Wednesday, January 11, 2006

Supreme Court Immigration Case -- 1/9/06

05-5352 DIAWARA, MOHAMED L. V. GONZALES, ATT'Y GEN., ET AL., --- S.Ct. ----, 2006 WL 37047 (Mem), U.S., January 09, 2006

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of 8 U.S.C. §1252(a)(2)(D).

Here is the 4th Cir memorandum (unpublished) opinion:


Submitted: January 28, 2005 Decided: April 20, 2005

Before WILKINSON, LUTTIG, and DUNCAN, Circuit Judges.

Petition dismissed by unpublished per curiam opinion.

Theresa I. Obot, LAW OFFICE OF THERESA I. OBOT, Baltimore, Maryland, for Petitioner. Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, Larry P. Cote, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).


Mohamed Lamine Diawara, a native and citizen of Guinea, petitions for review of an order of the Board of Immigration Appeals ("Board") affirming, without opinion, the decision of the immigration judge ("IJ") denying asylum, withholding of deportation, and relief under the Convention Against Torture. We dismiss the petition for lack of jurisdiction.

Diawara challenges the IJ’s findings that his asylum application was untimely and he failed to establish extraordinary circumstances for an exception under 8 U.S.C. § 1158(a)(2) (2000). We conclude that we lack jurisdiction to review this claim or the merits of his asylum application. See 8 U.S.C. § 1158(a)(3) (2000); Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004). We also lack jurisdiction over Diawara’s challenges to the IJ’s denial of withholding of deportation and relief under the Convention Against Torture because he failed to properly exhaust these claims in his appeal to the Board. See 8 U.S.C. § 1252(d) (2000); Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).

Accordingly, we dismiss the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.


January 11, 2006 | Permalink | Comments (0) | TrackBack (0)

AILF Newsletter

The latest AILF newsletter is at 

This issue covers the favorable district court order in the ADIT litigation (Santillan v. Gonzales) and recent decisions addressing Matter of Grijalva and the presumption of effective service.


January 11, 2006 | Permalink | Comments (0) | TrackBack (0)

A Case on the Legal Rights of Undocumented Workers

Robert Correales of UNLV has written scholarship on this issue.


The New York Sun

January 11, 2006 Wednesday


521 words

Court To Decide If Illegal Immigrants Eligible for Lost Wages By DANIELA GERSON, Staff Reporter of the Sun

New York State's top court will consider today if illegal immigrant workers can recover for lost wages, in a case that is being carefully followed by immigration lawyers and advocates around the country.

In 2004 a state appellate court came up with a novel response to the question in two cases where illegal immigrants injured on construction sites pressed for financial compensation: The panel ruled the immigrants should be granted lost wages based on rates in their native countries.

In the case the Court of Appeals will hear today, Gorgonio Balbuena v. IDR Realty, the lower court determined that Mr. Balbuena, an illegal immigrant from Mexico, was "not entitled to recover lost earnings damages based on the wages he might have earned illegally in the United States." Rather than say Mr. Balbuena, who was severely injured on the site as a construction laborer in 2001, should be denied compensation, the court determined that he should receive what he could earn in his home country, "since an award based on a prevailing foreign wage would not offend any federal policy."

At issue is whether awarding damages for lost earnings in tort cases preempts the goal of the 1986 Immigration Reform and Control Act, which prohibits companies from employing illegal immigrants. The Supreme Court determined in the 1982 case Plyer v. Doe that illegal immigrants have the same basic legal rights as citizens and that no state shall "deny to any person within its jurisdiction the equal protection of the laws."

However, a more recent decision, in Hoffman Plastic Compounds Inc. v. NLRB, found that, based on the 1986 law, back pay should not be awarded to an illegal immigrant "for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud."

In the Balbuena case, the defendant maintains it should not pay any back wages, because the work was gained through illegal activity. The plaintiff, on the other hand, is not satisfied with being awarded compensation equivalent to lost wages in Mexico, which would equal but a small fraction of his lost earnings in New York.

Immigration advocates say using the Hoffman precedent in this trial misconstrues its purpose and violates state law, which does not distinguish between legal and illegal immigrant employees. Attorney General Eliot Spitzer, whose office has aggressively advocated for illegal immigrants'

labor rights, has joined their side, and a representative from his office will testify as an "Intervenor-Appellant."

Attorney Brian O'Dwyer, whose office won more than $3 million in a settlement last year for an illegal Mexican construction worker hurt on the job, warned the case could create a dangerous precedent that could affect millions of New Yorkers.

