Copland and Brenner

Table of Contents

1. Legislation Stalled
2. DV-2006 Begins November 5

1. Legislation Stalled

   With the sturm und drang of another campaign season over, the 108th Congress will soon return to Washington to complete the current legislative session. The target adjournment date for both the House and Senate for the current session was October 1. However, with unfinished business in Washington, the Senate and House are both scheduled to convene again on November 16, 2004.

   Each Fall, many interested in immigration matters eagerly await news of whatever favorable substantive changes might have been included in the appropriations bills for involved agencies. However, the 2005 appropriations bill for the Department of Homeland Security was agreed upon by both houses of Congress by October 11 and quietly signed into law by President Bush on October 18 – quietly, because the DHS appropriations bill was just that – an appropriations bill. Its content, and therefore its passage, were so uncontroversial that the American Immigration Lawyers Association (“AILA”) did not even report on the bill on its web site.

   Not so clear-cut is the future for or ultimate content of legislation to implement the recommendations of the National Commission on Terrorist Attacks upon the United States, known as the “9/11 Commission.” H.R. 10 (the “9/11 Recommendations Implementation Act”), pending with the House of Representatives, and S.2845, the Senate version known as the “National Intelligence Reform Act of 2004,” have significant differences that the two houses of Congress were unable to resolve before leaving Washington for the election season.

   Depending on one’s point of view, H.R. 10 includes “harmful and divisive anti-immigrant provisions that mar” the House bill, while “S.2845 is a bipartisan measure that the 9/11 Commission has endorsed.” (AILA InfoNet Doc. No. 04101464, October 14, 2004). Alternatively, the “House bill is more comprehensive and contains some very important border security and terrorist travel provisions that will dramatically improve our nation’s security.” This is the perspective of Representative Denny Hastert (R-IL), Speaker of the House and sponsor of H.R. 10, as set forth on his official web site. Or, are “excessive and unnecessary detail in the structure of the Office of the [National Intelligence Director] included in both the House and Senate bills,” such that their “voluminous and bureaucratic requirements create confused chains of command, diminish accountability, and foster a risk-averse culture”? This view is expressed an excerpt from a White House letter dated October 18 to the House and Senate conferees seeking to reach agreement, as posted on AILA InfoNet (Doc. No. 04102062). As to the White House view, AILA’s posting of that letter carries the descriptive that it “fails to adequately call for the deletion of all the harmful immigration provisions contained in” H.R. 10, the House bill. No such provisions exist in the Senate version of the bill.

   The immigration provisions in H.R. 10 are largely contained in Title III – Border Security and Terrorist Travel, and include the following:

   Travel, Citizenship and Identity Documents

   - eliminates the “Western Hemisphere” exception for U.S. citizens returning after foreign travel and makes it illegal for U.S. citizens to depart from or enter the U.S.A. without a valid U.S. passport
   - an exception to the passport requirement is authorized for travel to “foreign contiguous territory” (e.g., Canada or Mexico), permitting alternative documentation “sufficient to denote identity and citizenship” from a list to be published in the Federal Register . If a single document is to be used “it must be a document that may not be issued to an alien;” if a combination of documents are designated at least one must be a document that cannot be issued to an alien
   - the blanket passport and visa exception for certain aliens from foreign contiguous territory and adjacent islands is eliminated; a new provision allows for these requirements to be waived if nationals of foreign contiguous territory or adjacent islands “are required, in order to be admitted into the United States, to be in possession of identification deemed by [DHS] to be secure” (there is no indication of what sort of documentation would be acceptable)
   - to establish identity to any federal employee, an alien must produce a document issued by U.S. immigration authorities, “a domestically issued document that [DHS] designates as reliable for this purpose and that cannot be issued to an alien unlawfully present,” or an “unexpired, lawfully issued foreign passport”

   Expedited Removal

   - significantly expands expedited removal authority concerning certain (a) arriving aliens and (b) those who entered without inspection unless they can prove they have been physically present for more than five years. The change would apply to aliens deemed inadmissible for having committed fraud or material misrepresentation under Section 212(a)(6) of the Immigration and Nationality Act, and to aliens lacking proper documentation under Section 212(a)(7)
   - the blanket exception under Section 235(b)(1)(F) remains in place for any alien who is a citizen of Cuba (aka “a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry”
   - the only other exception to these expanded expedited removal provisions would involve cases in which an alien indicates an intention to apply for asylum or a fear of persecution

