Article 2003-6-1
Dark Days for Immigration Developments
Part I & II

(Part I)
It must be a bad time for pro-immigration forces when the only good things to report are that electronic filing is coming to both the BCIS (Bureau of Citizenship and Immigration Services) and EOIR (Executive Office of Immigration Review), and that F-1 students can obtain a second period of post-completion optional practical training if they are completing a higher level of education. The BCIS has just announced that e-filings will be allowed for I-90 (application to replace alien registration card) and I-765 (employment authorization application) forms on May 29, 2003. These are among the simplest forms to file and the BCIS already has records of such applicants in its computers. Following filing, applicants at their convenience can call the BCIS’ national telephone line (formerly “Ask Immigration”) (800) 375-5283 to set up appointments at an application support center for fingerprint, photos and signature. The EOIR is not as advanced, but has had recent discussions with the American Immigration Lawyers Association (AILA) and other stakeholders concerning some of the issues concerning e-filing. In one of the few bright spots of the new rule on students published on December 12, 2002, students are no longer held to one period of post completion practical training regardless of how many levels of education they complete. Under the new rule, additional periods of practical training can be given when students move into and complete higher levels of education.

In news events that we are all holding our breaths over, as part of its expanding “Ask Immigration” to become a national telephone line, the BCIS has mandated that beginning June 1, 2003, the National Customer Service Center will handle all calls that would normally be handled by local immigration offices and service centers of the BCIS. Many people are pessimistic about its potential for success as BCIS appears to be putting one more layer of people between aliens and BCIS personnel who might know about and be able to do something about the aliens' cases. With the national line, callers might not know whether they are talking to a BCIS representative in Vermont, California, Mexico or India. The three bureaus that have replaced the INS as of March 1, 2003, BCIS (Bureau of Citizenship and Immigration Services), BICE (Bureau of Immigration and Customs Enforcement) and BCBP (Bureau of Customs and Border Protection) are in the middle of a four month transition period and it is difficult to know what shape these bureaus will take at the end of the transition. The heads of the bureaus at this time will not necessarily be in charge at the end of the transition as all interim head positions are open to competition at this time. There are also questions as to whether the bureaus' offices will remain at their present locations. Finally everyone acknowledges that there will be problems of coordination between the three bureaus. In the Spring meeting of the American Immigration Lawyers Association with representatives of the three bureaus on March 31, 2003, the question was raised as to who a lawyer could call when his/her client is in trouble at the airport and has a pending extension -- BCIS or BCBP. The BCBP inspector might not want to contact BCIS personnel to confirm the pending extension since they are no longer part of the same organization. (This situation was played out in real life recently in a news report about a permanent resident who entered the U.S. from Canada as an infant and recently traveled to Mexico for vacation as a college student and was not allowed back to the U.S. by the BCBP inspector even though the ex-local district director of INS confirmed that there were Service records confirming permanent residence. The situation was finally resolved, but only after much aggravation, imprisonment of the youth and payment of almost $15,000 by the parents in legal fees.) Also, an immigration judge will no longer be able to tell District Counsel for the INS to have his/ her client (the INS) take an action such as adjudicate a petition as District Counsel will now be a member of BICE and petitions can only be adjudicated by BCIS.

The bad news begins with the recent Supreme court decision of Demore v. Kim decided on April 29, 2003, that permanent residents can be locked up by the government during the entire period of their removal proceedings if they have committed any of a wide range of crimes even if they pose no threat to the community and are not flight risks. Justice David Souter in dissent pointed out that the period of removal proceedings can last over 1 year and the crimes covered could be as small as possession of stolen bus transfers or issuance of a bad check. At the aforementioned Spring Conference, the current zero tolerance policy was further discussed including details that many INS officers were required to sign a zero tolerance document last year that their jobs were on the line if they made a mistake. This has had a severe impact on the normal exercise of discretion that an officer might utilize to grant a case which is on the borderline. Other bad news is that F-2 dependents of students can no longer be full-time students in post-secondary degree granting courses; F-1 reinstatement will no longer be given to individuals who are out of status for more than five months at the time of filing the request for reinstatement unless the alien demonstrates that the failure to file within the five month period was the result of exceptional circumstances and that the student filed a request for reinstatement as promptly as possible under these exceptional circumstances (prior to December 12, 2002, there was no set time limit for when reinstatement could be done although the rule of thumb was one year); delays in adjudications at the INS/BCIS and American consulates and embassies remain terrible and there are even reports of individuals camping out at 9:30 p.m. the night before in New York to obtain employment authorization documents from the Manhattan office (which were already supposed to have been processed according to the law); a report from an AILA attorney in Canada that the American consulate in Toronto will no longer grant H-1B visas to third country nationals unless the degree was received from a Western country and that the only exception would be for H-1B extension visas in which the initial visa was granted in the home country; and the Technology Alert List (TAL) being increasingly looked upon by consulates and embassies to determine whether students, exchange scholars and H-1 applicants should be allowed visas to enter the U.S. -- readers should note that most professional, technical and scientific occupations fall under the TAL and that under the Homeland Security bill, oversight for visa issuance policy has passed from the Department of State to the Department of Homeland Security (DHS) and that both agencies are working on a memorandum of understanding as to how they will work together. DHS Undersecretary Asa Hutchinson noted in his testimony before the Senate Judiciary Committee’s Subcommittee on Terrorism, Biotechnology and Homeland Security and Subcommittee on Border Security, Immigration & Citizenship on March 12, 2003 that visa information is now being shared with immigration inspectors of ports-of-entry for “layered protection” in the sense that aliens are scrutinized overseas and upon arrival. Although details have not been finalized, it appears that the DHS will have authority to review the consular officer's decision to issue a visa.

