September 29, 2014

WOULD THE RELIGIOUS FREEDOM GROUND OF INADMISSIBILITY STILL APPLY TO INDIAN PRIME MINISTER NARENDRA MODI?

By Cyrus D. Mehta

Indian Prime Minister Narendra Modi has been welcomed by the Indian diaspora without reservations in the United States. This is his first trip to the United States after his tourist/business was revoked on May 18, 2005 under Section 212(a)(2)(G) of the Immigration and Nationality Act (INA). Under INA Section 212(a)(2)(G), any alien who while serving as a foreign government official and who was responsible for or directly carried out particular violations of religious freedom is inadmissible. At that time, Mr. Modi was the Chief Minister of Gujarat state and was not eligible for the A-1 diplomatic visa. In May 2014, Mr. Modi’s Bharatiya Janata Party won an outright majority in the Indian Parliament, and as the party’s leader, he became India’s Prime Minister. 
Mr. Modi, as India’s Prime Minister, has presently come to the United States under the A-1 visa, which is granted to diplomats, including heads of state. The A-1 visa overcomes grounds of inadmissibility pursuant to INA Section 102, including the religious freedom ground, but that is only when a person is admitted on the A-1 visa. If Mr. Modi ceases to be a head of state, and does not qualify for an A-1 visa as a diplomatic official under any other capacity, the Section 212(a)(2)(G) ground of inadmissibility may still apply with respect to a new tourist/business visa application that he may apply for, unless it is determined that the factual basis for the prior finding of inadmissibility have changed. The U.S. State Department may also reconsider a prior revocation of a visa, which it has not done so until now with respect to Mr. Modi’s revocation. 
The article that I co-wrote with Elizabeth Reichard on March 25, 2005, appended below, discusses how the religious freedom ground of inadmissibility was applied to Mr. Modi. Following the publication of this 2005 article, however, in December 2010, a special investigative team (SIT) appointed by the Supreme Court of India found “no substantial incriminating evidence” that Chief Minister Modi had let the rioters rampage against the Muslims in February 2002. A local court in India subsequently upheld the closure of the SIT in December 2013, although appeals from victims to reopen proceedings remain pending.  The Gujarat High Court has continued to criticize Chief Minister Modi for “inaction and negligence” during the violence. House Resolution 417 passed in the US Congress in 2013 continues to support the visa ban. Questions still linger about Mr. Modi’s passive role during the riots. 
So long as Mr. Modi enters on an A-1 visa, all grounds of inadmissibility will remain inapplicable. The President still has authority under INA Section 212(f) of any foreign national whom the President deems will be detrimental to the national interest, but it is readily obvious that this provision was not considered with respect to Mr. Modi’s present visit to the United States. Indeed, Mr. Modi is scheduled to have meetings with President Obama and other top US officials, and has also met with leading US industry executives. Mr. Modi also enjoys broad based support from many in the Indian-American community. The question is whether Section 212(a)(2)(G) will trigger if Mr. Modi applied for another nonimmigrant visa in the future? The United States has not officially declared that this inadmissibility ground will not be applied and has never reconsidered the prior revocation. A new visa application would have to be considered in light of the set of facts that apply at that time. The fact that Mr. Modi has been admitted on an A-1 visa to the United States does not in any way mean that the prior visa ban has been rescinded or will not apply in the future.

