Court to Hear Immigrant-Bail Case
By Gina Holland
The Associated Press
WASHINGTON (AP) -- The Supreme Court agreed Friday to consider whether the government can jail immigrant criminals without bail to keep them from fleeing before deportation hearings. The case tests constitutional protections for legal immigrants. The Bush administration contends immigrants' rights are not being violated, and that public safety is on the line. The case has added significance since the Sept. 11 attacks, with hundreds of foreign nationals being detained.
Separately, the court granted the Bush administration's request in another immigration matter Friday. The court put on hold a federal judge's order that secret immigration and deportation hearings be opened to the public unless the government can show why an individual case should be closed. The court will review the issue of jailing without bail in the term that begins in October, with a ruling expected next year. The court will review a 1996 federal law on mandatory detentions that some lower courts have called unconstitutional.
The Immigration and Naturalization Service has detained more than 75,000 people under the challenged law, Solicitor General Theodore Olson told the Supreme Court. At issue is whether legal immigrants are being held in violation of the Fifth Amendment prohibition against being "deprived of life, liberty or property without due process of law."
The question "applies to thousands of criminal aliens currently in custody and to hundreds of additional criminal aliens each week," Olson argued to the high court. Lawyers for immigrants contend they are put in county jails along with accused felons during the extended deportation process, with no proof that they are flight risks or a danger to the public.
Olson argued that immigrants lose their rights when they are convicted of a violent crime.
"They have enjoyed full due-process protections in connection with those convictions," Olson wrote in a court filing. "Thus, criminal aliens have already been accorded the opportunity for an individualized hearing on the essential predicate for their detention." Congress has spelled out crimes that require deportation, including violent crimes like murder and nonviolent crimes, including smuggling, counterfeiting and theft. Studies show that nine out of 10 immigrants who face removal flee rather than show up for hearings at which they have little chance of winning, Olson told the court.
Olson had asked the court to consider cases won in lower courts by both legal and illegal immigrants, but the court accepted only a case dealing with a Korean-born man who was a legal U.S. resident.
Hyung Joon Kim came to the United States at age 6. In his late teens he was convicted of burglary and petty theft. He received a three-year sentence on the theft charge in California, and one day after his release the USCIS detained him. He challenged the mandatory detention and was released on bail.
Three appeals courts have ruled against the government in such cases, the 3rd U.S. Circuit Court of Appeals in Philadelphia, the 9th U.S. Circuit Court of Appeals in San Francisco and the 10th U.S. Circuit Court of Appeals in Denver. In two immigration cases last year, the high court narrowed USCIS powers. Justices ruled that legal aliens convicted of certain crimes are entitled to a hearing before they can be ordered out of the country.
The court also said that immigrant criminals with no country to accept them cannot be jailed indefinitely in America.
The case is Demore v. Kim, 01-1491.
Canada, U.S. Agree: Asylum Seekers Will Not Be Able to 'Shop for a Country'
By Adrian Humphreys
The National Post (Canada)
NIAGARA FALLS, Ont. -- Refugees seeking asylum in Canada after first landing in the United States will be turned away at the border under a plan signed yesterday by John Manley, the Deputy Prime Minister, and Tom Ridge, the United States Homeland Security Director.
The agreement is an attempt to stop refugees from "shopping for a country," Mr. Manley said yesterday at a jovial rooftop meeting overlooking a busy border crossing on the Niagara River.
The asylum agreement was announced as part of a progress report on the Smart Border Declaration, a 30-point outline for action needed on Canada-U.S. border issues undertaken after the Sept. 11 attacks in the United States.
Mr. Ridge said yesterday there has been "substantial progress" on all 30 points.
Said Mr. Manley: "We're well on our way to creating a smart border for the 21st century, one that is open for business but closed to terrorists."
Despite the fanfare of the asylum announcement, details were few and a timetable uncertain.
The text of a safe third country agreement has been initialed by Messrs. Manley and Ridge after extensive negotiation between officials in both Immigration Departments. Neither official would release the draft text and more discussions are needed before it comes into effect, they said.
"We will be holding consultations with members of our respective legislatures, the United Nations High Commission for Refugees and non-governmental organizations in the coming weeks in order to finalize the agreement," says the document signed yesterday.
"This initiative will promote the orderly handling of asylum applications and reduce the misuse of our respective asylum systems."
Currently, many asylum-seekers land in Canada or the United States and make refugee claims in both countries in a bid to hedge bets against refusal. Many land first in the United States and then turn to Canada for acceptance because of more generous refugee provisions and appeal options.
