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.
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