(Part II)
In the meanwhile, Attorney General Ashcroft continues being the worst immigration restrictionist in the federal government. He clearly has the support of the Bush administration, and he may prove to be a major liability to the Bush reelection campaign of 2004. He is the lightning rod of this Administration on immigration. Hispanics and citizens of other nationalities may punish President Bush for the unrelenting rampages of his attorney general in the next election. Included in his listed attacks on immigrant rights are 8 unjustifiable deeds: 1.) the sacking of five members of the Board of Immigration Appeals (BIA) to rid the Board of its liberal members, including two senior members and a former chairman; 2.) pressing the Board to finish its backlog of 56,000 cases by March 25, 2003, so that many cases were being decided in a few minutes by individual Board members (The First Circuit Court of Appeals in Albathani v. INS noted that “For example, the Board member who denied Albathani’s appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a nine-hour day … In fact, it has taken us considerably longer than one day to review this case, and the record of the hearing itself could not be reviewed in ten minutes”); 3.) rewriting BIA regulations on August 26, 2002, to make it more difficult for aliens to gain fair review at the Board by expanding and encouraging single member reviews and summary dismissals instead of traditional 3 member reviews and carefully considered opinions, and changing the standard by which the Board can review an immigration judge’s findings from a fresh look to a look only to see if the judge’s findings were clearly erroneous—the rate of denied appeals from October 2001 to October 2002 rose from 59% to 86%; 4.) taking it upon himself to write immigration decisions disallowing release on bond for the entire class of persons coming illegally by sea regardless of whether they are security or flight risks; 5.) disallowing by regulation waivers of removal involving crimes of violence (in the aftermath of the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA) of 1996, almost any crime involving touching including simple assault is classified a crime of violence) except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or where exceptional and extremely unusual hardship would be brought upon a qualifying U.S. citizen or permanent resident parent, spouse or son/daughter; 6.) deputizing FBI agents on the last day of INS' existence (when he had power over INS) to act as immigration enforcement agents under appointment powers which are being held secret to this day and similarly empowering local law enforcement agencies against the expressed opposition of many law enforcement officials; 7.) certifying the June 1999 Matter of R-A Board holding that domestic violence could not form the basis for a political asylum claim—which decision was vacated by the past Attorney General Janet Reno; and 8.) writing the proposed Domestic Securities Enhancement Act of 2003, also known as Patriot II, which would among other draconian measures, apparently allow the Justice Department to detain anyone, anytime, secretly and indefinitely, and also make it a crime to reveal the identity or even existence of any alien detained in the US or anyone being detained overseas until an indictment is handed down or the AG or CIA determines such disclosure will not adversely affect US national interest. Other powers in the proposed Act include increasing criminal penalties for minor immigration violations, expanding the power of the government to use the expedited removal provision; and expanding the Attorney General’s discretionary power to bar and remove anyone (except a citizen) that the Attorney General has “reason to believe” poses a threat to national security interests.

The question that Bush strategists may wish to consider is whether President Bush can allow and even encourage his attorney general to run roughshod over immigrant communities for 2 ½-3 years of his administration, and then expect them to be happy enough to vote for him when he finally throws them a bone such as a narrow construction of Section 245(i) in the remaining time. ({245(i) is a provision under which qualifying individuals can adjust status in the U.S. instead of interviewing at an American consulate or embassy for permanent residence upon payment of a fine amount. The current amount is $1000 and applies to most individuals who filed labor certification based or immigrant visa petitions by April 30, 2001 and were present in the U.S. as of December 21, 2000.) It appears that the White House is preparing an election year run at bringing back some version of {245(i), Press Secretary Ari Fleischer releasing a statement on April 25, 2003, that the administration would continue to work with Congress on immigration initiatives and that 245(i) is still an important matter to the President.

In summary, this is a dark time for immigrant rights in America and pro-immigrant advocates can only hope that this country wakes up to the reality that immigrants—even illegal immigrants—are a vital force in the country and to its current and future prosperity.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.