   Asylum

   - seeks to prevent terrorists from being granted asylum by adding a requirement for corroborative evidence: this would apply to cases where an applicant claims that he or she is subject to persecution because of an accusation of involvement in guerrilla, militant or terrorist organizations.
   - an asylum applicant’s testimony may be sufficient without corroboration only if it is “credible, [ ] persuasive, and refers to specific facts that demonstrate that the applicant is a refugee.”
   - in making a credibility determination of an asylum applicant, the trier of fact may consider factors cumulatively or individually
   -The trier of fact determines whether it is “reasonable to expect corroborating evidence,” and “it is reasonable to expect the applicant to provide corroborating evidence if the applicant has, or has access to, the evidence or could reasonably obtain the evidence without departing from” the U.S.A. The evidence “must be provided unless a reasonable explanation is given as to why such information is not provided”
   - no court “shall reverse a determination made by an adjudicator with respect to the availability of corroborating evidence…unless the court finds that a reasonable adjudicator is compelled to conclude” that it is not available

   Revocation of Visas and Petitions

   - the class of deportable aliens under INA Section 237(a)(1)(B) is expanded to include any alien “whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked”
   - the provision authorizing revocation of an approved visa petition under INA Section 205 is amended to eliminate the requirement for notice to the petitioner and beneficiary
   - Section 221(i) of the INA is amended to reflect that there “shall be no means of judicial review” of a visa revocation

   Judicial Review

   - strips virtually any prospect for judicial review of most immigration decisions by eliminating the possibility of relief through habeas corpus , and doing so “[n]otwithstanding any other provision of law (statutory and nonstatutory)
   - only cases involving “constitutional claims or pure questions of law” may be considered by the courts, and then only by the circuit courts of appeal
   - like many of the other provisions in the bill, these provisions are retroactive and would apply to cases in which the final administrative removal order was issued before, on, or after the date of enactment

   Detention and Removal of Aliens Ordered Removed

   - any alien deemed to fall within certain categories under INA Section 241(b)(3)(B), including those who are “a danger to the security” of the U.S.A., would be deemed “a specially dangerous alien and should be detained until removed”
   - aliens may be removed not just to their country of citizenship or nationality, but to where he or she was born or “has a residence” unless the country “physically prevents the alien from entering the country upon the alien’s removal there;” alternatively, an alien may be removed to “any country whose government will accept the alien into that country”

   Federally Recognized Documents

   - would prevent any federal agency from accepting a state driver license or ID card unless the state is in full compliance with minimum standards for federal use
   - such minimum standards include “evidence of legal status” in the U.S.A.
   - unless a person is a U.S. citizen, lawful permanent resident or conditional resident, he or she would be authorized only for a temporary driver license or ID

   Penalties for Fraud and False Claims to U.S. Citizenship

   - Title 18, Section 1028 of the U.S. Code, concerning fraud and related activity in connection with the production, transfer, possession or use of identification documents, authentication features and information, would be amended to increase certain criminal penalties
   - Title 18, Section 1015 of the U.S. Code, would be expanded to include as a federal offense “knowingly mak[ing] any false statement or claim that [a person] is a citizen of the United States in order to enter into, or remain in, the United States”

   The bill includes a provision setting forth the sense of the Congress that “the current lack of a single convention for translating Arabic names enabled some of the 19 hijackers of aircraft” in the 9/11 terrorist attacks “to vary the spelling of their names to defeat name-based terrorist watchlist systems and to make more difficult any potential efforts to locate them.” For this reason, Congress advocates that the President seek international agreement to modernize and improve standards for translation of names into the Roman alphabet to ensure one common spelling for international travel documents and name-based watch systems.

   Conclusion

   The New York Times reported on October 12 that Senator Bill Frist (R-TN), majority leader, “said he did not anticipate taking up much other legislation in the lame-duck session beyond the spending bills, which are likely to be merged into one large ‘omnibus’ measure.” An omnibus bill, according to Senator Tom Daschle (D-SD) in the same article, would be an “invitation[ ] to abuse,” [opening] the door to a process where lawmakers will use the catch-all bill to push through legislation that could not survive on its own.” It remains to be seen what, if any, of the foregoing provisions might be included if an omnibus bill comes to pass.

2. DV-2006 Begins November 5As we reported last month, applications for the Diversity Visa Lottery Program for 2006 (“DV-2006”) must be submitted electronically between Friday, November 5, 2004 and Friday, January 7, 2005. As was the case last year, paper entries will not be accepted. For those interested in participating, Department of State instructions may be found on its web site at http://travel.state.gov/visa/immigrants_types_diversity3.html. The Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2006 may be accessed and submitted electronically at www.dvlottery.state.gov during the registration period.