RIGHT TO APPOINTED COUNSEL IN REMOVAL PROCEEDINGS? THE SUPREME COURT MAY HAVE OPENED THE DOOR IN TURNER v. ROGERS

By Cyrus D. Mehta

A non-citizen placed in removal proceedings has the privilege of being represented at no expense to the government pursuant to §240(b)(4)(A) and §292 of the Immigration and Nationality Act. While every non-citizen has a right to be represented by competent counsel of his or her choosing, he or she cannot ask the Immigration Court to appoint counsel if indigent. Even though we all know that immigration law is extremely complex, and a respondent’s chances to stave off removal are substantially increased if represented by counsel, this person is out of luck if he or she cannot afford a lawyer or does not have access to one if detained in a remote area where an immigration attorney may not be in close proximity.

Intuitively to one, including a lawyer, unschooled in immigration procedures, it may seem obvious that a respondent in removal proceedings, especially if incarcerated, should be afforded counsel to navigate through the labyrinthine maze of immigration law as would a defended in criminal proceedings. The Sixth Amendment clearly grants an indigent defendant the right to state appointed counsel in a criminal case, Gideon v. Wainright, 372 U.S. 335 (1963), and so why not the same right to a non-citizen in a removal case? Deportation has always been classified as a civil rather than as a criminal procedure. Harisiades v. Shaughnessy, 342 U.S. 580 (1952). Deportation even while harsh, which tears the person away from family and all that life is worth living for, is not seen as punishment, Bugajewitz v. Adam, 228 U.S. 585 (1913), and nor is detention for the sole purpose of facilitating the deportation. Demore v. Kim, 538 U.S. 510 (2003).

Not many may have noticed the Supreme Court’s June 20, 2011 decision in Turner v. Rogers, 64 U.S ____(2011) for its relevance in the immigration context, which held that an indigent parent threatened with incarceration for civil contempt for failure to provide child support does not have a right to counsel under the Fourteenth Amendment. Although Turner v. Rogers dwelt on whether a right to counsel was applicable to an indigent non-custodial parent in a civil contempt proceedings, on first brush it applies negatively to all civil proceedings, including immigration removal proceedings. But hold your breath! The Supreme Court qualified its holding that there is no right to appointed counsel only if certain other safeguards are met in child custody cases. The question is whether such safeguards even exist in immigration cases? The answer is a clear “No,” and this author believes that Turner v. Rogers can be used favorably by immigration advocates seeking to establish a right to appointed counsel in immigration removal proceedings.

In Turner v. Rogers the petitioner, Michael Turner, who had been incarcerated previously for civil contempt, was again sentenced to 12 months of incarceration for civil contempt even though he tried to demonstrate that he was unable to pay the child support. Turner appealed on the ground that that the Federal Constitution entitled him to right to counsel. The Supreme Court had to decide whether Turner threatened with incarceration for civil contempt was entitled to the same right as counsel under the Fourteenth Amendment as a criminal defendant under Gideon v. Wainwright, supra. The majority acknowledged that a contempt proceeding is a civil proceeding although it still involved the indigent parent’s loss of liberty through imprisonment. However, such imprisonment in a civil proceeding is not punishment, but only to coerce the defendant to do what the court had ordered him to do. While there is still a requirement of fairness in civil proceedings under the Due Process clause, it does not always require the provision of counsel even where there is a threat of incarceration. Key to this analysis, however, is the defendant’s ability to pay. If the defendant parent subject to the child support order can demonstrate indigence, he or she can avoid incarceration. Thus, if the defendant is given an opportunity in the civil contempt proceeding to demonstrate the lack of ability to pay, including a meaningful opportunity to respond to questions of financial status during the hearing, such safeguards would be have been met. The Supreme Court also took into consideration that the other parent opposing the defendant at the hearing is also mostly not represented by counsel, which was the case with Ms. Rogers, the custodial parent. Therefore, providing a lawyer to the non-custodial parent would create an asymmetry of representation, resulting in delay, making the proceeding overall less fair and increasing the risk of the depriving the family in need of support the payment it is entitled to receive. Even though Turner did not have a lawyer, he also did not receive the benefit of the alternative safeguards such as a notice that his ability to pay would make the difference between being incarcerated or not, or a finding on his ability to pay. The Supreme Court remanded the case back to the South Carolina court for further proceedings in conformance with its opinion.

