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IMMIGRATION
NEWS
The
INS has updated its website with detailed information on how and where to comply
with the new Special Registration requirements, which a 9/6/02 Federal Register
notice made applicable to nationals of 5 countries. (Iran, Iraq, Libya, Sudan
and Syria),
The
Immigration and Naturalization Service suspended American orphan visa petition
processing in Cambodia last December 21,due to allegations of child trafficking
in Cambodia. A special committee, The Cambodia Adoptions Task Force, was created
to investigate these allegations. The Task Force reviews on a case-by-case basis
those Cambodian adoptions that were started prior to the suspension announced
last December. The suspension was undertaken in the face of mounting evidence
of baby trafficking.The goal of the suspension was to encourage the establishment
of a legitimate, transparent and consistent adoption process in Cambodia. The
Task Force announced this past week a final expansion of its special humanitarian
initiative. The Task Force will now include a limited number of additional orphan
adoption cases. The initiative will now include prospective adoptive parents who
filed an I-600A application by December 31, 2001. To be eligible, the parents
must have designated Cambodia by September 1, 2002. Additionally, a Cambodian
child that is to be adopted must have been born on or before December 31, 2001.The
task force has reviewed and cleared 152 children for adoption by 140 U.S. families
to date. Although the initiative will continue to review qualifying adoption cases,
the suspension of orphan visa petition processing in Cambodia will remain in effect
until the Cambodian adoption process is more transparent and consistent with international
adoption standards. Provided the Government of Cambodia agrees, the task force
anticipates that it will be able to begin reviewing cases in the latest expansion
of the initiative after completing the cases currently under review. The process
will continue the same as the cases currently under review: (1) the Cambodian
government issues a decree for a specific child to be adopted by a particular
parent, and (2) the task force conducts a case-by-case review to verify the adopted
child qualifies for an orphan visa under U.S. law. After the suspension, many
prospective adoptive parents decided to pursue an adoption in a different country.
The U.S. government is establishing a fund to cover some of the expenses that
will be incurred if a prospective adoptive parent who would qualify for this expanded
initiative decides to pursue an adoption from a country other than Cambodia. The
U.S. government fund will cover the costs of a new I-600A application, an I-824,
and new fingerprints. Specific details on the implementation of this fund are
forthcoming.
The
INS has announced the extension of temporary protective status for eligible Salvadorans.
Note, this extension does not allow Salvadorans who entered the United States
after February 13, 2001 to apply for TPS.
This extension covers only Salvadorans who have been continually physically present
in the United States as of March 9, 2001 and who have continually resided in the
United States since February 13, 2001. An extension of TPS does not change the
required dates of continuous physical presence and residence in the United States.
A TPS applicant must submit Form I-821 and Form I-765 (Application for Employment
Authorization), as well as two identification photographs (1 1/2" x 1 1/2"). If
the applicant only seeks to re-register for TPS and does not seek a work authorization
document, there is no filing fee.
All applicants seeking an extension of their employment authorization document
through September 9, 2003, must submit a $120 filing fee with Form I-765. Attesting
in part 1 of the Form I-821 to the continued maintenance of the conditions of
eligibility will generally preclude the need to re-submit supporting documents
or evidence. INS, however, reserves the right to request additional information
and/or documentation on a case-by-case basis. The re-registration period closes
on November 12, 2002. As this is a 2-month period of re-registration, INS urges
applicants not to delay in submitting their application and to ensure timely filing
by mailing applications well in advance of November 12, 2002. INS forms are available,
free of charge, from the toll-free INS Forms line, 1-800-870-3676.
The
INS reminds employers that an automatic extension of employment authorization
includes individuals with EADs bearing an expiration date of September 9, 2002,
and the notation: “A-12” or “C-19” on the face of the card under “Category” for
EADs issued on Form I-766; or “274A.12(A)(12)” or 274A.12(C)(19)” on the face
of the card under “Provision of Law” for EADs issued on Form I-688B. For completion
of the Form I-9 at the time of hire or re-verification, qualified individuals
may present to their employer a TPS-related EAD as proof of identity and employment
authorization until March 9, 2003. To minimize confusion over this extension at
the time of hire or re-verification, qualified individuals may also present to
their employer a copy of the Federal Register notice dated July 11, 2002 referencing
the automatic extension of employment authorization documentation until March
9, 2003. Employers are reminded that the laws prohibiting unfair immigration-related
employment practices remain in full force. For questions, employers may call the
Service’s Office of Business Liaison Employer Hotline at 1-800-357-2099 to speak
to a Service representative. Also, employers may call the office of Special Counsel
for Immigration Related Unfair Employment Practices (OSC) Employer Hotline at
1-800-255-8155. Employees or applicants may call the OSC Employee Hotline at 1-800-255-7688
(assistance available in Spanish) for information regarding the automatic extension.
