DHS / US CIS Issues

9/11 Commission, NYT9/11 Panel Calls Policies on Immigration Ineffective

9/11 Panel Calls Policies on Immigration Ineffective
By MICHAEL JANOFSKY

Published: April 17, 2004


ASHINGTON, April 16 — The commission investigating the 9/11 attacks has concluded that immigration policies promoted as essential to keeping the country safe from future attacks have been largely ineffective, producing little, if any, information leading to the identification or apprehension of terrorists.

The commission said one program had proved so fruitless that it was discontinued after less than a year.

The critical assessment was released this week as part of a preliminary finding to a final report due in July. It returned a spotlight to programs that have been controversial from the start, aimed mostly at people, like the 9/11 hijackers, from Muslim or Arab countries. Critics have said the government engaged in a wholesale roundup of these people, kept them in jail for months, in some cases without access to lawyers, and conducted closed-door legal hearings on their status.

Many of the libertarian and pro-immigration groups that have criticized the Bush administration for what they deem the unfair and unnecessary focus on these groups hailed the findings. They said that as the first independent assessment of government actions after 9/11, it affirmed their misgivings.

"Clearly, the government was overreaching," said Timothy H. Edgar, legislative counsel for the American Civil Liberties Union, about the immigration programs. "We raised concerns from the beginning that they not only interfere with time-honored civil liberties, but they were likely to prove to be ineffective."

But a former Justice Department official involved in the development of the programs defended them as critical to counterterrorism efforts.

Kris Kobach, a Republican candidate for Congress in Kansas who served as counsel to Attorney General John Ashcroft from 2001 to 2003, said the programs had yielded great benefits by leading to the identification and deportation of hundreds of people with criminal backgrounds or indirect ties to terrorism.

Mr. Kobach said the commission viewed the impact of the programs too narrowly, drawing conclusions based solely on the application of antiterrorism laws, rather than others, like immigration law. "The commission is looking for a terrorism label affixed to an individual," Mr. Kobach said in an interview. "But it's failing to realize that just because the F.B.I. hasn't gotten to the point of applying the terrorism label, it doesn't mean the individual is not a terrorist."

Perhaps the most controversial of the programs was one that sought to identify "special interest" immigrants, which resulted in the arrests of more than 700 people, most from Middle Eastern countries, who were charged with violating immigration laws and held for months, in many cases, until federal agents cleared them of any involvement in terror-related activities.

The commission report echoed concerns raised when these programs were initiated. The concerns led to an investigation by the inspector general at the Justice Department that found that officials "made little attempt to distinguish" between immigrants who had ties to terrorism and those who did not.

Kate Martin, director of the Center for National Security Studies, a civil libertarian organization, called the detention program misguided, saying: "Hundreds of people's rights were violated, and, very importantly, the United States is now seen around the world as a country where Arabs and Muslims can be arrested in secret and held without charges. That's a very dangerous development in terms of a country promoting democracy and human rights as an antidote to terrorism."

But Mr. Kobach said the detention program had proved more valuable than the commission knew, leading to the deportation of at least three men with "strong, substantial connections to terrorism," including a roommate of one of the 9/11 hijackers, an immigrant who confessed to attending a terrorist training camp in Afghanistan and another who was found with 75 pictures of the World Trade Center.

In response to the inspector general's report, the Department of Homeland Security issued new guidelines last month to streamline the process for handling cases involving immigrants held in connection with national security concerns.

The commission report also disparaged a program that requires additional screening for visa applications from 26 predominantly Muslim countries. It charged that investigators had not been processing them in a timely fashion and that "no terrorists have been uncovered" by the effort. The report also cited a program, begun in November 2001, that delayed visa applications from the same countries and a few others. The commission concluded that the program, which was shut down 11 months later, "yielded no useful antiterrorist information and led to no visa denials."

Other critics said the two programs had discouraged students, artists, entrepreneurs and other travelers from visiting the United States and alienated a community "that was as shocked as anyone by the 9/11 attacks," in the words of Frank Sharry, executive director of the National Immigration Forum, an advocacy group.

But Mr. Kobach defended both efforts, saying that the first was necessary for the security of the country and that the second was a temporary and necessary action while efforts were under way to make sure federal investigators could scrutinize the names of visa applicants.

The commission criticized a fourth program, the Absconder Apprehension Initiative. Its intent was to round up 5,000 immigrants from countries with a Qaeda presence who were facing deportation and to expedite their expulsion. The commission found that by early 2003, 1,139 had been apprehended, a group that included 803 who had been deported, 224 who were awaiting deportation and 45 who were being prosecuted on other criminal charges.

But so far, the commission report said, "we have not learned that any of the absconders were deported under a terrorism statute, prosecuted for terrorist-related crimes or linked in any way to terrorism."

Mr. Kobach asserted that the so-called absconders were already in violation of immigration laws and some were wanted for other criminal violations, including more than 100 who were found to be sex offenders.

"In many cases," he said, "we have kicked terrorists out of the country over garden-variety immigration laws."
 
Immigration failures???

http://www.nytimes.com/2004/04/17/national/17IMMI.html

http://www.ailf.org/ipc/ipf121203.asp : Intelligence Failure not Immigration.

http://www.washingtonpost.com/ac2/w...e=&contentId=A25516-2004Mar25&notFound=true : Dean of Law school at George Washington appointment.

http://www.migrationpolicy.org/ : Source

Read his chapter "Immigration" from The Century Foundation's recent report The Department of Homeland Security's First Year: A Report Card.

The events of September 11 put new emphasis on reorganization. The
hijackers were non-citizens who had entered through lawful immigration channels
(although subsequent investigation has found that some were improperly granted
visas). The straw that broke the camel's back was the arrival of immigration
documents at a Venice, Florida flight school for two of the hijackers six months
after they had flown planes into the Twin Towers. The event was widely
misreported: the documents were not visas, but rather copies of visas approved in
July and August 2001 that had been retained by INS contractors and mailed as a
matter of routine to the flight school. But the damage was done. President Bush
showed anger at a press conference a day after the news broke. Stating that he was
"stunned and not happy," he continued: "Look, the INS needs to be reformed.
And it's one of the reasons why I have called for the separation of the paperwork
side of the INS from the enforcement side. And obviously the paperwork side
needs a lot of work. It's inexcusable." As plans proceeded with the new
Department of Homeland Security, the Bush Administration stated its intention
that all INS functions be transferred there.
 