Now compare these safeguards that were elaborated by the Supreme Court in the context of a civil contempt proceeding to an immigration removal hearing. The respondent charged with deportability cannot avoid incarceration by meeting a condition precedent like the non-custodial parent such as an ability to pay! Indeed, INA §236(c) makes it mandatory for the detention of a non-citizen based on the commission or conviction of an assortment of offenses, no matter even if the respondent can pay a million dollars to post bond. The respondent’s opponent in removal proceedings is the government, which is always represented by a well trained counsel employed by Immigration and Customs Enforcement. Interestingly, the majority in Turner v. Rogers concluded, “Neither do we address what due process requires in an unusually complex case where defendant “can fairly be represented only by a trained advocate.”[citing Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973)].

No one, not even opponents of due process for immigrants, can deny the fact that immigration removal proceedings are extremely complex, and can only fairly be represented by a well trained attorney conversant in immigration law. Yet, the majority of incarcerated respondents never have access to counsel. According to the Katzmann Immigration Representation Study Group’s recent findings, 60% of detained immigrants in New York City and 27% of non-detained immigrants do not have counsel by the time their cases are completed. Individuals who are transferred elsewhere and who remain detained and out of New York are unrepresented 79% of the time. This is truly a crisis. It is unthinkable to allow respondents in removal proceedings to proceed without the assistance of a lawyer to navigate and help through the complex maze of statutes, regulations and legal interpretations. This same study indicates that where there is competent representation of those who have been released or never detained, 74% had a successful outcome.

Advocates must continue to press for the right to appointed counsel in removal proceedings where the respondent cannot afford his or her own lawyer. Such a cause may be too unpopular for Congress to pass legislation at this time. Only a court ruling can make this happen, and the Supreme Court’s decision in Turner v. Rogers may provide the analytical framework to make a winning argument. Gideon v. Wainright was historic as it established the right to counsel under the Fourteenth Amendment for criminal defendants in state courts. We need a civil Gideon, and the best place to establish this is in immigration removal proceedings.

In conclusion, the following passage from Gideon v. Wainright citing Mr. Justice Sutherland’s eloquent and moving need for a right to counsel in Powell v. Alabama , 287 U.S. 25 (1932) will surely resonate with those seeking a right to appointed counsel in removal proceedings:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

NOT SO FAST! DOL HESITANT TO FOLLOW MATTER OF HORIZON COMPUTER SERVICES ON PREVAILING WAGE VALIDITY

By Cora-Ann Pestania

My elation over the recent Board of Alien Labor Certification Appeals’ (BALCA) decision in Matter of Horizon Computer Services, Inc., 2010-PER-00746 (May 25, 2011), expressed in my last blog, has proven to be short-lived. Last week, I attended the American Immigration Lawyers’ Association’s (AILA) Annual Conference on Immigration in San Diego, CA. At the conference, one of the most popular panels is the Department of Labor (DOL) Open Forum where members of AILA are permitted to directly question such bigwigs as William Carlson, Administrator, and Elissa M. McGovern, Chief of Policy Division, both of the Office of Foreign Labor Certification, U.S. Department of Labor. Naturally, the subject of Matter of Horizon Computer Services arose.

In Matter of Horizon Computer Services, the employer commenced its earliest recruitment before the Prevailing Wage Determination’s (PWD) validity period and filed the PERM after the PWD had expired. The DOL, citing 20 C.F.R. §656.40(c), denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period. The DOL currently interprets 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period and has denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. In Matter of Horizon Computer Services, BALCA held that the timing of the employer’s recruitment complied with the regulations in 20 C.F.R. §656.40(c) and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA held that the employer must initiate some recruitment during the PWD validity period but not necessarily the “earliest” recruitment.