"Until now, we have said those who don't have papers have the same rights in the courts in America," Mr. O'Dwyer, whose firm submitted a amici curiae petition in support of the plaintiffs, said in Spanish. "This case is the first such instance in New York, and that's why it is important to see how we are going to treat our undocumented."

January 11, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2006

BC Immigration Clinic Wins Again!

1/6/06--The Boston College Immigration and Asylum Project (BCIAP), together with the Catholic Legal Immigration Network (CLINIC), is proud to announce that they have won "cancellation of removal" for a young woman from Liberia, preventing her deportation.

"This case was a wonderful example of the sort of multi-disciplinary approach we have been developing in the Immigration Clinic and in the Human Rights Center," said BC Law Director of Human Rights Programs, Professor Daniel Kanstroom. "In particular, the work of a BC School of Social Work student was invaluable, as was collaboration with the Roger Williams criminal defense clinic. I’d like to congratulate our Attorney/Fellow, Mary Holper and Tara Slepkow (2L) on some absolutely first-rate legal work. They may have literally saved this young woman's life, bringing her back from the brink of a tragic deportation, getting her released from federal custody, and developing a workable treatment and life plan for her."

‘Ms. K’ came to the United States as a lawful permanent resident in 1991, after fleeing the civil war in Liberia. As a young child, she suffered female genital mutilation. She and her family were also captured by rebel forces and forced to watch brutal killings during the war, including the beheading of a man before her eyes at a checkpoint. As a result, Ms. K suffered severe post-traumatic stress disorder.

Arriving in the U.S. as a teenager, she had little reprieve from her suffering in Liberia. After being physically and mentally abused for years, she was introduced to crack cocaine, which led to a string of petty crimes. She was later convicted of two shoplifting offenses, for which she was sentenced in Rhode Island to 1 year suspended sentences. She did not realize that these minor criminal matters meant that she had been convicted of an "aggravated felony" under harsh federal immigration laws for which she faced imminent deportation and mandatory detention.

Former BCIAP Fellow, Alexandra Dufresne, met Ms. K in July 2005 at a regional county jail, where she was detained by Immigration and Customs Enforcement (ICE). Attorney Dufresne filed an application for asylum and withholding of removal, citing the persecution that Ms. K would suffer in Liberia on account of her ethnicity if she were deported. Attorney Dufresne also contacted with the Roger Williams Criminal Defense Clinic in Rhode Island, which agreed to represent Ms. K to seek the reduction of her shoplifting sentences. The defense clinic team was successful and Ms. K became eligible for "cancellation of removal," a special waiver of deportation available to long-term permanent residents.

The new CLINIC/BCIAP staff attorney, Mary Holper (BC Law 2003), took over the case in August of 2005. Ms. Holper and BC law students submitted lengthy briefs in support of Ms. K’s applications for cancellation of removal, asylum and withholding of removal. The team also arranged for Ms. K to be examined by a gynecologist from Boston Medical Center to verify that she suffered female genital mutilation and by a psychologist to verify the diagnosis of post-traumatic stress disorder and the need for further medication and therapy to overcome recurrent hallucinations. As part of the new multi-disciplinary focus of BCIAP, sparked by the Center for Human Rights and International Justice, the program accepted a Boston College social work graduate student in a clinical placement this year. That student, Jennifer McDonald, found various treatment programs for Ms. K that would take her if she could be released from detention.

On December 29, 2005, Ms. K appeared before an Immigration Judge in Boston, MA, represented by Attorney Holper and BC Law student Tara Slepkow. The Immigration Judge was convinced by the proof submitted about the extreme hardship that Ms. K would suffer if she were deported to Liberia. The Immigration Judge also was impressed by Ms. K’s desire to rehabilitate from her drug use and the hardship that her young children would suffer if they were separated from their mother. The judge granted the discretionary waiver of deportation and the government has agreed not to appeal that ruling. Both the judge and the government lawyer specifically noted the high-quality presentation of the case by Attorney Holper and Ms. Slepkow. Ms. K was released that very day, where she was welcomed into the arms of her family in Providence, RI.


January 10, 2006 | Permalink | Comments (0) | TrackBack (0)

Arizona again

Providing an interesting follow-up to Bill's earlier post, here is an AP article about Arizona's newly-proposed $100million immigration plan.

The proposal entails spending $100 million in state funds to address undocumented migration, and includes funding to support crack-downs on the employers of undocumented workers.


