Cyrus Mehta

Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students

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In September 2017, the State Department abruptly amended the Foreign Affairs Manual to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas.  A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility. I previously blogged on this development here and here,  I am blogging yet again because I am pleased to report on further recent changes,  which are more positive this time especially for foreign students.

In order to presume fraud or misrepresentation, the applicant must have engaged in conduct inconsistent with representations made to consular officers or DHS officers within 90 days of applying for a visa, admission or other immigration benefit. If the foreign national engaged in inconsistent conduct more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule”, the FAM is not codified law or regulation, but merely sub-regulatory guidance for consular officials abroad. Thus, I prefer to call it guidance rather than a rule.

The latest modification at 9 FAM 302.9-4(B)(3)(g)(2) cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

(i)Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv)Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The big change is in (iii) where the words “or F status, or any other” have been stricken. The omission of these few words provides welcome relief to students in F status who study in the US as well as other nonimmigrants in status prohibiting immigrant intent such as J status. A student who travels abroad for vacation, but has planned to get married to a US citizen shortly after the vacation, no longer needs to fear being found to have willfully misrepresented his  or her intentions at the time of admission. Although (iii) contemplates marriage to a US citizen and taking up residence in the United States thereafter, it could encompass other scenarios, such as a student filing an adjustment of status application, based on an approved  I-140 petition with a current priority date, after returning from a brief trip overseas.

This welcome change appears to acknowledge an inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g.Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent).

Such inherent dual intent as established in Matter of Hosseinpour is also applicable to one who enters the United States in B status too, but the B nonimmigrant still seems vulnerable to a charge of fraud or misrepresentation based on conduct inconsistent with what was represented to the consular or DHS officer. Still, there are other positive and sensible changes in the FAM that apply to all nonimmigrants, especially in the  preceding section at 9 FAM 302.9-4(B)(3)(g)(1). For ease of reference, the entire section is reproduced below with the changes reflected in Red Italics.

(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

  1. (U) In General:
    1. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    2. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    3. (U) The fact that an alien’s subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien’s intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States, please see paragraph (2) below.

(U) Note: The case notes must reflect that, when applying for admission into the U.S. or for a visa, the alien stated either orally or in writing to a consular or immigration officer that the purpose of travel was consistent with the nonimmigrant visa class sought.  (For example: “The officer finds that the applicant told the officer at the port of entry that his purpose of travel was consistent with the visa class held.”)

 

The heading of 9 FAM 302.9-4(B)(3)(g)(1) now reads “Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status” thus suggesting more discretion and leeway before a consular officer jumps to the conclusion that the application misrepresented his or her intention.  Notwithstanding the 90 day period, so long as one initially entered the United States with the intention that was consistent with the visa status, such as to visit the US for tourism, in B-2 status, but then genuinely changed one’s mind and got married to a US citizen within 90 days, the presumption of misrepresentation can be rebutted if it can be demonstration that the intent at the time of admission was consistent with the B-2 status. The guidance goes onto further state that even if the conduct was inconsistent to what was previously represented to the consular or DHS officer,  there should not be an automatic presumption of fraud or misrepresentation. Consular officers are not permitted to go along with a hunch or mere suspicion, the FAM cautions. Rather, consular officers must adopt the reason to believe standard: “To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).”  “Probable cause” is generally associated with a reasonable ground to believe that the accused is guilty, see e.g. Ludecke v. United States Marshall, 15 F.3d 496 (5th Cir. 1994).   Thus, the implementation of “probable cause” gives more room for an applicant to rebut an accusation of misrepresentation.

Finally, the insertion of  “engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status” appears to be in harmony with prong (iv) of 9 FAM 302.9-4(B)(3)(g)(2). Prong (iv) says the same thing: “Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.” As I had suggested in the prior prior blog, the applicant should only be penalized if he or she engaged in activities without applying for a change of status or adjustment of status. Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30thday, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the prong (iv) criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. Also, since the salutary change for students in the FAM guidance is for consular officers, a Customs and Border Protection (CBP) officer at the airport may not be guided by it, and may not even know about it. Thus, a foreign student who has resided in the United States for several years coming back from a brief weekend trip from Canada could still be suspected for misrepresenting his or her intentions as a nonimmigrant if there is a plan to marry a US citizen and adjust status in the US.

