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  1. BIA Decision: Third-Degree Attempted Arson in New York is an Aggravated Felony

    by , 10-17-2011 at 12:35 PM (Matthew Kolken on Deportation And Removal)
    The Board of Immigration Appeals (BIA) has ruled that attempted arson in the third degree in violation of NYPL §§ 110 and 150.10 is an aggravated felony under INA §101(a)(43)(E)(i), despite the fact that the statute lacks the jurisdictional element in the applicable Federal arson offense.  See Matter of Robert BAUTISTA, 25 I&N Dec. 616 (BIA 2011).
    The BIA used the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600 (1990), to determine if the offense of attempted arson in New York is a crime "described in" the aggravated felony provision of INA §101(a)(43)(E)(i), comparing the New York crime with the Federal crimes that Congress has designated as aggravated felonies.
    The BIA concluded that New York State arson is "described in"  INA §101(a)(43)(E)(i) because the omission of the Federal jurisdictional element in §844(i) from the State statute is not dispositive, finding that the offense in NYPL §150.10 contains all of the other substantive elements contained in §844(i), rendering it an aggravated felony.
    The BIA saw no distinction between the Federal jurisdictional element in §844(i) and the Federal jurisdictional element in §922(g)(1) reasoning that interpreting NYPL §150.10 as not being "described in" §844(i) would render the "penultimate sentence" in INA §101(a)(43) meaningless, the exception clause in INA §241(a)(4)(B)(ii) "superfluous", and State (and foreign) arson crimes would therefore not be covered by section 101(a)(43)(E)(i).
    Click here to read the BIA's decision.
  2. California - The Golden State on Immigration; By Danielle Beach-Oswald

    It looks as if California is living up to its nickname as "The Golden State" - at least in the context of immigration. While other states are passing draconian laws in an effort to crack down on illegal immigrants, California is worthy of much praise for its efforts in implementing the Dream Act.
    In July, California Governor Jerry Brown signed into law AB 130 which gave undocumented students in the state of California the ability to receive privately funded scholarships. Last week, Governor Jerry Brown signed into law AB 131 which will give 41,000 undocumented students access to $14.5 million in public funding for higher education in the state. AB 131 will give undocumented students access to surplus funds from California's educational grant program. Therefore, the state will not be reducing any aid to documented students. Given that the Dream Act failed to generate enough support in Congress, California is taking a step in the right direction to make undocumented students cohesive members of society. California was one of the first states that allowed undocumented students who graduated from a California public high school to qualify for in-state tuition rates. Immigration advocates in California are now pushing for undocumented individuals to have access to drivers licenses.
    California's efforts to incorporate undocumented students are a stark contrast to Alabama's new measure. Although the federal government is seeking to block Alabama's new law which allows school officials to check the immigration status of children in public schools, the federal government faces a long and tough road ahead.
    With the Morton Memo on Prosecutorial discretion, state immigration leaders should follow California's example. Undocumented students shouldn't face a risk of deportation and aren't going anywhere. States must realize that only by making undocumented students productive members of society will they be able to thrive as Governor Perry of Texas so clearly pointed out in the debates much to his demise politically. States have already invested thousands of dollars in the education of undocumented students. Their ability to get a college education will allow them to contribute to the country they already consider home.
    Currently it is estimated that 1.5 million undocumented students live in the United States and they have an ability to contribute to the United States. This must be cultivated, and the Dream Act should be implemented nationwide.
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  3. Letters of the Week: Oct 17 - Oct 21

    Please email your letters to or post them directly as "Comment" below.
  4. Herman Cain Wants to Electrify the Border Fence

    by , 10-16-2011 at 05:24 PM (Greg Siskind on Immigration Law and Policy)
    I used to joke that it was a matter of time before the antis started to advocate the death penalty for immigration violations. But this is pretty close to what Herman Cain, the new Republican frontrunner, just said. When he know doubt was told by advisors later that this was going too far, he backtracked and said he was joking. Wow, ha ha. Funny.
  5. Bloggings: Two desperate Republican extremists rely on anti-immigrant hate to keep their presidential hopes alive. By Roger Algase