Published March 25, 2005 on  www.cyrusmehta.com  
RELIGIOUS FREEDOM INADMISSIBILITY GROUND INVOKED FOR THE FIRST TIME AGAINST NARENDRA MODI
by
Cyrus D. Mehta* Elizabeth T. Reichard**
On March 18, 2005, the U.S. Department of State issued a decision to deny a visa to the democratically elected Chief Minister of Gujarat, India, Narendra Modi. Mr. Modi, an important figure in the Hindu nationalist Bharatiya Janata Party (BJP), is one of the most divisive politicians in India – loved by Hindu nationalists and despised by others who uphold India’s secular ideals. The decision to deny his visa was largely based on his alleged role in the riots that occurred in Gujarat between February and May of 2002. The riots were spawned after an attack by Muslims on a train in Godhra that resulted in the deaths of 58 Hindus.1 Hindu mobs responded to this attack through violent riots, resulting in the deaths of some 2,000 Muslims and the displacement of some 100,000 Muslims.2
It has been alleged that the riots were supported and possibly encouraged by Mr. Modi, his government and the police in Gujarat. Many have asserted that Mr. Modi personally instructed police officers to allow “peaceful” reactions to the train attack.3 As a result of this instruction, police officials told victims of the riots that they had not been instructed to help them.4 In spite of these allegations, however, Mr. Modi has never been indicted or convicted for his involvement or encouragement in the Gujarat riots. India’s National Human Rights Commission implicated Mr. Modi’s government, but not him specifically, holding that there “there was a comprehensive failure on the part of the State Government to control the persistent violation of the rights to life, liberty, equality and dignity of the State.5 It further indicated that the government’s response to the violence was “often abysmal or even non-existent, pointing to the gross negligence in certain instances or, worse still, as was widely believed, a complicity that was tacit if not explicit.”6 The Indian Supreme Court has also implicated Mr. Modi’s government by transferring criminal prosecutions of persons connected to the riots out of courts in Gujarat.
Still, even with these findings, Mr. Modi has never been officially charged for his role in the riots. The closest documents assigning him blame are the U.S. Department of State’s 2002 Report on Human Rights Practices and International Religious Freedom Report.7 Both reports specifically mention the allegations brought against Mr. Modi in the Gujarat riots, and it was these reports that could have served as the basis for the denial of Mr. Modi’s admission to the United States.
I. Analysis of Section 212(a)(2)(G) of the Immigration and Nationality Act (INA) 
Mr. Modi sought admission to the United States after having received an invitation as the keynote speaker for an event organized by the Asian-American Hotel Owners' Association (AAHOA) as well as other meetings organized by the Indian-American community in the U.S. He hoped to enter the country on either a diplomatic visa or his already issued B1/B2 tourist/business visa. The diplomatic visa was denied because according to INA §101(a)(15)(A), such visas are granted to those coming to the U.S. for official government business. A speech for the AAHOA does not qualify as official government business. This decision has not been met with controversy. The decision to deny his B1/B2 visa is actually what has attracted so much publicity in recent days. This denial was based on §212(a)(2)(G) of the Immigration and Nationality Act (INA).
Section §212(a)(2)(G) of the INA, which was first enacted in 1998, has never been invoked against a public official prior to the decision to revoke Mr. Modi’s visa. It maintains that an individual is inadmissible to the United States if “while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedoms.” Violations of religious freedoms are defined by the International Religious Freedom Act, as any of the following acts committed on account of an individual’s religious belief or practice: “detention, interrogation, imposition of an onerous financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious conversion, beating, torture, mutilation, rape, enslavement, murder and execution.”8 
Prior to December 17, 2004, there was a two year statute of limitations attached to this ground of inadmissibility. So, for example, had Narendra Modi sought admission to the U.S. in November 2004, he would not have been denied a visa under §212(a)(2)(G) because the alleged violations of religious freedom were committed more than two years prior to admission. The Office of Senator Patrick Leahy (D-Vermont), who introduced the amendment to remove the statute of limitation, prepared a section-by-section analysis of law.9 The analysis rationalized the removal of the statute of limitations because it was “not consistent with the strong stance of the United States to promote religious freedom throughout the world. Individuals who have commit[] particularly severe violations of religious freedom should be held accountable for their actions and should not be admissible to the United States regardless of when the conduct occurred.”10
