Immigration by Torchlight
A blog by Los Angeles Attorney Charles Miller.
Monday, August 30, 2004
Wednesday, August 25, 2004
Read my lips: No new amnesty
GOP Platform fight looms over Administration’s Immigration Plan
In anticipation of the platform discussions, the Center for Immigration Studies has released a report which concludes that the “fiscal cost” of amnesty outweighs its other benefits.
"The fundamental problem is that the modern American economy is based on skills, and that makes it very difficult to bring unskilled workers in and not sock taxpayers with a huge cost,” political scientist Steven A. Camarota, the study's author told the Los Angeles Times.
"The fiscal impact of a legalization program needs to be an important consideration," he added.
The study bases its conclusion on its own March 2003 “Survey” which is mentioned but not provided in the 48-page report. There are assumptions as to the type of legislation to be passed without regard to the Administration’s proposal. A key deficiency of the 48- page report is that it fails to correctly analyze the economic impact of the last legalization program; measuring the newly-legalized from a 1986 date which presumably represents the date of passage of the bill, not the date the newly-legalized persons obtained employment authorization, paid taxes or became eligible to obtain Federal benefits.
Charles Miller
Tuesday, August 24, 2004
DOS Grants I Visas to Uncredentialed Indie Employees
Visa Office has revised the Foreign Affairs manual to grant I visas to uncredentialed alien media representatives who satisfy the definition of "foreign media representative" in 9 FAM 41.52 N1 where the sending country does not have a credentialing authority, or where the credentialing authority does not have jurisdiction over the class of journalists to which the alien belongs.
According to a survey conducted by AmEmbassy Ottawa, credentialing is not available to the employees of independent production companies in many countries, including the United States and Canada. As a result, many persons who satisfy the definition of "foreign media representative" are unable to obtain I visas or, in the case of Canadian media representatives, I status at a port of entry.
Friday, August 20, 2004
(New York Times) Senator? Terrorist? A Watch List Stops Kennedy at Airport
The New York Times > National > Senator? Terrorist? A Watch List Stops Kennedy at Airport
Did Senator Kennedy remember to arrive at the airport to provide DHS enough time to conduct its security check?
Thursday, August 19, 2004
Is Ridge Sorry Kennedy on DHS No Fly List?
Senator Kennedy can call Tom Ridge and get off the No Fly list. Can we get the number?
(AP) Clerical error puts Kennedy on "no fly" list
CAPITOL HILL The Senate Judiciary Committee has heard this morning from one of its own about some of the problems with airline "no fly" watch lists.
Massachusetts Democrat Ted Kennedy says he had a close encounter with the lists when trying to take the U-S Airways shuttle out of Washington to Boston.The ticket agent wouldnt let him on the plane. His name was on the list -- in error. After a flurry of phone calls, Kennedy was able to fly home, but then the same thing happened coming back to Washington.Kennedy says it took three calls to Homeland Security Secretary Tom Ridge to get his name stricken from the list. The process took several weeks, in all.And Kennedy asks -- what about the little guy? Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.Tuesday, August 17, 2004
Monday, August 16, 2004
(FindLaw) 9th Circuit finds BIA Streamlining Unprecedented
CHEN v. ASHCROFT (08/10/04 - No. 02-73473)
The summary affirmance of an Immigration Judge's
decision by the Board of Immigration Appeals
(BIA) violates the BIA's streamlining
regulations where the legal
issue presented was not squarely
controlled by existing
BIA or federal court precedent.
DHS to Screen Passengers
(New York Times) Homeland Security to Screen Airline Passengers
The New York Times reported on August 16th that DHS employees will take over passenger screening from the airlines.
Friday, August 13, 2004
CNN Newsmaker: Jeanne Butterfield, AILA Executive Director
CNN:Lou Dobbs Tonight, August 12, 2004.
Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association criticized the new DHS expedited removal policy in an interview with CNN's Lou Dobbs: " We all know the system is broken. We all know our borders need to be under control. We don't need new band-aids, we need a cure. And I think that the best way to control our borders is to enact real immigration reform. It's to reform our system of legal entry. "
The following is an excerpt from of the CNN transcript of the interview:
"As we reported, the Department of Homeland Security, this week announced new plans to expedite the deportation of some illegal aliens in this country. That plans applies to only aliens caught within 100 miles of the border, within 14 days of their arrival. Mexican and Canadian illegal aliens are exempt from the new plan. By the way, those Mexican illegal aliens make up the vast majority of illegal aliens captured by U.S. Authorities.
My next guest, however, says that the new orders will impact them and all illegal aliens unfairly. Jeanne Butterfield is executive director of the American Immigration Lawyers Association, joining us tonight from Washington.
Jeanne, good to see you again.
JEANNE BUTTERFIELD, EXEC. DIR., AMERICAN IMMIGRATION LAWYERS ASSOCIATION: Good to see you, Lou.
DOBBS: The idea that is this is unfair to illegal aliens, why?
BUTTERFIELD: Well, I think, first and foremost, the measures that were announced this week are new band-aids. We all know the system is broken. We all know our borders need to be under control. We don't need new band-aids, we need a cure. And I think that the best way to control our borders is to enact real immigration reform. It's to reform our system of legal entry.
DOBBS: Reform it -- now, reform can mean a lot of things to a lot of different people. In my mind, for example, when you say reform our border security, that means to enhance our border security, to make sure we control the number of people that cross our borders. That we make a decision as a government, and a people and democracy, about who will be granted citizenship.
Is that what you mean?
BUTTERFIELD: Exactly. We're talking about border security and we're talking about regularizing and legalizing the flow. We have people trying to come into our country, who want to come here to work and to contribute. We have jobs here that need those workers. We need to make it possible for people to come here legally to fill a needed niche in our economy, not to sneak across illegally. That would take the huge haystack, that's presently trying to coming across the border illegally, and make it legal. It reduces the size of the haystack, and then it lets us focus on real security measures.
DOBBS: But Jeanne, it sounds to me like they way you're saying to end the issue with illegal aliens is to say the border is open, come on over, we've got a job.
BUTTERFIELD: Not at all, Lou. I think we're talking regulation and control, numerical limits. We're talking about what the president talked about back in January, when he called for reforming our laws to provide some work visas. That's what we need, in part. And then let me talk about the security issues, if I may for a moment.
DOBBS: Sure. Sure. But before you do that, Jeanne, if I may ask this question. If we're going to have that kind of control over the flow of immigrants, they wouldn't be illegal aliens, they would be immigrants at that point. They would have to be going through checkpoints and ports of entry, not crossing the Rio Grande illegally at night, not breaking across the Arizona desert.
How do you stop that, by your plan?
BUTTERFIELD: Exactly. I mean, first, Lou, you take the pressure off that border flow, which right now is illegal, by providing some legal means for many of those people to come, within limits, within controls, within screening, within presenting people at ports of entry, and allow them to come in knowing who they are, giving them permission.
That increases our security, and it reduces the pressure on the border. And then, secondly, let's take that reduced haystack, those who may still try to come illegally, and let's apply really security measures that really have some chance of making us safe. We're talking about here, in part, being more effective at a North American security perimeter. We need to make sure the bad guys don't get on the airplanes and get into Canada and Mexico.
DOBBS: Whoa, whoa, Jeanne, that's very nice. That's very nice. But we can't even stop them at our own borders. Now to take on the additional mantle of taking responsibility for Canada's security and Mexico, seems to be a bit of a strain, if I may say.
BUTTERFIELD: I'm talking cooperation, Lou. Because we have to see our borders as the last line of defense, not the first line. We need to push that perimeter out. We need to cooperate with pre-flight clearance and pre-inspection. We need to know who's on those airplanes and have the confidence that Canada and Mexico...
DOBBS: But these -- but the illegal aliens are crossing the Mexican border, and more recently suspected terrorists who have crossed the Mexican border are not coming to the United States in aircraft. They're crossing the border at the Rio Grande, and across the borders of California, and Arizona, and New Mexico and Texas.
