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Immigration Daily

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Immigration Daily March 23, 2004
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Editor's Comments

What Do Landscape Gardeners Do In Winter?

In a recent BALCA decision, In the Matter of Property Masters Inc., No. 2004-INA-220 (BALCA, Mar. 1, 2004), the Employer argued that the Landscape Gardener position was a permanent year-round position, and maintained that the Landscape Gardener's duties during the winter months included duties such as snow removal which are different than the duties in snow-free months. BALCA, in denying the labor certifcation, said, "a landscape gardener position for which duties can only be performed during approximately nine to ten months per year cannot be considered permanent employment for the purposes of labor certification." BALCA also said that the payment of wages continuously throughout the course of the year did not cure this defect. This decision ignores the impact weather plays in the landscaping occupation and refuses to recognize weather-related regional differences in job descriptions. For the item, see below.


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Featured Article

District Court Holds That Post 9/11 Detention Rule Violates Due Process
Carl R. Baldwin writes "The decision in Zavala v. Ridge is a stunning victory for immigrants, and a welcome reminder of the independence of the federal judiciary."

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Immigration Law News

Foreign Terrorist Organizations: Redesignation Of 3, Designation Of 1
The Department of State redesignated three organizations as foreign terrorist organizations and designated Ansar al-Island as a foreign terrorist organization.

Congress Can Frustrate Court's Sentencing Intentions - 9th Circuit En Banc
In US v. Hovsepian, No. 99-50041 (9th Cir. Mar. 2, 2004) (en banc) , the court said that the district court's erroneous assumption that the Judicial Recommendation Against Deportation would forever bar the INS from deporting a criminal alien was not a mistake of fact of "constitutional magnitude" and said that even if a conviction was set aside under the Federal Youth Corrections Act, the facts underlying the conviction remained relevant in determining whether an applicant for naturalization can satisfy the requirement that he or she is of "good moral character". The court also said that "the fact that the district court did not anticipate a future change in immigration law that frustrated the courts sentencing intentions is simply not an event that can make a sentence illegal. Later changes that affect the collateral consequences flowing from a lawful sentence do not transform the sentence into an illegal one."

Landscape Gardeners Are Not Certifiable Even With Winter Month Duties
In the Matter of Property Masters Inc., No. 2004-INA-220 (BALCA, Mar. 1, 2004), the Board of Alien Labor Certification Appeals in denying certification said that the alternative duties described [snow removal, mail retrieval, and other house-sitting duties] during the winter months were not duties normally performed by a Landscape Gardener.

Texas Sharply Divided over President Bush's Immigration Reform Initiative
The Miami Herald reports that according to the latest Scripps Howard Texas poll, "Texans are sharply divided over President Bush's beleaguered proposal to ease the nation's immigration laws."

Florida Agriculture Industry Replaces Day Laborers With Mechanical Equipment
The New York Times reports "After the bracero program ended and some farm wages began to rise, scientists at the University of California at Davis began work on both a machine to harvest tomatoes mechanically and a tomato better suited to mechanical harvesting."

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Letters to the Editor

Dear Editor:
It appears that since the H-1B cap of 65,000 visas has been met there may be a rush to file new H-1B visas on the earliest possible date of April 1st. Presumably this is to ensure getting one of the new 65,000 visas that will be available for the next fiscal year starting October 1, 2004. It also appears that this is a calculated strategy from AILA and others with vested interests that the next years allotment will be gone prior to October 1 to force Congress to increase the cap again. Prior to such Congressional action I hope they remember the nearly 6 million unemployed Americans available to fill any vacancies.


Dear Editor:
This month an important election will be held within the Sierra Club to elect five members of the Board of Directors. Some of the candidates are anti-immigration activists (hereinafter "ants") who hope to wage the continuing war against aliens under the masthead of that venerable environmental organization. The apparent logic of ants' efforts to manipulate the Sierra Club is that aliens who come to the U.S. are pollutants. They argue that, not only will these pollutants increase the total population of the US incrementally by giving birth to more of their kind, they also litter, use water, including toilet water, and strain the other limited environmental resources of our magnificent country. The potential for legislation that might result if the ants succeed in keeping company with the true environmentalists is daunting. For example, on population growth, the ants might insist that Congress enact a "one child per family" policy. Of course that policy would have to apply to all persons equally and some of the ants might object to that possibility, because if anything, they might want more of their kind, not the other kind. There is a way to get around that potentially subversive problem. The ants could persuade Congress to allow only infertile aliens to enter the US. The Immigration Act could be further amended to allow only infertile men to come to the US, as a means of solving the in vitro problem. Challenges by female aliens to such a provision on equal protection grounds would not be successful because many courts have held that aliens have no right to any constitutional protection.

Mary L. Sfasciotti
Chicago, IL

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Editorial Advisory Board
Marc Ellis, Gary Endelman

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