DERIVATIVE
CITIZENSHIP FOUND - - PROXY MARRIAGE IMMATERIAL
The Eighth Circuit ruled in Moussa v. INS, that a native of Ethiopia was a US
citizen and therefore could not be deported. Mr. Moussa was placed in deportation
proceedings in 1999 based on several criminal convictions. He had been born in
Ethiopia in 1977. In 1981, while he and his mother remained in Ethiopia, his father
entered the US as a refugee. In 1982, his parents divorced. In 1989, Moussa came
to the US to live with his father. Also in 1989, his parents were remarried through
a proxy ceremony, but did not resume a shared life. In 1992, while Moussa was
15, his father became a citizen of the US. At that time, immigration laws provided
that a minor child would derive citizenship through a parent’s naturalization
if the child is in the legal custody of the naturalizing parent following a legal
separation. The question was whether his parent’s remarriage negated an effective
legal separation. The INS argued that it did and that Moussa therefore did not
derive citizenship through his father’s naturalization. An immigration judge disagreed,
but on appeal, the Board of Immigration Appeals sided with the INS. Moussa then
appealed to the Eighth Circuit. On appeal, Moussa argued that the 1989 proxy marriage
did not terminate his parents’ legal separation, because it was not consummated
until after his father was naturalized. He pointed out that the Immigration and
Nationality Act does not consider a proxy marriage to be legal until it is consummated.
The government also argued that the court did not have jurisdiction over the case,
but the court found that it did because the issue was not whether Moussa had committed
deportable offenses, but whether he was an alien subject to deportation. The court
agreed with Moussa on the merits. The fact that his parents had previously been
married did not change the fact that the proxy marriage was not legal for immigration
purposes until it was consummated. Therefore, the court vacated the Board’s decision
and declared Moussa a US citizen.
NEW BIA CASE EXAMINES IJ FACT DETERMINATION
Under new regulations effective September 25, the BIA has limited fact-finding
on appeal, heightening the need for IJs to include clear and complete findings
of fact in their decisions. Thus, Matter of Vilanova-Gonzalez and Matter of Becerra-Miranda
are superseded. Now, In re S-H-, et al. 23 I&N Dec. 462 (BIA 9/12/02) Int. Dec.
3478, a matter is remanded for further fact finding and the Board discusses its
new standard of review.
Implementation
of the Smart Border Declaration and Action Plan President Bush and Prime Minister
Prime Minister Jean Chrétien issue a joint statement and briefing material on
various aspects of American – Canadian border practices. This includes valuable
information on the UNITED STATES – CANADA NEXUS PROGRAM. This alternative inspection
program allows pre-screened, low-risk travelers to be processed with little or
no delay by United States and Canadian border officials. Approved applicants are
issued photo-identification and a proximity card. Participants cross the border
in a dedicated lane, where they present their membership identification and proximity
card, and make a declaration. They are then released, unless chosen for a selective
or random secondary referral.
UN
REFUGEE CHIEF CALLS FOR NEW AGREEMENTS ON REFUGEES
The United Nations refugee agency chief Ruud Lubbers unveiled on September 13,
2002, several proposals to help governments tackle refugee migration problems,
calling for a system of international burden sharing to provide solutions for
refugees in their regions of origin. At a meeting of the European Union Justice
and Home Affairs Council in Copenhagen on Friday, Lubbers attempted to address
“asylum shopping” and people smuggling. He suggested some new agreements to “supplement”
the 1951 Refugee Convention, the cornerstone of international refugee protection.
The High Commissioner has concluded that the Convention alone does not suffice
to address the present problems of international migration. He called for a new
approach – which he termed, Convention Plus, involving a number of special agreements
aimed at managing secondary movements of refugees and asylum seekers. This refers
to those who had already reached a first country of asylum but then decided to
move on. These new agreements would supplement the Convention and form part of
multilateral frameworks for protecting refugees and achieving durable solutions,
primarily in regions of origin. He said the ultimate goal of such agreements would
be to build an effective system of international burden sharing that would also
enable refugees to find adequate protection or assistance as close to home as
possible.One way to do this could be to make it possible for those in need of
protection to apply for asylum visas at embassies in their home countries or regions.
In the case of secondary movements, a special agreement could be drawn up to define
the roles and responsibilities of countries of origin, transit and potential destination,
with regard to potential asylum seekers. The High Commissioner added that other
special agreements could deal with massive refugee movements, resettlement and
post-conflict reintegration and reconstruction.
The High Commissioner pledged UNHCR support in finding a common EU-wide interpretation
of the definition of a refugee – one that recognizes that persecution could be
inflicted by non-state agents and accommodates the notion of gender-based persecution.
He also called for the creation of an EU-wide advisory body to monitor the jurisprudence
of national refugee status determination bodies. An efficient system could be
established to provide governments with up-to-date information on the countries
of origin, said Lubbers, noting that the UN refugee agency could provide support
in identifying specific groups of asylum seekers for whom simplified, accelerated
appeal procedures could be applied. He also suggested using tripartite agreements
between UNHCR, the host country and the country of origin to better facilitate
returns, including of those persons found not to be in need of international protection.
The High Commissioner also urged the EU members to set aside more funds for development
in regions of refugee origin. This done the hope is that the numbers of refugees
requiring settlement in European countries will be lower. He also maintained that
this will lower the number of refugees that end up victims to human smuggling.
UGANDAN REBELS ATTACK REFUGEES
For the third time in just over two months, rebels of the Lord's Resistance
Army (LRA) on Monday launched a fresh attack on a refugee settlement in northern
Uganda, looting and displacing more than 6,000 Sudanese refugees. The attack on
September 10, 2002, on Maaji settlement in Adjumani district of north–western
Uganda was the second assault on the settlement following a raid in July. It comes
close on the heels of another attack in August on the Achol–Pii camp in Kitgum
district, also in the north. Uganda is host to nearly 180,000 refugees, mainly
from Sudan, the Democratic Republic of the Congo (DRC), Rwanda and Burundi. More
than 65 per cent of them are sheltered in the volatile northern areas.
ANGELINA
JOLIE GIVES $100,000 TO WESTERN SAHARA REFUGEES
Angelina Jolie donated $100,000 for urgently needed food and other aid for Western
Saharan refugees. These people, numbering about 155,000, have spent nearly 30
years in windswept desert camps waiting to return home. They are almost entirely
dependent on humanitarian aid to survive and live in remote desert camps some
2,000 km south of Algeria’s Mediterranean coast.
Jolie was the first donor to respond to a joint appeal launched in late August
by the UN refugee agency and the World Food Program (WFP) calling for contributions
to help feed and assist this largely forgotten and increasingly desperate refugee
population.
FORCED RETURNS FROM RWANDA TO DR CONGO
More than 6,000 Congolese refugees in Rwandan camps have returned home under duress
less than two weeks after the start of an apparent forced repatriation. The operation
has slowed down in recent days, but is still continuing despite a UNHCR protest
to the Rwandan government.
AMERICA ALONE - - AGAIN
The United Nations has articulated the standards to which all governments must
aspire in realizing human rights for children in one international human rights
treaty: the Convention on the Rights of the Child. It has been ratified by 191
countries. Only two United Nations member countries have not ratified it: Thus
United States and Somalia. Somalia does not have a working government. The United
States has signed, but has not ratified it. The American “signature” constitutes
a preliminary and general endorsement of the Convention. It is not, however, a
legally binding step, but only an indication that the country intends to undertake
a careful examination of the treaty in good faith to determine its position towards
it. While signing the Convention does not in any way commit the country to proceed
to ratification, it does create an obligation to refrain from acts that would
defeat the objectives of the Convention, or to take measures to undermine it.
Articles 47 and 48 of the Convention state that a country can become a State Party
to it either by ratification or accession. Both of these acts signify an agreement
to be legally bound by the terms of the Convention. While some countries may have
adopted the Convention only to ignore its provisions, we are truly at a loss to
understand why the United States should not adopt this Convention and take it
seriously. We wonder what possible benefit we could derive from steadfastly refusing
to join the international community’s efforts at providing these basic legal rights
to children.
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