BUTTERFIELD: Exactly. Exactly. But what I'm saying, Lou, is our borders are our last line of defense. Lets make sure that we work with Canada and Mexico, to make sure that they're doing the proper screening, so that bad guys don't even get there, let alone get to the Rio Grande.
DOBBS: How about this, would you endorse this idea?
Because improvised people in Mexico, Central and South America trying to cross our borders, trying to find work illegally, crossing our borders illegally, finding work illegally, would you endorse a plan -- in which we punished, actually enforced immigration laws, and labor laws and employment laws in this country for those who would hire illegal aliens, illegally?
BUTTERFIELD: I think first we need real reform. We need to take that flow, we need to sort it out and make sure that people are given an opportunity to come legally. Then we can talk about enforcing our law. And yes, those who don't...
DOBBS: How many people do you think should be allowed into this country every year?
BUTTERFIELD: Well that's a debate I think many wiser than myself are having and net to have. We need to assess our labor market needs. We need to assess what kind of work shortage...
DOBBS: See, I have a little trouble with that one. I really think we ought to talk about our national interests, not the interests of employers, not the interests of corporate America or others who would hire illegal aliens.
We ought to be talking about our national interest and those people aren't any wiser than you and me, Jeanne, so we're going to have you back and we're going to take that up next time.
Jeanne Butterfield, we thank you for being with us.
BUTTERFIELD: Thank you, Lou. "
Immigration News is a syndicated RSS Newsfeed written and edited by Los Angeles immigration attorney Charles Miller. Immigration News may be found as a weblog at
http://www.millerlawoffices.com/news.htm and is available as an RSS Newsfeed at http://feeds.feedburner.com/ImmigrationNews and is a member of the LawBlogs Netring.
RSS or "Really Simple Syndication" allows you to use a news aggregator to gather syndicated newsfeeds. One such aggregator is Feedreader which may be downloaded for free at http://www.feedreader.com.
Thursday, August 12, 2004
U.S. to Speed Up Removals (AP)
U.S. to Speed Up Immigrant Deportations
By SUZANNE GAMBOA Associated Press Writer
WASHINGTON (AP) - The day before President Bush was to campaign in Arizona and New Mexico, the Homeland Security Department announced it would hasten deportations of illegal immigrants who are not Mexican or Canadian citizens.
The department also said it would grant legal Mexican visitors up to one month, rather than just three days, to visit or do business in U.S. communities close to the southern border.
Both changes will take effect immediately after the new rules are published in the Federal Register this week, said Asa Hutchinson, the department's undersecretary for border and transportation security.
"There is a concern that as we tighten the security of our ports of entry through biometric checks there will be more effort made by terrorists through our vast land borders," Hutchinson said. "We recognize we have to secure those."
Bush was to make a campaign swing Wednesday through Arizona and New Mexico, two battleground states in the presidential election. Hutchinson said the announcement was not timed to coincide with the visit.
The president had made immigration reform a priority, but put in on the back burner after the Sept. 11 terror attacks. He championed immigration reform again in a White House speech in January, but election politics have prevented any legislative action.
"In terms of reforming immigration policy, this is very small potatoes," said Gordon Hanson, economics professor at the Center for U.S.-Mexican Studies at University of California, San Diego. "You are not doing anything to affect the legal status of the roughly 5 million Mexicans in the United States without a green card. I don't think this is for Mexico. I think this is for Hispanic voters of the United States. I think this is for Arizona and New Mexico."
While border officials praised the tougher deportation rules and extended visits for Mexicans, immigration advocates criticized the speeded-up removals.
"These immigrants will lose the right to have an immigration judge decide whether they should be deported," said Eleanor Acer, director of the Refugee Protection Program at Human Right First in New York. "Instead, the power to issue this kind of order, which can have life and death consequences, will be entrusted to Border Patrol officers without any independent review."
