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December 30, 2010


Today I would like to reflect on the amazing year 2010 turned out to be in shaping American immigration law and policy and the perspective on immigration for 2011 with a new Republican controlled House of Representatives.

In 2010, Arizona Governor Jan Brewer signed SB 1070 into law;
Congress failed to pass the DREAM Act during the passage of the post-election lame duck session; Congress failed to pass Comprehensive Immigration Reform; the Obama Administration deported 392,862 people; Birthright citizenship were attacked;
Third Circuit held Hazleton Ordinance preempted; victory in the U.S. Supreme Court, Padilla v. Kentucky; foreign-born population grew in the United States; Immigrant Visa Retrogression continued;
Congress approved a measure to increase immigration enforcement;
Employers were audited to limit the hiring of illegal immigrants...

In a matter of weeks, Republicans are expected to take control of the House of Representatives and to lead the main subcommittee on immigration in the 2011. 

So, I suppose the natural follow-up question is, "Will the 112th Congress pass comprehensive immigration reform ?" The general consensus is the 112th Congress will not be friendly to pro-immigrant advocates.  Republican Steve King of Iowa, a Tea Party conservative, who opposes to any path to legalization for illegal immigrants, could become the new chairman of the House Immigration Subcommittee. Despite certain patterns are becoming evident, pro-immigrant advocates can not bring themselves to walking away from long pending comprehensive immigration reform. 

I hope 2011 proves to be your best year yet!

December 14, 2010


IMMIGRATION AND POLICY: THE DREAM LIVES ON: "Senate Kennedy said ' The Dream lives on.' It is time to press on with our full support for the DREAM Act, so the dreams of the young peopl..."


Senate Kennedy said " The Dream lives on."
It is time to press on with our full support for the DREAM Act, so the dreams of the young people will live on.

The House of Representative passed their version on the DREAM Act on Wednesday.

In the coming days, the Senate will have the opportunity to open the door to the American dreams of college for these bright, talented youth people who live out values that we cherish - a strong work ethic, service to others, and a deep loyalthy to this country.

"The students of the DREAM ACT are some of the country's best and brightest. They are the exactly type of young people America should be embrancing." Arme Ducan, Edu. Secretary.

It is time to press on.

December 8, 2010


IMMIGRATION AND POLICY: PASSPORT: "Definition of Passport A passport is a document that identifies a citizen, in effect rquesting foreign power to allow the bearer to enter a..."


Definition of Passport
A passport is a document that identifies a citizen, in effect rquesting foreign power to allow the bearer to enter and to pass freely and safely, recognizing the right of the bearer to the protection and good offices of American diplomatic and consular offices. A passport is evidence of permission from sovereign to its citizen to travel to foreign countries and to return to land of this allegiance, as well as request to foreign powers that such citizen be allowed to pass freely and safely.

Any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.

A visa is a machine-readable stamp in a your passport issued by an United States consul abroad. It authorizes you to apply for admission into the United States at a port of entry. Your visa specifies the type of immigration status you will hold, the date until which you may enter the United States, and the number of entries you may make before you must apply for a new entry visa. The length of validity of each visa type is determined by an agreement between your home country and the United States government and is not necessarily tied to the length of your staying.

The validity period of your enty visa does not determine the length of time you remain in the United States after you enter. Your length of stay is determined by the competion date on your Form I-94 Card expiration date, whichever is earlier.

Form I-94 Card is a record of your nonimmigrant status and permission to stay in the United States. It is a small white card, known as the I-94 card.

Reinstament of Revoked Passport
On January 21, 1987, P applied for a passport at the United States Embassy in Madrid. P's U.S. passport had been revoked in 1979 on the basis that his "activities abroa were causing or likely to casue serious damage to the national security or the foreign policy of the United States," 22 C.F.R. 51.70(b)(4) and 51.71(a) (2002). P, a former CIA employee, had engaged in a campaign to expose the identity of CIA agents, and was allegedly involved with Iranian captors of U.S. Embassy employees in Iran.  The passport revocation was upheld by the U.S. Supreme Court. Haig v. Agge, 453 U.S. 280 (1981).

