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IMMIGRATION
NEWS
We
introduce another regular section of our newsletter this week - - International
Trade and Customs News. This is one area of our practice that have neglected in
these weekly newsletters, but find that in the past year there have been, as with
immigration law, changes worth noting to our readers.
We could also not allow this letter to go out without noting the terrible loss
of Senator Paul Wellstone. Other have and will better articulate his contributions
and the tragedy of his loss. We mourn him, however, as a faithful defender of
human rights and an advocate for refugees around the world. His tragic death comes
at a time when violence and power seem to be the ascendant influences in the world
- - and principle and reason somehow suspect. Perhaps because now so much of the
world’s news - - Chechen terrorists killing Moscow theatre goers; failed
states such as North Korea and Iraq working to acquire weapons that could be used
to kill millions; snipers shooting randomly at children and adults alike - - reveals
that others have lost their reason and humanity, that his voice will be so deeply
missed.
BORDER
GUARDS RESCUE UNDOCUMENTED ALIENS
Fifty-one undocumented aliens locked in a trailer were rescued when agents from
the Laredo North Border Patrol Station discovered them during an inspection at
a checkpoint on I-35. The driver, a 39-year-old U.S. citizen who admitted to being
paid $2,000 to drive through the checkpoint, was arrested on federal smuggling
charges and is currently in federal custody pending court proceedings. Agents
were inspecting a tractor-trailer at about 11:30 p.m. when a Service canine alerted
to the rear doors of the trailer, indicating the possible presence of hidden human
cargo. Agents unsealed the doors and discovered the migrants inside. Thirty-four
were from Mexico, 16 from El Salvador and one from Honduras. No one was injured.
ONE SNIPER AN ALIEN
INS Commissioner Ziglar issued a statement encouraging undocumented aliens to
present any information in their possession regarding the sniper who had been
terrorizing the Washington, D.C. area until last week. As it turned out, one of
the alleged snipers, John Lee Malvo, is apparently a Jamaican without authorization
to remain in the United States.
INS
SEEKS TO ELIMINATE EAD FOR ASLYEES
The Immigration and Naturalization Service seeks permission to use the Form I-589
to serve as an alternate application for evidence of employment authorization
for individuals granted asylum, eliminating their need to file a separate Form
I-765, Application for Employment Authorization (OMB No. 1115- 0163) with the
INS if, after being granted asylum, they wish to receive an Employment Authorization
Document (EAD) containing both evidence of employment authorization and identity.
The Form I-589 collects the same biographic information as that collected by the
Form I-765. In those cases where asylum is granted, the biographic information
contained on the I-589 could also be used to generate the employment authorization
document. While dual-use has advantages for both the government and the public
with respect to streamlining information collections, passage of the Border Security
Act has increased the necessity of developing such a process. Section 309 of the
Border Security Act requires the Attorney General to begin issuing an employment
authorization document (EAD) with a photo and fingerprint to asylees immediately
upon the grant of asylum. Such procedures must be in place as November 10, 2002.
Due to the passage of the Border Security Act the question of how to process asylee
employment authorization documents became even more critical. The INS and the
Department now seek emergency OMB approval for the dual use of the Form I-589
to enable the INS to comply with the Border Security Act implementation date of
November 10, 2002,as discussed above.67 FR 64911.
EMPLOYER LIABLE FOR $1 MILLION FOR LABOR CONDITION VIOLATIONS
The Department of Labor has ordered a Florida physician, Dr. Mohan Kutty, to pay
in excess of $1,000,000 in back wages in addition to fines for failing to pay
several H1-B doctors he had under contract at his medical practice in Tennessee.
Kutty’s defense was that because there is a one-year statute of limitations
on Labor Department investigations, back pay and penalties could not be assessed
except for the one year period before the complaint was filed on February 28,
2001. The officer hearing the case disagreed, finding that the statute of limitations
referred to the time in which a complain must be filed, not the time in which
back pay can be awarded. The officer also rejected an argument that because the
doctors were either not yet eligible to work or were not working full time as
a reason to withhold salary. This is clear from the American Competitiveness and
Workforce Improvement Act, when the practice of “benching,” placing
an H-1B employee on leave and not paying them, was specifically prohibited. Under
the law, unless the employee is not working because of “non-work-related
factors” the employee must be paid as specified in the LCA. Nor, the officer
found, was low clinic income or failure by the doctors to abide by the terms of
their contracts a legal basis for withholding wages.
TRAVEL
WARNINGS FOR CENTRAL AFRICAN REPUBLIC
The State Department issued a travel warning on October 25, 2002, for the Central
African Republic due to reports of fighting in the capital city of Bangui. The
American Embassy received reports of fighting and gunfire in Bangui.
SECURITY NOTICE ON PHILIPPINES
The State Department has made a public announcement updating information concerning
the general security environment in the Philippines including incidents in the
Manila area and Mindanao. The State Department notes a number of security-related
incidents highlighting the risks of travel in the Philippines. Kidnappings of
foreigners, bombings, and other violent incidents call for Americans to exercise
caution throughout the country. Moreover, the Department notes that as a result
of the September 11, 2001, terrorist attacks in the United States, U.S. citizens
and interests may be at increased risk of terrorist actions from extremist groups.