Under this new broader statute, Mr. Modi was found inadmissible for being a government official responsible for violations of religious freedom. It is likely that the violations referred to are the murders, beatings and mass relocations of Muslims in Gujarat during the riots. The decision has been met with a tremendous amount backlash. Critics claim that the decision is baseless because Mr. Modi was never officially charged for violations of religious freedom. While it is true that Mr. Modi has never been officially charged for these acts; in the view of the authors, it was reasonable for the State Department to deny the visa because it was based on ample evidence against Mr. Modi. U.S. law allows the State Department to make a finding of inadmissibility based on a reasonable belief and without there being an actual conviction on the individual’s record. For example, a person can be found inadmissible if the consular officer knows or has reason to believe that the individual was a trafficker of controlled substances.11The consulate has no duty to provide due process for a visa applicant who desires entry to the U.S. It also is not required to conduct a “pseudo” hearing to determine if the act was actually committed. U.S. consulates all over the world deny thousands of visas every day, without giving the applicants due process rights or opportunities to contest the denials.
II. Factual Basis for Inadmissibility Finding 
Critics of the decision should note that any finding of inadmissibility under this ground cannot be made in haste. According to the Foreign Affairs Manual, consular officers must seek an advisory opinion if they “reasonably believe” the applicant was responsible for severe violations of religious freedom.12  The advisory opinion will be drafted by the country desk and any relevant offices at the State Department, assessing whether the individual in question was responsible for the violations. In other words, a visa denial on this basis involves a great deal of research and takes into account multiple factors. It is not based upon an actual conviction or admission, but rather an in depth assessment of the situation, resulting in a reasonable belief that the action was committed. 
In this case, such a reasonable belief existed. According to Len Scensy, Deputy Director, Office of Public Diplomacy, State Department Bureau of South Asian Affairs, the decision was made after looking at the law, the findings of the Indian Human Rights Commission, and the U.S. State Department Reports. Mr. Scensy in an interview with News India Times, indicated that these reports “say the same thing.” They are consistent with each other and take into consideration the overwhelming number of allegations against Modi. Therefore, it is safe to assume that it was reasonable to believe that Mr. Modi was responsible for the violations of religious freedom against Muslims in Gujarat. Mr. Modi was explicitly implicated in U.S. reports on the riots and while the Indian Human Rights Commission never explicitly named him, it did indicate that his government had tacit complicity if not explicit involvement in the violence.13
III. Consequences of the Decision 
The decision to deny Mr. Modi a visa is not without its consequences. This was the first time §212(a)(2)(G) has been invoked by the State Department, and it is likely that it will use it again against other government officials, former and present, who seek entry to the U.S. So, for example, in the case of India, former Congress party officials implicated in the killings of Sikhs after Indira Gandhi’s assassination in 1984 may find themselves inadmissible to the United States on this ground.
A decision under §212(a)(2)(G) is final and there is no room for appeal in a U.S. Court. Government officials found subject to this ground may find themselves permanently inadmissible to the U.S. The only possibility they have for admission is a discretionary waiver, granted by the Secretary of the Department of Homeland Security, under §212(d)(3). Such a waiver, however, may cause these officials further difficulties as the Secretary can prescribe conditions to the admission. For example, he/she may require an admission to the crimes committed. Such an admission is clearly deadly as it would open the floodgates to both criminal and civil liability under domestic and international law.
________________________________________
Cyrus D. Mehta's current profile can be found at http://www.cyrusmehta.com/Sub.aspx?MainIdx=ocyrus200591701543&SubIdx=ocyrus200591721646) and 
Elizabeth T. Reichard's current profile can be found at http://www.fragomen.com/ourprofessionals/reichard-elizabeth/.  (The old profiles as existed in the original article have been deleted). 
1U.S. DEPT. OF STATE, INTERNATIONAL RELIGIOUS FREEDOM REPORT: INDIA (2002); U.S. DEPT. OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: INDIA (2002).
2 Id. 
3 Id 
4 Id
5 National Human Rights Commission, Order on Gujarat, *64 (31 May 2002).
Id. at 24. 
7 Supra note 1.
8 22 USC §6402.
Office of Sen. Patrick Leahy, Anti-Atrocity Alien Deportation Act of 2003: Section-By-Section Analysis, available at  http://leahy.senate.gov/press/200303/032603b.html.
10The December 17, 2004 amendment also removed a provision which made the spouse and children of a government official inadmissible under this ground.
11 INA §212(a)(2)(C)(ii).
12 9 FAM 40.26 N2.1.
13 Supra  note 5, at 24.