It is hoped that the change in the FAM guidance benefitting foreign nonimmigrant students will guide USCIS and CBP too. It makes little sense to penalize a bona fide foreign student who plans to marry and adjust status just because of a short vacation overseas. The inherent dual intent wisely recognized by the Board of Immigration Appeals in all nonimmigrant visa categories in Matter of Hosseinpour ought to be part of guiding policy for all the agencies administering the Immigration and Nationality Act. One who enters the United States as a nonimmigrant to pursue the objectives of the visa, but who also desires to immigrate, should not be viewed in the same way as one who commits blatant fraud. Nonimmigrants should be allowed to follow their destiny as it naturally unfolds in the United States without having to worry about being accused of engaging in inconsistent actions within 90 days of their admission.

Cyrus Mehta

AG Barr Cannot Ignore the Constitution: The AG’s Latest Attack on Asylum Seekers in Matter of M-S-

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By: Sophia Genovese*

The Attorney General cannot selectively choose when to apply the rule of law. Yet when it comes to immigrants, the government feels emboldened to ignore the constitutional protections that are afforded to immigrants.

In his most recent self-certification, Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), the Attorney General unilaterally decided that asylum seekers who entered without inspection and who have been found to have a credible fear of persecution or torture are ineligible for release from detention on bond. Notably, in footnote 1, AG Barr proclaims “[t]his opinion does not address whether detaining transferred aliens for the duration of their removal proceedings poses a constitutional problem, a question that Attorney General Sessions did not certify and that is the subject of ongoing litigation.” 27 I&N Dec. at 509. In addition, because the ruling affects a “sizeable population” of asylum seekers, and also because it would have a significant impact on detention operations, the Attorney General ordered his ruling to take effect 90 days after his order, which falls on July 15, 2019. Id. at note 8.

Matter of M-S- overruled Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that an asylum seeker who is initially placed in expedited removal proceedings under INA § 235(b)(1)(A), but who then is placed in INA § 240 proceedings after a positive credible fear determination, is eligible for a bond hearing before an Immigration Judge. Matter of X-K- did not apply to “arriving aliens,” i.e. those individuals who presented at a port of entry and claimed asylum; instead, it applied to the class of foreign nationals who have entered without inspection and who have been present for fewer than 14 days within 100 miles of the border. In Matter of X-K-, the Board found that Immigration Judges have custody jurisdiction over foreign nationals in INA § 240 proceedings, “with specifically designated exceptions” as outlined in 8 C.F.R. § 1003.19(h)(2)(i). 23 I&N Dec. at 731. Because 8 C.F.R. § 1003.19(h)(2)(i) does not exclude asylum seekers who are placed in INA § 240 proceedings after a positive credible fear determination, the BIA concluded that Immigration Judges have jurisdiction over their bond proceedings.

The main bone of contention in Matter of M-S- is one of statutory interpretation. In Matter of X-K-, the Board explained that, “the Act provides for the mandatory detention of aliens who are being processed under section 235(b)(1) proceedings ‘pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.’” 23 I&N Dec. at 734. The BIA reasoned that because the regulations are silent on the bond eligibility of asylum seekers after there has been a final credible fear determination, authority over custody re-determinations vests with the Immigration Judge since the asylum seekers are placed INA § 240 proceedings and because they do not fit under any of the exceptions outlined in 8 C.F.R. § 1003.19(h)(2)(i).

The AG in Matter of M-S-, in contrast, looks to INA § 235(b)(1)(B)(ii), which states that, if it is determined that an asylum seeker possesses a credible fear of persecution “the alien shall be detained for further consideration of the application for asylum.” 27 I&N Dec. at 510. The AG reasons that the plain language of the Act provides for the mandatory detention of asylum seekers, but that they remain eligible for release on humanitarian parole under INA § 212(d)(5)(A). Id.

Although the BIA does not opine on constitutional matters, it cannot issue unconstitutional rulings. The Attorney General’s ruling in Matter of M-S- runs afoul of the Fifth Amendment of the US Constitution. Although asylum seekers will still be eligible for release on humanitarian parole under INA § 212(d)(5)(A), the standards are far different than bond eligibility where the asylum seeker must demonstrate that their parole is for urgent humanitarian reasons or significant public benefit. This is distinct from, and far more limited than, parole eligibility for arriving aliens under ICE Directive 11002.1, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture.” As a reminder, under Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), the BIA interpreted INA § 236(a) to require an asylum seeker to establish that he or she does not present a danger to others, is not a threat to the national security, and is not a flight risk in order to be released on bond. As a result of Matter of M-S-, far fewer asylum seekers will be able to obtain release from detention.