At the AILA Conference, the DOL Open Forum panel was questioned as to whether the DOL would soon be issuing a new FAQ (Frequently Asked Questions) with regard to the holding in Matter of Horizon Computer Services and whether attorneys could safely rely on this case when conducting recruitment for purposes of a PERM labor certification application. We did not get the answer we were hoping for. Instead, Ms. McGovern explained that the DOL reviews BALCA decisions just as attorneys do and that Matter of Horizon Computer Services is currently being reviewed along with BALCA’s decision in Matter of Ecosecurities, 2010-PER-00330 (June 15, 2011), which she said has a “similar fact pattern.” Ms. McGovern informed attendees that the DOL will figure out a path “in between” the two decisions and devise a directive.

In Matter of Ecosecurities, the employer commenced recruitment on May 6, 2007. The employer obtained a PWD valid from June 18, 2007 to September 16, 2007. The employer filed the PERM on Monday, September 17, 2007. The DOL Certifying Officer (CO) denied the PERM under 20 C.F.R. §656.40(c) because neither the earliest date listed for a recruitment step nor the date the application was filed, fell within the PWD validity period. The employer requested reconsideration and argued that because the PWD expired on a weekend, the expiration date ought to be extended to Monday, September 17, 2007. As authority, the employer cited the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (OALJ) which provides that “[i]n computing any period of time under these rules…the time begins with the day following the act, event, or default, and it includes the last day of the period, unless it is a Saturday, Sunday or legal holiday observed by the Federal Government in which case the time period includes the next business day.” 29 C.F.R. § 18.4(a). The CO affirmed the denial and forwarded the case to BALCA finding that there was no reason why the employer could not have filed the application on Sunday, September 16, 2007 since the Permanent Online System (www.plc.doleta.gov) is available 24 hours a day and seven days a week. BALCA held that the OALJ Rules of Practice and Procedure cited by the employer in support of its argument that the PWD ought to be considered valid until Monday, September 17, 2007, have no bearing on the expiration date of the employer’s PWD because they only govern filings before the OALJ and, moreover, govern filings by mail on days when the office is closed. BALCA stated that while its decision “may appear to elevate form over substance,” it is an appellate body and it “simply does not have the discretion to waive the clearly stated regulatory requirements.”

BALCA had, a mere 21 days earlier, held in Matter of Horizon Computer Services, that the Employment and Training Administration (ETA) did not intend that the first recruitment step begin during the validity period, only that some recruitment step be initiated during that time and BALCA vacated the denial of the PERM application filed after the PWD’s expiration date. In light of that, why didn’t BALCA similarly hold, in Matter of Ecosecurities?

Matter of Ecosecurities is devoid of any facts that would aid in a perfect side by side comparison of the two cases. But, in Matter of Horizon Computer Services the employer placed the Job Order only 2 days before the PWD validity period and then commenced every other type of recruitment within the PWD validity period. In its decision, BALCA made an effort to point out that “the employer initiated every single recruitment step during the validity period with the exception of its first recruitment step.” In Matter of Ecosecurities, the Employer initiated its first form of recruitment 43 days before the PWD validity period. This long time period is significant. The fact that BALCA did not discuss the other forms of recruitment and when they were each initiated is significant. Since there is no discussion about the timing of the other recruitment, we can assume that no recruitment was initiated during the PWD validity period and all recruitment was initiated prior to June 18, 2007. This makes Matter of Horizon Computer Services and Matter of Ecosecurities entirely distinguishable. If the employer in Matter of Ecosecurities had initiated some recruitment within the PWD validity period, BALCA would have decided the case similar to Matter of Horizon Computer Services. Contrary to Ms. McGovern’s statements, the two cases do not have “similar fact patterns” and the DOL should not conflate the two decisions!

Nevertheless, at least for now and until the DOL issues a directive, it is safest for practitioners to continue to abide by the DOL’s erroneous interpretation of 20 C.F.R. §656.40(c) and ensure that our clients either begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period. In my opinion, though, Matter of Horizon Computer Services can indeed be relied upon if the DOL has denied a PERM application where the employer commenced recruitment before the PWD validity period, initiated at least one form of recruitment during the PWD validity period and filed the PERM after the PWD had expired.