Advanced Parole

AILA liaison, CIS, Murthy, favorable????????

I do not see any favorable interpretation, but only the failure of AP for free, unrestricted travel. AILA also failed to address the real issue of issuing APs, not back-dated, no continuity in successive APs and the actual reasoning for multiple APs (backlogs).

Favorable Interpretation on Advance Parole
Posted Apr 16, 2004

Recently, the U.S. Citizenship and Immigration Services headquarters
office, referred to as Service Center Operations, issued a favorable
interpretation on Advance Paroles. This interpretation will help those who
are seeking to travel and follow the limitations set forth under the law.

As regular readers of MurthyDotCom and the MurthyBulletin are aware,
the American Immigration Lawyers Association (AILA) periodically holds
teleconferences with various USCIS officials regarding procedural and legal
matters. On March 29, 2004, there was a teleconference with Service
Center Operations that provided some helpful information regarding advance
parole. The issue was raised regarding travel while an Advance Parole is
pending. Specifically, it was noted that the Form I-131 instructions state
that travel outside of the U.S. before the advance parole document is issued
will result in abandonment of the I-131 application. The AILA Liaison
members requested a clarification to assure that this advisement did not
apply universally. The question was whether the limitation applied to
persons who have a previously approved advance parole prior to departure
and for those with pending I-485s traveling in H1B, H-4, L-1, L-2, K-3, K-4,
V-2 or V-3 categories. The short answer is that the limitation does not
apply to these categories, provided the approved advance parole or
above-listed status does not expire while the person is outside the United
States.

Previously Approved Advance Parole

The USCIS stated that if a person has an advance parole and applies for a
new advance parole while in the United States, s/he may travel and reenter
the U.S. using the already approved advance parole. The person must
return during the time period permitted under that advance parole that was
approved before the person's departure. The USCIS specified that the
person cannot remain abroad after the expiration of the first advance parole
and then seek to enter on the second one after it is approved.

Case Example with Dates

A person has an advance parole that is valid through June 15, 2004. S/He
files for a new advance parole on April 15, 2004, while in the U.S. On April
20, 2004, the person learns that s/he must travel abroad immediately.
Under the USCIS advisement, the person could leave the U.S. and reenter
on the first advance parole through the June 15, 2004 date. The advance
parole filed on April 15, 2004 will be valid once it is adjudicated for travel
from its approval through its validity date.

It would not be permissible for the person in the example above to depart
the United States on April 20, 2004 and remain abroad past June 15, 2004,
waiting for the second advance parole in order to reenter the U.S. The
person could not have someone send him/her the April 15th advance parole
in August 2004 and use it for reentry.

Select Nonimmigrant Classes

Some persons can have nonimmigrant status and an I-485 pending
simultaneously, based on the doctrine of dual intent allowed under law.
These classes of individuals may file for advance parole while in the U.S.,
leave before it is approved, and return using their proper nonimmigrant visas
without abandoning the advance parole. This privilege extends to H1B, H-4,
L-1, L-2, K-3, K-4, V-2 and V-3. These people must be readmitted in the
nonimmigrant status without jeopardizing the pending I-485 application to
adjust status.

Case Example for Reentry Using Nonimmigrant Status

A person is in the United States on H1B status. S/He also has an I-485
pending and a request for advance parole filed while in the U.S. Before the
advance parole is approved, the person has to travel abroad. S/He may
depart the U.S. and reenter in H1B status without abandoning the advance
parole request. The advance parole is then available to use for a future trip.

Conclusion

These USCIS clarifications are helpful as these situations arise fairly
frequently. It is particularly important to have this type of flexibility, in light
of the timeframes for processing advance parole requests in many cases.
We do remind MurthyDotCom and MurthyBulletin readers that it is
necessary to be in the U.S. at the time of filing the advance parole request.
It is also necessary to return to the U.S. within the time given for advance
parole, without exception or delay, unless traveling on the H1B, H-4 or other
nonimmigrant status. Unless a person is also eligible for entry in a
nonimmigrant status that is consistent with the I-485 Application for
Adjustment of Status, we often find that failure of the I-131 applicant to
ensure that s/he has a valid advance parole to use for reentry can create
enormous problems since waivers are rarely granted in this day and age.
 
Science

GLOBE EDITORIAL
Visas for science
April 21, 2004

AFTER 9/11, it made sense to lay down new rules for foreigners seeking to come to the United States to study a range of biological and physical sciences with potentially dangerous applications. Unfortunately, the screening of graduate students seeking visas is such a slow and cumbersome process that many are choosing to work in other countries. Congress should ensure that the State Department, the FBI, and the Department of Homeland Security devote enough resources to speed up the process without raising the risk that terrorists learn the techniques of mass killing in US labs.

In March, a Florida laboratory of the Scripps Research Institute learned that the Swiss-born specialist in mad cow disease selected to be its director would be delayed up to six weeks. Molecular biologist Charles Weissmann will still take the job, but because he was required to give up his passport to get his visa, he couldn't attend an important meeting at Scripps's San Diego headquarters.

In other cases, scientists are simply looking elsewhere even though the United States has long been a center for researchers. The Association of American Universities found that 19 of the top 25 US research institutions have reported a decline of more than 10 percent among international graduate applications. In February the General Accounting Office found that it took foreign students in the sciences an average of 67 days to receive a visa after applying.

The GAO said some of the slowness is due to the fact that the State Department, the FBI, and the Department of Homeland Security have incompatible data systems. Also, the GAO found it takes two weeks for the State Department to notify consular officers abroad when it clears a candidate for a visa. In addition to the delays, foreign scientists object to restrictions on their ability once admitted on a visa to travel outside the United States for conferences in their specialties or for family emergencies. The repercussions for basic science in the United States could be serious if the problems are not quickly corrected. According to the National Science Foundation, 57 percent of postdoctorate research fellows in the United States are foreigners with temporary visas. At Harvard Medical School, Harvard School of Public Health, and Harvard School of Dental Medicine the share is 53 percent.