"It's not a matter of shopping for a country that you want, it's a matter of escaping the oppression that you face," Mr. Manley said.
About 60 per cent of the 50,000 refugees who arrive in Canada each year come via the United States and half of those fail in their claims in this country.
The change does not mean either country will reduce the number of refugees accepted nor will the nations become less welcoming, said Mr. Ridge. "Both countries have big hearts," he said.
Reaction to the plan was mixed. David Matas, a Winnipeg immigration lawyer and past president of the Canadian Council for Refugees, called it "a sad day for refugees" because the U.S. system is more severe than Canada's, including a policy of detaining children.
In Montreal, Immigration Minister Denis Coderre rejected the criticism. "Canada won't shut its border," he said.
Although final details have yet to be worked out, Canada would retain the right to select up to 200 refugees a year turned away by the United States, he said.
The agreement would make some exceptions for minors and families, and give priority to keeping married and same-sex couples together.
Criminals would be deported within days rather than months.
Sergio Karas, a Toronto immigration lawyer, said it will allow Canada to focus on those most in need. "Those who have a genuine fear of persecution will now have to do the sensible thing and claim asylum at their first opportunity, rather than go around the world and shop for a good forum."
Mr. Karas said the government should negotiate a similar agreement with European countries.
The asylum change is part of larger plans to better monitor transnational travel. "Ensuring the secure flow of people into our countries begins well away from our border. To this end, we have strengthened our co-operation and our ability to intercept high-risk travellers before they arrive in our countries," says the document.
Canada and the United States will also post more immigration control officers overseas in an attempt to uncover fraudulent passports and other bogus documents before visitors board planes bound for either of the countries.
Air passengers will also be screened more carefully before arrival, identifying travellers who warrant additional scrutiny. Information on high-risk passengers will be shared between agencies.
Two Joint Passenger Analysis Units, one in Vancouver and the other in Miami, will be established by September.
The document also highlights:
- The initiation of a joint border program, called Free and Secure Trade (FAST), designed to swiftly and safely move commercial shipments across the border. FAST will pre-clear low-risk commercial shipments from regular and respected shippers so border agents can concentrate on the high-risk loads such as rental trucks and unknown or unmarked containers.
- A major joint counterterrorism training exercise, involving law enforcement, security agencies, public safety planners and emergency responders, is set for May, 2003.
- The use of new technologies for confirming the identities of travellers, including facial recognition systems, iris scanning and fingerprints, will be standardized, and new investments will be made in developing and deploying high-energy gamma and X-ray machines to detect dangerous materials in transit containers.
EEOC Will Protect Illegal Workers
The Associated Press
WASHINGTON (AP) -- The government will continue efforts to protect illegal workers from racial and sexual discrimination, despite a Supreme Court ruling that bars them from winning back pay if wrongly fired.
"It's important that we treat any type of employment discrimination the same regardless of immigration status," Cari Dominguez, chairwoman of the Equal Employment Opportunity Commission, said Friday.
The Supreme Court ruled in March that employers cannot be forced to give back pay to undocumented workers who are wrongly fired or demoted, or to reinstate them to their jobs.
Dominguez said the EEOC is still studying the effects of the ruling, but other remedies will remain available to punish employers and protect illegal workers. Possibilities include punitive damages and restitution for any work that was performed but went unpaid.
The agency announced on Friday that it had directed field offices to pursue cases without regard to workers' immigration status.
"Our biggest concern is that undocumented workers not feel afraid or fearful of coming forward," Dominguez said. "We have done extensive outreach in the last few years in rooting out discrimination against those individuals who are the most vulnerable."
The court ruling came in a case involving the National Labor Relations Board, which protects employees against punishment for engaging in union activities.
The EEOC enforces laws that protect workers, regardless of immigration status, from discrimination based on their race, religion, sex, national origin, age or disability.
EDITOR'S NOTE: The press release this story is based on is at:
http://www.eeoc.gov/press/6-28-02.html
Hialeah Paralegals Accused of Immigration Fraud
By Jody A. Benjamin
The Sun-Sentinel
A federal grand jury charged six people with setting up a now-defunct Hialeah paralegal firm as a front to help dozens of foreign nationals file bogus claims for political asylum.
The firm, Hedman and Associates Paralegal Group, Inc., closed a year ago after federal authorities searched the business at 900 W. 49th St. in Hialeah. That investigation ended this week when a grand jury handed down a 21-count indictment and authorities arrested six of the firm's principals.
"Breaking up a fraud ring is like putting out a cigarette," said James Goldman, chief investigator for the Immigration and Naturalization Service about the length of the investigation. "You've really got to stamp it out or else it keeps smoldering."