Under the "expedited removal" plan, illegal immigrants who have been in country less than 14 days and are arrested no more than 100 miles from the border will be returned to their home countries as soon as possible, after about eight days on average.
Such quick deportations already occur at airports and legal ports of entry, but will soon apply to immigrants arrested illegally crossing through remote wilderness on the northern border, wading the Rio Grande, crossing the Arizona desert or navigating other routes.
The expedited removals won't apply to Canadians or Mexicans, unless citizens of those countries have been involved in smuggling or have been arrested entering the country illegally several times. Hutchinson said the deportations will apply to both borders.
Hutchinson said 42,000 non-Mexican immigrants were arrested on the southwestern border over 16 months. Of those, 28,000 were released into the United States and told to return for deportation hearings, but more than 90 percent failed to do so, he said.
The plan's second part applies to Mexicans who visit the country legally using border crossing cards. Currently, they can enter to shop, tour, visit relatives or do business, but they must leave in three days or undergo additional immigration procedures. The 72-hour limit will be increased to 30 days, likely affecting about 425,000 Mexican citizens. Those who want a card must be fingerprinted, photographed and undergo background checks.
Many border community and business officials wanted them to get six months to visit, the same as Canadians.
"I view this as a step in the right direction, but not parity to treat all visitors the same," said Sen. John Cornyn, R-Texas.
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Wednesday, August 11, 2004
Border Patrol Power Expanded to Remove Persons Found Inside U.S.
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In a teleconference on August 10th, BTS Undersecretary Asa Hutchinson announced that the Department of Homeland Security will use expedited removal not only at ports of entry, as is currently the case, but along the U.S. border between entry ports. Expedited removal will apply to those caught within 100 air miles of the northern or southern border, who have been in the U.S. 14 days or less. Mr. Hutchinson indicated that this policy is "not intended for Mexicans and Canadians," but instead for third country nationals. However, when pressed, he did indicate that the policy could be used against such nationals, but would be "limited" to smugglers and "repeat offenders." According to Mr. Hutchinson, no Border Patrol agent will be able to make a decision on expedited removal unless the agent has been through a "rigorous training program." Supervisory review was alluded to, but no details were provided on whether such review would be required. A working group at headquarters is being formed to provide oversight and "address unintended consequences." Mr. Hutchinson emphasized that persons evincing credible fear of persecution or torture would be referred to USCIS for a credible fear interview, and that USCIS would be assigning additional officers for this purpose. Initially, the program will be rolled out in the Laredo and Tucson sectors. Third country nationals will be detained or "removed as soon as circumstances allow." Mr. Hutchinson indicated that, in the past 16 months, some 42,000 third country nationals have been caught along the southern border. Of those, 26,000 were issued Notices to Appear (NTAs) instituting removal proceedings and, Mr. Hutchinson stated, 90% of those did not appear for their hearings. A Federal Register Notice was published on Wednesday, August 11, 2004, with an immediate effective date. However, Mr. Hutchinson indicated that the program will not be implemented until the applicable Border Patrol agents are fully trained.
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Immigration News Launched as Syndicated News Feed
Immigration News Launched as Syndicated News Feed
August 11, 2004
Immigration News, a blog dedicated to U.S. Immigration Law news and analysis
was launched as a XML syndicated news feed today.
Written by Los Angeles Immigration Attorney Charles Miller, Immigration News
is distributed by Feedburner at http://feeds.feedburner.com/ImmigrationNews
and as a weblog at http://www.millerlawoffices.com/news.htm .
The New York Times and CNN are among the other syndicated XML news feeds.
Monday, August 09, 2004
Portability for I-140s
The Yates memo for I-140 portability is provided here in Adobe format.ac21yates.pdf
Saturday, August 07, 2004
CIS Now Federal Gender Regulators
In a memo from William R. Yates (below), the CIS, a component of DHS, has announced a policy that would prohibit transexuals, even post-operative individuals from immigration marriage benefits. Yates' memo concludes that the non-recognition is a matter of Federal law, rather than state law and is issued for the purpose of uniform adjudication.