Harvard's president, Larry Summers, has written to both Secretary of State Colin Powell and Homeland Security Secretary Thomas Ridge expressing his concern that Harvard and other institutions "are at risk of losing some of our most promising scholars to universities in other parts of the world." His letters included proposals for speeding procedures without sacrificing security. US preeminence in the sciences should not be another 9/11 victim.
 
AILA Event

Tuesday, May 4, 2004:
Strategies to Deal with
Severe Backlogs

2:00 pm – 3:30 pm eastern time

Program

Faculty

Registration

Additional Resources

Program

The discussion will cover a variety of topics, including the following:

Using the AILA Liaison System Effectively to Resolve Problem
Congressional Liaison--What Congressional Staffers Can and Cannot Accomplish for Your
Clients!
Mandamus Actions--Going to Court to Compel Adjudication
Legislative Fixes Under Consideration
Class Action Challenges to Backlogs

Faculty

Kathrin S. Mautino, Mautino & Mautino, San Diego, CA
Ms. Mautino is a partner in the San Diego firm of Mautino and Mautino, and is a Certified Specialist
in immigration and nationality law by the State Bar of California. She speaks and writes frequently on
immigration and citizenship issues for local, regional and national organizations and programs. Ms.
Mautino served as a member of the 2003 AILA Annual Conference Program Committee.

Lisa D. Duran, Quarles & Brady Streich Lang, Phoenix, AZ
Ms. Duran is a partner with the Phoenix, Arizona, office of Quarles & Brady. In addition to a general
commercial litigation practice, she practices employment, family, and immigration-related litigation.
She currently serves as the Chair of AILA's California Service Center Liaison Committee.

Bruce A. Coane, Coane and Associates, Houston, TX
Mr. Coane received a Bachelor of Arts Degree with Honors from Penn State University in 1979. He
received his Juris Doctor Degree in Law from the University of Houston in 1981. He is the founder
and past president of the National Employment Lawyers Association-Houston Chapter and he is
Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. He
is the Past-President of the American Immigration Lawyers Association-Texas, New Mexico &
Oklahoma Chapter. His memberships have included being a member of the State Bar of Texas
Labor and Employment Law section and the State Bar of Texas School Law section. Mr. Coane is
Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

Ela Pestano, Congressman Lincoln Diaz-Balart's (R-FL) Office, Miami, FL

Registration

Two convenient ways to register! AILA members may register securely online using their Visa,
MasterCard, American Express or Discover card. Please note that if you use the online registration,
you do not need to download the registration form and send it in.

AILA members and nonmembers interested in attending may download and complete the registration
form. Please fax the completed form with payment information to the AILA National Office.

Registration Deadline: The deadline to register is Friday, April 30th.Â_
 
Students

Universities, NAFSA, trustees, Lobbies..........

Universities Lobby for Easy Visa
Process
Tue Apr 27, 5:21 PM ET

Add U.S. National - AP to My Yahoo!



By JUSTIN POPE, AP Education Writer

BOSTON - A steep decline in graduate school applications from
foreign students has university administrators pushing the federal
government to reform the visa process. Their argument: The trend could
cost U.S. schools much-needed revenue and research help, and make
America seem isolated in the eyes of the world.

International graduate student applications for
this fall are down 32 percent compared with a
year ago, according to a recent survey, and
schools are extending application deadlines
so they don't lose students still negotiating
U.S. bureaucracy.

Meanwhile, in public comments and private
lobbying, universities are urging federal
officials to speed up visa applications,
stressing that America's role as a beacon to
the world's students could be in jeopardy.

Officials from several California schools and the Department of Homeland
Security discussed foreign student matters Tuesday at a gathering in
San Diego.

And representatives from a handful of prominent schools, including the
presidents of Yale and Princeton, met in New York recently to explore
ways to use the influence of their trustees to help make their case.

Universities acknowledge that the importance of foreign students is not
obvious to the public, which has security concerns after one of the Sept.
11 hijackers entered the country on a student visa. Some may wonder
why foreign students take up 600,000 slots in American universities in
the first place.

But administrators insist those slots are as important now as ever.

"This is one of America's most effective forms of diplomacy," said
Douglas Kincaid, vice provost for international studies at Florida
International University in Miami, where foreign enrollment is down 10
percent. "We're educating people who will be in influential positions in
science and industry and government around the world."

More than 90 percent of graduate schools reported their foreign
applications for this fall declined, according to a survey of 113
universities last month by the Council of Graduate Schools.

Undergraduate applications also are down, but not as much, likely
because fewer undergraduates plan to work on sensitive technologies
that require a more thorough background check.

Feeling the effects are big, public universities and elite, private ones like
Harvard, whose president, Lawrence Summers, reported a sharp drop in
international applications to each of Harvard's nine schools in a recent
letter to federal officials.

Many schools count on foreign students to teach classes and fill labs.

"We don't have domestic students to take their place, mostly in fields
like science and technology," said Stephen Dunnett, vice president for
international education at the University at Buffalo, part of New York's
state university system. The school has 3,600 foreign students, with
applications down one-third this year.

Foreign students often pay higher tuition, and soak up little financial aid
because they must demonstrate financial self-reliance to get a visa.
More than 75 percent of their funding comes from outside the country,
according to the Institute of International Education.

Foreign students also contribute $12 billion to the U.S. economy,
according to IIE.

Experts cite several factors for the dip in applications, including
diminished esteem for America abroad, rising tuition at U.S. schools and
increasingly competitive alternatives in Europe and Asia.

But the difficulty, or perceived difficulty, getting a student visa quickly
appears to be the primary cause.

"It's really frustrating because there is no basic logic to getting a visa,"
said Moussa Dao, an FIU computer engineering student whose two
brothers have been unable to get visas to follow him here, and who
hasn't returned home to Ivory Coast since 1999 for fear he would not
be readmitted.

The State Department, which is giving some students priority
interview slots, issued 474,000 student visas last year, accepting 74
percent of applications. That's down from 560,000, or 80 percent, in
2001. Secretary of State Colin Powell (news - web sites) and
Homeland Security Secretary Tom Ridge called last week for
Congress to review visa restrictions, and Ridge discussed visas at a
recent meeting with college presidents.

