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Editor's Comments of the Day
The Department of Justice has issued a final rule effective January 5, 2001, governing asylum claims. The rule amends the regulations implementing the provisions of IIRIRA governing asylum claims. As is often the case, the commentary, while not binding, is more interesting than the actual rule as it gives the agency's reasoning and indicates the direction it may go in promulgating future rules.
The Department notes that the inclusion of "ineffective assistance of counsel" as a possible reason for extending the 1-year filing deadline for asylum applications raises more general questions. In a case currently pending before the BIA, the INS has argued that since there is no constitutional right to government-furnished counsel in immigration proceedings, there is no constitutional basis for relief based on a claim of ineffective assistance of counsel. Ineffective assistance of counsel is retained as a factor in extending the 1-year deadline in the final rule, but the Department will address the issue separately in the future.
The Department defended itself vigorously against the 26 commenters who argued that the whole regulation should be abandoned on the basis that it was ultra vires. The agency concluded that the revisions to the language providing guidelines on the exercise of discretion in determining a refugee's eligibility for asylum, including consideration of the ability of an applicant who has been subjected to past persecution to relocate safely in the home country, are justified and in line with administrative and judicial precedents.
The rule makes changes to the regulations concerning the 1-year filing deadline, amends portions of the regulations governing cases in which an applicant has established past persecution or in
which an applicant may be able to avoid persecution in a particular
country by relocating to another area of that country, and identifies factors that may be considered in the exercise of
discretion in asylum cases in which the alien has established past
persecution but may not have a well-founded fear of future persecution.
Federal Register News of the Day
Final Rule on
Asylum Procedures
The Department of Justice has issued a final rule governing
asylum claims effective January 5, 2001.
Application
for Travel Document Comment Request
The INS requests comments
on Form I-131, Application for Travel Document. Comments will be accepted until
February 5, 2001.
Cases of the Day
Aggravated Felonies Can Increase Sentence
In US v. Pacheco-Zepeda, No. 99-50720 (9th Cir. Dec. 6, 2000), the circuit court held that it was proper for the district court to consider prior aggravated felony convictions when sentencing the Defendant for re-entering the US without permission after having been deported where the prior convictions were not part of the indictment.
Indefinite Detention Constitutional
The court in Dunbar v. Holmes, No. 00-1946 (E.D.Penn. Nov. 2000), denied the habeas petition and held that there was no constitutional bar to Petitioner's continued detention pending removal provided he continued to receive thorough reviews for parole.
Firearms Aggravated Felony Requires Interstate Commerce
[You will need Acrobat to read this file]
In In re Vasquez-Muniz, Int. Dec. 3440 (BIA Dec. 1, 2000) the Board of Immigration Appeals (BIA) determined that a firearms conviction under state law is not an aggravated felony conviction for a firearms offense under Title 18 of the US Code unless the "affecting state commerce" jurisdictional element is present.
Congressional News of the Day
House
Passes Immigration Bills
The House of Representatives has
signed several private immigration bills
and S.
3239, which provides special immigrant status for certain international
broadcasting employees.
Communications Laid Before the Senate
Reports of rules incorporating in visa regulations a recent amendment of the
Schedule of Fees establishing a new effective date for the phase-in
of a new procedure for payment of certain immigrant visa fees were referred to the Committee on Foreign Relations.
Immigration News of the Day
Three Managers Are Facing Charges
The Omaha World Herald reports that during
the raid of the Nebraska Beef plant INS agents arrested about 200 undocumented workers
as well as three managers and three recruiters who allegedly helped smuggle the workers to the
US and will be facing criminal charges.
Immigration Changes Near Agreement
According to the Associated Press White House officials and Republican congressional leaders are
nearing a compromise on a proposed amnesty for illegal immigrants but they remain divided
over President Clinton's proposal to legalize more refugees from Haiti and Central America.
They Have "Answers;" Popular TV Show Helps Russian Immigrants
Newsday.com
reports that a TV show, "HIAS Answers," which airs on TV Russian Network (TVR), gives
Russian immigrants advice on how to navigate the naturalization process, housing, health,
employment, education, legal, social and personal issues.
ILW.COM Highlights of the Day
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ILW.COM Chats and Discussions of the Day
Chat with Mitch Berenson
Attorney Mitch Berenson will answer questions on all aspects of immigration law. Questions will be accepted starting 15 minutes before the beginning of the chat.
Classifieds of the Day
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SEMINAR: Corporate Immigration Law for Attorneys, In-House Counsel & Human Resource Personnel. Tuesday, December 12, 2000 - 9:00 a.m. to 3:30 p.m. New Jersey Law Center, New Brunswick, NJ. Contact ICLE 732-214-8500.
http://www.njicle.com/cgi-bin/njicle.exe?SessionID=32&doc=/Seminars/seminarcorpimmig12-12.htm
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