Padilla v. ICE

After then-Attorney General Sessions referred Matter of M-S- to himself, but before AG Barr rendered his decision, the United States District Court for the Western District of Washington issued a preliminary injunction in Padilla v. US Immigration & Customs Enf’t, No. C18-928 MJP (W.D. Wash. Apr. 5, 2019). The Honorable Marsha J. Pechman ordered that by May 5, 2019, the EOIR must conduct bond hearings for class members (defined as all detained asylum seekers who entered the US without inspection, were initially placed in expedited removal proceedings, and who were determined to have a credible fear of persecution) within seven days, and place the burden of proof on DHS in those bond proceedings to demonstrate why they should not be released on bond, among other holdings. In so ordering injunctive relief, Judge Pechman found that Padilla and class members were likely to succeed on the merits, that they would suffer irreparable harm in the absence of the injunction, that a balance of equities favored the moving party, and that the injunction was in the public interest. Id. at 4.

Judge Pechman relied on Zadvydas v. Davis, 533 U.S. 678 (2001) and Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2019) in analyzing Padilla’s likelihood of success on the merits. In particular, she noted that “it has been long recognized that immigration detainees have a constitutionally-protected interest in their freedom” and that “freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Padilla at 6. Judge Pechman rejected the government’s arguments that the class was not entitled to due process under Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953), finding that Shaughnessy only applied to “excludable” immigrants. Id. Rather, she relied on United States v. Raya-Vaca, 771 F.3d 1995 (9th Cir. 2014) and Zadvydas in finding that “once an individual has entered the country, [she or] he is entitled to the protection of the Due Process Clause […] including their right to be free from indeterminate civil detention.” Padilla at 7.

Where Do We Go From Here?

Going forward, practitioners should first keep in mind the effective dates of both Padilla v. ICE and Matter of M-S-. The Padilla injunction takes effect on May 5, 2019, and accordingly, practitioners should fully argue their bond motions under such authority. Matter of M-S- does not take effect until July 15, 2019. However, practitioners should be prepared to remind Immigration Judges that basing their bond denials on Matter of M-S-, or ‘the spirit of Matter of M-S-,’ is inappropriate. Indeed, several practitioners have already reported that Immigration Judges have cited to Matter of M-S- as reason for bond denial, despite the fact that it would have been appropriate for the IJs to find that they do not have jurisdiction over such motions in light of the decision.

Second, even after July 15th (if there has not already been an emergency stay of the implementation of Matter of M-S- by then), practitioners should argue that Padilla supersedes Matter of M-S-. The Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) held that where there is an ambiguity in the law, courts should generally defer to the decisions of an executive agency charged with administering it. In so doing, courts must interpret the statute and the intent of Congress before engaging in deference. In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that a prior court’s construction of a statute that is in conflict with an agency’s ruling can only supersede the agency’s ruling if the statute in question is unambiguous. Additionally, under Murray v. Schooner Charming Betsy 6 U.S. 64 (1804), the Supreme Court held that statutes should be construed where possible to avoid conflict with international law.

Practitioners should seek to explain that Padilla is a nationwide injunction, and accordingly has greater judicial weight than a BIA case where this situation is distinguishable from Brand X. Moreover, in Matter of X-K-, although the BIA believed that there was a regulatory gap in jurisdiction over custody redetermination, it found that there was legislative history that suggested Immigration Judges do indeed have authority over bond proceedings. 23 I&N Dec. at 734; see also H.R. Conf. Rep. No. 104-828, at 209 (1996). One may also argue that INA § 235(b)(1)(A)(iii) unambiguously does not apply to asylum seekers who are not arriving aliens, as it refers to “certain other aliens,” and once they are placed in INA § 240 proceedings, they should eligible for bond. Furthermore, under Charming Betsy, one can argue that the detention of asylum seekers in the Padilla class runs afoul of international law, and deference to Matter of M-S- should not be given. See, e.g., Article 31 of the 1951 Refugee Convention (“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees…”); Articles 3 and 9 if Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights (dealing with the fundamental rights to liberty). Practitioners should continue to ponder and challenge Chevron and even Skidmore deference to the Attorney General’s self-certified cases. In so doing, they may find the late Supreme Court Justice Antonin Scalia’s reasoning in his concurring opinion for Crandon v. United States, a criminal case, to be instructive:

[W]e have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference [… Prosecutors have an incentive] to err in the direction of inclusion rather than exclusion—assuming, to be on the safe side, that the statute may cover more than is entirely apparent […] Thus, to give persuasive effect to the Government’s expansive advice-giving interpretation […] would [replace] the doctrine of lenity with a doctrine of severity.