January 10, 2006 | Permalink | Comments (0) | TrackBack (0)

Some Thoughts about the Mexican Repatriation of the 1930s

In a little-noticed act last fall, the California Legislature passed the Apology Act for the 1930s Mexican Repatriation Program. This bill, which Governor Schwarzennegger signed into law, formally apologized for the forced removal of approximately 400,000 persons – U.S. citizens as well as noncitizens – of Mexican ancestry from California during the Great Depression. U.S. citizens of Mexican ancestry comprised roughly two-thirds of the "repatriates." Under the new law, a plaque commemorating the victims of the repatriation will soon be displayed in a public place to be designated in the Los Angeles area.

During the Depression, state and local governments unlawfully forced U.S. citizens and lawful immigrants of Mexican ancestry to return to Mexico. Police raided the Catholic Church La Placita on Olvera Street, and many other places across the greater Los Angeles area where working class people of Mexican ancestry could be found. People "looking" Mexican were rounded up and placed in cars, trains, and buses headed to Mexico. The authorities paid little attention to the rule of law, much less due process of law. Not surprising given the lack of any process, thousands of citizens were unlawfully removed from the United States. One of the deported citizens was former California Supreme Court Justice (and Presidential Medal of Honor winner) Cruz Reynoso, whose family fled Brea for Mexico.

In a time of national economic crisis, the Mexican deportation campaign sought to save jobs for true "Americans" and reduce the welfare rolls. An economic threat had placed the nation’s future in jeopardy, caused severe economic distress for many U.S. citizens, and effectively compelled government to act. A discrete and insular minority, the most available and vulnerable target, suffered greatly from the government’s policy choices.

The California Legislature picked an opportune time to pass this apology to the Mexican repatriates, which came after special hearings held in July 2003 before a special committee chaired by Sen. Joseph Dunn (D-Garden Grove). Several survivors, who were young children, told the sad stories – often through tears – of the harsh impacts of the repatriation on U.S. citizens of Mexican ancestry. Senator Martha Escutia eloquently told of her grandfather who, traumatized by the repatriation, refused to go to the store near his home in East Los Angeles – even after he naturalized and became a citizen in the 1990s – without his passport.

The last few months have seen a series of immigration reform measures, many of which focus on increased border enforcement. The U.S. House of Representatives passed a harsh bill immediately before the holiday recess. The patrolling of the border by the self-proclaimed Minutemen, who President Bush has aptly characterized as "vigilantes," triggered the latest border enforcement frenzy. Public outbursts on the issue of immigration are nothing new, however. In 1994, California voters’ overwhelming passed Proposition 187 and the federal government responded by a tremendous increase in border enforcement. One of many border enforcement measures, Operation Gatekeeper, militarized the border in the San Diego area and helped quiet the streets of that city.

Despite the unprecedented enforcement of the U.S. border with Mexico on the 1990s, the traffic of migrants coming to the United States for jobs and to rejoin family continues. It has simply shifted to mountains and deserts east of San Diego. As a result, thousands of Mexican migrants have died horrible deaths from exposure and dehydration. And the undocumented immigrant population in the United States has increased from an estimated six million to somewhere near 12 million.

The Mexican repatriation was an effort to solve the economic woes of the Great Depression. Now, some members of Congress contend that we need more border enforcement to save jobs for Americans and help us in the "war on terror" triggered by the tragic events of September 11.

Rather than look at our immigration policies with regret years from now – and feeling it necessary later to pass apologies, we should formulate policies that will make this nation proud. We should strive to make our immigration laws to square with the economic, political, and social realities of immigration in a global age. Quick fixes to important social issues – whether it be Mexican repatriation in the 1930s or border enforcement in 2006 – will not work and will only add another sad chapter in U.S. civil rights history.


January 10, 2006 | Permalink | Comments (0) | TrackBack (0)

Article on Immigration Battle in Arizona

The January 16 issue of the New Republic features an article by John Judis titled, Border War: The Fight Over Immigration is a Fight Over Identity.

Part of the story points out wonders, what, exactly, is this craziness about? In Washington, politicians and political organizations regularly attribute the obsession with immigration to illegal migrants taking the jobs of native-born Americans. Tom Tancredo makes that claim, and so do the two leading groups advocating restrictions on immigration, the Federation for American Immigration Reform (FAIR), which bankrolled Proposition 200 in Arizona, and the Center for Immigration Studies. That did happen in Midwestern meatpacking plants several decades ago, and it may still be happening in some parts of the country, but it does not seem to be the case in Arizona, where unemployment hovers below 5 percent and where construction, agriculture, and tourism are plagued by acute labor shortages. Illegal immigration doesn't even seem to be having a dramatic effect on wages, with pay for unskilled work in Arizona regularly exceeding the minimum wage. 

