Board for " a pattern of serious misapplication by the board and the immigration judges of elementary principles of adjudication" He quotes Galina v INS, a 2000 7th Circuit case, that "the elementary principles of administrative law, the rules of logic, and common sense seem to have eluded the Board in this as in other cases". He further says that "the immigration judge's analysis was so inadequate as to raise questions of judicial incompetence". On page 5, Judge Posner says: "when as in this case the borad's opinion merely supplements the immigration judge's opinion, the latter opinion as supplemented by the board's opinion becomes the basis for review". In the Blagoev case, Judge Posner severely questions and criticizes the IJ's reliance on Country Reports, stating that they are suspect because of the political dimension of the U.S. government's tendency to go easy on countries with which we are friendly. I think this opinion has implications for the BIA's habit of "streamlined review". It should be of interest to your readers.

Larry Hagen, Attorney at Law
Chicago, IL

Editor's Note: Thank you for pointing out these cases in connection with the BIA's AWO procedure. Please see our comments above.


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 editor@ilw.com. 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.

Editorial Advisory Board
Marc Ellis, Gary Endelman

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