494 U.S. 152, 177-788 (1990).

Lastly, practitioners should continue to argue in their bond motions (and subsequent appeals) that Matter of M-S- violates the Fifth Amendment. Specifically, practitioners can argue that due process requires “adequate procedural protections” to ensure that the government’s justification for physical confinement “outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690–91; see also, Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010). Practitioners should also raise due process concerns where immigration detention has proven to be a major barrier to access to counsel, and where medical and mental healthcare in detention are subpar, which can have a substantial impact on one’s ability to prevail in their immigration proceedings (note, though, that practitioners may also want to seek humanitarian parole if their clients do have any sort of medical hardship in addition to seeking release on bond). Practitioners should be prepared to defend against the government’s assertions that Jennings v. Rodriguez, 583 U.S. __ (2018) allows for the indefinite detention of asylum seekers and that they are not eligible for release. Practitioners may wish to point out that Jennings v. Rodriguez is actually on remand for the Ninth Circuit to consider the plaintiff’s constitutional challenge to indefinite detention, which the Supreme Court did not address, and may also wish to point out that the case deals with a separate class of foreign nationals.

There is no shortage of battles to fight under Trump’s regime. However, practitioners should continue to come together and zealously fight these egregious and unlawful policies. Practitioners are encouraged to check with their local immigration law chapters and litigious nonprofits to ensure that each and every one of our clients is advocated for. If we have learned anything over the past several years, it is that immigration advocates, backed by the power  of the courts, will continue to uphold the law by ensuring that we provide safety and refuge to those fleeing persecution.

 

*Guest author Sophia Genovese is a Direct Services Attorney for the Southeast Immigrant Freedom Initiative (SIFI), a project of the Southern Poverty Law Center. Sophia works exclusively with immigrants and asylum seekers detained at the Irwin County Detention Center in rural Georgia. There, she represents immigrants in their bond and parole proceedings, as well as in their merits cases. Sophia previously worked as an Associate at Cyrus D. Mehta & Partners PLLC, where she gained critical insights into immigration law.

David Isaacson

Are the Canadian and U.S. Refugee/Asylum Processes Really “Similar Enough”? How the New Refugee Bar in Bill C-97 Is Based on a Misunderstanding of U.S. Asylum Law

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In a development decried by several refugee-serving and civil rights organizations, the Canadian government’s proposed budget bill, Bill C-97, contains within it an amendment to the Immigration and Refugee Protection Act (IRPA) that would, as described by the bill’s official summary, “introduce a new ground of ineligibility for refugee protection if a claimant has previously made a claim for refugee protection in another country.”  More specifically, according to the new paragraph c.1 that would be added to subsection 101(1) of IRPA by section 306 of Bill C-97, a refugee claimant would be ineligible to have their case referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) for a full hearing if

“the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws”.

Instead, such claimants would be relegated to a Pre-Removal Risk Assessment (PRRA), a primarily paper-based process which is known to have a significantly lower approval rate than RPD hearings.

There are a few countries with which Canada has such an information-sharing agreement, including the United States, United Kingdom, Australia and New Zealand.  The primary purpose of new paragraph 101(1)(c.1), however, appears to be to bar refugee claims in Canada by those who have already made claims in the United States, or so an official government spokesperson has told the media:

“Mathieu Genest, a spokesman for Immigration Minister Ahmed Hussen, said the change’s primary effect is expected to be on people whose refugee claims have been rejected in the United States and who then try again in Canada. . . . .  The provision is based on the belief that Canada’s refugee system is similar enough to that of the U.S. that anyone rejected there is likely to be rejected here as well, Genest said.”

Although many refugee claimants arriving from the United States at a land port of entry are already barred by the Safe Third Country Agreement (STCA) – which is currently the subject of a challenge in the Federal Court of Canada – the STCA has exceptions for certain persons with relatives already in Canada and others.  It also does not apply to claims made by persons already inside Canada, a substantial number of which have recently been made after irregular entries into Canada away from an official port of entry that the government may be trying to discourage through this new legislation.  Thus, even with respect to the United States, the new bar would go beyond the STCA.

The “belief” expressed by Mr. Genest regarding the degree of similarity of the U.S. and Canadian asylum and refugee systems, however, is misguided.  The systems in fact have significant differences.  If the Canadian government is relying on the notion that anyone rejected in the U.S. asylum and refugee system is likely to be rejected in the Canadian one, that is a compelling reason (in addition to other reasons beyond the scope of this blog post) to follow the above-mentioned refugee and human rights organizations and “urge, in the strongest possible terms, that the government withdraw this measure from the Budget Implementation Act.”