Unskilled workers currently make up 32 percent of Arizona's labor force, and they are constantly in demand. Tom Nassif of Western Growers, a trade association, recently complained that the construction industry was "siphoning off" the migrant workers that growers needed in the field. "Farms will not have enough workers to harvest their crops," he warned. Meanwhile, Arizona's tourist industry says it can't find enough workers for its hotels and restaurants. Bobby Surber, the vice president of Sedona Center, who runs three restaurants, two shopping plazas, and a resort, and employs 200 people, says, "Even though we pay larger than average, and full medical and dental, we cannot find enough employees." 


January 10, 2006 | Permalink | Comments (0) | TrackBack (0)

But More on Judge Alito and Immigration

Another analysis of Judge Alito's views on immigration

Download pages_from_1230_final_alito_report.pdf

This is excerpted from

Its hard to say but will there be any bumps, much less waves, in the confirmation hearings?


January 10, 2006 | Permalink | Comments (0) | TrackBack (0)

AG Warns Immigration Judges -- Be Fair or Be Square

Attorney General Alberto Gonzalez has formally warned the immigration courts to treat the claims of noncitizens fairly and to respectfully treat them in court.  No doubt its a response to the groundswell of  press criticism of the immigration courts, which recently made it on to the front page of the New York Times.

Download AGMemorandumtoImmigrationJudges.pdf


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Monday, January 9, 2006

Section on Immigration Law session at the Association of American Law Schools Conference (Washington DC, January 3-7)

I just wanted to acknowledge the great work done by the members of the AALS Section on Immigration Law in organizing and presenting two great sessions this past Saturday on the topic “Law and Policy Affecting Immigrant and Refugee Children," and to briefly summarize what transpired (and where to get more information).

The first panel included Jacqueline Bhabha, Executive Director of the Committee on Human Rights Studies at Harvard University; Christopher Nugent, the Community Services Team Administrator at Holland & Knight; and Linda Piwowarczyk, Co-Director of the Boston Center for Refugee Health and Human Rights. The panel was moderated by Susan Musarrat Akram of the Boston University School of Law. The panel focused on issues relating to immigrant and refugee children subject to removal proceedings, including detention standards and conditions, removal process and procedures, special problems facing children under the relevant standards and procedures, and the effects of the removal and detention process on the psychosocial needs of children. All speakers emphasized the fact that although U.S. law has made some progress in recognizing the unique needs of the thousands of unaccompanied minors caught in our immigration system, there is still a wide gap between the needs of these youth and the systems that the law provides.

The second panel, again moderated by Susan Akram, included Angela Lloyd of Ohio State University Michael E. Moritz College of Law; David B. Thronson of the University of Nevada, Las Vegas William S. Boyd School of Law; and a reading of a paper submitted by Berta E. Hernandez-Truyol, University of Florida Fredric G. Levin College of Law. This panel, cosponsored by the Section on Minority Groups, focused on constitutional rights, access to benefits, and problems of the applicability of such rights and benefits to immigrant and refugee children under state and federal law and policy. The panelists emphasized the ways in which U.S. immigration law and policy distorts or completely precludes proper analysis – standard in family law and international law norms – of the best interest of these children, whose lives, safety, education and well-being are at stake.

The program will be published in the Boston University Law Review and the Boston University Public Interest Law Journal. It should be well worth reading.


January 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Immigrants and the Presidency

A short while back (before recent political setbacks in California), California Governor Arnbold Schwarzenegger was the talk of the town as a possible U.S. President.  This raised the question whether the U.S. Constitution should be amended to allow naturalized citizens to be elected President of the United States.  Currently, only natural born Citizens are eligible for the presidency.  For a discussion of this requirement, see Malinda L. Seymore, The Presidency and the Meaning of Citizenship, 2005 BYU L. Rev. 927.  The "Schwarzenegger-for-President" movement seems to have subsided but the legal issue remains.



January 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Website of UK and European Immigration and Refugee Law

See below for info on a useful web site re UK and European immigration and refugee law. Thanks to Steve Yale-Loehr for bringing it to our attention. Electronic Immigration Network

The Electronic Immigration Network (EIN) provides information on UK immigration and refugee law to practitioners and the public. In addition, EIN offers information on immigration and asylum issues from the European Union, as well as caselaw and selected documents from other English-speaking jurisdictions. There are two parts to the Network: the subscription-based Member's Site and the Public Site. The Members' Site is aimed primarily at immigration law practitioners and advisors and contains extensive information on legislation, caselaw, and countries of origin, as well as other resources relevant to the immigration professional. The Public Site contains general resources and links for asylum seekers and
immigrants, students, journalists, and others with an interest in immigration and asylum. The "Resource Database" on the public side is searchable or browseable alphabetically or by location. This
website is viewable in many languages in addition to English, from Albanian to Turkish.