SECURITY NOTICE ON EAST TIMOR
The Stated Department cautions American citizens traveling to East Timor to exercise
caution, avoid large gatherings, and remain alert with regard to their personal
security. It advises Americans to exercise extreme caution especially in public
places, including clubs, restaurants, bars, hotels, schools, places of worship,
outdoor recreational venues and other locations frequented by foreigners. It further
recommends that travelers to East Timor transit through Darwin, Australia, and
NOT through Bali, Indonesia.
STATE DEPARTMENT REMINDER ON NVC FEES
The State Department National Visa Center reports a rise in the number of consular
processing cases rejected because the attorney has sent a personal or attorney
check to the St. Louis lockbox. They ask that you please be sure to pay ONLY by
money order or a bank-issued check. Anything else may result in rejection of the
filing and thereby slow processing.
CHINA
JOINS IN PRINCIPLE CONTAINER SECURITY INITIATIVE
President Bush and President Zemin of the Peoples Republic of China announced
that China is joining in principle, the Container Security Initiative (CSI). This
initiative is designed to safeguard the global maritime trading system from terrorism.
CSI is a key initiative designed to prevent global sea cargo from being exploited
by terrorists to inflict harm on America and other nations of the world. Some
48 million full cargo containers move annually among the world's top seaports,
and nearly 50 percent of the value of all U.S. imports arrive via sea cargo containers
every year. A core element of CSI involves placing U.S. Customs inspectors at
foreign seaports to screen U.S.-bound cargo containers before they are shipped
to America. U.S. Customs officials, working with their foreign counterparts, would
be in a position to detect Weapons of Mass Destruction and other instruments of
terror at these foreign ports. Because roughly 68 percent of the 5.7 million sea
containers entering the U.S. annually arrive from just 20 foreign seaports, Customs
is initially focusing on these "mega" ports as crossroads in the global trading
system.
DRUG SEIZURES & CONTRBAND
Customs officials seized various large attempted drug hauls this past week: 4000
pounds off the Cuban coast ; 241 pounds of cocaine and 480 tablets of ecstasy
at the World Trade Bridge in Laredo; and 13.63 pounds of methamphetamine in Nogales,
Arizona; Customs officials executed 13 federal search warrants in the Cleveland
and Columbus, Ohio, metro areas in an investigation into the manufacture, possession
and distribution of child pornography over the Internet.
A LINK BETWEEN COUNTERFEIT DESIGNER GOODS AND TERRORISM?
The Boston Globe reported that sales from counterfeit clothing, jewelry and software,
which have long funneled millions into the coffers of international crime groups,
now are suspected of helping to finance terrorism. The article noted that U.S.
authorities have several investigations under way examining evidence suggesting
that Hezbollah, Hamas and other terror networks might be selling counterfeit products
to pay for their worldwide activities.
NINTH
CIRCUIT RULES PSI MAY NOT INCREASE ONE PLEA OF BANK FRAUD TO AN AGGRAVATED FELONY
Respondent Chang pled guilty to one count of bank fraud for passing a bad check.
Chang and the government agreed in a written plea agreement that the loss to the
victim that resulted from the bank fraud conviction was $605.30. The Immigration
and Naturalization Service argued that it may rely on other evidence in the record
to establish that Chang caused a much greater loss to the victim (over $10,000)--a
loss that would make Chang removable as an aggravated felon. The Ninth Circuit
disagreed and ordered the matter remanded to the district court
Chang, a native and citizen of South Korea, lived in the United States as a legal
permanent resident since the age of five. In 1998, and at the age of twenty-eight,
Chang was served with a federal indictment charging him with fourteen counts of
bank fraud, each count corresponding to a bad check that he allegedly passed,
and one count of conspiracy. Chang decided to forgo his right to a trial and instead
plead guilty to only one of the fourteen counts of bank fraud. The deal between
Chang and the government was reduced to writing in a plea agreement. The core
of the plea agreement is the understanding that Chang would give up his right
to a trial and instead plead guilty only to Count Seven of the indictment. Count
Seven charged Chang with cashing a $605.30 check that he knew was counterfeit
at a Safeway grocery store. The plea agreement emphasized in a separate paragraph
the exact loss to the victim for the offense in Count Seven, stating that "[t]he
defendant and the United States agree that the offense in Count Seven to which
the defendant is pleading guilty involves a loss to the victim of $605.30." In
addition to pleading guilty to Count Seven of the indictment, Chang also agreed
to make restitution in excess of the specific loss caused by the check in Count
Seven. Paragraph six of the agreement sets forth the stipulation, agreed to by
both Chang and the government, that the restitution amount should fall within
the $20,000 to $40,000 range. In exchange for these concessions by Chang, the
government voluntarily dismissed the remaining fourteen counts in the indictment.