For one thing, under U.S. asylum law, an asylum application can be denied solely because it was not made sufficiently soon after the applicant’s arrival in the United States.  Pursuant to INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), the right to seek asylum generally does not apply “unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.”  There are limited exceptions for changed and extraordinary circumstances under 8 U.S.C. § 1158(a)(2)(D), but if not qualifying under those, an asylum applicant will be relegated to seeking withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), or under the Convention Against Torture.  Besides allowing removal to other countries and not providing a route to permanent status, however, withholding of removal requires a higher standard of proof than asylum: one must show a clear probability of persecution for withholding, that is, show that persecution is more likely than not, while asylum requires only a well-founded fear of persecution.  The difference was made clear more than 30 years ago by the U.S. Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).  (At that time, there was no one-year time limit, but asylum and withholding of what was then deportation were still importantly distinct in that withholding was mandatory if the higher burden of proof was met, while asylum was and remains a discretionary benefit, as the Supreme Court explained.)

Under Canadian law, on the other hand, while a delay in applying for refugee status may be seen as evidence of lack of subjective fear, it does not lead to a categorical bar.  As the Federal Court reiterated less than two years in Kivalo v. Canada (Minister of Citizenship and Immigration), 2016 FC 728:

“Justice Zinn provided a helpful summary of the law regarding delay in claiming protection in Gurung v Canada (Minister of Citizenship and Immigration), 2010 FC 1097, [2010] FCJ No 1368 (QL), noting at para 21 that delay may be a valid factor to consider, but delay does not automatically result in a finding of lack of subjective fear. The circumstances and explanations for the delay must be considered.”

Indeed, it was already “well settled law” over a decade ago, according to Juan v. Canada (Minister of Citizenship and Immigration), 2006 FC 809, that although “a delay in seeking refugee status may be a relevant factor when assessing a claimant’s credibility . . . .  delay in claiming protection cannot, in and of itself, justify the rejection of a claim to Refugee status or to protection.”

Thus, a claimant who can show a well-founded fear of persecution, a realistic chance, but cannot meet the more-likely-than-not burden of withholding of removal, and who has delayed in seeking protection, may be rejected under United States law when he would have been accepted under Canadian law.

Moreover, unless an error of law has been made, a denial under the one-year bar is not judicially reviewable under the United States.  Pursuant to INA § 208(a)(3), 8 U.S.C. § 1158(a)(3), “No court shall have jurisdiction to review a determination of the Attorney General under paragraph (2).”  While the exception under 8 U.S.C. § 1252(a)(2)(D) allowing judicial review of “constitutional claims or questions of law” is an important one, it does not alter the fact that with respect to factual determinations, there will be no independent review to determine whether an administrative decision may have been unreasonable.  In the Canadian system, on the other hand, even aspects of the refugee determination as to which administrative decision-makers are given deference by the courts will be reviewed for reasonableness, because as explained in Dunsmuir v. New Brunswick, 2008 SCC 9, “The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies.  This power is constitutionally protected.”  This difference is yet a further dissimilarity between the U.S. and Canadian systems.

Nor is the lack of judicial review of one-year deadline issues the only important procedural difference in the treatment of refugee and asylum claims under Canadian and U.S. law.  Members of the IRB generally and the RPD in particular “are independent decision makers at an independent administrative tribunal operating at arm’s length from government.”  “The Immigration and Refugee Board of Canada is an independent tribunal established by the Parliament of Canada.”  The Immigration Judges and Board of Immigration Appeals (BIA) who process many asylum applications in the United States, on the other hand, rather infamously do not meet that description.  Under 8 C.F.R. 1003.1(h)(1)(i), their decisions are subject to review by the Attorney General, a political appointee, to whom they are subordinate.  There has been much discussion of proposals to establish an independent “Article I Court” to address U.S. immigration cases, but at the moment the Immigration Judges and BIA are situated firmly within the Executive Branch under Article II of the U.S. Constitution, rather than being at arm’s length from the government.  Where certain types of asylum claims are deemed politically inconvenient, they may for this reason face rejection under U.S. law where they would not under Canadian law.

The subordination of the BIA and Immigration Courts to the Attorney General is not merely a theoretical issue.  Former Attorney General Jeff Sessions rendered several precedent decisions, required to be followed by the BIA and Immigration Judges and without analogy in Canadian refugee law, which sought to restrict available bases for asylum and the procedures to be followed in adjudicating asylum claims.  In Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), for example, Attorney General Sessions sought to restrict eligibility for asylum by victims of domestic violence (although as discussed in a blog post by my partner Cyrus D. Mehta, some such claims may still be possible), and in Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), Attorney General Sessions overturned a BIA decision that had made clear asylum-seekers generally had the right to a full evidentiary hearing.  Immigration Judges were also instructed to adhere to a case-completion quota that has been criticized as giving rise to an “assembly line” version of (in)justice.