January 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Protests Held Against Undocumented Workers

Hundreds of protesters squared off in tense and boisterous confrontations Saturday at Southern California day laborer sites, as activists opposing illegal immigration stepped up a nationwide effort to cut off jobs for undocumented workers.

The protests pitted members of the Minuteman Project and similar groups that seek tighter borders against counter-demonstrators outside home improvement stores in Glendale, Lake Forest, Laguna Beach and Rancho Cucamonga. The demonstrations included drum thumping, shouting and dueling efforts to videotape the opposition.

But the protests were largely peaceful. A protester was arrested in Glendale on suspicion of misdemeanor assault after allegedly shoving an anti-illegal immigration organizer.

The National Day of Protest, planned by a coalition fighting illegal immigration, included demonstrations in several other states. It was the latest in a series aimed at cities that support day laborer hiring sites, as well as contractors, homeowners and others who hire undocumented workers.

In Glendale, at one of the largest protests, about 150 people carrying signs and banners lined the street outside a Home Depot.

The city helped create a day laborer hiring center next to the store where dozens of men, many of them undocumented, regularly gather looking for work.

"They're aiding and abetting ... a crime," said Joseph Turner, executive director of Save Our State. The hiring center operates legally and is needed to address a community problem, city officials say.

Turner carried a large American flag and was accompanied by about 25 supporters. But his group was far outnumbered by opponents, some of whom loudly chanted, "Racists, go home."

"They want to kick whites out of our country," Turner said of some counter-protesters. "Millions of illegal aliens is not good for our society."

Members of the Mexica Movement, which contends that North America's indigenous people were robbed of their land and culture by 16th century immigrants from Europe, engaged in heated nose-to-nose exchanges with Turner and his supporters.

In south Orange County's Lake Forest, across the street from a Ganahl Lumber store where laborers look for work, protesters and counter-protesters in roughly equal numbers engaged in similar sidewalk debates.

"It's immoral to blame people of color" for economic problems, shouted Sharon Tipton of Trabuco Canyon, holding a sign featuring a swastika and the slogan "Heil Gilchrist." It was a reference to Jim Gilchrist, co-founder of the anti-illegal immigrant Minuteman Project. "That's what they did in Nazi Germany, blaming a particular group," she said.

A man who identified himself only as Kelly, and who said he was a Minuteman, shouted back: "The issue has nothing to do with race, but with following the law."

A similar protest was held in Bergen County, New Jersey, a state where the estimated population of undocumented immigrants falls between 300,000 to 500,000.
Sources: LA Times, Jan. 8, 2005; Bergen County Record, Jan. 5, 2005

January 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 8, 2006

Has US-VISIT Exposed Terrorist?

Two years after the United States began a program to photograph and fingerprint visitors from most foreign countries, officials said on Thursday that so far no terrorist suspects had been found at the border.

Jim Williams, director of Homeland Security's US-VISIT program, said the digital finger scans and photographs had made travel safer since September 11 and had helped officials intercept more than 970 known criminals and visa violators.

But officials said no known or suspected terrorists had been caught through the program, which has processed about 45 million people since January 2004.

"But ...that is not the original intent of the system," Williams told reporters at a briefing.

"I do believe that ... we have been an effective deterrent," he said. "We believe we will identify those people if they try to come in through our points of entry. I believe that is a deterrent to them to try."

But he also acknowledged that the U.S. government did not have fingerprints of all terrorist suspects.

The US-VISIT program was launched in January 2004 at most airports and seaports as part of an effort to tighten U.S. borders and prevent other attacks like those of September 11 when 19 foreigners -- who all had visas -- hijacked four planes and killed nearly 3,000 people

Under US-VISIT, visitors from most countries must have a digital photo and inkless fingerscans taken by an immigration officer as they enter the country. The officer then checks them against terrorist watchlists and criminal databases.

Critics had worried the program would create huge backlogs at the border that could freeze up commerce. "There was a lot of fear and paranoia about us shutting down the borders," Williams said. "In fact that did not happen. We have enhanced security and facilitated legitimate trade and travel while ensuring integrity of our immigration system and protecting peoples' privacy."

Williams said the FBI updates the US VISIT database every day with new fingerprints and biographical information of possible terrorist suspects as well as wanted criminals and people with immigration violations.

Source: Reuters, Jan. 5, 2006,


January 8, 2006 | Permalink | Comments (0) | TrackBack (0)