On June 29, 1987, P received a letter from the Department of State denying his request for a passport on the basis of 22 C.F.R. 51.70(b)(5)  (2002), which permits the Secretary to deny a passport where "[t]he applicant has been the subject of a prior adverse action... under [22 C.F.R. 51.70 or 51.71 (2002)] and has not shown that a change in circumstances since the adverse action warrants issuance of a passport."

The decision took into account submissions made by P in April 1987 through counsel addressing the changed circumstances requirement and requesting a hearing if his application were denied. The decision also relied on a leter of June 30, 1987, from the Director of Central Intelligence, asserting that P had assisted various hostile intelligence services and had violated an injunction to observe a secrecy agreement with the CIA. The Director's letter set forth twelve specific charges against P.

On October 15, 1987, the State Departmnent held a hearing at which P appeared with his counsel. The hearing officer recommended affirmation of the passport denial. The recommnedation was accepted by the Assistant Secretary for Consular Affairs on February 10, 1988.

P appealed to the Department of State's Board of Appellate Review, which remanded the case because the administrative record was incomplete. The board noted its concern that P had requested and been denied  the opportunity to cross-examine the Director concerning the twelve charges included in his letter. Accordingly, in May 1989 the Department provided P with two declaration from the CIA, affirming that the information upon which its assertations were based was obtained in the normal course of CIA business, and that the sources were genuine and the translations accurate. The Department refused a request for a hearing , on the ground that it had fully met the requirements of the remand. The Department offered to entertain written interrogatoriies, but P submitted none.

On June 8, 1990, P filed suit in the U.S District Court for the District of Columbia against the Department of State seeking a passport and asserting that the procedures followed by the Department in denying his passport application violated the Constitution, federal statutes and regulations.

Both parties moved for summary judgement. The U.S. brief in the case emphasized that, "[u]nder applicable law, it is [P] already adjudicated as a threat to national security and not entitled to an American passport, who bears the burden of showing that those circumstances have changed." Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgement.

The brief stated that plaintiff had failed to meet his burden of proof, noting that P, in fact, had not even challenged the adverse material placed in the record by the Department. Addressing the constitutional issue of the right to travel, the U.S. brief stated:

   "Plaintiff has no constitutional right to travel on an American passport....Contrary to plaintiff's arguments ...there is no "proposed deprivation" of plaitiff's rights, only a question of whether an existing, and lawful deprivation should continue."

The brief pointed out that, under the Administrative Procedure Act. 5 U.S. C. 706, the Department of State's decision had to be upheld as long as it was not arbitrary and capricious, and was rationally based on the record.

As to P's procedural assertations, the U.S. government took the view that the Department's regulations were properly applied, and that P was not denied any constitutional right to cross-examination because he refused to submit written interrogatories when given the opportunity.

On October 30, 1990, the district court granted the U.S. motion for summary judgement and dismissed P's complaint.

Undoubtedly, the Court would normally have an obligation to test the government's passport procedures provided to ensure consitency with the Fifth Amendment's Due Process Clause. International travel, while not an unqualified right, is a liberty interest which the Fifth Amendment forbids the government from taking away from a citizen without procedural due process. Kent v. Dulles, 357 U.S. 116, 125 (1958).

Today the Department's passport regulatory authority can no longer be exercised by fiat, as it appears to have been in the past. The Department must have meaningul procedures adequate to resolve both passport issuance and passport revocation promptly and fairly.

22 CFR 51.70(b)(4) and 51.71(a) 2002
Haig v. Agee, 453 U.S. 280 (1981)
Kent v. Dulles, 357 U.S. 116, 125 (1958).
International Students and Scholars Office, Columbia University
Black's Law Dictionary, 6th Edition.