An asylum claimant asserting persecution relating to domestic violence, or raising a complex claim the merits of which are not apparent prior to an evidentiary hearing, may thus also be denied asylum in the United States even if they would be granted refugee status in Canada.  Victims of domestic violence may still claim protection in Canada, as in Kauhonina v. Canada (Minister of Citizenship and Immigration), 2018 FC 1300, and Jeanty v. Canada (Minister of Citizenship and Immigration), 2019 FC 453. And while the RPD may favorably resolve some less complex claims upon review of the file without a hearing, the reverse is not true: “where a member determines that a claim cannot be accepted through the file-review process, the claimant will have an opportunity to their case at a hearing.”

The Attorney General’s supervisory role in the process, and the related lack of independence of Immigration Judges and the BIA compared to the IRB, is not the only important procedural difference between the U.S. asylum process and Canadian refugee-claim process that could lead to different outcomes.  There is also an important difference in the nature of the administrative appellate review provided by the Refugee Appeal Division (RAD) of the IRB as opposed to the review provided by the BIA.

When the RAD reviews a decision of the RPD, it generally, under the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, reviews the decision for correctness.  There is an exception, set out in paragraph 70 of Huruglica, for certain instances in which “the RPD enjoy[ed] a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears.”  But in general, the RPD’s decision may be overturned if the RAD panel believes it not to be correct, even in cases involving the credibility of testimony.  The BIA, on the other hand, pursuant to 8 C.F.R. 1003.1(d)(3)(i), “will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.”

This distinction is particularly significant because of the dramatic disparities between the rates at which different U.S. Immigration Judges grant asylum.  Records compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, for example, show that asylum grant rates over the same 5-year period can range from as high as 97% to as low as less than 3%. Another TRAC report covering a slightly different five-year period found that even within the same immigration courts, in Newark and in San Francisco, the asylum grant rates of different Immigration Judges ranged from less than 3% up to as high as 89% (in Newark) or 91% (in San Francisco).  When an unusually skeptical Immigration Judge makes an unfavorable finding of fact, even if it relates to country conditions background materials or some other area where credibility of oral testimony is not at issue, the BIA will not intervene unless clear error can be shown.

Where the decision of an overly-skeptical RPD member is subject to RAD review, on the other hand, the RAD’s review for correctness can catch factual errors that fall short of being clearly erroneous.  RAD review is not available for all refugee claims, and for example claims made at a Canada-U.S. port of entry under an exception to the STCA are not entitled to RAD review pursuant to section 110(2)(d) of IRPA, but an applicant who is outside the coverage of the STCA by virtue of having crossed into Canada away from a port of entry before making a claim would be entitled to RAD review, and indeed such applicants often have their cases reviewed by the RAD.  This is another reason why such a claimant, even if denied asylum in the United States, might obtain refugee status in Canada, were it not for the new bar to be added by Bill C-97.

For all of these reasons, it is simply not true that “Canada’s refugee system is similar enough to that of the U.S. that anyone rejected there is likely to be rejected here as well.”  The Bill C-97 amendment to IRPA based on this false premise should itself be rejected.

Cyrus Mehta

Is the USCIS Improving or Undermining the Immigration System Through its Top Ten Ways?

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USCIS posted TOP TEN WAYS USCIS is improving the Integrity of the Immigration System. Really? Is USCIS improving the integrity of the system or undermining it? The USCIS has been mandated by Congress to grant benefits. Instead, it has usurped the role of ICE to become an enforcement agency. USCIS’s policies under President Trump and its Director, Francis Cissna,   have been mean spirited and cruel, designed to hurt individuals who are trying to come to or remain in the US legally. Their objective is to restrict immigration, and bring it to a grinding halt via the backdoor, something that the Trump administration has not been able to achieve as yet through Congress.

My responses to each Top Ten Way shows that USCIS is actually undermining the immigration system rather than improving it. To those who are dismayed at the sudden turn the USCIS has taken, including many employees of the USCIS who believe in America’s noble mission of welcoming immigrants, my advice is to ensure that the USCIS applies the Immigration and Nationality Act as intended by Congress rather than follow the current leadership’s meaningless Top Ten slogans! There is a general rule of statutory interpretation that when the legislature enacts an ameliorative law designed to forestall harsh results, the law should be interpreted in an ameliorative fashion, and any ambiguities especially in the immigration context, should be resolved in favor of the non-citizen. See e.g. Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). As the USCIS is mandated by Congress to implement the provisions of the INA that grant benefits and ameliorative relief, those provisions ought to be interpreted by the official in favor of the applicant seeking the benefit. Unfortunately, this is not the guiding mission of the USCIS through its Top Ten Ways.