ETHICAL BASIS FOR PRO BONO

By Cyrus D. Mehta

I am most honored to be the recipient of the American Immigration Lawyers Association 2011 Michael Maggio Pro Bono Award. Thank you very much.

The news of the award came to me as an utter surprise and my instant response was that I did not deserve it. I immediately recalled the many immigration attorneys far more engaged in pro bono than me, and more deserving of this award. Upon further reflection of this award, knowing there was nothing I could do about it, I thought it best to accept it in recognition of all the valiant lawyers who have spent many hours doing pro bono on behalf of immigrants and their families. I also accept this award on behalf of all my colleagues who have been instrumental in organizing the many immigration pro bono events and projects that you have been hearing of in recent years, which in turn encourage more lawyers to do pro bono work.

We all know how important it is to assist vulnerable immigrants who cannot afford a lawyer. As Judge Katzmann said in his historic Marden lecture at the New York City Bar on February 28, 2007 – “In our legal system, driven by complex rules and procedures, a lack of access to competent legal services damages fundamental concepts of fairness and equality before the law.” I strongly believe, and agree with Judge Katzmann, that lawyers, by virtue of being granted a license, enjoy a monopoly with respect to providing legal services (which they justifiably work very hard to preserve), and this monopoly ought to be used wisely and to achieve justice. Accordingly, pro bono service is not an act of charity, but an ethical obligation on the part of the lawyer.

One of the reasons that drew me towards immigration law, which is what has drawn all of us to this fields, was that I could help people and make an impact in their lives, no matter who they are or where they come from. Even as I undertake to manage a busy immigration law firm, this ideal continues to drive my work till this day, which I also try to instill in my associates and other colleagues. Each time I took up a leadership capacity in the bar, I have always striven to organize activities to encourage lawyers to meet the unmet needs of the immigrant community.

According to the Katzmann Immigration Representation Study Group’s recent findings, 60% of detained immigrants in New York City and 27% of non-detained immigrants do not have counsel by the time their cases are completed. Individuals who are transferred elsewhere and who remain detained and out of New York are unrepresented 79% of the time. This is truly a crisis. It is unthinkable to allow respondents in removal proceedings to proceed without the assistance of a lawyer to navigate and help through the complex maze of statutes, regulations and legal interpretations. This same study indicates that where there is competent representation of those who have been released or never detained, 74% had a successful outcome.

We the members of the leading immigration bar association in the country, the American Immigration Lawyers Association, must think outside the box to resolve this crisis and urgently address the unmet needs of poor or vulnerable immigrants, for whom the presence of a competent lawyer can make all the difference. I also urge all AILA lawyers to spend a few hours each year doing pro bono. Pro bono representation could either involve taking on a case to its completion, or could also involve spending a few hours at a legal clinic. Moreover, an expert immigration attorney can also serve as a mentor on a pro bono case that is handled by other lawyers in a law firm that does not specialize in immigration law. And for those who own or manage law firms, please encourage your associates to also participate in pro bono. In fact, there is a strong business case too for engaging in pro bono as you gain more skills that you can utilize in paid cases, earn a reputation within the community and among potential clients, and attract motivated lawyers to your firms.

Last evening’s first Pro Bono clinic at the Thomas Jefferson School of Law on June 16, 2011, in conjunction with the annual AILA conference in San Diego also gave an opportunity for AILA lawyers and law students to exercise their skills (and learn new ones) in providing high quality legal consultations to members of the San Diego immigrant community. Approximately 100 people from San Diego’s immigrant community of several nationalities and speaking several languages were served. These brief services are invaluable as they provide the immigrant with a truthful and accurate roadmap of the available options, thus empowering this person so that he or she does not get scammed later by an unauthorized practitioner. For this reason, AILA must continue to organize similar clinics again and again.

Finally, I am deeply honored that I am receiving this prestigious award in the memory of Michael Maggio whom I knew and deeply admired. Michael was the shining example of a very successful lawyer who gave back through his outstanding pro bono efforts. I am also humbled that the recipient of last year’s pro bono award was Judge Katzmann himself, who has used the prestige of his office as a judge of the Second Circuit to advance pro bono in New York in a most powerful and forceful way. It is hoped that we all follow Judge Katzmann’s example and spearhead and inspire similar initiatives all over the country.