Indicted were Olga L. Hedman, 63, of Hialeah; her daughter and son-in-law, Gloria I. Hedman, 31, and Raul J. Molina, 27, both of Miami; Jeanneth Gutierrez, 46, of Margate; Carlos Alberto Hiedra, 41, and Yamara Tejada, 20, whose cities could not be determined. They were each charged with conspiracy to commit mail and wire fraud, filing fraudulent claims for political asylum and Social Security and immigration document fraud.
In November 2000, Olga Hedman registered the firm with the Florida Division of Corporations as an immigrant service agency, according to the indictment. The other defendants, some of whom had worked as paralegals at other firms in Miami, joined her company.
But according to the indictment, Hedman already had turned to fraud by helping Hiedra, a Venezuelan, file a fraudulent political asylum claim in 1999. Likewise, her new firm developed a network of potential clients among South Florida's burgeoning population of undocumented immigrants, then paid off Hiedra who had invested in the firm.
Charging between $3,000 and $8,000 for asylum claims, the firm prepared false documentation, including fake foreign police reports and medical reports from foreign countries, and coached their customers on how to make their bogus case seem real to U.S. asylum officers, the indictment states.
Molina allegedly fabricated persecution stories for customers that he faxed or e-mailed to them with instructions to "practice the story" before meeting asylum officers. The firm helped file about 30 such asylum claims, authorities said.
Olga Hedman lured more customers by bragging about her success rate, according to the indictment. Between 40 and 50 foreign nationals visited the firm's offices each week.
Providing fake immigration stamps in passports and helping foreigners obtain Social Security cards provided the firm another source of income: between $750 and $900 per customer, according to the indictment. After supplying their customers fake documents, the defendants allegedly steered them to Social Security offices outside South Florida where they thought workers were less likely to detect the fraud.
If convicted, Hedman faces up to 15 years in prison and $250,000 fine. The others face up to 10 years and $250,000.
"South Florida's illegal alien population is target rich for fraud schemes," Goldman said. "But I'm encouraging aliens not to try to circumvent U.S. immigration law. You're going to get ripped off."
USCIS Extends Program on Green Cards
By Jody A. Benjamin
The Sun Sentinel (Fort Lauderdale)
Citing a lower-than-expected response, the Immigration and Naturalization Service will extend by one year a legalization program that offers green cards to undocumented immigrants who have lived here since 1982.
The program, created under a provision of Life Act of 2000, affects about 250,000 undocumented immigrants nationwide who sued the USCIS saying the agency wrongly shut them out of a 1986 amnesty. Only 25,961 immigrants from that group have thus far applied.
USCIS said it will publish a final rule governing the Life Act in the Federal Register today. The agency also plans a community outreach campaign to inform potentially eligible applicants about the program, which ends May 31.
"We are hopeful that more eligible applicants will submit their applications for lawful permanent residency," said USCIS Commissioner James Ziglar in a written statement.
Eligible applicants must show that they entered the United States before Jan. 1, 1982, and that they were continuously present in the United States between Nov. 6, 1986, and May 4, 1988. They also must show that they were plaintiffs in one of three class action lawsuits against the BCIS.
USCIS cautioned potential applicants to beware paying for bad advice from unscrupulous immigration consultants, so-called notarios.
U.S. to Track Visitors Deemed a Security Risk
By a Washington Post Staff Writer
The Justice Department announced plans yesterday to fingerprint and photograph more than 100,000 visa holders who pose "national security concerns," taking another major step in its efforts to keep track of foreign visitors to the United States.
Officials said they would initially focus on visitors from five countries where terrorists are known to operate -- Iran, Iraq, Libya, Sudan and Syria -- prompting immediate complaints that the system amounted to racial profiling of Middle Eastern visitors.
But Attorney General John D. Ashcroft said the National Security Entry-Exit Registration System would eventually cover any of the 35 million people who visit the United States each year if they pose a security concern. The criteria for determining that threat will be largely kept secret.
Ashcroft said terrorists are moving unnoticed through the United States, violating the terms set by their visas "with impunity." He said the new system "will expand substantially America's scrutiny of those visitors who may pose a national security concern and enter our country. And it will provide a vital line of defense in the war against terrorism."
Citing an oft-repeated justification for the new precautions, Ashcroft said "on September 11th, the American definition of national security changed and changed forever."
Yesterday's announcement comes after previously declared government plans to shorten some visa stays andimpose stricter terms on student visas. Congress has ordered the USCIS to establish a system to track the entry and exit of all visitors beginning in 2005, and Ashcroft said the new system is the first phase of that effort.
