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IMMIGRATION
NEWS
This
week has seen the continuation of a debate on whether the United States should
go to war with Iraq. Congress is promising a quick vote on President Bush’s
request for authority to use military force against Iraq. We would also hope the
surrounding debate would also be thoughtful and our government’s decision
wise. We note that the world is expressing grave doubts that we, as a people,
are thinking this decision through. Witness, for instance, Germany’s reelection
of Gerhard Schroeder's Social Democrats - - an election largely based on their
open disagreement with America’s Iraq policy. See also, e.g., Middle East
Times, “The US Media – We have, in addition to our usual material
on immigration, included a section this week on a particular aspect of Iraq that
seems to go largely unnoticed in our press: The future of the Kurds. We have seen
in our own offices enough Kurds to understand the seriousness of the persecution
against them; the depth of their passions for a homeland and the unfortunate coincidence
that their people occupy a difficult mix of lands: Iraq, Turkey, Iran and Syria.
We thought information on the history of the Kurds may be of interest to you as
you try to answer for yourselves whether an invasion of Iraq is prudent.
FIVE
CHILDREN OF NON STATUS ALIENS THROWN OUT OF PUBLIC SCHOOL
The New York Times reported on Saturday, September 21, 2002, that five children
of illegal aliens have been refused permission to attend public school in Fairfield,
New Jersey. The Supreme Court in Plyler v. Doe,102 S.Ct. 2382, (1982), determined
that states, as opposed to the federal government, had no legitimate interest
in determining whether an alien whose parents entered the United States without
inspection could attend public school. Although the decision was based on an equal
protection basis, the crux of the case turned on the Federal government’s
supremacy in matters dealing with immigration.
DEPARTMENT OF JUSTINCE STATEMENT ON NORTH JERSEY MEDIA GROUP V. ASHCROFT
The Justice Department issued a press release this week in response to its defeat
in North Jersey Media Group v. Ashcroft, stating that because “we are at
war, facing a terrorist threat from unidentified foes” operating in “covert
ways” and in “unknown places” opening sensitive immigration
hearings to the public could compromise the security of the United States and
its investigations.
GUILTY PLEA IN MEXICAN INVOLUNTARY SERVITUDE CASE
The Department of Juastice announced that a defendant pleaded guilty on September
12, 2002, in federal District Court in West Palm Beach, Florida to conspiring
with others to hold women and girls from Mexico in involuntary servitude.
The defendant, Hugo Cadena-Sosa, and fourteen others were charged with conspiring
to lure women and girls from Mexico to Florida with promises of good jobs and
better lives, and forcing them into prostitution and holding them as sexual slaves
in brothel houses in Florida and the Carolinas, during the period from August
1996 until February 1998. As part of his plea agreement, the defendant admitted
that the victims were forced to work at the Cadena's brothel houses as prostitutes
until they paid the Cadena family a $2,000 smuggling fee. In some cases, the victims
were locked in a room with no windows and given no money. The victims were forced
into prostitution in order to pay their smuggling fee and were threatened with
beatings and reprisal attacks against their families in Mexico. Several victims,
many of whom were underage, attempted to escape were hunted down and returned
to the brothels, where they were punished by beatings and confinement. The defendant,
for inflicting this misery, is currently being held in federal custody and faces
a maximum sentence of only five years in prison and a $250,000 fine.
Individuals can report cases of human trafficking or slavery to the toll-free
Trafficking in Persons and Worker Exploitation Task force complaint line, at 1-888-428-7581.
INS
POSITION ON DERIVATIVE CITIZENSHIP THRU GRANDPARENTS
The American Immigration Lawyer’s Association, of which we are members,
reports receiving a number of reports that the INS is taking the position that,
for a child to obtain citizenship through his or her relationship to a grandparent
under INA section 322, that grandparent must be living. According to INS HQ, this
position is based on language in section 322(a)(2)(B), which refers to a U.S.
citizen parent who "has a citizen parent." INS takes the position that, because
this clause is written in the present tense, the parent of the parent must be
living. Also, the instructions on the INS website to Form N-600/N-643 Supplement
A contain the following notation: SPECIAL INSTRUCTIONS: Beginning on February
27, 2001, the law was modified to require that the US citizen grandparent be living
in order to use that grandparent's residence to qualify the child for US citizenship.