Thank you again for this award, and rather than cheer for me now, your time will be better spent if you all roll up your sleeves and do some pro bono!

(This blog post is based on Cyrus D. Mehta’s remarks upon accepting the AILA Michael Maggio Memorial Award in San Diego on June 16, 2011).

BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION’S VALIDITY PERIOD

Cora-Ann V. Pestaina

Pardon me while I take a moment to pump my fist! I am just really excited (and also relieved that sanity finally prevailed!) over the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), http://j.mp/jAQRfO. Along with many fellow practitioners, I have long been irked by the Department of Labor’s (DOL) continued erroneous and hypertechnical interpretation of the rule found in 20 C.F.R. §656.40(c). I first wrote on this issue in August 2009 on www.cyrusmehta.com, in my article entitled, “How the Definition of the Word “Begin” Could Affect Your PERM Application.” http://j.mp/k1e5e6.

The DOL has long interpreted 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the prevailing wage determination’s (PWD) validity period. The DOL has consistently denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. Rather than fight with the DOL (and suffer through the long wait in the appeals queue!), most employers simply conducted new recruitment and filed a new PERM application. In my article, I argued that the DOL’s interpretation of the rule was (1) overly narrow and contrary to the plain meaning of the regulation; and (2) contrary to the Employment and Training Administration’s (ETA) intent when promulgating the regulation which was to have the employer conduct at least one form of recruitment within the PWD validity period. I expressed the hope that a well-crafted Motion to Reopen and Reconsider would bring forth a more definitive statement from BALCA.

We finally have this statement in Matter of Horizon Computer Services! In this case, the employer began its earliest recruitment by placing a job order on January 22, 2007. The employer obtained a PWD with a validity period from January 25, 2007 to June 30, 2007. The employer filed the PERM application on July 20, 2007, after the PWD had expired. The DOL denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period and cited 20 C.F.R. §656.40(c) as authority for the denial. The employer fought back in a Request for Review and cited to the ETA’s notice of proposed rulemaking for PERM regulations wherein the ETA sought to explain the need for specific PWD validity periods and stated:

2. Validity Period of PWD
We are proposing that the SWA must specify the validity period of PWD on the PWD form, which in no event shall be less than 90 days or more than 1 year from the determination date entered on the PWDR. Employers filing LCA’s under the H-1B program must file their labor condition application within the validity period. Since employers filing applications for permanent labor certification can begin the required recruitment steps required under the regulations 180 days before filing their applications, they must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the PWD to rely on the determination issued by the SWA. Employment and Training Administration, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 CFR Part 656, 67 Fed. Reg. 30466, 30478 (May 6, 2002).

Based on the ETA’s statements, the employer in Matter of Horizon Computer Services argued that the ETA did not intend that the employer’s first recruitment step begin during the validity period but only that some recruitment step be initiated during that time. In fact, with the exception of the job order, the employer had initiated all of its recruitment during the PWD validity period.

BALCA agreed with the employer, vacated the DOL’s denial and held that the timing of the employer’s recruitment complied with the regulations and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA agreed that the ETA intended only that the employer initiate some recruitment during the PWD validity period and not the earliest recruitment.

Accordingly, under Matter of Horizon Computer Services, in order to rely on an expired PWD in the filing of a PERM application, the employer must have initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application.

Matter of Horizon Computer Services is an important decision especially at this time of the year when the DOL issues PWDs with only a narrow 90-day validity period. The DOL updates its prevailing wage databases on July 1st. PWDs issued around this time of year have only a 90-day validity period as opposed to PWDs issued after July 1st which are typically valid until June 30th of the following year. Employers who initiated recruitment prior to obtaining the PWD, initiated additional recruitment during the PWD’s 90-day validity period but were then unable to file the PERM application within the brief 90-day validity period of the PWD, would previously have had no recourse.