All of the 19 hijackers in the Sept. 11 attacks on New York and Washington entered the country on valid visas, though some overstayed the time limits imposed by those visas.
The initiative immediately angered immigrant groups and some members of Congress, who accused the government of racial and ethnic profiling of hundreds of thousands of Middle Eastern students, workers and tourists.
Cecilia Munoz, vice president of policy for the National Council of La Raza, a pro-immigration group, said the plan will not help in the fight against terrorism.
"This is going to lead to enormous racial profiling," Munoz said. "The people who are going to come forward and try to comply are the law-abiding people we want here."
Sen. Edward M. Kennedy (D-Mass.), said he was "deeply concerned" that the regulations will unfairly target Muslim and Arab nationals. "This is a troubling and poorly thought out regulation," Kennedy said. "It does little to provide real protection against terrorism."
But Rep. Mark Foley (R-Fla.) applauded the proposal, calling it "a step in the right direction."
"Entrance into the United States is not a guaranteed right," Foley said. "We need to require all people who want to come to the United States from a country proven to sponsor terrorism to register before they even think about getting on a plane or boat."
The initiative, which will take effect in the fall after a public comment period, will require visitors over age 14 who hold non-immigrant visas and are deemed security risks to be fingerprinted and photographed before they are allowed into the United States, Ashcroft said.
Those who stay in the country more than 30 days will be required to register with the USCIS and provide proof of employment or enrollment at a school, or information on where they are living. They will be required to register again once a year or risk being turned over to authorities, fined, jailed or deported. They are also required to notify the USCIS when they leave the country.
Officials said the new checks would affect 100,000 new visitors in the first year. Non-immigrant visitors already in the United States who pose security risks will be asked to register, as well.
The checks would affect foreign nationals whom the USCIS and State Department believe to be an "elevated national security risk" and those who USCIS inspectors believe fit certain criteria. The criteria have not been determined, Ashcroft said.
Some of those affected will not be told ahead of time that their fingerprints will be taken at the port of entry, according to senior Justice Department officials.
Under the new plan, fingerprints of "high-risk" foreigners coming into the country will be matched against a database of suspected or known terrorists at the port of entry. Information on these foreigners also will be put into the National Crime Information Center (NCIC), a database maintained by the FBI and used by U.S. law enforcement to identify wanted felons.
Angela Kelley, deputy director of the Washington-based National Immigration Forum, an immigrant advocacy group, said the measure goes too far.
"The most law-abiding immigrant will now find himself a law breaker and deemed a security threat," she said. "It makes me worry about what kind of nation we're becoming."
USCIS Starts Student Tracking Web Site
By Christopher Newton
The Associated Press
WASHINGTON (AP) -- The Immigration and Naturalization Service has launched the Internet Web site that the nation's universities will soon use to register foreign students ? the first step in the government's plan to track the movements of all those with temporary visas, according to USCIS officials.
Schools that have received USCIS permission to accept foreign students for three years can begin using the Web site system immediately, the agency announced Tuesday.
Other schools will have to go through an extended review period to gain approval to use the system, called "SEVIS." The system becomes mandatory Jan. 30, 2003. On that date, schools not approved to use the Web site will not be allowed to admit foreign students.
The approval process will force schools to prove they have the programs and policies in place to provide the education that a foreign student has applied to receive.
The Web site, which requires a user name and password, is aimed at making sure foreign students take the courses they were approved to take and attend the schools they told the government they would attend. "We are going to make sure that those who enter our country to attend a college, actually do what they have agreed to do," said Terrance O'Reilly, commissioner of the BCIS's field service operations department. "This is about guaranteeing that our foreign students live up to their bargain and don't head off to places unknown."
The Web site is also intended to close many loopholes that have led to the government losing track of foreign students. In past years, thousands of foreign students that were accepted to more than one American college switched colleges once they arrived. Others have simply disappeared while in the United States.
When the Web site becomes mandatory, colleges and universities will have to report when a student arrives at the school, and all other universities that sent a letter of acceptance to the student are notified of the student's plan.
If the student never shows up or disappears from a college, the USCIS plans to track the student down with law enforcement agents.
O'Reilly acknowledged the enforcement arm for the new system will evolve as it becomes clear how many agents are necessary to trackdown students. It has not been decided whether foreign students would be treated as criminals if they are found to have abused the system.
Schools must also report through the Web site whether foreign students are making any shifts in their field of study. If a student begins taking courses in subjects that might provide useful information to terrorists ? such as chemistry or nuclear physics ? USCIS officials might also make inquiries.
Education trade groups and members of the education community have supported the program.