September 22, 2014

IMPACT OF EB-5 RETROGRESSION ON THE REGIONAL CENTER LOAN MODEL

By Cyrus D. Mehta

In light of the retrogression in the employment-based fifth preference (EB-5) for China, which is predicted to occur as early as May 2015, the delays will once again impede much needed investment into the United States, which in turn will also dampen job creation. The negative effects of priority date retrogression in family and employment-based preferences have already had an adverse impact on families, who are unable to unite, and employers, who cannot employ a much needed worker even after the labor market has been unsuccessfully tested for qualified US workers. Due to retrogression, children may be less likely to be able to seek the protection of the Child Status Protection Act from aging out. 
The China EB-5 retrogression will result in other unique problems not experienced in other immigrant visa preference categories. Most EB-5 regional center investments are based on a loan rather than an equity model. EB-5 investors invest into the new commercial enterprise (NCE) of a regional center. The NCE in turn invests in a project or a business, known as the job creating enterprise (JCE). The JCE is a project that will result in at least 10 indirect jobs per EB-5 investor, such as a hotel or assisted living home or some other business operation. The NCE’s investment in the JCE can either be through an equity investment or a loan. The loan model is more favored than the equity model in EB-5 projects. Although a direct loan by an EB-5 investor is disallowed, as the investment is not at risk if the loan is guaranteed to be paid back, the EB-5 investor makes an equity investment in the NCE as a limited partner, which in turn loans the investors’ aggregated funds to the JCE. Thus, the EB-5 investor still has an equity interest in the NCE, while the NCE makes a loan to the JCE. The loan model has been permitted by the USCIS as the EB-5 investor is really buying an equity interest in the NCE while the NCE makes a loan of the aggregated investors’ capital to the JCE. 
When the NCE makes a loan to the JCE, there is an agreement for the JCE to pay back the loan to the NCE. If the time frame is 5 years or more, this period would cover the point of time when the investor obtains conditional residence, and two years later, when the investor applies for removal of conditional residence. With the EB-5 quota retrogression, these two events will be stretched out even further in time, and it is likely that by the time that the investor applies for removal of conditional residence, it may be beyond five years from the date of the initial adjudication of the Form I-526 application. Would the USCIS now take the position that the investment is no longer at risk if the JCE pays back the loan to the NCE before the investor has removed the conditions on residence? If retrogression becomes even more severe, like the India and China EB-2 for example, the JCE may have paid the loan back at the time that the investor makes the initial application for conditional residence. 
Although the USCIS has not yet addressed this issue, it can be argued that the JCE is paying back the loan to the NCE, and not to the investor, and this did not alter the investment, which was always at risk. The investor is not being paid back on a guaranteed basis, and this arrangement is distinguishable from the facts in Matter of Izummi, 22 I&N Dec. 169 (AAO, July 13, 1998). There, the investors were promised that the NCE would repurchase their interests at a fixed price after six years, and such an investment was not considered “at risk.”  Here, the JCE is paying back the loan to the NCE, and the decision to repay the investor is entirely in the discretion of the general partner of the NCE. The investor is clearly not the beneficiary of the repayment of the loan; rather it is the NCE. The NCE can use the repaid loan for other purposes rather than repay the investors. 
In light of the crushing backlogs in the EB-2 and EB-3 preferences, Gary Endelman and this author have proposed various ameliorative solutions through administrative fixes, including not counting derivatives separately from the principal beneficiary, and these should apply with equal force to prospective EB-5 backlogs too. The Obama administration has been actively considered administrative fixes in the face of Congressional inaction to expand visa numbers and reform the broken immigration system, and it is urged that the administration also broadly interpret the “at risk” element of the investment so as to relieve EB-5 investors from uncertainty if the loan of the JCE is paid back to the NCE. Even if the JCE has paid back the loan to the NCE, the investor’s investment was always at risk at the time of the project’s inception, and at the time of filing the initial I-526 application. It is this point of time that ought to be considered when adjudicating EB-5 applications, in the case of potential crushing EB-5 China retrogression, and the administration has ample flexibility to maintain that the capital was “at risk” despite the JCE repaying the loan to the NCE prior to the investor either obtaining conditional residence or filing an application to remove conditional residence. After all, the requirement that the capital be “at risk” is found in the regulation and not the INA at 8 CFR 204.6(j)(2), and it only applies at the point of filing the I-526 application. Moreover, in a similar context where the EB-5 financing replaces bridge financing, the jobs were created at the point of bridge financing and not when the EB-5 capital replaced bridge financing. According to the May 2013 EB-5 Policy Memo, the use of bridge financing is permitted and is given credit for purposes of job creation so long as replacement financing, even if it was not EB-5 financing,  was  contemplated. Therefore, in the context of bridge financing, the length of time when the investment remains at risk, or when the investment creates the requisite number of jobs is irrelevant. What should really count is that the investment was “at risk” at some point of time and that investment did result in job creation at some point in time, although it can be legitimately argued that the investment still remains at risk even if the loan has been repaid to the NCE and not to the investor.   Similarly, the requirement that the investment have been sustained under INA 216A(d)(1)(A)(ii) throughout the conditional residency period be broadly construed so long as the repaid loan is still in the NCE and the investor has not been repaid. 
The ethical risks in representing a client have been further exacerbated by the prospect of EB-5 quota retrogression. There is also more cause for conflicts of interest if the same attorney who represents the NCE and/or project also represents the EB-5 investor, given that the repayment of the loan, which will benefit the JCE, may adversely affect the investor if the investment is no longer considered “at risk” or continue to be “sustained.” There is no prohibition under ABA Model Rule 1.7 for an attorney to take on multiple clients where there is a potential conflict of interest, if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;  the representation is not prohibited by law;  the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and  each affected client gives informed consent, confirmed in writing. The attorney representing both the investor and the NCE/JCE has to be mindful about the conditions pursuant to Rule 1.7 when undertaking or continuing the joint representation. In the event that the attorney faces an irreconcilable conflict, it may be incumbent upon the attorney from withdrawing representation of both clients. In some situations, an attorney may be able to represent one client and withdraw from the other one when the conflict was not foreseeable and was “thrust upon” the attorney. See e.g. New York City Bar Formal Opinion 2005-05. NYC Bar Op. 2005-5, which also discusses how other jurisdictions have dealt with “thrust upon” conflicts,  characterizes such a conflict  between two clients that 1) did not exist at the time either representation commenced, but arose only during the ongoing representation of both clients, where 2) the conflict was not reasonably foreseeable at the outset of the representation, 3) the conflict arose through no fault of the lawyer, and 4) the conflict is of a type that is capable of being waived. NYC Bar Op. 200505 further requires the lawyer to apply a balancing test in deciding whether to withdraw from the representation of one client and continue representation, with the other client. The opinion requires the lawyer to factor in whether there would be any prejudice that will be caused to the client due to confidences being placed at risk, and whether representation of one client over the other would give an unfair advantage to the client. A lawyer may wish to carefully use the “thrust upon” conflict doctrine if the conflict regarding the repayment of the loan was not foreseen prior to the announcement of the EB-5 quota retrogression, and the lawyer needs to decide whether to withdraw from representing both parties or one party. 
Finally, the immigration attorney when performing due diligence of an EB-5 regional center and project needs to also factor in the timing of the repayment of the loan and the delays caused by EB-5 retrogression. While most immigration attorneys should provide only immigration related due diligence rather than investment advice,  investment advice may wittingly or unwittingly be factored  into  the  general advice the attorney  may provide when assessing the viability of an EB-5 project on behalf of an investor client. While it is always advisable for an immigration attorney to limit his or her representation to immigration advice,  and refer the investment advice out to another qualified professional who is a registered investment adviser or broker dealer, Section 202(a)(11) the Investment Advisers Act of 1940 does indeed carve out an exception for attorneys, accountants, engineers and teachers so long as the investment advice provided is incidental to their profession. According to an advisory by the Stroock law firm, the factors that will be considered are whether the professional holds himself or herself out as an investment adviser, whether the advice is reasonably related to the professional services, and whether the charge for advisory services is based on the same factors that determine the professional’s usual charge.