"We all want foreign students to continue to come here," said Russ
Knocke, a spokesman for the Immigration and Customs Enforcement
division of the Homeland Security Department. "We want the United
States to continue to be the destination for education."

There continue to be more international applicants than spaces
available for them, with no evidence the total number of foreign
students here has yet declined.

Still, schools say more is help is needed for internationals, including an
ombudsman to investigate cases that seem to disappear in the system.

Experts say many foreign students feel they won't be welcome here
— beliefs that visa delays only fuel.

"They say, 'I can go to Canada, Australia. Why do I need to go to the
United States and put myself in a place where I'm not welcome?"
Dunnett said.

____

On the Net:

Council of Graduate Schools study:
http://www.cgsnet.org/pdf/CGS_PR_IntlSurvey.pdf
 
backlogs

Shusterman, Backlogs, Security checks, Pilots.

Backlogs Continue to Grow: Is There an End in Sight?

Despite President Bush's pledge in 2000 to reduce immigration backlogs to 180 days or less, the processing of immigration applications at Service Centers and District Offices has
increased dramatically. Finally, the Immigration Service is beginning to roll out a number of pilot programs to speed the processing of applications.

Is immigration backlog reduction in full swing, or are these new programs "too little, too late?"

THE PROBLEM

It is difficult to exaggerate the dimensions of the problem. Applications for adjustment of status which took 3 months to process in 1994 and 11 months to process in 2001, now take
over 33 months! In 2001, you could replace your green card in 4 months. Now, the same procedure takes 19 months. The number of applications which have been pending 180
days or more have increased from 1.8 million in 2000 to 3.4 million according to government's General Accounting Office.

On March 29, the Los Angeles Times featured a story about immigration backlogs on the front page. It quoted me as saying the backlogs are longer now than at any time during
the 30+ years that I have been practicing law. The story also quotes Congressman Howard Berman (D-CA) who stated that "we make the legal process as cumbersome and
difficult as we can" thereby "encouraging the very illegality we are trying to deter." We link to the Times story at

http://story.news.yahoo.com/news?tm...ts_latimes/backlogofimmigrantpaperworkgrowing

On April 7, the Sacramento Bee also did an in-depth article about growing immigration backlogs and also quoted us as well as immigration attorneys Dan Kowalski and Ann
Kantor. See

http://www.sacbee.com/content/politics/story/8796001p-9723144c.html

THE SOURCE OF THE PROBLEM

No one doubts that the security checks that were instituted after September 11, 2001 are partially responsible for the increase in backlogs.

However, a number of points need to be made about these security checks. First, the September 11th attacks were not the result of some breakdown in the immigration process.
The terrorists had no prior records which would have been revealed by security checks. Two of the terrorists might have been stopped trying to enter the U.S. if other agencies had
alerted the INS of their names in a timely fashion, but this is not the fault of the INS. Second, the security checks add to the agency's workload, but Congress has not granted the
agency the funds it needs to cope with this additional workload. Per Bill Yates, a top official with the Immigration Service, the agency is performing full checks on 7 million
applicants annually as opposed to 2.5 million before the attacks. Of the 4,500 officers who decide applications, 1,000 are doing nothing but performing security checks. Clearly, this
is having a negative effect on immigration backlogs. Instead of putting its money where its mouth is, the Administration is again proposing that immigration fees be raised. Third, the
security checks are not focused. It was not Mexicans or Indians or Filipinos who flew planes into the World Trade Center, yet every single applicant for immigration benefits must
undergo a security check. This lack of focus bogs down the law enforcement process. When police are looking for a crime suspect, they usually have a description: "white male
Caucasian in his 20s, heavy-set, 5'8" to 5'10" with a scar on his right cheek." If they simply stopped every person they encountered, very few crimes would be solved.

Clearly the Immigration Service needs to rethink the way it is presently conducting its security checks.

THE SOLUTION

During the past few weeks, the USCIS has proposed a number of innovative ideas and pilot programs, many of which show promise:

Multiyear EADs - In the February 2004 issue of our newsletter, we suggested that the USCIS consider issuing EADs for more than one year. See

http://shusterman.com/feb04.html#7

In March, the USCIS forwarded a regulation to the Office of Management and Budget (OMB) which would enable them to do just that. The OMB has until June to consider
the rule. If it wins OMB's approval, we could have multiyear EADs sometime this summer.

Dallas District I-485 Pilot Program - On April 13, the USCIS is scheduled to use the InfoPass program (See Topic #4 below.) in the Dallas USCIS office, and interview
certain family-based and lottery-based I-485 applicants on the same day that they submit their applications. These lucky spouses and lottery winners will not even have to
submit applications for EADs and advance paroles because the plan is to issue their green cards within 90 days. Read about the pilot program on the InfoPass section of our
"USCIS" page at

http://shusterman.com/ins.html#1b

CSC I-140/I-485 Pilot Program - Before the end of April the California Service Center (CSC) is scheduled to implement a program in which persons with approved labor
certificates who submit concurrently-filed I-140s under the EB-2 category and I-485s can have both applications decided (and hopefully approved) within 90 days. This will
free the CSC from having to issue EADs, Advance Paroles and multiple fingerprint checks for these applicants.

In addition, the CSC will target previously-filed I-140 (EB-2, non-NIW)/I-485 applications with the goal of bringing their processing times down to 90 days. Finally, the CSC
will concurrently process pending I-140/I-485 applic 1dns in ALL CATEGORIES in order to bring their processing times to below one year!

Los Angeles I-90 Pilot Program - The USCIS's District Office in Los Angeles has already started to process all electronically-filed I-90s in an expeditious manner. When
the applicant goes to the Application Support Center (ASC) for biometrics (fingerprints, photos, etc.), the ASC will "push the button" and the green card will be made and
mailed to the applicant immediately!

The green cards will still be made at the card facility, but the ASCs will be linked to the facility. Caveat: I-90s for children who need new green cards because they are turning 14
years of age cannot be filed electronically.