December 3, 2010


Definition of Amnesty:

Amnesty is sovereign act of forgiveness for past acts, granted by a government to all persons (or to certain classes of persons) who have been guilty of crime, or delict, generally political offenses, - treason, sedition, rebellion, draft evasion,-and often conditioned upon their return to obedience and duty within a prescribed time. In some ways the words amnesty and legalization are imprecise labels for the 1986 Immigration Reform and Control Act (IRCA) programs which provided amnesty for many undocumented aliens already in the country.

Included in the concept of pardon is "amnesty," which is similar in all respects to a full pardon, insofar, as when it is granted both the crime and punishment are abrogated; however, unlike pardons, an amnesty usually refers to a class of individuals irrespective of individual situated.


Undocumented individuals who were brought to the U.S. before the age of 16 will apply for legal status through the DREAM Act. When the DREAM Act comes under discussion, the precursor that comes to immediately to mind is the general legalization program enacted by Congress as part of the Immigration Reform and Control Act of 1986 (IRCA). This is a misconception. All that the DREAM Act will accomplish is that it will correct only one aspect of the shortcomings of immigration laws. It will not fix the highly technical provisions of immigration laws that are often hopelessly intertwined. This is not to say that DREAM Act is not important. It certainly is. But, it is not amnesty by the definition.

November 19, 2010

A Place of Opportunity - America

A young woman named Emma Lazarus, whose own family fled persecution from Europe generations earlier, took up the cause of these new immigrants. Although she was a poet, she spent much of her time advocating for better health care and housing for the newcomers and inspired by what she saw and heard, she wrote down her thoughts and donated a piece of work to help pay for the construction of a new statue - the Statue of Liberty - which actually was funded in part by small donations from people across America.

"Years before the statue was built-years before it would be seen by throngs of immigrants craning their necks sky word at the end of long and brutal voyage, years before it would come to symbolize everything that we cherish -- she imaged what it could mean. She imagined that sight of a giant statue at the entry point of a great nation - but unlike the great monuments of the past, this would not signal an empire. Instead, it would signal one's arrival to a place of opportunity and refuge and freedom." President Obama.

She wrote,

"A mighty woman with a torch...
From her beaconhand
Glows world-wide welcome...
"Keep, ancient lands, your storied pomp!...
"Give me your tired, and your poor,
Your huddled masses yearning to be free...
Send these, the homeless, tempest - tossed to me,
I will lift my hand beside the golden door!.."


"The California Supreme Court this week unanimously upheld a state law
that grants in-state tuition regardless of immigration status. Could
their decision send a message to anti-illegal immigration groups who
have brought challenges to similar state laws around the country? Ten
states--California, Il..."


Each year, our children are prevented from pursuing their dreams of going to college because they have no legal immigration status. Despite the fact that many have grown up in the United States, attended local school, and demonstrated a sustained commitment to learn English and succeed in our educational system, our current immigration laws provide no avenue for these students to continue their education and to legalize their status.

Therefore, I congratulate the California Supreme Court for its decision. It is the right decision.

We need to support a realistic passage of legislation --DREAM Act-- that will provide deserving students in the United States with an opportunity to apply for legal status and continue their education. Children should be able to live in and contribute to the country in which they have spent significant portions of their lives. By providing the opportunity for these children to go to college and gain legal status, we will strengthen America economic foundation by creating a more educated workforce and we will introduce justice and fairness to our immigration system.

November 18, 2010

Bipartisan DREAM Act To Vote in the House on Nov. 29th

Nancy Polosi announce that she will bring the bipartisan DREAM Act to vote in the house on November 29th. Now is the time to make the DREAM Act a reality.

The DREAM Act allows children of undocumented immigrants who have lived in the United States for at least five years, graduated from high school, and are in good moral character the opportunity to earn citizenship through at least two years of college or military services.

Let's ask our congressmen to support the DREAM Act.


IMMIGRATION AND POLICY: CONGRESS SHOULD APPROVE THE DREAM ACT: "The White HouseOffice of the Press SecretaryFor Immediate Release November 16, 2010 Readout of the President's Meeting with Representatives..."