September 15, 2014

THE FAMILY THAT IS COUNTED TOGETHER STAYS TOGETHER: HOW TO ELIMINATE IMMIGRANT VISA BACKLOGS

By Gary Endelman and Cyrus D. Mehta

There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps.  That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped.  That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past.

We proposed this idea in our 2010 article The Tyranny of Priority Dates  long before it achieved the intellectual acceptance in many quarters that it now enjoys. We are pleased to now find that President Obama is considering this proposal as part of the package of administrative reform measures he will unveil before the end of this year. That this is so suggests the broad possibilities for change when the vigorous and disciplined exercise of executive initiative allows genuine progress to overcome the paralysis of political stalemate.

We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d). Let us examine what INA §203(d) says:
A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again.  Should only the principal become a permanent resident while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA §203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA §203(d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.” Viewed in this way, INA §203(d) operates in harmony with all other limits on permanent migration found in INA both on an overall and a per country basis.

There is no regulation in 8 Code of Federal Regulation (CFR) that truly interprets INA § 203(d). Even the Department of State’s regulation at 22 CFR §42.32 fails to illuminate the scope or purpose of INA 203(d). It does nothing more than parrot INA § 203(d). The authors recall the Supreme Court’s decision in Gonzales v Oregon, 546 US 243, 257 (2006) reminding us that a parroting regulation does not deserve deference:
Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.