Mr. Yates memo does not consider the fact that states have been the authorities which issue primary documentation regarding the sex of an individual, including birth certificates and their amendments. States have their own laws regulating identity documents for transexual individuals.
To: REGIONAL DIRECTORS SERVICE CENTER DIRECTORS DISTRICT DIRECTORS, INCLUDING OVERSEAS DIRECTOR, OFFICE OF INTERNATIONAL AFFAIRS
From: William R. Yates /s/ Associate Director for Operations U.S. Citizenship and Immigration Services
Date: April 16, 2004
Re: Adjudication of Petitions and Applications Filed by or on Behalf of, or Document Requests by, Transsexual Individuals.
I. Purpose
The purpose of this memorandum is to provide guidance related to the adjudication of petitions and applications filed by or on behalf of, or document requests by, transsexual individuals, including those who have either undergone sex reassignment surgery, or are in the process of doing so.
II. Summary Conclusion
In the context of adjudicating spousal and fiancé petitions, CIS personnel shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claims to be a transsexual, regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so. In instances where an individual claims to be a transsexual, but the gender of the individual is not pertinent to the underlying application or petition, CIS personnel shall consider the merits of the application without regard to the applicant’s transsexuality. Any documentation (whether original or replacement) issued as a result of the adjudication shall reflect the outward, claimed and otherwise documented sex of the applicant at the time of CIS document issuance.
Transsexual HQOPRD 70/6 Page 2
III. Background
No Federal statute or regulation addresses specifically the question of whether someone born a man or a woman can surgically change his or her sex. Transsexualism is a condition in which a person feels persistently uncomfortable about his or her anatomical sex, and often seeks medical treatment, including hormonal therapy and "sex reassignment surgery." The former Immigration and Naturalization Service (INS) generally took the position that absent specific statutory authority recognizing sex changes for purposes of Federal immigration law; it could not recognize that a person can change his or her sex. In arriving at this conclusion, the INS stressed the following. First, whether a "marriage" qualifies for immigration purposes is a matter of Federal, not State or foreign, law. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1981). It is well settled that, in enacting immigration and nationality laws, Congress intended the terms "spouse" and "marriage" to include only the partners to a legal, monogamous marriage between one man and one woman. Howerton, supra. Moreover, the 1996 Defense of Marriage Act (DOMA), 1 U.S.C. § 7, bans any Federal recognition of same-sex marriages for immigration purposes, and defines marriage as an institution involving a "man" and a "woman The legislative history of the DOMA also clearly supports a traditional view of marriage, especially one that ties its basic character and importance to children, even though the marriage laws do not require that a couple be physically or mentally ready and able to procreate. See, H.Rep. 104-664, reprinted in 1996 U.S. Code Cong. & Admin. News 2905, 2916-19. For all of these reasons, the former INS maintained, and its successor U.S. Citizenship and Immigration Services (CIS) agrees, that no legal authority permits recognition of homosexual relationships as "marriages" for purposes of immigration and nationality laws, regardless of whether the relationship may be recognized as a "marriage" under the law where the relationship came into existence.
However, neither the DOMA nor any other Federal statute addresses whether a marriage between (for example) a man and a person born a man who has undergone surgery to become a woman should be recognized for immigration purposes or considered invalid as a same-sex marriage. While whether a marriage may be recognized for immigration purposes is a matter of Federal law, almost one-half of the states authorize the issuance of "new" birth certificates to individuals who have undergone sex reassignment surgery, as long as they present appropriate medical documentation. These same states also permit the issuance of marriage licenses for couples where one member presents a newly issued birth certificate reflecting his or her name and/or sex reassignment.
Differing state practices related to the issuance of new birth certificates and marriage licenses, coupled with a general lack of detailed guidance in this area, have resulted in inconsistent adjudications within the INS and CIS offices of cases involving transsexual applicants.