IF EVEN THE CHIEF JUSTICE CAN MISUNDERSTAND IMMIGRATION LAW, HOW CAN WE EXPECT STATES TO ENFORCE IT PROPERLY? REMOVAL ORDERS AND WORK AUTHORIZATION

By David A. Isaacson

In part of the Supreme Court’s recent decision in Chamber of Commerce v. Whiting upholding an Arizona law that imposed sanctions on employers (formally implemented as suspension or revocation of business licenses) for hiring “unauthorized alien” workers, the Court found that the Arizona law was not impliedly pre-empted because it tracks the federal definition of an “unauthorized alien” and insists that the state rely on the federal determination of an alien’s status. According to the majority opinion, written by Chief Justice Roberts, the verification of an individual’s “citizenship or immigration status” that the federal government is required to provide under 8 U.S.C. § 1373(c) is likely to be a sufficient determination under many circumstances. As the Chief Justice wrote for the Court, in response to the concern expressed in Justice Breyer’s dissent that § 1373(c) “says nothing about work authorization”:

But if a §1373(c) inquiry reveals that someone is a United States citizen, that certainly answers the question whether the individual is authorized to work. The same would be true if the response to a §1373(c) query disclosed that the individual was a lawful permanent resident alien or, on the other hand, had been ordered removed.

Chamber of Commerce v. Whiting, 563 U.S. ___ (2011), slip op. at 17.

The clear implication is that the Chief Justice, and the Court majority for which he wrote, believed that verification that an individual “had been ordered removed” would establish that individual’s lack of authorization to work. As explained below, this is incorrect. The fact that even the Chief Justice of the United States and a majority of the Supreme Court could make such a mistake is a vivid demonstration of the perils of involving non-specialists less qualified than Supreme Court Justices, such as state authorities, in determinations relating to immigration status and work authorization.

Under section 274A(h)(3) of the Immigration and Nationality Act (“INA”), the Attorney General and now the Secretary of Homeland Security have long had broad regulatory authority to determine who shall be authorized to work in the United States. That section says that “the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” This subsection (B) power to authorize employment has been exercised through the promulgation of regulations at 8 C.F.R. § 274a.12 (and related regulations at § 274a.13-14), which list many categories of aliens who are authorized to be employed incident to their status or can apply for and receive employment authorization. Although the existence of a removal order or ongoing removal proceedings certainly is not itself a basis for employment authorization, there are many regulatory bases for employment authorization that are not inconsistent with the existence of a removal order.

Perhaps the most common way for someone to have valid employment authorization despite having been ordered removed is when the person who has been ordered removed is challenging the removal order in federal court by a petition for review filed in the federal Court of Appeals for the appropriate Circuit (say, the Second Circuit if the case took place in New York). Pursuant to 8 C.F.R. § 274a.12(c), when employment authorization is based on the pendency of an application, the “validity period for an employment authorization document . . . may include any period when an administrative appeal or judicial review of an application or petition is pending.” An asylum applicant who obtains employment authorization under 8 C.F.R. § 274a.12(c)(8), for example, may renew this employment authorization if the asylum application has been denied by an immigration judge and even the Board of Immigration Appeals (“BIA”), and the applicant has been ordered removed, but a court challenge to this denial of asylum and the accompanying removal order is pending. This seems only fair, given that it is hardly uncommon for a BIA denial of asylum to be overturned by a federal court, and the victim of this BIA error should not be denied the right to work while the error is being corrected—but it means that one who has been ordered removed, and whose order of removal has not yet been vacated by a court, may well have valid employment authorization.

The same scenario can arise when an applicant for adjustment of status under INA § 245 or cancellation of removal for nonpermanent residents under INA § 240A(b) has his or her application denied by an immigration judge and the BIA, is ordered removed, and petitions for judicial review of the order of removal under 8 U.S.C. § 1252(a)(2)(D) on the ground that a legal or constitutional error has been made by the BIA in adjudicating the application. An applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). Both would be entitled, pursuant to the introductory language in 8 C.F.R. § 274a.12(c), to renew this employment authorization while their federal court case was pending, despite the fact that they had been ordered removed.