CONCLUSION

USCIS's new pilot programs hold great promise for the future if they are implemented in a fair manner, and if they are expanded as quickly as possible.

The multi-year EAD should be accompanied by a multi-year Advance Parole.

The government should solve the slowdown brought about by the security check system by making it more focused and by fully funding the security checks.
 
Cyrus Mehta: Opinion on Citizens vs Non-citizens

April 26 2004
CITIZEN v. NON-CITIZEN: DIFFERENTIAL RIGHTS AND TREATMENT.

by
Cyrus D. Mehta*

The Supreme Court recently heard oral arguments on whether the US government can
detain foreign nationals held at Guantanamo Bay, Cuba, as “enemy combatants” without
charge and without access to the US courts to challenge their detention. These were
people who were captured in the battlefield after the US invaded Afghanistan following
the September 11 attacks.

Next week, the Supreme Court will hear similar arguments concerning the detention of
two US citizens, Mr. Padillia and Mr. Hamdi, who have again been detained within the US
as “enemy combatants” without charge or hearing.

One of the arguments in the oral hearing concerning the Guantanamo Bay detainees in
the Supreme Court on April 21, 2004, dwelt on whether the authority of the US
government to prevent the detainees’ access to US courts depended on whether the
persons were citizens or not. When Justice Sandra O’Connor asked Solicitor General
Theodore B. Olson, who was arguing for the government, whether American citizens
being held in Guantanamo Bay would have access to American courts, Mr. Olson agreed
that the US would acknowledge that such a person would have jurisdiction since that
“citizenship is a foundation for a relationship between the nation and the individual…”

David Cole, a professor of law at Georgetown, disagrees in an essay that appeared in
the New York Times, (“America’s Prisoners, American Rights,” NYT, April 20, 2004).
According to Professor Cole, citizenship should not matter, and further, the detention of
a citizen should not be considered “more dubious legally” than that of a non-citizen. He
argues that the “human-rights revolution over the past 50 years has identified
fundamental rights like the right not to be arbitrarily detained as extending to all
regardless of nationality. Human-rights treaties ground these guarantees in “human
dignity” and Americans have no monopoly on that.”

Professor Cole is right on point. One can become an American citizen by sheer accident
of being born to an American citizen parent without having much contact with the US. On
the other hand, there are millions of non-citizens who live in the US and have developed
substantial ties with the country by working here, paying taxes and establishing families.
When one considers the fundamental right of a person to not being locked up without
due process, it is irrelevant whether the person is a citizen or a foreigner. From the
prisoner’s standpoint, he or she has the same interest in not being locked up
erroneously or arbitrarily, according to Professor Cole. Even from the government’s
perspective, the motivation to lock up an alleged terrorist, citizen or not, is to further the
security interests of the US.

As a result of differing standards in the rights accorded to citizens and non-citizens,
certain immigrants living in the US got a raw deal after the September 11 terrorist
attacks. Over 1,200 non-citizens were detained in a sweep targeted against Muslims,
Arabs and South Asians. The government refused to say exactly how many were
detained and who they were. These detainees suffered exceptional hardship and were
detained for weeks or months without charge. They were also detained even after the
judge ordered them released or removed from the US. Many of the detainees were
subject to solitary confinement and physical abuse.

Unfortunately, US immigration law gives extremely broad powers to the US government
with respect to the detention and removal of non-citizens. Had these 9/11 detainees
been charged under the criminal justice system, within the US, they would have claimed
more rights such as the right to a lawyer and the right against detention without charge.
At least the immigrants detained in the sweep got a deportation hearing, even if it was
kept secret.

Even after the sweep, immigrants in the US have been targeted solely because of their
nationality, ethnicity or religion. In 2002, the government’s Call-In Special Registration
Program targeted males from countries with significant Islamic population, and caused
havoc within immigrant communities as it tore apart families.

However, in the case of the Guantanamo Bay detainees and Padillia/Hamdi, designated
as “enemy combatants,” the government is claiming even more broad powers to detain
them indefinitely without charge, hearing or access to the courts.

The Commission in the US Congress investigating the 9/11 attacks has concluded that
immigration policies that were promoted after 9/11 to keep the country from further
attacks have been ineffective and produced little, if any, information leading to the
identification or apprehension of terrorists (“9/11 Panel Calls Policies on Immigration
Ineffective,” New York Times, April 17, 2004). Moreover, a report of the Migration Policy
Institute (MPI), an immigration policy think tank in Washington, D.C., has also concluded
that the government’s post-9/11 measures against non-citizens have failed to make us
safe, have violated our fundamental civil liberties, and have undermined national unity.
According to the MPI report, available at www.immigrationpolicy.org, the government
conducted round-ups of individuals in the US based on their national origin and religion.
These round-ups failed to locate terrorists and damaged one of the great potential
assets in the war on terrorism: the trust of Arab- and Muslim-American communities.

The undermining of the rights of non-citizens ultimately tends to also erode the rights of
citizens. Thus, although it has been easier for the government to hold non-citizens under
our immigration laws for long periods of time without charge – as well as place detainees
in Guantanamo Bay in a legal vaccum - the US has exercised even more extraordinary
powers against two US citizens, Padilla and Hamdi. Over 50 years ago, the US
government also detained US citizens of Japanese descent after the attack on Pearl
Harbor by the Japanese air force. The Supreme Court found that the government was
justified then.

It is hoped that the Supreme Court in 9/11 cases upholds the rights of people detained
by the US government in its war against terrorism irrespective of whether they are US
citizens or not. Although the doctrines of “military necessity” or “national security” are
powerful, and US courts tend to give the government greater leeway during war, the
time is ripe for the Court view such a claim in a more skeptical manner. Just because
the government claims that it is essential to detain a person without charge or hearing in
the name of national security does not mean that it is necessarily true. The
government’s claim of waging war in Iraq on the ground that it had weapons of mass
destruction, which could have been used against the US have proved to be unfounded.
By the same token, the government’s post-9/11 sweep against non-citizens in the US
solely because of their nationality or religion has also proved to be ineffective. Instead,
the Court should hold the US accountable to the lofty standards set forth in our Bill of
Rights, as well as under international human rights principles, to ensure that both
citizens and non-citizens be provided fair process if the US government chooses to
detain them.



* Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law
School, practices immigration law in New York City. He is Incoming Chair of
the Board of Trustees of the American Immigration Law Foundation and
recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also
Secretary of the Association of the Bar of the City of New York and former
Chair of the Committee on Immigration and Nationality Law of the same
Association. He frequently lectures on various immigration subjects at legal
seminars, workshops and universities and may be contacted in New York at
212-425-0555 or info@cyrusmehta.com.
 
Physician's Lawsuit / Shusterman

Physicians' NIW Lawsuit - On March 26, a Federal Judge faxed me unwanted birthday present, one that I can't return to the store. The Judge spent 22 pages agreeing with us that she had jurisdiction over the case, that the plaintiffs were properly joined, etc. However, when she reached the merits of the case, she ruled that the INS regulations regarding NIWs for physicians were proper under the law. We respectively disagree and are appealing her ruling to the U.S. Court of Appeals for the 9th Circuit.

We have posted the complete text of the decision online on our "Physicians" page at

http://shusterman.com/toc-phys.html#3
 
Democrats

April 30, 2004, 11:29PM

Democrats to unveil immigration reform bill

Los Angeles Times

WASHINGTON -- Congressional Democrats, playing catch-up with President Bush's guest worker proposal,
plan to introduce an ambitious immigration reform bill Tuesday that would put millions of illegal immigrants on the
path to citizenship but restrict the entry of future workers.

The Democratic plan would offer green cards and permanent resident status to all immigrants who have been in
the United States at least five years, can prove they have worked at least 24 months and have passed background
and medical checks. It also would loosen quotas that prevent many immigrants from bringing relatives into the
United States.

The Democrats' proposal, coupled with the Bush plan, would frame the election-year debate on a politically
sensitive issue. In many parts of the country, and especially in swing states such as Florida and New Mexico, both
parties are courting immigrant constituencies.

The two proposals take sharply different approaches: The Democrats would make it harder to import so-called
"guest workers" but would open the path to citizenship for illegal immigrants already in the country. Bush would
allow illegal immigrants to become legal temporary workers, but without a promise of green cards or citizenship.

The Los Angeles Times obtained a detailed summary of the Democratic bill, which was drafted by Sen. Edward
M. Kennedy, D-Mass., and Rep. Luis V. Gutierrez, D-Ill.

It is an effort to recapture a traditionally Democratic issue from Bush, who got out in front by proposing a new
guest worker plan that would allow as many as 12 million now-illegal immigrants to obtain temporary legal status.

"It's political tit for tat," said Demetrios Papademetriou, president of the Migration Policy Institute, a nonpartisan
Washington, D.C., think tank. "The Democrats have been working on immigration for quite a while, and they
cannot afford to have the president one-up them on it."

Latinos generally have voted Democratic in the past, but Republicans see an opportunity to make inroads. Polls
have shown that Latino voters, while skeptical, are receptive to Bush's immigration plan. It won the endorsement
of Mexican President Vicente Fox, and Republicans hope to increase their share of the Latino vote in November.

Release of the Democratic blueprint is planned for the eve of Cinco de Mayo, a Mexican patriotic observance
commemorating the 1862 defeat of French invaders at the Battle of Puebla.

Prospects for the passage of comprehensive immigration legislation are slim because the two parties are far apart
in an election year. But the competing proposals are expected to define the battle lines. Renewed attention to the
issue, however, might build political support for limited measures benefiting farm workers and students that have
support from lawmakers of both parties.

The Democrats' reform plan provides a window into the kinds of compromises Bush may be pushed to accept if
he wins a second term -- and the policies presumed Democratic nominee Sen. John Kerry, D-Mass., might
pursue if elected president.
 
INFOPASS

Posted on Mon, May. 03, 2004

IMMIGRATION


New appointment system doesn't
eliminate the wait


Less than a year after being activated,
Florida's InfoPass system of online
immigration appointments has hit a bump in
the road.

BY CHARLES RABIN AND ALFONSO CHARDY

achardy@herald.com


An online appointments system, which so
successfully eliminated long lines outside the Miami
immigration building that other cities have adopted it,
is not keeping many appointments on time.

More than a dozen people who set up appointments through the system known as InfoPass said they were
allowed into the building generally on time -- but then were kept waiting hours before being received by an
immigration officer.

Jack Bulger, head of the U.S. Citizenship and Immigration Services Miami district office, attributed the
delays to staff shortages exacerbated by a hiring freeze -- but noted that, unlike pre-InfoPass times, no one
is turned away.

''It's like I-95,'' said Bulger. ``If you hit a bump or a fender bender, you run into a backup. The
appointment before yours might have hit a bump, become more complex, therefore you have to wait
longer.''

News of the delays comes as the system, which started here in June, is being implemented around the
country. It went online in Los Angeles in March and in Dallas April 21. Immigration officials hope to extend
InfoPass to several other major cities where immigration lines persist.

Despite the delays, officials say InfoPass has been successful in achieving its primary goal: eliminating the
perennially long line outside the Miami immigration building where hundreds often spent the night for a
chance to enter the building and speak to an immigration officer. Many others were turned away when the
waiting rooms inside the building reached capacity.

Now to get into the building, everyone must have an appointment. The problem now is inside the building,
where some people have to wait a long time to be received.

''They kept me waiting for hours,'' said Luis Peña, a Cuban national who said he had an 11:30 a.m.
appointment one day in late March but was not seen until 4:30 p.m. ``It's an abuse. If they say they will
see you at 11:30, they should see you at 11:30, not 4:30.''

Two Herald reporters made appointments in March and neither was seen on time. One had an 11 a.m.
appointment but was not received until 2:20 p.m. The other waited 2 ½ hours past his 11 a.m. appointment,
and dozens of others were still waiting ahead of him.

InfoPass was launched June 30. Within weeks, the long line outside the Miami immigration building was
gone. The system, designed in Miami, began with a limited number of appointments, but gradually built up
to the current average of 650 per day.

Bulger said the system worked well throughout 2003 because he had a staff of 25.