"We think SEVIS is the single best thing that the government can do to monitor foreign students," said Terry Hartle, a vice president of the American Council on Education. "It will not require the collection of information than colleges and universities currently collect. But all that information was on paper and there was no possible way to get it to USCIS in bulk."
Military Immigrants Get Citizenship
By Sandra Sobieraj
The Associated Press
WASHINGTON (AP) -- President Bush is offering a Fourth of July gift to 15,000 immigrants serving active duty in the U.S. military: immediate eligibility for citizenship.
The president was to announce his executive order, which he signed on Wednesday, during an Independence Day celebration honoring veterans in Ripley, W.Va.
"Our fine service men and women are fighting and winning the war on terror. They deserve the gratitude of all people who cherish freedom," Bush said in a formal holiday statement.
A White House paper outlining the change to immigration policy described it as a way to reward noncitizen personnel serving in active duty during the post-Sept. 11 war on terrorism. Citizenship, in turn, will improve the retention of military personnel by allowing them to advance their Armed Forces careers, the White House said. While legal permanent residency is all that is required to enlist in the U.S. military, only citizens can be promoted to commissioned or warrant officers, or serve in special warfare programs such as the Navy SEALs.
Current rules allow immigrants enlisted in the Armed Forces to apply for naturalization after three years of service, as opposed to nonmilitary immigrants who must bank five years of legal residency before becoming eligible.
More than 31,000 noncitizens are currently serving on active duty ? accounting for between 3 and 4 percent of America's total military personnel ? with just over half already eligible for citizenship consideration. The rest, an estimated 15,000 men and women, have not yet completed their three-year wait. It is this group that would benefit from Bush's executive order eliminating any waiting period.
The Immigration and Naturalization Service will work with the Defense Department to set up processing facilities on military bases. Military applications will not be given head-of-the-line priority over nonmilitary naturalization applicants, an administration official said.
The White House identified three women who will be newly eligible:
*Marine Corporal Miranda Enriquez, 21, who immigrated from Mexico in 1998. Based at Camp Pendleton, Enriquez is with the 11th Marine Expeditionary Unit, which deployed last month and is at sea. She is one of 6,500 noncitizen Marines.
*Aviation storekeeper 3rd class Lalengbor Okpa, from Nigeria, who enlisted in the Navy in December 1999 and is serving on the USS John F. Kennedy. She is one of the Navy's 15,700 noncitizen personnel.
*Specialist Michelle Pedro of Guyana, who enlisted in the Army in January 2000 and is stationed at Fort Campbell, Ky., one of 5,800 noncitizen Army soldiers.
President Carter signed a similar executive order following Vietnam; President Clinton did the same after the Persian Gulf War.
Failure to Inform USCIS Promptly of Change of Address May Result in Deportation
The Atlanta Journal-Constitution for July 10, 2002 reported that a national of Palestine, Thar Abdeljaber, who is now a legal resident with a legal resident wife and two U.S. citizen and two legal resident children, has been placed in removal proceedings for one and only one reason: failure to inform the USCIS promptly of a change of address. Don't let this happen to you!
The immigrant, stopped for speeding, had drawn circles on a map to remind himself of which towns had flea markets, and the FBI, in its current mind set, imagined that he might have been planning to attack airports near those towns. Although the immigrant's identity has been known to the USCIS since 1998, and his activities as a provider of electronic goods at flea markets are entirely innocent, the USCIS trial attorney told the immigration judge on July 9 that the government had concerns about his "identity and activities." Perhaps Franz Kafka should be writing this article.
Form AR-11 Alien's Change of Address Card explains that "Failure to report is punishable by fine or imprisonment and/or deportation." Let's get oriented by taking a look at the statute, The Immigration and Nationality Act (INA), Section 265 "Notices of Changes of Address." "(a) Each alien required to be registered under this title who is within the United States shall notify the Attorney General [the BCIS] in writing of each change of address and new address within ten days from the date of such change." Section 266, "Penalties," provides that "any alien who fails to give written notice.shall be taken into custody and removed.unless such alien establishes .that such failure was reasonably excusable or was not willful."
Is every single immigrant "required to be registered," and therefore required to inform the USCIS of a change of address? Section 221, "Issuance of Visas," explains that every alien who applies for a visa is required to register, with the exception of nonimmigrants in the categories A (ambassador) and G (representative of foreign government at the UN). This means that virtually every alien must inform the USCIS of a change of address.
Jeanne Butterfield, the executive director of the American Immmigration Lawyers Association, had this to say: "They're using the immigration laws to go after people they don 't have any basis to go after under the criminal laws. I think it's appalling."