Current CIS policy disallows recognition of a change of sex so that a marriage between two persons born of the same sex can be considered bona fide for the purpose of spousal immigrant petitions. W. Yates, Memorandum for Regional Directors et al, Spousal Immigrant Visa Petitions (AFM Update AD 2-16) (March 20, 2003). With respect to replacement documents, CIS has required that the sex at birth as identified in the A-file be used unless the original birth certificate shows a CIS error with respect to sex at birth. Furthermore, if an individual indicates or claims a different gender than the one he or she was born with as reflected in his or her A-file, CIS policy has mandated use of the gender listed in the alien’s file unless the applicant presents a Federal court order directing CIS to change its records. I-90 Replacement National SOP at 6-22.
Transsexual HQOPRD 70/6 Page 3
IV. Guidance
A. Spousal and Fiancé(e) Petitions
To ensure consistency with the legislative intent reflected in the DOMA, and to reiterate existing CIS policy, CIS personnel shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claims to be a transsexual, regardless of whether either individual has undergone sex reassignment surgery, or is in the process of doing so. For example, a Form I-130, Petition for Alien Relative, or Form I-129F, Petition for Alien Fiancé(e), cannot be approved if one or both of the parties to the petition was born a sex other than what they claim to be at the time of filing. This same policy applies to any immigration benefit that is granted based on a marital relationship. For example, an individual shall not be approved for H-4 status based on a marriage to a principal alien if either the principal alien or the potential H-4 beneficiary was born a sex other than what they claim to be at the time of filing.
When adjudicating petitions and applications based on a spousal relationship, CIS officers should be guided by objective indicators, and avoid imposing subjective assumptions or judgments. For example, if the previous name used by the petitioner or the beneficiary is different than that contained elsewhere in the application materials or A-file, and is a name that would normally be used by the opposite sex, officers should issue a request for evidence (RFE) to establish that person’s identity. The RFE should request copies of all birth certificates issued to that person and any court (or other) documentation evidencing the legal name change. Again, a petition or application based on a spousal relationship may only be approved if it has been clearly established that the underlying marriage is recognizable for immigration purposes, in accordance with the policy outlined in this memorandum.
B. Other Petitions or Applications
In instances where an individual claims to be a transsexual, but the gender of the individual is not pertinent to the underlying application or petition, CIS personnel shall consider the merits of the application without regard to the applicant’s transsexuality. Any documentation (whether original or replacement) issued as the result of the adjudication shall reflect the outward, claimed and otherwise documented sex of the applicant at the time of CIS document issuance. For example, an alien with an approved Form I-140, Immigrant Petition for Alien Worker, and Form I-485, Application to Register Permanent Residence or Adjust Status, who underwent sex reassignment surgery shall be issued a Form I-551, Permanent Resident Card, reflecting the claimed sex of the alien at the time of issuance (provided, of course, that the alien submits appropriate medical and other documentation establishing the alien’s new claimed gender and legal name). It is important to note that applicants are no longer required, as previously indicated in the I-90 Replacement National SOP at 6-22, to present a Federal court order directing the agency to change its records where such an individual indicates or claims a different gender than the one he or she was born with as reflected in his or her A-file.
In instances where an individual is requesting a replacement document to acknowledge a name change resulting from sex reassignment surgery, the alien must submit the birth certificate issued at birth, the newly issued birth certificate reflecting the name and/or claimed sex reassignment, and the court order granting the legal name change. Examples of such applications include, but are not limited to, Form I-765,
Transsexual HQOPRD 70/6 Page 4
Application for Employment Authorization, or Form I-90, Application to Replace Alien Registration Receipt Card. Name changes arising in all other situations should be reviewed in accordance with established procedures.
Finally, as is the context of any other adjudication, all CIS officers shall perform their duties in a manner that accords maximal respect, sensitivity and consideration when adjudicating any petition, application or document request filed by, or on behalf of, a transsexual individual.
V. Further Information
CIS personnel with questions regarding the policy presented in this memorandum should raise them to Headquarters Operations through appropriate supervisory channels.