The White House
Office of the Press Secretary
For Immediate Release
November 16, 2010

Readout of the President's Meeting with Representatives of the Congressional Hispanic Caucus Today
In an Oval Office meeting today, the President and leaders of the Congressional Hispanic Caucus (CHC) – U.S. Senator Robert Menendez of New Jersey, U.S. Representative Nydia Velazquez of New York, and U.S. Representative Luis Gutierrez of Illinois – discussed the options on immigration reform immediately facing the Congress. He thanked them for their constant efforts on this issue. The President and the CHC leaders believe that, before adjourning, Congress should approve the DREAM Act. This legislation has traditionally enjoyed support from Democratic and Republican lawmakers and would give young people who were brought as minors to the United States by their parents the opportunity to earn their citizenship by pursuing a college degree or through military service.

The President reiterated his support for fixing the broken immigration system and urged the CHC leaders to work to restore the bipartisan coalition backing comprehensive immigration reform. The President repeated his hope that, with the election season’s pressures past, Congressional Republicans would work with their Democratic colleagues not only to strengthen security at the nation’s borders, but also to restore responsibility and accountability to what everyone agrees is a broken immigration system. The President reiterated his strong support for bipartisan Congressional action on immigration reform at the earliest opportunity, noting that the American people expect both parties to work together to tackle the challenges confronting our nation.

September 16, 2010


IMMIGRATION AND POLICY: DREAM Act: "Next week, the U.S. Senator Harry Reid will introduce to the Senate the Development, Relief, and Education for Alien Minors Act --also known..."


Next week, the U.S. Senator Harry Reid will introduce to the Senate the Development, Relief, and Education for Alien Minors Act --also known as the DREAM Act --attached to the Defense Authorization bill which have already passed the House of Representative last May.

If the U.S. Senate approves the Defense Authorization bill with the DREAM Act provisions included in, the bill still need to survive the conference committee reconciliation and then come back before each chamber for a final vote.

The DREAM Act if passed, would allow children who were brought to the U.S. illegally through no fault of their own and have no way to legalize their immigration status, go to college, get driving licenses, and work legally in the United States. The DREAM Act if passed, would addressed the issue by providing that upon graduation from high school, those children who have stayed in school and out of trouble would be able to apply for a conditional legal immigration status. This status would be made permanent if those children continue on to college or serve the military. To qualify one must:

(1) Earning a High School Diploma;
(2) Good Moral Character; and
(3) Passing Criminal and Security Clearances.

We applaud Senator Reid for his political skills.

September 8, 2010

Adjustment of Status Under Section 245(i)

Decided September 1, 2010

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

An alien is not independently “grandfathered” for purposes of adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2006), simply
by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the result of having been a derivative beneficiary of a visa petition.


September 7, 2010


--- The U.S. Department of State has sent a new visa telegram to consular posts, providing them with more information on the new fee for Eletronic System for Travel Authorizatio (ESTA).
For more information see htt:/travel.state.gov.

---DHS expands Employment Authorization for Dependents of Foreign Officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrats. See 75-Fed. Reg. 47699.

---An extended quote from Judge Sporkin’s decision, which found unlawful a consular manual distributed throughout American visa posts in Brazil: "The Consulate had established various policies, which all officers were required to follow in adjudicating eligibility for nonimmigrant visas. Some of the policies focused on the applicant’s physical appearance and economic status. According to the Consulate’s manual: It is helpful to circle doubtful items on the [visa application form] so that other officers have an idea of why the applicant was g-ed [This is probably a reference to Immigration and Nationality Act § 221(g), a catch-all ground of visa refusal]. Officers sometimes use abbreviations on the forms: RK = Rich kid LP = Looks poor TP = Talks poor LR = Looks rough TC = Take care . . . Some of the stated reasons for the denial of visas included: “Slimy looking[;] wears jacket on shoulders w/ earring,” . . . “LP. . . “LP!!!!!,” . . . (emphasis in original); “LR”. . . (emphasis in original); “Look Really Poor,”. . . “L[ooks] Scary,”... “Bad Appearance. Talks POOR,” . . . (emphasis in original); and “Looks + talks poor.” Id."