People were received, on the average, within 30 minutes of the appointed time, he said. But in the past two
months, that waiting time has increased to an average of almost an hour, Bulger said. That's because, he
said, four workers have left, two quit and two went away for training.

Bulger did not dispute that some people wait longer than an hour. Interviews with 15 people showed that
those with early appointments were seen punctually. The rest, who had appointments at 11 a.m. or later,
reported delays.

Bulger said the reason for the disparity was that some who came early took longer to process and thus
delayed people with later appointments.

Still, Bulger said once someone is inside the building they will be received, even if it means keeping officers
on overtime.
 
TSC

Curtesy of "www.murthy.com"

TSC Update : April 2004
Posted Apr 30, 2004

The backlog of cases at the Texas Service Center (TSC) is a significant
problem, with processing times measured in years in many instances. This
affects many readers of MurthyDotCom and the MurthyBulletin. We,
therefore, provide the following update on procedures and plans at the TSC,
released in April 2004. The information was provided by Evelyn Upchurch,
Director, TSC, and Ninfa Luna, Assistant Center Director for Documents, in
response to questions from the State Bar of Texas.

Staffing Levels

The TSC presently is experiencing a personnel vacancy rate in excess of
25 percent. It has significant problems in obtaining security checks for
potential employees. These security checks take up to 200 days.
Because, in many cases, people cannot wait that long to start a job, the
prospective employees accept other offers of employment before the
security checks are cleared and the job at the TSC can be finalized. The
TSC also has high rates of attrition, due to positions that are for a set term
rather than being permanent. Because people are seeking permanent
positions, there is high rate of employee turnover. Of course, as with any
business, having many vacant positions reduces productivity.

Immediate Relatives and I-824

The TSC has an enormous backlog in I-130 cases. Even immediate-relative
cases are taking around two years, despite their having available visa
numbers and having been given priority in processing. The TSC advised that
there is a plan, both at the TSC and the Nebraska Service Center (NSC), to
reduce the backlog in immediate relative I-130 cases. The plan sets a goal
of bringing the processing times to within one year of receipt of the case.

The TSC also plans to reduce the backlog in I-824 processing for
Applications for Action on an Approved Petition. The I-824 is used to initiate
following-to-join cases for relatives who are abroad. The delays in I-824
processing often keep spouses and children in employment-based cases
separated from their relatives in the United States. Faster processing of
I-824s would be an enormous benefit in uniting families earlier, a goal of our
immigration policies.

Balancing Various Work Priorities

The TSC confirmed that it sets priorities for work completion based first
upon judicial mandates. Second priority cases are those that affect the
local District USCIS offices, and third are all other cases that are selected
as Service Center priorities for any reason. What this generally means is
that improvement in one type of case, designated as a priority based on law
or policy, results in a slow-down in the processing of a different, non-priority
case.

Portability Only after I-140 is Approved

The TSC confirmed that they are following the August 2003 Memo regarding
AC21 portability. For a detailed analysis of this Memo, see our August 12,
2003 article, BCIS Memo on I-485 Portability after I-140 Revocation,
available on MurthyDotCom. The TSC verified its position that the
beneficiary cannot use AC21 portability until the I-140 has been approved
and the I-485 has been pending for 180 days. It also stated that the
beneficiary must inform the service center of the change of job when s/he
uses portability. We note that, while this is implied in various USCIS or
Legacy INS Memos and is what we routinely recommend, this requirement
is not specified in the AC21 law itself.
 
Backlogs, Fee increase, RFEs, Security Checks

Curtesy of "www.cyrusmehta.com"

BANKING ON IMMIGRANTS: NEW CIS FEES TAKE EFFECT TODAY

by
Mario A. Pacione*

On April 15, 2004, the Homeland Security Department’s Citizenship and
Immigration Service (CIS) issued final regulations directing an increase in
immigration application fees by an average of $55 per petition. Despite intense
criticism and opposition by numerous concerned individuals and organizations
during the comment period of the proposed rule, the CIS has refused to
consider the suggested alternatives. Effective today, all immigration applications
post-marked or otherwise filed on or after April 30 will require the new fee. 1

Of the many issues raised by opponents of the new rule, the most pervasive
seems to be the difficulty in justifying such a considerable fee increase when the
quality of service continues to decline. Adjudication times of even the most
straightforward petitions are plagued with unnecessary delay, forcing many
applicants to pay the $1000 premium processing fee to ensure reasonably
timely completion. Important business transactions are delayed and families are
forced to live separately for months and sometimes years. In the New York
district office, for instance, adjustment of status applications filed by US citizens
on behalf of their spouses routinely face delays in excess of two years. In
response, the CIS attempts to validate the fee increase, characterizing it as a
measure to reduce such processing backlogs. However, the additional revenue
collected, while a tremendous burden on most immigration benefit applicants,
will hardly be able to keep the CIS operating at its current level of efficiency. An
increase in fees will not ameliorate the structural and operational flaws within
the CIS that continue to burden immigrants, domestic businesses, and U.S.
citizens alike. An excellent illustration can be seen in the recent increase in
frivolous Requests for Evidence (RFE’s) being issued. Applicants for extension of
nonimmigrant status, for example, subject to the same standard of review as
their original applications without change in facts, are served with burdensome
RFE’s that further delay the processing of their application. According to the
American Immigration Lawyers Association (AILA), typical cases that were
subjected to needless RFE’s included a well-known major corporation being
asked to prove that it is a legitimate company, as well as an engineer’s
employer being asked for evidence that engineering is a professional field.2 It is
difficult for the CIS to legitimize their fee increase while continuing to perpetuate
deficiency in the quality of service they provide to an already dissatisfied public.

In a recently released press release, CIS Director Eduardo Aguirre states, “the
new fee structure will allow us to enhance service without compromising our
commitment to national security.” According to that same document, the new
fees will help to recover costs incurred because of comprehensive security
enhancements instituted after September 11, and improve customer service.
Upon examination of the proposed rule itself, the actual intended use of the
increased proceeds frustrates the CIS’s own enumerated purpose. For starters,
the CIS has factored into the new fee increases the cost of performing a costly
examination of its 800 number information service. Most immigration attorneys,
as well as pro se applicants already concur that the contractor-run information
hotline is a catastrophe, marred by prolonged hold times, uninformed operators,
and an all too annoying synthesized music loop. Requiring applicants to incur the
costs of studying and expanding what is largely regarded to be a failed
assistance program is like adding insult to injury. Additionally, the most recent
CIS budget factors into the new fees the costs of litigating lawsuits to force
action, commenced in large part as a result of agency errors. It is equally absurd
that the very people harmed when the CIS loses files, makes careless errors, or
adjudicates contrary to its own regulations, should pay for the CIS to defend
itself in the subsequent court actions.