1. FAITHFULLY EXECUTING THE LAW THROUGH UPDATED “NOTICE-TO-APPEAR (NTA) GUIDANCE

placing individuals in removal proceedings who have applied for an immigration benefit, are denied, and do not have any lawful status to remain in the United States. Previously, most such persons were not issued NTA.

My Response: It is a waste of resources to place every individual whose application for an immigration benefit is denied, often arbitrarily, in removal proceedings. Many would prefer to leave the United States than stay in the US in an unauthorized manner. Moreover, placing everyone in removal proceedings will overburden the immigration courts even more, resulting in further backlogs and delays. It would force individuals to appear for hearings when they would have otherwise left the country, or at least stayed up to the point they could appeal and reverse the denial. As  David Isaacson has aptly stated: “Subjecting well-meaning temporary workers, students, tourists and other nonimmigrants to immigration court proceedings, and even potential detention, just because USCIS disagrees with the merits of their application for extension of stay or change or adjustment of status, is indicative of a malicious attitude towards noncitizens.

2.  CLARIFYING “UNLAWFUL PRESENCE”

holding foreign students accountable by counting as unlawful presence all of the time they remain in the United States after violating the terms of their student admission. Previously, students could violate their student status and potentially remain and work illegally in the United States for years and not accrue a single day of unlawful presence.

My Response: There are many ways in which a student may technically violate status without even knowing it. Students are even found to be in violation of status when the school has authorized more than 12 months of Curricular Practical Training under the regulation.   A student would only come to know of the violation after departing the country, and being barred for 10 years from reentering the country. This clarification of unlawful presence upends over 20 years of the way “unlawful presence” has been interpreted, potentially in violation of the Administrative Procedures Act, and places students in even greater jeopardy than other nonimmigrants who may have been found to have violated status during their period of authorized stay.

3.  ENHANCING SCREENING AND VETTING

strengthening procedures, such as biometric (eg fingerprint) collection and in-person interviews, to ensure that those seeking immigration benefits are eligible and do not pose a risk to national security, and to strengthen identity management and deter fraud.

My Response: The new biometric procedure for nonimmigrant dependents applying for extension of status along with the principal is mean spirited. It is designed to cause further delay of the processing of their applications, and there is no need to subject dependent infants to biometrics. How do they pose a risk to national security?  The in-person interview of all applicants is also unnecessary in straight forward cases, and this new imposition is slowing down the granting of immigration benefits that deprive people of their ability to work and travel while their applications remain pending for longer than usual periods of time.

4. MORE EFFICIENT ASYLUM PROCESSING

increasing resources dedicated to processing asylum cases and reinstituting “last in, first out” (LIFO) processing of asylum cases to help recent asylum seekers and address new operational realities at the Southern border.

My Response: This policy delays those who filed asylum cases less recently. The asylum system only becomes efficient when all cases are processed quickly rather than the last cases. The goal of LIFO is not designed to  “help” recent asylum seekers, rather it is to apply the new restrictive social group interpretations  to those fleeing gang violence or domestic abuse from Northern Triangle countries, thus assuring the denial of their asylum applications and their swift deportation from the US

5. ENSURING PETITIONERS MEET THE BURDEN OF PROOF

rescinding guidance that requires USCIS officers to give deference to the findings of a previously approved petition by the same employer. Every petition for an immigration benefit should stand or fail on its own merit and USCIS officers should not have their hands tied in assessing whether a petition meets legal requirements.

My Response: It defies common sense to not give deference to a previously approved petition by the same employer when the facts and circumstances remain unchanged. For those who are caught in the never ending green card backlogs, their life has become ever more uncertain when they now apply for routine extension of their H-1B status and face the peril of a denial. Moreover, the preponderance of evidence standard is applicable when applying for an immigration benefit. This standard, requiring that there is more than a 50% chance that the claim is true, is being disregarded and petitioners must meet a standard that is higher than even the “beyond a reasonable doubt” standard that is required for proving guilt against a defendant in a criminal trial.

