National Immigration Forum

Practical Solutions for Immigrants and America

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Even the Swan Song is off Key

January 15, 2009 - Posted by Maurice Belanger

As President Bush and his administration prepare to leave Washington, agencies have been busy adding to the tremendous workload that will be faced by the incoming Obama administration.  In the months of December and January, a flurry of last-minute regulations has weakened protections for American workers and consumers.  In the immigration arena, worker protections and due process have been the targets of the so-called “midnight regulations.”  There is now a long list of rules that will have to be overturned by the incoming administration.  Here are some pertaining to immigrants and immigration:




  • On December 10, the Department of Justice issued a regulation that will potentially require all immigrants in deportation proceedings to submit DNA samples, even when there is no criminal accusation. The rule took effect January 9th.



  • On December 18, the Bush administration published a final rule making changes to the H2-A Agricultural Worker temporary visa program.  The changes would, among other things, reduce the grower’s obligation to recruit U.S. workers before applying for foreign workers, change the program’s wage formula (effectively lowering wage rates) and lessening government oversight of the program.  The rules go into effect on January 17.  More information can be obtained on the Web site of Farmworker Justice, where you can find a two-page summary of the regulations.  On January 13, United Farm Workers filed suit to halt implementation of the regulation.  The regulation can be found here.



  • On December 19, the administration again displayed its distrust of non-citizens by publishing a final rule expanding the US-VISIT system to require permanent residents of the U.S. to submit biometric data each time they enter or re-enter the U.S.  Previously, permanent residents, like citizens, were not subject to the requirements of the US-VISIT biometric data collection.  The regulation takes effect January 18.



  • On January 7, the Attorney General issued a decision declaring that immigrants, asylum seekers and others in removal proceedings have no right to re-open their case if their lawyer was incompetent, fraudulent, or absent.  The Attorney General’s decision effectively means, contrary to years of tradition, that immigrants have no Constitutional or any other right to be represented by an attorney before being deported.  The American Immigration Law Foundation issued a statement condemning the action.  (The decision by the Attorney General is not a regulation.  The immigration courts are housed within the Department of Justice, and so the Attorney General, as head of the Department of Justice, has the final administrative say on all immigration issues within the jurisdiction of the Department.  The Attorney General rarely intervenes in immigration court decisions, but when an AG opinion is issued, it is binding on both Justice and DHS actions. The decision can be overturned in the federal courts.)


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