It is certainly true that family members are not exempted from being counted under INA § 201(b) as are immediate relatives of US citizens, special immigrants, or those fortunate enough to merit cancellation of their removal. Yet, we note that the title in INA §201(b) refers to “Aliens Not Subject to Direct Numerical Limitations.” What does this curious phrase mean? Each of the listed exemptions in INA §201(b) are outside the normal preference categories. That is why they are not subject to direct counting. By contrast, the INA § 203(d) derivatives are wholly within the preference system, bound fast by its stubborn limitations. They are not independent of all numerical constraints, only from direct ones. It is the principal alien through whom they derive their claim who is and has been counted. When viewed from this perspective, there is nothing inconsistent between saying in INA §203(d) that derivatives should not be independently assessed against the EB or FB cap despite their omission from INA §201(b) that lists only non-preference category exemptions.

We do not claim that derivative beneficiaries are exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all, for which we do not contend, and being counted as an integral family unit rather than as individuals. For this reason, INA §201(b) simply does not apply. We seek through the simple mechanism of an Executive Order not an exemption from numerical limits but a different way of counting them.

We are properly reminded that INA §§201(a)(1) and 201(a)(2) mandate that “family sponsored” and “employment based immigrants” are subject to worldwide limits. Does this not cover spouses and children? True enough but all is not lost. While the term “immigrant” under INA §101(a)(15) includes spouse and children, they were included because, in concert with their principal alien family member, they intended to stay permanently in this their adopted home. No one ever contended they were or are non-immigrants. However, this does not mean that such family derivatives are either “employment based” or “family sponsored” immigrants. No petitioner has filed either an I-140 or I-130 on their behalf. Their claim to immigrant status is wholly a creature of statute, deriving entirely from INA §203(d) which does not make them independently subject to any quota.

INA §203(d) must be understood to operate in harmony with other provisions of the INA. Surely, if Congress had meant to deduct derivative beneficiaries, it would have plainly said so somewhere in the INA. The Immigration Act of 1990 when modifying INA §§201(a)(1) and 201(a)(2) specifically only referred to family sponsored and employment-based immigrants in §203(a) and §203(b) respectively in the worldwide cap. This was a marked change from prior law when all immigrants save for immediate relatives and special immigrants, but including derivative family members, had been counted. In this sense, the interpretation of INA §203(d) for which we contend should be informed by the same broad, remedial spirit that characterizes IMMACT 90’s basic approach to numerical limitation of immigration to the United States As already noted, these immigrants ought to only be the principal beneficiaries of I-130 and I-140 petitions. Derivative family, of course, are not the beneficiaries of such sponsorship. At no point did Congress do so. Under the theory of expressio unius est exclusio alterius, it is entirely reasonable to conclude that Congress had not authorized such deduction. Surely, if this was not the case, Congress would have made its intent part of the INA.  If the Executive Branch wanted to reinterpret §203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X can be used as a force for good.  Thus, when a provision is ambiguous such as INA Section 203(d), the government agencies charged with its enforcement may reasonably interpret it in the manner that we suggest.

Skeptics who contend that the INA as written mandates individual counting of all family members point to two provisions of the INA, §§202(a)(2) and 202(b). Neither is the problem that supporters of the status quo imagine.  Let’s consider §202(a)(2) first. In relevant part, it teaches that not more than 7% of the total number of family and employment-based immigrant visas arising under INA §203(b) may be allocated to the natives of any single foreign state. Eagle eyed readers will readily notice that this does not apply to derivative family members whose entitlement comes from INA §203(d) with no mention of §203(b). Also, but no less importantly, INA §202(a)(2) is concerned solely with overall per country limits. There is no reason why the number of immigrant visas cannot stay within the 7% cap while all members of a family are counted as one unit. There is no reason why monitoring of the per country family or employment  cap should require individual counting of family members. The per country cap is, by its own terms, limited to the named beneficiaries of I-130 and  I-140 petitions and there is no express or implied authority for any executive interpretation that imposes a restriction that Congress has not seen fit to impose.