The form will be corrected as soon as possible. AILA is attempting to work with
INS to address what AILA believes is an erroneous interpretation of the law.
DEPARTMENT OF EDUCATION ANNOUNCES COMPUTER MATCHING PROGRAM
A Department of Education (DED) notice in the Federal Register announced a computer
matching program between the DED and the INS which will permit the DED to confirm
the immigration status of alien applicants for, or recipients of, Title IV financial
assistance programs. (67 FR 59056, 9/19/02).
15,000 NEW CITIZENS SWORN IN
In observance of Citizenship Day on 9/17/02, (the anniversary of the ratification
of the Constitution) the INS swore in more than 15,000 immigrants during 23 naturalization
ceremonies throughout the country.
APPREHENSIONS AND DRUG SEIZURES DOWN
The United States Border Patrol released official figures for apprehensions and
drug seizures during the first 10 months of Fiscal Year 2002 and gave a preliminary
look at the figures for August 2002. During the first 10 months of Fiscal Year
2002, official figures indicate that agents apprehended 799,281 undocumented immigrants
attempting to enter the United States illegally, which is down 28 percent from
the Fiscal Year 2001 apprehensions of 1,116,698 for the same 10 months. Preliminary
totals for the month of August 2002 indicate 85,257 apprehensions compared to
last years monthly total of 88,057 apprehensions, a reduction of roughly 3 percent.
Included in these apprehensions were undocumented immigrants who were citizens
of 160 different countries. During the first 10 months of Fiscal Year 2002, the
Border Patrol seized 1,160,804 pounds of Marijuana valued at $ 954,853,755.00,
and 11,138 pounds of cocaine valued at $352,677,374. Seizures of other drugs during
the same period were valued at $35,370,666 bringing the total dollar value of
drugs seized during the first 10 months of Fiscal Year 2002 to $1,342,901,795.00.
Preliminary figures for August 2002 indicate agents seized an additional 24,165.736
pounds of marijuana valued at $ 19,332,588.80, and 1,271.366 pounds of cocaine
valued at $40,683,712.
US
DISTRICT COURT JURISDICTION NOT WITHSTANDING VIOLATION OF INTERNATIONAL LAW IN
SEIZEURE
The defendant, Robert Best, was seized by the Coast Guard outside the territorial
sea of the United States and indicted for attempting to smuggle aliens into the
country. The third circuit decided that Best, whose vessel was sailing under a
Brazilian flag, may be tried in federal district court even though the United
States did not obtain Brazil's consent to intercept the foreign vessel and
seize the defendant. The District Court entered an order dismissing the indictment,
holding that the court lacked jurisdiction because the defendant had been seized
in violation of international law. On appeal, the government argued that the court
had the power to try the defendant despite any violations of international law.
It is well established that a court's power to try a defendant is ordinarily
not affected by the manner in which the defendant is brought to trial. The Court
of Appeals for the Third Circuit concluded that no exceptions to this general
rule applied here, in light of the facts surrounding the defendant's seizure,
the Third Circuit reversed the District Court's dismissal order and remand
the case for trial. U.S. v. Best, 2002 WL 31080306 C.A.3 (V.I.), Sept. 18,
2002.
BIA REVERSES IJ FINDING CANCELLATION OF REMOVAL APPROPRIATE FOR MEXICAN
MOTHER OF 4 USC CHILDREN
A single mother from Mexico established eligibility for cancellation of removal
under INA §240A(b), 8 USC §1229b(b) (2002), because she demonstrated that her
four USC children would suffer exceptional and extremely unusual hardship upon
her removal to her native country. In re Recinas, et al., 23 I&N Dec. 467
(BIA 5/19/02) Int. Dec. 3479.