    The Republicans' favorite right wing extremist fanatic, Michele Bachmann, and their comic relief star, Herman Cain, have been putting on entertaining sideshows to divert attention from the more boring front runners, Rick Perry and Mitt Romney. Perry is better at using taxpayer money to hand out favors to his big campaign contributors in Texas than he is at expressing himself in the English language, and Romney has lied and flipped-flopped about his record on so many issues that even his most dedicated (and wealthy) supporters have long since lost count.
    Bachmann and Cain, on the other hand, never cease to amaze with their falsehoods and absurdities, the most recent being Cain's Koch brothers inspired "9-9-9" plan, which would put most of the tax burden on those who can least afford it. However, despite a temporary bump in the polls for Cain, no serious observer gives either him or Bachmann any chance of being nominated as a presidential candidate next year, let alone elected.
    This is despite Cain's close connections with and past financial support from these very same Koch brothers. Yet neither candidate seems ready to give up. Not, at least, while there are still campaign funds to be spent, book contracts to be signed (Cain already has one - can Bachmann be far behind?), and, no doubt, the lucrative Fox News "Analyst" positions waiting in the wings.
    It should be no surprise, therefore, that both candidates have taken the desperate step of stirring up anti-Latino hate by calling for a multi-billion dollar Mexican border fence. Cain accuses Mexican immigrants of killing US border agents. But the number of would-be immigrants who have died at the Mexican border within the past few years ranges from 2,000 to over 5,000, acording to most estimates.
    Cain would use electrified fences to increase this number, even though he now claims to be joking. When President Obama made a humorous remark about Republicans who wanted to build a border moat with alligators, Cain replied that he was in favor of this idea. Maybe, instead of a Fox News spot, Cain should have his own late night comedy show. 
    In Bachmann's case, the most vicious kind of bigotry comes to her as naturally and effortlessly as the most sublime music in Western history did to the immortal composer who, ironically, shared the first four letters of her last name, or the profound writings of the great 20th century novelist who shared the last four letters of the same name. Not only did Bachmann repeat the familiar attempts to scapegoat immigrants for our strictly Made in America economic problems, but she even threw in the standard racist canard about how her Norwegian ancestors came to America legally, learned English and assimilated, in supposed contrast to today's Latinos.
    Of course, when Bachmann's ancestors arrived in America, almost all immigrants were legal as long as they were healthy and white. There are also studies showing that today's Mexicans and other Latin Americans learn English faster than the European immigrants of 100 years ago.
    Bachmann's anti-immigrant tirades are part of her larger pattern of hate - against gays, against Congressional Democrats, whom she has called "Un-American", and even against Libyan freedom fighters, whom she has falsely accused of being Al-Qaeda supporters. But while Bachmann and Cain may be good at exploiting hate, they are not as good at math. Pew Hispanic Center figures put the total 2010 number of eligible Latino voters at 21.3 million, up from 13.2 million in 2000. If the Republicans want to take back the White House, a little less prejudice and a little better arithmetic might be in order.
    But why are Latinos, such an important and fast-growing group of American citizens, unable to use their numbers, their votes and their economic power more effectively? Why do they seem to have so much difficulty making their influence felt? How can Barack Obama, who was supposed to be the ally of immigrants and other minorities in America, continue to get away with deporting 400,000 Latino, Asian and black immigrants each year without a greater backlash?
    In the Occupy Wall Street movement, tens, or hundreds, of thousands of Americans are protesting against exploitation by powerful financial interests. But where are the protests, the demonstrations, the outrage, against anti-immigrant racism and hate? Where are the peaceful, nationwide marches, rallies, sit-ins, boycotts and strikes against the attempts by Alabama, Georgia, South Carolina, Arizona and other states to bring back the days of segregation and racial persecution? Have Latinos and other minorities become too intimidated to make their voices heard?
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