What about cross-chargeability under INA §202(b)? Even if §202(b) has language regarding preventing the separation of the family, it does not mean that the derivatives have to be counted separately. If an Indian-born beneficiary of an EB-2 I-140 is married to a Canadian born spouse, the Indian born beneficiary can cross charge to the EB-2 worldwide rather than EB-2 India. When the Indian cross charges, the entire family is counted as one unit under the EB-2 worldwide by virtue of being cross charged to Canada. Such an interpretation can be supported under Chevron and Brand X, especially the gloss given to Chevron by the Supreme Court in the recent Supreme Court decision in Scialabba v. de Osorio involving an interpretation of the provision of the Child Status Protection Act.  Justice Kagan’s plurality opinion, though seeking to clarify the Child Status Protection Act, applies with no less force to our subject: “This is the kind of case that Chevron was built for. Whatever Congress might have meant… it failed to speak clearly.” Kagan slip op. at 33. Once again, as with the per country EB cap, the concept of cross-chargeability is a remedial mechanism that seeks to promote and preserve family unity, precisely the same policy goal for which we contend.

Our proposal falls squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. Since the Congress will not expand the immigrant quotas themselves, unless we are willing to watch the slow death of the priority date system in silence, the President must act on his own. Doing so will double or triple the number of available green cards without the creation of a single new visa. The waiting lines will vanish or be drastically reduced.  As Rabbi Hillel asked in Ethics of the Fathers, if not now, when?

(Guest writer Gary Endelman is the Senior Counsel at Fosterquan)