Another way that someone who has been ordered removed can obtain valid employment authorization based on a pending application stems from an anomaly created by the BIA’s decision in Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). In that case, the BIA recognized that USCIS often has jurisdiction over an application for adjustment of status filed by someone who has been ordered removed as an “arriving alien” (for example, after entering on advance parole based on a different application), but said that it would generally refuse to reopen such a removal order while the application for adjustment was pending before USCIS. That is, the BIA said that if, for example, someone enters on advance parole because of a pending employment-based adjustment application, then enters into a bona fide marriage with a U.S. citizen, and then is placed in removal proceedings following the denial of their employment-based adjustment application, an application for adjustment of status based on the marriage would go forward with USCIS independently of the removal proceedings before the Immigration Judge and BIA (in which the person would not be allowed to apply for adjustment of status based on the marriage as relief from removal). If someone who had already been ordered removed as an arriving alien more than 90 days ago applies for adjustment of status with USCIS, then according to Matter of Yauri, USCIS has jurisdiction to grant them adjustment of status notwithstanding the removal order, but in the meantime while the adjustment application is pending, the BIA generally will not reopen the removal order. Someone with a pending adjustment application as an arriving alien under Matter of Yauri, therefore, can have been ordered removed by an immigration judge and the BIA, and yet have a perfectly valid application for adjustment of status pending before USCIS, based on which they may have employment authorization under 8 C.F.R. § 274a.12(c)(9). The peculiarity of a pending application before USCIS, valid employment authorization, and an outstanding removal order all existing at the same time (even absent federal court involvement or some similar complication) may be an argument against the BIA’s refusal in Matter of Yauri to reopen removal orders based on applications for adjustment by an arriving alien, but as long as the rule of Matter of Yauri remains, this possibility will remain entirely plausible despite the applicant’s best efforts to resolve his or her situation.

Yet another way for people who have been ordered removed to have valid employment authorization is if their removal to particular countries (usually their countries of nationality) has been withheld under INA § 241(b)(3) or under the Convention Against Torture, because they would, more likely than not, face persecution or torture in those countries. This often occurs, for example, when an otherwise meritorious application for asylum is rejected as untimely under the one-year deadline of INA § 208(a)(2)(B). Someone who has been granted withholding of removal can theoretically be removed to another country besides the country of feared persecution or torture, but it is very rare for this to happen in practice, since most countries will not simply volunteer to accept a deportee with whom they have no previous connection. While they remain in the United States for lack of a third country willing to accept them, withholding of removal grantees are entitled to employment authorization pursuant to INA § 274a.12(a)(10). They too, therefore, will be authorized to work despite the fact that they have been ordered removed.

In addition, there is a section of the regulations that explicitly contemplates the issuance of employment authorization to certain people who have been ordered removed simply because the order of removal cannot be executed, even when withholding of removal to a particular country has not been granted due to the threat of persecution or torture. Pursuant to 8 C.F.R. § 274a.12(c)(18):

An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be removed from the United States.

For this reason, as well, one who has been ordered removed may nonetheless be authorized to accept employment.

It was therefore incorrect for the Court in Whiting to say that it “answers the question whether the individual is authorized to work . . . . if the response to a §1373(c) query disclosed that the individual . . . had been ordered removed.” An individual may have been ordered removed, and yet nonetheless be authorized to work pursuant to 8 C.F.R. § 274a.12(a)(10), 8 C.F.R. § 274a.12(c)(8), 8 C.F.R. § 274a.12(c)(9), 8 C.F.R. § 274a.12(c)(10), or 8 C.F.R. § 274a.12(c)(14)—and even this is not intended as an exhaustive list of the regulatory provisions authorizing employment that may be applicable to someone against whom an order of removal has been entered. Disclosure that an individual has been ordered removed simply does not foreclose the possibility that the same individual is authorized to work.

The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable. Immigration law, both in the area of employment authorization and in other areas, is highly complex, and can confuse even specialists or legal generalists of the highest caliber. It seems reasonable to say, without fear of insult, that the legal education and acumen of most state law-enforcement officials as it relates to matters of federal law is often not going to meet the high standard required of a Justice of the U.S. Supreme Court. Thus, implementation of immigration law by such state officials is likely to lead to frequent errors.