Even the most liberal immigration practitioners are willing to concede the
importance of securing our borders, and as such it is equally in everyone’s
interest for the system of security checks we currently have to function efficiently
and reliably. Unfortunately, forcing applicants to shoulder the added cost of
increasing our security is insufficient to keep the system effective. Almost three
years since the tragedy of September 11 our security check procedures remain
bifurcated from the CIS’s adjudication system. This leads to unnecessary
repetition in scrutinizing applicants, as well as significant delay of the entire
process. Logic dictates that it is in this nation’s interest to weed out terrorists as
quickly as possible; circulating applications among different agencies with limited
information sharing abilities seems self-defeating.

Demanding more fees from immigration benefit applicants will not cure the
defects inherent within the overworked CIS. A structural overhaul, funded by
appropriations from Congress, is necessary to streamline the system, improve
processing times, and ensure security. Only once the CIS is running smoothly
will it be able to justify a fee increase to maintain it’s proper operation.
Unfortunately, while the Department of Homeland Security mulls over which color
is appropriate for the most recent Threat Advisory, we are all stuck paying the
new fees. Please be advised that all applications being submitted today, April
30, 2004, are subject to the following fees:
....................................
 
Democrats / Kerry

Curtesy of "latimes"

Kerry Hesitates as Democrats Promote Immigration Plan

His campaign is said to be wary of backing bills that could be 'picked apart' by the GOP.

By Ricardo Alonso-Zaldivar and Ronald Brownstein
Times Staff Writers

May 5, 2004

WASHINGTON — With stirring speeches in English and Spanish, senior Democratic lawmakers unveiled their party's immigration reform blueprint Tuesday — even though their presumptive presidential candidate, Sen. John F. Kerry of Massachusetts, had taken no position on the far-reaching legislation.

"The question is, 'Where's Kerry?' " said Harry P. Pachon, president of the Tomas Rivera Policy Institute, a Latino research center at USC. "It may be … that he is worried about the backlash."

Immigration is a politically charged issue, especially when voters are uncertain about the economy.

The Democratic measure would offer a route to citizenship for millions of illegal immigrants already in the country while setting limits on the future entry of foreign guest workers.

By contrast, President Bush has proposed a new guest-worker program — with no numerical limits — to fill jobs that Americans don't want. Illegal immigrants already here could register as guest workers for up to six years, but they would have no guarantees that they could obtain green cards leading to citizenship.

Democrats described their legislation as the product of months of negotiation with key interest groups representing immigrants, labor and business. Sen. Edward M. Kennedy (D-Mass.), the proposal's co-author and a mentor to Kerry in the Senate, called it an issue of "fundamental fairness."

Kerry's aloofness is "certainly curious or peculiar," said Demetrios G. Papademetriou, president of the Migration Policy Institute, a nonpartisan policy center in Washington studying
the movement of people worldwide.

A senior Kerry campaign official said that the candidate supported the concept of offering green cards to undocumented immigrants who were established, law-abiding workers, but that he had not yet decided whether he would endorse the Democratic measure.

"If comprehensive immigration reform passed the Congress this year, nobody would be cheering louder than John Kerry," said policy director Sarah Bianchi. "We're reviewing the details of the bill, but have long supported comprehensive immigration reform along these basic principles."

Democratic sources said the Kerry camp was reluctant to sign on to specific bills that could be "picked apart" by Republicans. But immigrant advocates say they expect the candidate to define where he stands.

"If he plans to appear before national Latino organizations, I do think he'll need a position by this summer," said Larry Gonzalez, Washington representative for the National Assn. of Latino Elected and Appointed Officials.

Democrats have criticized Bush for being vague on the details of his immigration plan and unwilling to expend political capital to push it in Congress. On Tuesday, they drew a sharp distinction between their plan and the president's.

"Unlike the president's plan that says 'come, work and adios,' our legislation respects workers," Rep. Luis V. Gutierrez (D-Ill.), a co-author of the proposal, said during an outdoor news conference with the Capitol dome as background. Television cameras, including those of the major Spanish-language networks, showed a multi-ethnic crowd of supporters waving American flags.

"Instead of second-class immigration status and a clear exit sign, we offer the same welcome mat that has been a fundamental part of our nation's proud history," Gutierrez added.

Rep. Robert Menendez (D-N.J.), speaking in Spanish, urged voters to crack the "whip" at the ballot box in November, so the bill could be passed next year.

Republicans called the Democratic plan unrealistic.

"I worry that this new bill does little beyond encouraging further illegal immigration," Sen. John Cornyn (R-Texas) said in a statement. Yet some Republicans, including Sens. John McCain of Arizona and Chuck Hagel of Nebraska, have proposed plans that would allow illegal immigrants to seek green cards.

Separately on Tuesday, a Harvard scholar released a study estimating that immigration reduced the wages of U.S. male workers by an average of about 4% from 1980 to 2000, with heavier losses for high school dropouts, Latinos and African Americans. George J. Borjas, a leading immigration economist, said immigrants added to the supply of low-skilled
workers, pushing down wages.

Previous studies have found a smaller or negligible effect on U.S. workers, but Borjas said he used a new method. His paper was presented at a discussion sponsored by the Center for Immigration Studies, a private research organization in Washington that supported restrictions on immigration. Other economists invited to speak at the event questioned whether the effect on the wages of U.S. workers was as large, and one suggested that Borjas might not have sufficiently accounted for the demand for low-wage labor.

Borjas said neither the Bush plan nor the Democratic bill would make for sound policy while illegal immigrants were still able to cross from Mexico. "It would be a great mistake," he said. "Let's actually control the border."
 
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