6. COMBATTING H-1B ABUSE AT THIRD-PARTY WORKSITES

ensuring that those who employ foreign workers that they seek to assign to client worksites establish eligibility for h-1B petition approval and comply with the terms of the petition approval; violation of the rules regarding placement of H-1B workers at client worksites and related abuse of those foreign workers can also result in injury to US workers

My Response:  Corporate America relies on H-1B workers to keep it efficient and the economy humming. The USCIS has made it impossible for petitioners to place H-1B workers at client sites without onerous and unnecessary documentation in order to establish a nexus between the petitioner and the client. The need to submit detailed statements from the end-client company regarding the specialized duties that the H-1B beneficiary will perform, as well as the qualifications that are required to perform those duties, would be extremely onerous. Since the end-client is not the ultimate employer of the beneficiary, most clients would be reluctant to provide such letters. Indeed, providing such letters would be tantamount to acknowledging an employment relationship with the beneficiary, which the end client has avoided by arranging to contract with the petitioner or intervening vendors for a project or to fill positions. As a result of a client’s unwillingness to provide the unreasonable documentation being required by the USCIS, petitioners are unable to successfully assign H-1B workers to clients’ project that critically need the H-1B worker’s skills.  This draconian policy relating to placement at their party sites of H-1B workers is designed not to combat legitimate abuse, but to kill a successful business model that has benefitted the American economy.

7. EXPANDING SITE VISITS

increasing site visits in employment-based visa programs to ensure employers of foreign workers are doing what they represented to the USICS.

 My Response: Under the site visit policy, USCIS officials in Fraud Detection and National Security come unannounced often catching unsuspecting employers and foreign workers off guard without the benefit of legal representation. If the foreign worker is legitimately not available during this surprise visit, due to sickness or vacation, fraud is needlessly suspected.  These officials are not so well trained in understanding the nuances of different nonimmigrant visas (such as an L-1A functional manager from an L-1A people manager) that has already been granted and adjudicated after a review of the evidence. The site visit official asks for evidence that may have no bearing to establish eligibility under the specific visa category.  As a result of misinterpretation of the law and the facts, many approved visa petitions get needlessly revoked causing great hardship to both the employer and the foreign worker.

8. PROTECTING U.S. WORKERS FROM DISCRIMINATION AND COMBATTING FRAUD

USCIS entered into a partnership with the Department of Justice to help deter, detect, and investigate discrimination against U.S. workers

My Response: No one can object to the need of protecting U.S. workers from legitimate discrimination. However, in a market-based economy, employers should also be free to hire the best workers most suited to their needs and the most qualified. Just because an employer hires qualified foreign workers, it should not axiomatically lead to an assumption that the employer is discriminating against US workers. .If the employer can hire the best workers without fear of discrimination, these workers make the business more profitable, which in turn results in more jobs for American workers.

9. STRENGTHENING INFORMATION SHARING

streamlining information sharing with other agencies to administer and enforce the immigration laws and ensure adherence to the President’s enforcement priorities

My Response: One can understand the need to share information between government agencies in the interests of national security in specific cases, but unnecessary sharing of information results in delays in the adjudication of an immigration benefit. It is also inappropriate for USCIS to share information to “ensure adherence to the President’s enforcement priorities.” USCIS should be in the business of granting benefits and leave enforcement priorities to ICE.

10. IMPROVING POLICIES AND REGULATIONS

proposing and implementing policies that better comport with the intent of the laws Congress has passed, including updating the EB-5 immigrant investor program, defining what it means to be a “public charge,” and eliminating work authorization for categories of foreign nationals that Congress did not intend to allow to work in the United States.

My Response: While the EB-5 immigrant investor program needs reform, simply raising the investment amounts without expanding visa numbers will kill the program. Foreign investors will no longer be drawn to the US to invest money in projects that create jobs for American workers. Also, proposing a regulation to rescind work authorization for H-4 spouses, most of whom are women and waiting for years in the green card backlogs, is downright cruel. It is also false to claim that Congress did not intend to allow work authorization for certain categories of foreign nationals. INA 274A(h)(3) gives the Attorney General, and now the Secretary of Homeland Security, broad flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Finally, redefining the definition of “public charge” is essentially a subterfuge to find ways to deny immigration benefits to a broad swath of people.

I rest my case, and leave it to readers to decide whether USCIS is improving or undermining the immigration system through its TOP TEN WAYS!  I would recommend to Mr. Cissna that he spend his time and energy in finding ways to ensure that the INA works for individuals who wish to come to the US through legal means. There are many flaws in the nation’s immigration system that restrict pathways to legal status, and the INA clearly needs an urgent update, but USCIS’s current anti-immigration bias makes a bad situation even worse. The USCIS has the power to make America a welcoming nation for immigrants. Reverting to its former mission, rather than dabbling in President Trump’s enforcement priorities, when there is no basis in the INA for USCIS to do so,  would also keep its employees happier as well as being in the nation’s interest.