---USCIS implements H-1B and L-1 fee increase according to Public Law 111-230. http://www.uscis.gov

August 30, 2010





By: Unisa Kamara, Offices of Norka M. Schell, LLC

Posted by Norka M. Schell

The debate over an overhaul of our immigration system continues to top the priority of the present administration especially after the recent immigration enforcement law passed in Arizona. Opponents of an overhaul of our immigration system refer to the current economic problems of the country, call for tougher border enforcement, deportation of illegal/undocumented aliens and stricter enforcement of immigration laws with less or no emphasis on the best interest of U.S. citizen children whose parents may be subjected to deportation or removal.

Proponents of Comprehensive Immigration Reform often refer to the best interests of the U.S. citizen children of undocumented aliens, who are among the most vulnerable members of society. Reform of the nation’s immigration system is urgently needed. Thousands of U.S. citizen children have been adversely affected by harsh immigration policies of the United States. Reforming the nation’s immigration laws to take into consideration the best interests of the U.S. citizen children will positively impact our social welfare system. Congress, in considering a comprehensive overhaul of the U.S. immigration laws, must focus on its historic commitment to the principle of family unity.

We,as a society, have a moral obligation to respect children as persons and acknowledge that they are most vulnerable after their parents are deported or removed from the United States. The best interests of the U.S. citizen children must be the central concern of Congress in its consideration of immigration reform. International human rights law and domestic family law recognize children as among the most vulnerable members of our society. International human rights treaties recognize the family as the natural and fundamental unit of society. The unity and reunification of families should be ensured by any laws. (See International Convention on the Elimination of All Forms Of Racial Discrimination, Dec. 21, 1965, S. Exe. Dec. C, 95-2 (1978). Primarily, immigration in the U.S. is governed by federal law and presently, immigration laws undermine these fundamental principles.

The current harsh immigration law was enacted in 1996 when Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). Together, these laws added immigration restrictions on Lawful Permanent Residents (LPR) convicted of nonviolent and minor crimes designated as aggravated felonies. Currently, a conviction may fall into the aggravated felony category without being a felony and without involving any aggravated circumstances.

Some research documents the adverse health impacts on children living in the United States when their parents are deported (See Marcelo & Carola Suarez-Orozco, Making Up For Lost Time: The Experience of Separation and Reunification among Immigrant Families, in The New Immigration: An Interdisciplinary Reader, 179, 185 (Marcelo and Carola Suarez-Orozco ed., 2005) (hereinafter Suarez-Orozco). Studies indicate that children who witness a parent’s arrest often suffer psychological harm, including persistent nightmares and flashbacks. (See Ajay Chaudry Et Al., Urban Inst., Facing Our Future Children In The Aftermath of Immigration Enforcement 27 (2010) (hereinafter Urban Inst.)).

Removal and deportation do have negative impacts on the physical and mental health, education and social development of U.S. citizen children. Children of deported parents are much likely to experience psychological disorders and to exhibit behavioral problems (Suarez-Orozco supra). Children’s academic performances and grades are significantly impacted after the deportation or removal of their parents. (Urban Inst. supra). Therefore, in reforming the U.S. immigration laws the best interests and well being of the U.S.

citizen children of a legal permanent resident and undocumented

aliens, in particular the seriousness of the difficulties which

these children are likely to face in countries to which their

parents would be not welcome should be taken into consideration.

Also, to be considered is the length of the marriage of their

parents, the unit of the family,and family ties with the United

States and with the country of destination.

August 26, 2010


IMMIGRATION FORUM: TRAVELERS FROM VWP COUNTRIES TO THE U.S.: "On August 6, 2010, DHS announced that citizens from the Waiver Program member countries start on September 8, 2010 will be required to pay a..."