The Court found that this agreement precluded the INS from claiming that he committed
an offense in which the loss to the victim was in excess of $10,000. Said the
Court:
The written plea agreement between Chang and the government prevents the INS from
treating Chang's bank fraud conviction as an aggravated felony. The INS must
take the plea agreement as the agency finds it, and in this case, paragraph 8b
of that agreement explicitly states that "[t]he defendant and the United States
agree that the offense in Count 7 to which the defendant is pleading guilty involves
a loss to the victim of $605.30." The text of the plea agreement remarkably tracks
Congress's choice of words in § 1101(a)(43)(M)(i) and definitively establishes
that the only offense of which Chang was convicted falls about $9,400 shy of qualifying
as an aggravated felony. See, Chang v. Immigration and Naturalization Service,
___F3rd___, No.01-35626 (Filed October 11, 2002).
NO RIGHT TO COLLATERALLY ATTACK PRIOR WAIVER OF RIGHTS
Alien after a prior removal attempted to reenter the United States was charged
with illegal reentry had no basis for collaterally attacking her prior deportation
proceeding on due process grounds absent any evidence to show that the Immigration
and Naturalization Service (INS) agent involved in taking her written waiver of
rights to rebut and contest the charges and to judicial review of the final removal
order coerced her into waiving her rights, that she did not understand the nature
of the rights available to her, or that the INS agent's characterization of
those rights was misleading. U.S.C.A. Const.Amend. 5; 8 U.S.C.A. §§ 1228(b)(4),
1326(a), (b)(2), (d). Appeal from the United States District Court for the District
of Kansas, (D.C. No. 00-CR-10149-MLB). U.S. v. Rangel de Aguilar --- F.3d ----,
2002 WL 31372317 (10th Cir.Kan.) Oct 22, 2002.
ALIEN MAY COLLATERALLY ATTACK PRIOR REMOVAL ORDER WHEN GIVEN BAD ADVICE
BY JUDGE
The Southern District of New York granted a Defendant’s motion to dismiss
in which he collaterally challenged the legality of his original deportation as
an aggravated felon arguing that the Immigration Judge improperly caused Defendant
to lose his right to request § 212(c) relief from deportation by advising Defendant
that Defendant was ineligible to pursue such relief following the 1996 change
in law; the b) Judge incorrectly advised Defendant, acting pro se, that if he
appealed the order of deportation, he would be ineligible for New York's state
program granting aliens in prison early release for deportation; and c) Defendant
relied on Judge invalid advice and decided to forgo his appeal and any § 212(c)
relief in order to be eligible for early release; and d) pursuant to a subsequent
Supreme Court decision, the Judge’s interpretation of the 1996 change in
law was incorrect in that Defendant would have been eligible for a § 212(c) relief
from deportation and would have received it. See, U.S. v. Figueroa-Taveras, 2002
WL 31387258 SDNY (Oct 22, 2002).
20,000
SUDANESE REFUGEES AT RISK
The UN refugee agency has expressed grave concern over the fate of close to 20,000
Sudanese refugees who fled into the bushes after rebels invaded their camps in
north–eastern Democratic Republic of the Congo (DRC).
ETHIOPIA-SOMALIA: CAMABOKER CAMP TO CLOSE
UNHCR is set to close the Camaboker camp in eastern Ethiopia at the end of this
month, completing the repatriation of nearly 18,000 Somali refugees from the camp
to Somaliland, north–west Somalia. Camaboker, which opened in 1988, will
be the sixth of eight refugee camps for Somali refugees to be closed in Ethiopia
in the last three years.
TANZANIA - EASTERN D.R. CONGO - BURUNDI
Hundreds of Congolese refugees fleeing weekend fighting for the eastern Democratic
Republic of Congo (DRC) town of Uvira arrived in western Tanzania yesterday (Monday)
as the impact of the most recent conflict in the south Kivu region spread to more
countries in the Great Lakes region. The more than 500 Congolese new arrivals
in Kigoma, Tanzania, bring to nearly 13,000, the number of Congolese who have
sought asylum in neighbouring countries following the recent fighting in south
Kivu. The majority of the refugees are in Burundi, while smaller numbers have
also gone to south–western Rwanda.
HUMAN RIGHTS WATCH CONDEMNS HOSTAGE TAKING IN MOSCOW
The Executive Director of Human Rights Watch’s Europe and Central Asia has
called the hostage taking in Moscow “a revolting, unjustifiable act,”
and noted that “Chechen forces have the same obligation as Russian federal
forces to uphold the Geneva Conventions.” This barbaric act of terrorism
presents a problem to human rights organizations that are used to commenting on
the practices of organized states. Human rights depends on respect for the integrity
of individuals, and the organized but stateless are posing an increasing threat
to civilized life.
HUMAN RIGHTS WATCH CONDEMNS ISRAELI ACTION IN GAZA STRIP
The Israeli Defense Forces (IDF) injured nine children, eleven adults, as they
prevented residents from evacuating their home while the Israelis demolished the
next-door house in Gaza, Human Rights Watch said in reporting eyewitness testimony
today.
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