September 8, 2014

THE POLICY IMPLICATIONS ARISING FROM THE BLANKET RECUSAL ORDER OF AN IMMIGRATION JUDGE

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.
Andrew Jackson 
The recent lawsuit filed against the Department of Justice by an Iranian American immigration judge, raises interesting questions regarding the use of a blanket recusal order by the Agency in the absence of a fact-specific analysis or showing of actual bias on the part of the Immigration Judge, See  Tabaddor v Holder, et al.  Immigration Judge Ashley Tabaddor filed suit in US District Court for the Central District of California last month, alleging, among other things, discrimination, retaliation and violations of her constitutional right to free speech under the first amendment. The suit was in response to the Executive Office of Immigration Review’s (EOIR) blanket recusal order issued to her in 2012 following Judge Tabaddor's participation in a White House sponsored forum on Iranian Americans. The complaint states that Judge Tabaddor initially received permission to attend the White House roundtable discussion, to which she was invited ostensibly because of her status as a prominent member of the Iranian American community.  Consistent with EOIR policy, Judge Tabaddor was advised that she could attend the event in a personal capacity only, with the additional  recommendation that she recuse herself from all cases involving Iranian nationals to avoid the appearance of impropriety following the event.  The complaint alleges that upon her return from the White House event, Judge Tabaddor sought clarification regarding the recommendation, which was then elevated to a recusal order.  She has complied with the recusal order to date, albeit, under protest.
How common are blanket recusal orders by the EOIR?  Although there may have been other less publicized instances of EOIR requiring a Judge to recuse himself or herself from a specific case, the use of a blanket recusal order would appear to be rare indeed.  A good starting point in understanding the history and use of blanket recusal orders is to look to EOIR’s internal guidance on this  issue.   EOIR's March 22, 2005 memorandum to Immigration Judges on Procedures for Issuing Recusal Orders in Immigration Proceedings cautions them to tread carefully in deciding whether recusal is appropriate. Judges are advised to review the overall circumstances of a matter, employing a "reasonable person" standard in deciding whether recusal is warranted in a particular case.  "A judge should recuse him or herself when it would appear to a reasonable person, knowing all the relevant facts, that a judge's impartiality might reasonably be questioned."  Citing Liteky v. US, 510 US. 540 (1994); Liljeberg v. Health Servs. Acqusition Corp, 486 U.S. 847 (1988); US v Winston, 613 F.2d. 221 (9th Cir. 1980); Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975).
The memorandum cites certain situations enumerated in 28 USC § 455(b) where recusal would be mandated.  These circumstances are largely fact-specific but can be summarized under two situations. First, where the Judge would appear to have an existing or prior relationship to one of the parties that is personal in nature, including financial or familial. Second, where the adjudicator has a personal bias, prejudice or knowledge of the evidentiary facts related to the underlying proceeding.  Absent these specific circumstances, the general tone of the memorandum encourages Immigration Judges to consider carefully, on a reasoned, objective and fact-specific basis, whether recusal is a necessary and equitable action warranted under the circumstances.  The memorandum stresses that a Judge has an obligation not to recuse him or herself arbitrarily and must therefore base his or her decision to do so on “compelling evidence” indicating that his or her judgment would be compromised, “rather than mere allegations or conclusory facts.” Citing U.S. v. Balistrieri, 779 F.2d 1191, 1220 (7th Cir. 1985); Sexson v. Servaas, 830 F. Supp. 475, 477 (S.D. Ind. 1993); Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir. 1989). 
EOIR’s directive to carefully consider the grounds of recusal to ensure that they are based in fact and not on innuendo or inference is supported by the relevant case law. For example, in Matter of Exame, 18 I&N Dec. 303 (BIA 1982), the Board recognized that a respondent is not denied a fair hearing when a Judge has a “point of view about a question of law or policy.”  Id. at 306.  Specifically, the Board noted that in order to warrant a recusal order a Judge must have a personal bias arising out of an “extrajudicial” source which would inform his or her opinion on the merits of the particular proceeding.  Id.
Moreover, several notable decisions issued by Federal District Court Judges following recusal hearings seem to support the Board’s position.  In particular, a spirited 1988 opinion from Judge William M. Acker, Jr., addressing allegations of bias made by the government on appeal, stresses that innuendo of bias made by a party is alone insufficient for a Judge to recuse himself.  In re Possible Recusal of William M. Acker, Jr. in Government's Cases, 696 F. Supp. 591, 597 (D.N.A. 1988).  Similarly, a more recent decision by Judge Paul D. Borman in the Eastern District of Michigan maintains that a Judge’s prior activities have to be specifically connected to the matter under consideration in order to make a credible argument regarding his or her bias.  U.S. v. Odeh, Case No. 13-cr-20772 (Jul. 31 2014). In that decision, a Palestinian-American defendant accused of fraud in her naturalization application moved for Judge Borman’s recusal because of his strong support for Israel.     After reviewing the case law, Judge Borman concluded that “[l]ike every one of [his] colleagues on the bench, [he has] a history and heritage, but neither interferes with [his] ability to administer impartial justice to [the Defendant] or to the Government.”  Id. at 9. Judge Borman’s remarks should be understood in light of the reasonable person standard that governs EOIR and federal recusal case law. Although Judge Borman later recused himself after he realized that he had tangential financial ties to the supermarket in Israel that was allegedly bombed by the criminal defendant (the facts of which were not disclosed in her naturalization application) his prior ruling against recusal is a good example of why a judge should not be biased even if he or she has political affiliations and interests. Therefore, the prevailing view appears to be that if  a judge has no specific close familial or financial relationship to the parties in a case, and there is no demonstrated personal  bias relating to the evidentiary facts, recusal would be unwarranted, nothwithstanding the judge’s political views or support for particular causes. 
While it is too early to judge the merits of Judge Tabaddor’s case, her complaint raises important questions about EOIR policy with respect to an adjudicator’s impartiality and the careful balance between an appearance of bias and actual bias.    The United States District Court for the Central District of California has not yet ruled on this or any other contention made in the complaint.  It, therefore, remains to be seen whether Judge Tabaddor’s suit will have a lasting impact on EOIR policy with respect to recusal. 
Even while we wait for an outcome on this law suit, the authors wonder whether such a blanket recusal reveals a lack of independence of Immigration Judges.  The EOIR is already part of the Department of Justice, and under the direction of the Attorney General. Immigration Judges are thus employees of the DOJ.  Quite apart from the facts in Judge Tabaddor’s case, will an Immigration Judge feel secure if his or her decisions are contrary to the Administration’s policy?  For instance, the Administration has created “rocket dockets” to expeditiously hold removal proceedings against child migrants and their families who recently came from Central American countries. If an Immigration Judge issues rulings or sets procedures that run contrary to the Administration’s efforts to quickly deport such respondents, will such an Immigration Judge feel insecure? The following extract from the Supreme Court’s decision in  Bridges v. Wixon, is worth noting: “Although deportation is not technically a criminal proceeding, it visits a great hardship on the individual, and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty -- at times, a most serious one -- cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.” 326 U.S. 135 (1945).  In light of these important rights at stake in removal proceedings, it is imperative that the DOJ make every effort to ensure that Immigration Judges can issue rulings concerning the lives of immigrants in a totally impartial setting. 
(Guest author Parisa Karaahmet is a Partner at Fragomen. The views expressed herein are not intended to represent those of the organizations that Ms. Karaahmet or Mr. Mehta have been part of in the past and presently)

August 29, 2014

DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates.  
We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. We have also learned that the EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose
Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization.

We acknowledge that INA § 245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.
We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.


Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.


We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.
Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.
Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, http://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.
The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.