SEVENTH CIRCUIT REVERSES BIA ON FUNDAMENTALIST PLEA FOR ASYLUM
The Seventh Circuit issued a decision reversing and remanding for additional findings
an Islamic fundamentalist’s claim for asylum from persecution in Algeria.
The opinion was issued on September 11, 2002. In Belkhos v. I.N.S., Slip Copy,
C.A.7,2002, the Seventh Circuit in an unpublished decision ruled that Abdelkrim
Belkhos, a native and citizen of Algeria, petitioned for review from a decision
of the Board of Immigration Appeals ("BIA") dismissing his appeal from an immigration
judge's denial of his application for asylum. In his asylum application, Belkhos
claimed that he suffered past persecution and has a well-founded fear of future
persecution because of his membership in the Islamic Salvation Front ("FIS"),an
Islamic fundamentalist political group banned by the Algerian government. While
noting that nothing in the record indicated that Belkhos engaged in or supported
terrorist activities, the Circuit Court concluded that because the immigration
judge and the BIA incorrectly found that Belkhos had not suffered past persecution,
it granted the petition for review, reversed the decision of the BIA, and remanded
for further consideration.
Belkhos and his brother Youcef joined the FIS in 1990. Belkhos testified at his
asylum hearing that the FIS sponsored a national labor stoppage in 1991 to protest
the existing political regime in Algeria. Belkhos actively participated in this
protest, helping to organize a labor strike at the chemical factory where he worked.
In May 1991 government security forces arrested Belkhos, held him for twenty-four
hours, and questioned him about the strike and the FIS members responsible for
organizing it. Belkhos refused to answer their questions or to renounce the FIS.
Belkhos and his brother continued their FIS activities. They organized meetings
and distributed literature on behalf of the FIS, and campaigned for FIS candidates
in the Algerian elections to be held in late 1991 and early 1992. According to
the U.S. Department of State's 1992 Country Report for Algeria, the FIS won
the first round of elections for the National Assembly that took place in December
1991. On January 11, 1992, the army, and certain army sympathizers within the
government, forced the Algerian president to resign; the next day the military
establishment canceled the second round of national elections. A few days later,
the army and police force installed a five-member High State Committee to preside
over the Algerian government. The Country Reports issued by the State Department
in subsequent years paint a grim picture of the human rights situation in Algeria.
As many as 3,000 Algerian citizens disappeared in January and February 1992; most
were discovered many months later in detention camps. According to the 1994 Country
Report, the military establishment banned the FIS shortly after taking power and
declared FIS activities illegal. Most FIS leaders were jailed. The government
arrested, detained, and imprisoned FIS members, members of other, more radical
Islamic organizations, and individuals suspected of terrorist activities. Special
anti-terrorist courts were established to prosecute terrorists and those who sympathized
with the Islamic fundamentalist agenda. In 1993 these courts handed down over
300 death sentences, more than half of them in absentia. Armed conflict between
the military establishment and guerilla groups who sought to overthrow the government
escalated after the coup and continues today. Every Country Report issued by the
State Department from 1993 through 2001 remarks that the military arbitrarily
detains citizens and that many of these detainees have been tortured or killed.
According to the 2001 Country Report, approximately 100,000 Algerians have died
since the conflict began in 1992. At his asylum hearing, Belkhos testified that
military authorities arrested Belkhos and his brother in February 1992 on the
basis of their past and current FIS activities. Belkhos claimed that he was detained
for two days at police headquarters, where his interrogators tortured him with
electric shocks. The police also forced Belkhos to drink contaminated toilet water
and insulted members of his family. The authorities held Belkhos's brother
for eight months in a prison camp in the middle of the Sahara Desert. Belkhos
testified that he lost his job because he participated in the labor strike in
1991. He said that he went to Italy in the spring of 1992 to work and returned
in June 1993. Belkhos explained that he believed Italy did not welcome North African
immigrants and that it would be better to come to the United States. Belkhos entered
the United States in October 1992 on a six-month tourist visa. In the spring of
1993, Belkhos received letters from his wife and brother in Algeria, warning him
that military authorities were looking for him. One of the letters told Belkhos
that the special anti-terrorist court had sentenced him in absentia to a prison
term of one and a half years; the letter did not specify what charges had been
brought against him. Although the immigration judge believed Belkhos's testimony
regarding his arrest and torture in February 1992, he did not believe that this
isolated episode rose to the level of past persecution.
The court noted that when, as here, the BIA summarily adopts the decision of the
immigration judge, it will review the immigration judge's factual findings
and reasoning as though they were the Board's. Mousa v. INS, 223 F.3d
425, 428 (7th Cir.2000). It, therefore, reviewed the immigration judge's
asylum determination under the substantial evidence test. Id. The judge credited
Belkhos’ account of his past arrest, but concluded one incident of arrest
and torture was insufficient to establish past persecution. The Seventh Circuit
disagreed, noting that the court has more than once based a finding of past persecution
on a single episode of physical abuse. See Asani v. INS, 154 F.3d 719, 723
(7th Cir.1998); Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.1997). Having established
the existence of past persecution, the appeals court found that the burden shifted
to the INS to demonstrate the absence of fear of future persecution. It thus remanded
the case for additional findings consistent with its decision.
Iraq
is approximately 437,000 square kilometers, or slightly less than Pennsylvania
(116,000 sq/ km); New York (122,000 sq. km.); Ohio (106,000 sq km) West Virginia
(62,300 sq km) and Maryland (25,300 sq km). The Central Intelligence Agency estimates
that Iraq has a population of 23,000,000 as of 2001. This is less than twice the
population of Pennsylvania. Approximately, 20% of this population are Kurds. The
United States and United Kingdom have been patrolling no fly zones in the Kurdish
northern portion of the country and the southern Shi’a portion since the
Gulf War. There is presently, therefore, a de facto, Kurdistan in the north of
Iraq. Their future must be considered now.
The Kurds are a nonArab Middle Eastern minority population that inhabits
the region known as Kurdistan, an extensive plateau and mountain area in Central
Asia that is approximately the size of Pennsylvania and West Virginia combined
(191,660 sq km). Unfortunately, these lands straddle a number of countries including
parts of Eastern Turkey, North Eastern Iraq, and North Western Iran and smaller
sections of Syria and Armenia. Each of these countries have reason to fear a Kurdish
separatist movement. As of the late 1990s, there were estimated to be more than
20 million Kurds, about half of them in Turkey, making up more than 23% of the
population, they dwell near the Iranian frontier around Lake Van, as well as in
the vicinity of Diyarbakir and Erzurum. The Kurds in Iran, who constitute some
10% of its people, live principally in Azerbaijan and Khorasan, with some in Fars.
The Iraqi Kurds live mostly in the vicinity of Mosul, Kirkuk, and Sulaimaniyah.
Ethnically close to the Iranians, the Kurds were traditionally nomadic herders
but are now mostly seminomadic or sedentary. The majority of Kurds are devout
Sunni Muslims. However, we have encountered several in this office who, while
ostensibly Islamic, in fact, sought to follow an ancient religion and rituals
and felt persecuted as a result by the local Islamic populations. Kurdish dialects
belong to the Farsi languages of Northwestern Iran. The Kurds have traditionally
resisted subjugation by other nations.
The Arabs conquered the Kurds in the 7th century. The Seljuk Turks held the Kurdistan
region in the 11th century. The Mongols took these lands over in the 13th to 15th
centuries and the Safavid and Ottoman Empires occupied the lands thereafter. The
Kurds were decimated by the Turks in the years between 1915 and 1918. They then
struggled bitterly to free themselves from Ottoman rule. The Kurds were encouraged
by the Turkish defeat in World War I and by President Woodrow Wilson's plea
for self-determination for non-Turkish nationalities in the empire. The Kurds
brought their claims for independence to the Paris Peace Conference in 1919. Unfortunately,
they were betrayed by the colonialist powers of the day.
The Treaty of Sèvres (1920), which liquidated the Ottoman Empire, provided for
the creation of an autonomous Kurdish state. Because of Turkey's military
revival under Kemal Atatürk, however, the Treaty of Lausanne (1923), which superseded
Sèvres, failed to mention the creation of a Kurdish nation. Revolts by the Kurds
of Turkey in 1925 and1930 were forcibly quelled. Later (1937-38)aerial bombardment,
poison gas, and artillery shelling of Kurdish strongholds by the government resulted
in the slaughter of many thousands of Turkey's Kurds. The Kurds in Iran also
rebelled during the 1920s, and at the end of World War II a Soviet backed Kurdish
Republic existed briefly.
The Iraqi monarchy was overthrown in 1958 by Ba'athist government - - the
political party of Saddam Hussein. The Kurds had hoped for greater administration
and development projects under the new regime which did not materialize. Agitation
among Iraq's Kurds for a unified and autonomous Kurdistan led in the 1960s
to prolonged warfare between Iraqi troops and the Kurds under Mustafa alBarzani.
Iraq promised local selfrule to the Kurds in 1970, with the city of Erbil
as the capital of the Kurdish area. The Kurds refused to accept the terms of the
agreement, however, contending that the president of Iraq would retain real authority
and demanding that Kirkuk, an important oil center, be included in the autonomous
Kurdish region. In 1974 the Iraqi government sought to impose its plan for limited
autonomy in Kurdistan. This was rejected by the Kurds. Fighting ensued. After
the establishment of the Islamic Republic in Iran in 1979, the government there
launched a murderous campaign against its Kurdish inhabitants as well as a program
to assassinate Kurdish leaders. Iraqi attacks on the Kurds continued throughout
the IranIraq War between 1980B88, culminating in the now infamous poison
gas attacks on Kurdish villages to quash resistance and in the rounding up and
execution of male Kurds, all of which resulted in the killing of some 200,000
in 1988 alone.
The Persian Gulf War in 1991, presented the Kurds with yet another serious disappointment.
There was, with strong American encouragement, a Kurdish uprising against Iraqi
rule. This uprising was brutally crushed by Iraqi forces. Approximately 500,000,
Kurds fled to the IraqTurkey border, and more than one million fled to
Iran following this attack. Thousands of Kurds subsequently returned to their
homes under United Nations protection. In 1992 the Kurds established an autonomous
region in Northern Iraq and held a general election. However, there was in-fighting
amongst the Kurds themselves that nearly destroyed the possibility of them realizing
their long delayed desire for a homeland. Politically, the Kurds were split into
two opposed groups, the Kurdistan Democratic Party and the Patriotic Union of
Kurdistan. There was sporadic fighting between these two groups. Theoretically,
the two groups agreed to end their hostilities in 1999. However, it is unclear
whether this political truce will survive a peace.
Meanwhile, in Turkey - - our NATO ally and a principal force in policing Afghanistan
- - the government has long attempted to suppress Kurdish culture. The Turks and
Kurds have been openly fighting since the mid1980s, mainly in South Eastern
Turkey. This fighting has been between government forces and guerrillas of the
Kurdistan Workers Party (PKK) - - a terrorist organization to the Turks. The PKK
has indeed engaged in terrorist attacks. Thus, it is hard to see how the PKK could
be politically rewarded in face of our on going war on “terrorism”.
We have seen a number of Kurdish Turks in our offices who had nothing to do with
the PKK. However, the evidence was overwhelming in their cases that the Turkish
authorities assumed that because they were Kurds, they were terrorists. The Turkish
government in 1992 mounted a concerted attack on its Kurdish minority, killing
more than 20,000 and creating about two million refugees. In 1995, Turkey waged
a military campaign against PKK base camps in northern Iraq, and in 1999 it captured
the guerrillas' leader, Abdullah Ocalan, and condemned him to death. Some
30,000 people are thought to have died in the 15 - year war. The legal People's
Democracy party is now the principal civilian voice of Kurdish nationalism in
Turkey. There were also clashes in the 1990s between the Kurds of Turkey and Iraq.
How will Turkey react to the presence of a Kurdistan not only on its border, but
on its border where a majority of its population is Kurdish? How will the Kurds
react if they assist us in toppling Saddam Hussein and then are denied a homeland?
Will any Iraqi government succeeding Saddam’s be able to contain the secessionist
ambitions for a Kurdistan except by employing the same brutal tactics of Saddam?
The answer to these questions will have a lasting effect on the politics of Central
Asia.
HUMAN
RIGHTS WATCH CRITICIZES VIETNAMESE CRACKDOWN ON MONTAGNARD CHRISTIANS
HRW reported on September 20, 2002, that the government of Vietnam has stepped
up its campaign of repression of indigenous Montagnard Christians. The rights
organization called on Vietnam to cease arrests, harassment and arbitrary detentions
of individuals based on their religious or political views. At least 30 Montagnards
have been arrested in the Central Highlands since June. Targeted in the latest
crackdown have been Protestant church leaders, land rights advocates, and individuals
suspected of guiding asylum seekers to Cambodia. Dozens of Montagnards have gone
into hiding, with current whereabouts unknown. The unrest in the Central Highlands
began in early 2001, when thousands of indigenous highlanders, collectively known
as Montagnards, conducted peaceful demonstrations calling for greater land rights
and religious freedom. In the aftermath of the demonstrations, Vietnamese officials
sent thousands of police and soldiers into the region, where they arrested dozens
of Montagnards. Approximately 1,000 Montagnards fled to Cambodia to seek asylum.
Montagnard Christian pastors and elders have been singled out for increased surveillance
and warned not to travel unless they have advance written permission. Gatherings
of villagers for worship, weddings and funerals continue to be largely forbidden
by local authorities.
CHINESE AIDS ACTIVIST HONORED DESPITE DETENTION
Human Rights Watch and the Canadian HIV/AIDS Legal Network have honored detained
Chinese AIDS activist Dr. Wan Yanhai on September 13, as the first recipient of
the two organizations' "Award for Action on HIV/AIDS and Human Rights." The
two groups strongly reiterated their concern over the detention of Dr. Wan by
the Chinese government.
UZBEK RIGHTS DEFENDER SENTENCED TO IMPRISONMENT
Human Rights Watch reports an Uzbek human rights defender, Yuldash Rashulov, has
been sentenced to seven years in prison in a politically motivated trial. Mr.
Rashulov is a member of the Human Rights Society of Uzbekistan, and was sentenced
in Tashkent on September 17, 2002.
INDEPENDENT EXPERT ON HUMAN RIGHTS TO VISIT HAITI
The Independent Expert on the situation of human rights in Haiti, Louis Joinet,
will visit Haiti from 21 to 29 September 2002 at the invitation of the Government.
During this visit, Mr. Joinet will meet with Haitian authorities, especially with
senior Government officials and magistrates. He will meet with representatives
of the Office for the Protection of Citizens, the School of Magistracy, civil
society and the press. He will also meet with representatives of the United Nations
system and the Organization of American States.
BUSH SHOULD URGE DEMOCRATIC REFORMS IN PAKISTAN
HRW urges President George W. Bush to strongly object to recent moves to limit
democracy in Pakistan and should call for immediate reforms, Human Rights Watch
said today. Bush should make it clear that U.S. support for Pakistan because of
its role in the anti-terrorism effort does not give the military leader a blank
check to abuse human rights and undermine democratic processes. Readers interested
in the subject are also referred to Ahmed Rashid’s “Pakistan on the
Edge” The New York Review of Books, October 10, 2002.
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