August 25, 2010


On August 6, 2010, DHS announced that citizens from the Waiver Program member countries start on September 8, 2010 will be required to pay a registration operational and travel promotion fees of $4.00 when applying for the Electronic System for Travel Authorization (ESTA).

On March 4, 2010, President Obama signed the Travel Authorization Program (TPA) into law. The TPA will create a partnership between the U.S. government and the private sector to market the United States as a travel destination for international visitors. Fees $10.00 collected from international travelers from Visa Waiver Program ("VWP") countries, matches by private sector contributions, will fund the Corporation for Travel Promotions.

The total new fee that will be charged to travelers from VWP countries is $14.00

Why do VWP countries have to fund this travel promotion program through ESTA fees?
Some countries fund tourism promotion through airline or hotel taxes. The Travel Promotion Act legislation specified that the U.S. government fund this program through a $10 fee added to ESTA registration. Read more at Department of State (DOS) website a cable (No. 00025644) which was recently released to the public.

August 23, 2010


IMMIGRATION FORUM: THE LAW OF CITIZENSHIP: "You probably have not thought about citizenship until recently. Citizenship is a crucial part of the immigration law, and is at the heart o..."

August 17, 2010


IMMIGRATION FORUM: BORDER SECURITY FUNDING BILL: "On September 13, 2010, President Obama signed the Border Security Funding Bill which adds $600 million to put more agents and equipments al..."


On September 13, 2010, President Obama signed the Border Security Funding Bill which adds $600 million to put more agents and equipments along the Mexican border. The Bill will fund the hiring of 1,000 new Border Patrol agents to be deployed at critical areas along the border, 250 more immigration and Customs Enforcement agents, and 250 more Customs and Border Protection officers. It is a start to stopping the flow of illegal immigrants along the Southwest border and to help the Arizona communities.

August 16, 2010


You probably have not thought about citizenship until recently. Citizenship is a crucial part of the immigration law, and is at the heart of immigration crisis today.
On March 26, 1790, Congress passed the nation's first citizenship statute. Since then this area of law has changed dramatically. Today numerous paths to United States citizenship are available: citizenship acquired at birth also know as jus soli; and citizenship acquired at some later time.
Throughout the world, two principles have accorded citizenship at the moment of birth. They are: jus soli and jus sanguinis. This blog's focus is on jus soli.
Jus soli is literally "right of land". Traditionally associated with the English common law and historically rooted in feudalism, the jus soli generally confers a nation's citizenship on persons born within that nation's territory.
Just sanguinis is associated with European and other civil law systems and generally bestows a nation's citizenhip on the children of its existing citizens, regardless of where the children were born.
Some politicians are campaigning to amend the 14th Amendment of the U.S. Constitution, which says in Section 1, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside." These politicians want to change the U.S. Constitution to prevent undocumented mothers to give birth to their children --derogatorily referred to as "anchor babies-- in the land.
In emotional terms, citizenship means different things to different people. For many, citizenship is an element of personal identity, a link either between self and nation or between self and other individuals. The strength and meanings of those bonds vary with the values and experiences of the individual and with the history and culture of the particular nation.
From the legal standing point, citizenhip carries with it a number of specific rights that aliens do not have, such as freedom from the immigration laws.
It is obvious that altering our U.S. Constitution and our citizenship policy would not solve our illegal immigration crisis.

63 convicted criminal aliens, fugitives arrested in ICE enforcement surge

63 convicted criminal aliens, fugitives arrested in ICE enforcement surge

ICE deports international fugitive to Brazil

ICE deports international fugitive to Brazil

July 28, 2010

Arizona's Immigration Law

Federal judge, Susan Bolton, blocked the most controversial section of the Arizona's new immigration law from taking effect, handling a major victory to opponents of the legislation. The law still take effect Thursday, but without many of the provisions that angered opponents including sections that required officers to check a person's immigration status while enforcing other other laws. The Judge also put on hold a part of the law that required immigrant s to carry their papers at all the times, and made it illegal for undocumented workers to solicit employment in public places. Thos sections will be on hold until the courts resolve the issue. Read More: