Cyrus Mehta

The Ethics of Law Reform Activities Affecting Client Interests in Light of the Fairness for High Skilled Immigrants Act

/0 Comments/in /by

The Fairness for High Skilled Immigrants Act has divided the immigrant community as well as immigration attorneys. The bill seeks to eliminate per-country caps without expanding the number of visas in the EB categories.  The House version, HR 1044, has already passed with an overwhelming majority on February 7, 2019. The Senate version, S. 386, has not yet passed through unanimous consent.  A Senator has objected each time it has come up for unanimous consent. Senator Durbin is the latest Senator to object.

If the country caps are eliminated, the queue for Indian EB-2 and EB-3 beneficiaries will lessen substantially, which currently is several decades long. One Cato Institute study anticipates that the wait time could be 150 years.  The elimination of the per-country limits will allow visas to be taken up on a first come first served basis.  Those backlogged in the EB-2 and EB-3, mainly Indian nationals, are fervently hoping for S. 386 to pass. By eliminating the per-country limits, Indian nationals may ultimately face a wait time of just a few years as compared to several decades.  On the other hand, those from the Rest of the World (ROW) may face waiting times under the first come first served basis. Many are opposed to the passage of S. 386 as even waiting a few years will make them worse off than now. At present, they do not have any wait time in the EB-2 and EB-3 while Indians may wait for several decades.

Most immigration attorneys have clients from India and the rest of the world. Some attorneys are torn and are taking a neutral position. Other attorneys are opposing S. 386 while some are in support. Given the division among its members, AILA has taken a neutral position on the bill.

At issue is whether an attorney can ethically support or oppose S. 386, or take a neutral position, even though under any of these positions, some clients may benefit while others may not.

The starting point is ABA Model Rule 6.4 entitled Law Reform Activities Affecting Client Interests, which provides:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

Note that ABA Model Rule 6.4 is non-binding, and an attorney needs to also consult the analog of 6.4 within their state rule of professional conduct. Model Rule 6.4, which provides the analytical framework for this blog, explains that a lawyer can be a member of an organization, such as a bar association or a trade association, that is advocating for law reform even though it may affect the interests of the lawyer’s client, positively or adversely. While Model Rule 6.4 allows the lawyer to take a position even though it may affect the interests of the client, the lawyer is nevertheless required to disclose to the organization whether any decision materially benefited the client, but there is no need to identify the client. The requirement to disclose any material benefit to a client ought to be interpreted in a reasonable manner. AILA, for example, takes many positions that benefit the lawyer’s client, but if each lawyer were to make disclosure, it would become too impractical. Therefore, the reference to benefits in Model Rule 6.4 is, implicitly, to benefits unlikely to be obvious to the rest of the organization or leadership. Most of the time, the client benefits we deal with in AILA are obvious and widespread, such that repeated disclosure would be both pointless and unwieldy.

Let’s suppose a lawyer is a member of a trade association that advocates for an increase in visa numbers for the EB-5 category. This organization, which we will call “EB-5 Trade Association” is actively lobbying for an increase in the annual 10,000 limitation in the EB-5 by suggesting that some of the numbers can come from the 50,000 visas reserved under the Green Card Diversity Lottery Program. This lawyer, who has mainly EB-5 clients, also has clients who may benefit if they win a lottery under the Diversity Program. By advocating that the visa numbers in the Diversity Lottery Program be reduced and given to EB-5, if Congress amends the law, it will reduce the chances of this lawyer’s clients to win the lottery.  Still, under Model Rule 6.4, this lawyer can ethically advocate for the reduction in visa numbers in the Diversity Program in favor of the EB-5 category.

What if EB-5 Trade Association also advocates for a reduction in visa numbers in the family fourth preference category (F4) and the lawyer has clients who have I-130 petitions for some clients under the F4? Under Rule 6.4, a lawyer can even advocate for a reduction in the F4 too in favor of an increase in visas under EB-5 as a member of EB-5 Trade Association. As a practical matter, any advocacy of this sort will most likely include a proviso that existing F4 beneficiaries be protected and that the abolition of F4s would only occur for new applicants. Still, there is no way to predict the end result of such advocacy. In most instances, advocacy efforts do not result in a change of law. Or if there is a change in law, the end result may be very different from what was essentially advocated by the organization.

The next question is whether the lawyer’s advocacy efforts could create a conflict of interest? Let’s examine the Comment to Model Rule 6.4:

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.

The key take away from the Comment to Model Rule 6.4 is that a lawyer does not have a lawyer-client relationship with EB-5 Trade Association by virtue of being a member. Even if the lawyer is the head of a task force within EB-5 Trade Association actively putting forward position papers, it does not result in a lawyer-client relationship with the organization. However, the Comment to Model Rule 6.4 still cautions that “a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.”

Rule 1.7(a) states;

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In the context of the lawyer’s membership in the EB-5 Trade Association, there is no question of the representation of one client being directly adverse to another under Rule 1.7(a) (1). EB-5 Trade Association is not the lawyer’s client. However, under Rule 1.7(a)(2), there is a possibility that the lawyer’s representation may be materially limited to the F4 client by a personal interest of the lawyer. Let’s assume that the lawyer is so passionately involved in the EB-5 reform effort to take numbers from the F4 and give them to the EB-5 that the lawyer begins to abhor the F4 client and loses interest in representing the F4 client. The lawyer’s representation of the F4 client is now materially limited by the lawyer’s passionate zeal in bringing about EB-5 reform.

On the other hand, even if the lawyer is consumed by zeal in the EB-5 reform effort, under Rule 1.7(b)(1),  the lawyer can still represent the F4 client if the lawyer reasonably believes that she will be able to provide competent and diligent representation to the affected client. In most cases, that will be so, but if the lawyer develops an abhorrence toward the F4 client and fails to represent the client competently and diligently, the lawyer clearly has a personal interest conflict and must withdraw from that representation.

Model Rule 6.4 only speaks to reform efforts of the lawyer within the context of an organization. What about personal capacity lobbying or advocacy efforts by a lawyer? AILA is not taking a stand with respect to S. 386 and most lawyers are advocating one way or the other in their personal capacities. There is no comparable ethical rule like Rule 6.4 governing a lawyer’s personal capacity lobbying or advocacy efforts. However, one can use the same framework of Rule 6.4 in arguing that just as a lawyer can engage in law reform efforts as a member of an organization even if it materially affects the interest of a client, a lawyer can do so even in a personal capacity. The lawyer by virtue of doing so in a personal capacity would not have a disclosure requirement, as under Rule 6.4, if the reform effort materially benefitted a client.  Regardless, the lawyer must still be mindful of personal interest conflicts under Rule 1.7(a) (2) as illustrated above.

With respect to S. 386, whatever position one adopts, it is likely to adversely affect the interest of a client in the event that the lawyer has both Indian and rest of the world clients. By lobbying against S. 386 in favor of ROW clients, the lawyer’s advocacy adversely affect the interests of Indian clients who will not benefit if S. 386 does pass. Conversely, when the lawyer advocates for S. 386, the lawyer’s ROW clients could get adversely affected. Of course, the evaluation of harm to the client is not black and white. A lawyer who opposes S.386 is doing so in the hope that the bill will improve and include more visa numbers for all, although the likelihood of S.386 passing will lessen in today’s polarized environment and Indians will continue to remain backlogged in the per country caps with their children also likely to age out. A lawyer who favors S.386 realizes that while the bill is not perfect, this is an incremental first step where discriminatory per-country quotas get eliminated with the possibility of creating a fair system for all in the long run. Given other failed reform efforts over the past 10 years, this bill has the best chance of passage with the hope that it will serve as down payment for further reform such as adding more visas through not counting derivatives in the future (in the interest of full disclosure, this has been my reason for supporting an otherwise imperfect bill).

In the end, all of these positions that the lawyer may take with respect to the Fairness in Immigrant Worker Act are ethical – for, against or remaining neutral. In addition to any potential personal conflict of interest, the lawyer would also need to take business and reputational considerations into account, which are quite separate from the ethical consideration. Restrictionist organizations are also not supporting S. 386 for different reasons, and if the lawyer relies on the positions of these organizations in also advocating against S. 386, such as retweeting Breitbart twitter posts against the ill effects of Indian immigration,  the lawyer should be mindful of any reputational damage that may result through such tactics, including motivating USCIS to view H-1Bs from Indian IT firms more harshly.  If S. 386 passes, then all lawyers must come together to further improve the law (and there will surely be such an incentive when people other than Indians are in a waiting line), and if it does not pass, then all lawyers should still come together to improve the law for Indians. Note that even if the EB-2 and EB-3 ROW are current, the EB-1 for India, China or ROW are not current. The EB-5 too for China, Indian and Vietnam are not current.  The present system is broken and is badly in need for reform.

In conclusion, a lawyer can adopt different positions regarding the Fairness for High Skilled Immigrants Act  even if it may not immediately benefit all their clients.  If a lawyer is constrained in undertaking law reform efforts either through an organization or in a personal capacity, it would surely chill the lawyer’s ability to take positions on proposed legislation as well as undermine the lawyer’s exercise of free speech under the First Amendment.

 

Cyrus Mehta

Musings on the October 2019 State Department Visa Bulletin in Light of the Fairness for High Skilled Immigrants Act

/1 Comment/in /by

The State Department Visa Bulletin for October 2019 reflects forward movement as anticipated with the beginning of the federal fiscal year, except for the employment-based first preference (EB-1). It also does not look promising for many EB categories involving India.  According to Charlie Oppenheim, there is normally full recovery or almost full recovery of the Final Action Dates from the previous year. Low level of demand would allow for thousands of unused numbers from the EB-4 and EB-5 of the previous year to become available for use in the EB-1.  Those numbers unfortunately have not been available in recent years, and the high demand for numbers has required the application of Final Action Dates for all countries, and the dates for China and India have actually retrogressed during the past year in EB-1. Mr. Oppenheim forecasts for the upcoming fiscal year that there is no expectation that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future, and he further anticipates that both EB-1 India and EB-1 China will be subject to their minimum statutory limits of (approximately) 2,803 visa numbers for at least the first half of fiscal year (FY) 2020.

Mr. Oppenheim also reminds AILA members that for planning purposes they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. He further predicts that there will not be any movement for EB-1 India until January 2020 at the earliest. There has been little movement in the EB-2 and EB-3 for India as well as the EB-5. On the other hand, the EB-2 and EB-3 for the rest of the world have become current. The Family 2A continues to remain a bright spot and is current for all countries.

In another interesting development, USCIS has designated the filing charts for both family-sponsored and employment-based preference cases for October 2019. For the F2A category, there is a cutoff date listed on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. USCIS has indicated that applicants in the F2A category may file using the Final Action Dates chart for October 2019. T

This is development is most welcome. One who is caught in the India EB-5 retrogression can nevertheless file an I-485 adjustment of status application under the EB-5 Filing Dates, which is current for India. By filing an I-485 application, the applicant can obtain employment authorization and travel permission while waiting for permanent residence in the United States. Despite the broader use of Filing Dates from October 2019, it is odd that the USCIS does not allow the freezing of the age of the child under the Child Status Protection Act based on the Filing Date being current rather than the Final Action Date. As explained in a prior blog, if the Filing Date cannot be used under the CSPA, a child would still be able to file an I-485 application under the Filing Date, but if the child ages out before the Final Action Date become current, the I-485  application of the child will get denied and this will put the child in serious jeopardy.

It is really disappointing that the EB-1, which was designed to attract persons of extraordinary ability, outstanding professors and researchers and high level multinational executives and managers has gotten jammed. EB-1 for India will now likely suffer the same fate as EB-2 and EB-3 for India. However, since I-485 applications can be filed based on the Filing Dates, an EB-1 with a priority date up to March 15, 2017 can file an I-485 application although the EB-1 India Final Action Date is an abysmal January 1, 2015. This is why HR 1044 , Fairness for High Skilled Immigrants Act, is awaited with so much anticipation by India and China born beneficiaries. The bill will eliminate the country caps.  After it passed the House with an overwhelming majority on February 7, 2019, a similar version, S. 386, did not go through the Senate on September 19, 2019 through unanimous consent. Senator Perdue objected, and the bill’s sponsor Senator Lee has indicated that he is trying to work with Perdue to address his concerns. On the other hand, those not born in India and China were pleased that the bill has not pass. While it will shorten the backlogs for those from India and China, people from the rest of the world claim that they will all of a sudden be subject to backlogs in the EB-2, EB-3 and EB-5.

As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the EB-2, those born in India have to wait for decades, and one study estimates the wait time to be 150 years!

HR 1044/S. 386 has unfortunately led to divisiveness in immigrant communities and even among immigration attorneys. If enacted, this bill would eliminate the per-country numerical limitation for all employment-based immigrants, and increase the per-country limitation for all family-sponsored immigrants from seven percent to 15 percent. One significant feature of this bill that distinguishes it from prior versions of this legislation is a “do no harm” provision. This provision states that no one who is the beneficiary of an employment-based immigrant visa petition approved before the bill’s enactment shall receive a visa later than if the bill had never been enacted. Notably, the “do no harm” provision only applies to employment-based immigrants and does not apply to family-sponsored immigrants.  The Senate version also includes a set-aside provision for no fewer than 5,000 visas for shortage occupations, as defined in 20 C.F.R. 656.5(a), which would include nurses and physical therapists, for Fiscal Years 2020-2028. It also retains the H-1B internet posting requirement proposed in the Grassley Amendment to S. 386, with some change. Specifically, the H-1B internet posting requirements will not apply to an H-1B nonimmigrant who has been counted against the H-1B cap and is not eligible for a full 6-year period or an H-1B nonimmigrant authorized for portability under INA 214(n). It also retains the “do no harm” provision for all EB petitions approved on the date of enactment and the three-year transition period for EB-2 and EB-3 immigrants, but does not include EB-5 immigrants in the transition period.

Notwithstanding the “do no harm” provision, there are fears that people born in all countries who apply after enactment will be subject to wait times, especially in the EB-2 and EB-3, which are now current for the rest of the world. While there is no way to accurately estimate the long term effect on wait  times, a Wall Street Journal article cites a forthcoming analysis from the Migration Policy Institute indicating that “depending on the type of green card, the delay could be between 2.9 and 13.5 years.” This estimate, which has not been published,  does not take into consideration the recently introduced “do no harm” provisions or the carve outs for nurses.  AILA is not aware of a comprehensive, independent, and publicly available analysis regarding how the House and Senate versions of the Fairness for High-Skilled Immigrants Act of 2019 would impact both the current employment-based and family-sponsored immigrant visa queues as well as future immigration flows.

The 1965 Immigration Act, which eliminated the national origin quotas of the 1924 Act, is justly celebrated as a civil rights measure that opened up the United States to global migration for the first time. The intention was to set the same percentages of caps for all countries.  As a result of the limited supply of visas each year, and the increased demand from India and China, it has again indirectly created a national origins quota, where people from certain countries do not have the same opportunities as others to immigrate to the US. If you are from Mexico or the Philippines, the family-based quotas delay permanent migration to the United States to such an extent that it is virtually blocked. The categories might just as well not exist for most people. If you are from China or India with an advanced degree, the implosion of the EB-2 and EB-3 categories does not regulate your coming permanently to the United States; it makes it functionally impossible. Why should a country like India with a population of over a billion that sends many more skilled people to the US and are also in demand by US employers for those skills be subject to the same 7% per country limitation as Iceland that has 320,000 people?  India, for example, is indeed a continent like Europe or Africa, with great diversity in religions. In addition to Hindus, there are millions of Muslims and Christians along with Sikhs, Buddhists, Jains, Jews and Zoroastrians. Besides Hindi and English as official languages, there are 22 regional languages. Still, each country within Europe gets 7% of the visas while India gets only 7%. So the contention that US will lose diversity if country caps are lifted can also be rebutted, though what is the most important consideration is whether demand for skills disproportionately from India are being fairly allocated under the per country limitations. They are not. The purpose of the 1965 Immigration Act was undoubtedly noble, but due to ossified per country limits over the years has led to invidious discrimination against Indians and Chinese, which essentially amounts to national origin discrimination that the 1965 Immigration Act sought to abolish.

The immigration system as it exists today is a mess and the status quo is unacceptable. The bill is not at all perfect, but it at least aims to eliminate the invidious discrimination that has befallen Indians and Chinese in the EB categories. The easy passage of H.R. 1044 in the House in an otherwise political polarized environment, just like its predecessor HR 3012 in 2011,   shows that there is concern about the unfairness and imbalance in the system towards certain countries. Things may work out better than expected if H.R. 1044 became law, though, and the fears of the critics may be exaggerated and overwrought. No published analysis has taken into consideration the “do no harm” and carve out provisions.   We have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because the American Competitiveness in the 21st Century Act, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand  outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today.  The restrictionist organizations like CIS and FAIR know this, which is why they are opposing the passage of the bill. It is paradoxical that immigration attorneys who oppose this bill are on the same bandwagon as CIS and FAIR without fully well knowing the impact of the bills.

Even if H.R. 1044 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness. As noted, there is no credible data as yet that opponents of the bill have cited to support the waiting times that will ensue for others under the bill. Still, we are aware of the atrociously long existing waiting times that the current system imposes on Indians.  It is cruel to let someone languish for 70 years in the backlogs and then for their child to also languish for another 70 years.  Under the current system, all EB-1s are already in waiting lines. Chinese, Vietnamese and Indians are also in waiting lines under EB-5. The EB-4 is currently unavailable for the whole world. The question is whether to kill H.R. 1044, and let Indians continue to languish for the rest of their lives and their children also continue to languish for their lives  too (as it takes 150 years), or let is pass in order to provide relief to while continuing to reform the system with better solutions.  While clearly not perfect, H.R. 1044 ought to be viewed as a down payment for further improvements in the system. H.R. 1044 would have at least gotten rid of the country limits, which over time, inadvertently result in national origin discrimination. There is no moral justification in preserving country per limits as it hinders the ability of employers to hire people with the best skills, regardless of the country they come from.   In the event that  immigrants are made to wait under the new system, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the overall visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities.

The best solution is to do away with overall visa caps and country caps altogether. Let the market and employers determine who comes to the US based on their skills. The law already sets baseline standards such as a test of the labor market at the prevailing wage, or whether the person can seek an exemption by virtue of being extraordinary or working in the national interest. Quotas are thus superfluous and unnecessary.  Removing all visa caps, on the other hand,  is admittedly politically unrealistic. Then how about increasing the overall visa limits under each EB category, and also have a safety valve where the cap can increase if there is even more demand? If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to employment-based immigrants, Congress may wish to exempt certain people from the numbers such as graduates with STEM degrees and some who qualify under EB-1 or the National Interest Waiver under EB-2, or better still, to not count dependent members separately. Another idea is to allow the filing of I-485 adjustment of status applications even if the priority date is not current. Yet another idea is to grant deferred action and employment authorization to deserving beneficiaries affected by the imbalance in the immigration system.   All of these ideas have been explored in The Tyranny of Priority Dates that was published in 2011 and followed by How President Obama Can Erase Immigrant Visa Backlogs with a Stroke of a Pen in 2012, which provided for ways the administration could bring about reform without going through Congress. Since the publication of these articles, some ideas whether through uncanny coincidence or by accident came into fruition under the prior Obama administration such as the dual chart visa bulletin (that provides for a modest early adjustment filing), employment authorization under compelling circumstances and granting deferred action for certain non-citizens under DACA. In an ideal world, the same sort of deferred action could be given to children of backlogged beneficiaries who may age out.   There is only so much that can be attained through administrative measures, and they are also vulnerable to court challenges as we have seen with DACA and STEM OPT. If Congress steps in to specifically eliminate the counting of depravities and the filing of early I-485 applications, they can result in dramatic relief for those caught in the backlogs.  All this will be preferable to HR 1044, but it has not materialized despite failed attempts over several years. S. 744 and the I Square Act provided for more comprehensive fixes, but they have fallen by the wayside.  So can HR 1044 move ahead for now while there is a chance, while we all relentlessly continue to fight for further fixes please?

 

 

Cyrus Mehta

Migrant “Protection” Protocol: A Report from the Front Lines

/0 Comments/in /by

by Stacy Caplow and Maryellen Fullerton*

The laws and policies protecting refugees and asylum seekers in the United States are under sustained assault.  Since 1980, Congress has provided that noncitizens in the United States or at its borders “whether or not at a designated port of arrival” may apply for asylum.[1]   Disagreeing with the statute, but lacking the votes to pass revised immigration legislation, the Trump Administration has chosen to defy the law, announcing and implementing numerous doctrines, programs and policies designed to interfere with or prevent people from exercising this right.  Three new policies in particular have combined to sabotage the asylum statute and create chaotic situations for asylum seekers at the U.S.-Mexico border.

In November 2018 President Trump issued an Executive Order aimed at individuals who do not cross at a designated entry point:  they are banned from applying for asylum.[2]  In January 2019, the Trump Administration took aim at individuals who arrived at the designated ports of entry:  they must remain in Mexico while their asylum cases proceed in Immigration Courts in the United States.[3]  In July 2019 the Trump team added a new hurdle:   all people, including children, who traveled through another country en route to the United States are forbidden to apply for asylum.[4]  By August 2019, there were reports of more than 10,000 asylum seekers waiting in Tijuana, Mexico for their asylum cases in the United States.  These changes followed the highly criticized “zero tolerance” approach that separated parents and children, warehousing children in unsafe, unsanitary conditions.  Although courts have temporarily blocked many programs, every week another, heretofore unimaginable, assault on the individuals and families seeking protection in the United States appears.

As Brooklyn Law School experts in asylum law, we responded to a call for volunteers to assist asylum seekers bottled up in Tijuana.  The legal situation is bleak.  We and other lawyers spent long weekend hours working at Al Otro Lado, an indefatigable nonprofit trying to help the asylum seekers just across the border in Mexico.  We worked with asylum-seeking families from Honduras, Guatemala, Cuba, Venezuela and elsewhere, all caught in a process that is incomprehensible to them (and to us).  Mexico has allowed them to remain during the pendency of their asylum claims in the United States, but they are not authorized to work.  In Tijuana, a stone’s throw from the United States border, they live in shelters, depend on handouts for food; their children – and there are many among the group we assisted – are not enrolled in school.  They exist in limbo, and their circumstances are untenable.

The Migrant Protection Protocols, the Orwellian name that the Trump Administration has applied to its program keeping migrants away from protection, is known colloquially as the   “Remain in Mexico” policy.  Having now spent time on both sides of the border, we can report what we saw with our own eyes.  From our vantage point on the ground in Tijuana, several facts were paramount.

First, many of the asylum seekers came to the U.S.-Mexico border as families with small children.  They sought out U.S. officials to request asylum.  After detention in hieleras (ice boxes) for many days U.S. officials returned them to Mexico.  They carried with them their identity documents, their children’s birth certificates, letters from school principals about gang threats at their elementary school, news articles about gang murders of family members.  They are not the stereotypical economic migrants attempting to slip undetected across the border. Nor are they gang members bent on terrorizing Americans.

Second, the current policy whose clear aim  is to deter, delay, and discourage asylum seekers, is also a policy to defy the laws of the United States that provide for due process in the asylum determination.   At pre-dawn hours, whole families are bused across the border for an Immigration Court proceeding in San Diego.  Later that day, the U.S. bus returns them and deposits them on the Tijuana side of the border.  Almost all the asylum seekers we met had already been to San Diego Immigration Court at least once and were destined to return multiple times—in almost every case, without a lawyer, forced to articulate their claim through an interpreter they had never met before..

A typical case may involve four visits to Immigration Court, each separated by weeks or months. The first trip provides formal notice of the charge that the asylum seeker has attempted to enter the United States without prior approval.  Then, the case is adjourned for sometimes months, to give the applicant time to seek legal assistance.  This is quixotic, even cynical because it raises false hopes. There simply are no resources to provide legal representation to so many people bottled up on the Mexican side of the border. The second Immigration Court appearance, with the applicant still unrepresented, typically involves submitting a formal request for asylum, followed by another adjournment during which  the applicant can gather documents, official translations, and other evidence relevant to the asylum claim.   Al Otro Lado volunteers scramble to provide translations since the law requires English versions for even birth certificates and other obvious documents.   A third trip to San Diego Immigration Court frequently provides the asylum seeker the opportunity to submit any evidence that supports the application for asylum.  The Immigration Judge then schedules a court hearing on the merits of the asylum claim.  Finally, on the fourth (at the minimum) journey, the asylum seekers will testify—again pro se—and  the Immigration Judge will review and assess the evidence.  To date, no substantive hearings have actually taken place.  Meanwhile, the asylum seekers—adults and children—languish in Mexico.  This dilatory pace ensures that many will give up and leave Mexico.  They aren’t working; their kids aren’t in school; they have no access to medical care; they are caught in an interminable and unfathomable situation.

Third, the Remain in Mexico policy effectively undercuts the legally guaranteed right to the assistance of counsel.  Noncitizens in Immigration Court proceedings do not have the right—as do criminal defendants—to appointed counsel.  But they do have the right to have an attorney represent them in these life and death matters if they can find one.  Forcing asylum seekers to remain in Mexico guarantees that this never happens.  It ensures they will have to proceed pro se because they cannot cross into the United States to meet with an attorney to prepare their case.

We met many asylum seeker in Tijuana clutching papers they had received on their first visit to Immigration Court.  The Immigration Court, required to provide information to indigent individuals on sources for free or low-cost legal assistance, had handed out the standard list  of California nonprofit legal organizations. This is an exercise in futility.  These organizations and local pro bono lawyers do not have the capacity to handle the volume of asylum seekers in Tijuana or the ability to properly prepare the applications.  Even more fundamentally, the asylum seekers cannot cross the border to consult with U.S.-trained attorneys who might be able to help them.[5]

Al Otro Lado tries to fill this gap with know-your-rights presentations in Tijuana, some referrals to social services, document translations and—once a month—a volunteer legal clinic where lawyers who can make their way to Mexico try to help asylum seekers fill out applications.  But Al Otro Lado cannot provide direct representation to the flood of people essentially blockaded from U.S. legal assistance.  And we know how much legal representation matters:  studies show that 60% of those represented by a lawyer in Immigration Court are successful compared to 17% of those who are unrepresented.[6]

During our short time in Tijuana, we saw the dehumanizing effects of the Remain in Mexico program. The aggregation of these conditions—the hazardous journey, the apprehension, the detention, the bare survival for months in desperate conditions, the anxiety of the repeated court proceedings, the absence of a true legal advocate—makes a mockery of one of the most universally accepted norms: refugees must be protected.

Our legal assistance was a drop in the bucket, but as we stood in line waiting to walk across the border back into the United States, we understood more poignantly than ever the freedom we enjoy.  We cannot return to Tijuana every month, but, as lawyers, we are committed to continue making a contribution.  We are encouraging our students to do the same.  Our efforts to increase representation of immigrants in New York[7] have proven what a difference even a little bit of legal assistance can make.

 

* Guest authors Stacy Caplow and Maryellen Fullerton are Professors of Law, Brooklyn Law School.

[1] Immigration & Nationality Act § 208(a)(1).

[2] Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States, Nov. 9, 2018, implemented via Interim Final Rule, Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018).

[3] U.S. Dept. Homeland Security, Migrant Protection Protocols, Jan. 24, 2019.

[4] Third-Country Asylum Eligibility Rule, 84 Fed. Reg. 35409 (July 16, 2019) (partially stayed, Barr v. East Bay Sanctuary Covenant, (9th Cir. Aug. 16, 2019), appeal pending, see Amy Howe, Government Seeks Emergency Relief on Asylum Rule, SCOTUSblog, Aug. 26 2019).

[5] Early reports show that up to June 2019 only 1.2% of noncitizens subject to MPP were represented by lawyers. TRAC Immigration, Access to Attorneys Difficult for Those Required to Remain in Mexico, July 29, 2019.

[6] Ingrid Eagly & Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council (2016).

[7] Accessing Justice:  The Availability and Adequacy of Counsel in Immigration Proceedings, 33 Cardozo Law Rev. 357 (2011).

Cyrus Mehta

Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing a Denial of a National Interest Waiver

/0 Comments/in /by

Filing lawsuits in federal court to challenge erroneous denials of visa petitions by USCIS have become more frequent. There is more of a shot at a reversal when a federal judge reviews a denial of the USICS. Under the Administration Procedures Act, a court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A). Seeking review in federal court under the APA is far more powerful that appealing a denial to the USCIS’s Administrative Appeals Office, which seldom reverses denials. Sometimes, however, a challenge in federal court can get nixed if the court finds that it has no jurisdiction to review a discretionary decision under §242(a)(2)(B)(ii) of the Immigration and Nationality Act.

In Poursina v. USCIS, the plaintiff sadly found out that a federal court had no jurisdiction to review a denial of his request for a national interest waiver under the jurisdiction stripping §242(a)(2)(B)(ii) because the granting of a national interested waiver is inherently discretionary.

INA 242(a)(2)(B) is reproduced below in its entirety:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a) of this title

The Ninth Circuit in Poursina v. USCIS relied on INA 242(a)(2)(B)(ii), which requires that Congress must specify n the statutory provision that the decision must be in the discretion of the Attorney General or Secretary of Homeland Security. At issue is whether Congress specified that the issuance of a national interest waiver under INA 203(b)(2)(1)(A) is a discretionary decision.

If a national interest waiver is granted, a foreign national can waive the employer’s sponsorship through a labor certification in the employment-based second preference. Specifically, INA § 203(b)(2)(1)(A) states that the “Attorney General may, when the Attorney General deems to be in the national interest, waive the requirements….that an alien’s services in the sciences, arts, professions,  or business be sought by an employer in the United States.”  Note that under the Homeland Security Act of 2002, Congress transferred this authority from the Attorney General to the Secretary of Homeland Security.

INA § 203(b)(2)(1)(A) does not contain magic words such as “in the discretion of the Attorney General” to place it within the purview of the jurisdiction stripping provision. Still, the Ninth Circuit in Poursina v. USCIS opined that words like “may” and “deems it so” suggested some measure of judgment, and thus discretion on the part of the Attorney General (now the DHS Secretary) in granting a national interest waiver.  Moreover, the Ninth Circuit was also enamored by the fact that the invocation of “national interest” inherently exudes deference to the Executive Branch, See Webster v. Doe, 486 U.S. 592 (1988),  and further invokes broader economic and national security considerations that are firmly committed to the discretion of the Executive Branch, See Trump v. Hawaii, 138 S. Ct. 2392 (2018).

But assuming the Ninth Circuit’s logic was correct, even within a discretionary decision that may be immune from judicial review under INA 242(a)(2)(B)(ii), there may be purely legal questions that are non-discretionary. Indeed, the precedent decision of the Appeals Administrative Office in Matter of Dhanasar imposed such objective criteria that required the DHS Secretary to measure the national interest claim under those criteria rather than through the exercise of unbridled discretion. A person seeking a national interest waiver mush show:

(1)that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Notwithstanding these criteria that are similar to other undisputable objective regulatory criteria in determining who is extraordinary under INA § 203(b)(1)(A) and 8 CFR § 204.5(h)(3)(i)-(x), the Ninth Circuit in Poursina v. USCIS strangely held they fell short of a legal standard, and the Dhanasar standards expressly reserved the issuance of the waiver “as a matter of discretion.” But is there not always some discretion in all agency adjudications?  Even under the extraordinary ability standard pursuant to §203(b)(1)(A) there is discretion in determining whether fulfillment of the evidentiary criteria under 8 CFR § 204.5(h)(3)(i)-(x) can survive a final merits determination. See  Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).  Yet, courts have always assumed jurisdiction over appeals challenging denials under extraordinary ability standard.

One should therefore be able to argue that a federal court is not forever precluded from reviewing a denial of a national interest waiver. If  for example the USCIS does not apply the Dhanasar standard whatsoever in a future case, would that then pose a purely legal question or will a court, following  Poursina v. USCIS, throw out the case under INA 242(a)(2)(B)(ii)?  In fact, with respect to a denial of Poursina’s second national interest waiver, Poursina claimed that he never received a request for evidence. The Ninth Circuit ultimately shot down that claim on the grounds that Poursina did not update his address with USCIS in time, but agreed that a constitutional claim, such as this, is not subject to INA §242(a)(2)(b)(ii)’s jurisdictional bar.

One Third Circuit case, Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005) is especially noteworthy and discussed in David Isaacson’s blog.  Pinho’s adjustment of status application was denied because he was found to be ineligible as a result of a disqualifying conviction. However, that conviction was vacated and the charges were dismissed, but the adjustment application was still erroneously denied on the ground that his vacated guilty plea still met the definition of “conviction” under the INA.  Pinho was not placed in removal proceedings and he sought review of the denial of his adjustment of status application in federal court under the APA despite the bar on review of discretionary decisions, including adjustment of status under INA §242(a)(2)(B)(i), which is the companion jurisdiction stripping provision to INA §242(a)(2)(B)(ii). The Third Circuit Court held that this denial was based on the legal question of whether Pinho was statutorily eligible for adjustment of status, and thus fell outside the purview of the jurisdiction stripping clause.  The Third Circuit stated, “To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.”

Hence, under Pinho, there may still be scope to review a denial of a discretionary national interest waiver denial in federal court if there was a legal error or a constitutional claim. It must be acknowledged that the facts in Pinho were different as that case clearly concerned statutory eligibility without any element of discretion.    It remains to be seen whether a plaintiff can show legal error if the standards set forth in Matter of Dhanasar are not properly evaluated by the USCIS even though the application of those standards require discretion. This argument was not successful in Poursina v. USCIS, as the Ninth Circuit was of the opinion that the Dhanasar standards still smacked of discretion.  Moreover, in Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court held that only decisions actually declared discretionary by statute can be immunized from judicial review and not decisions made discretionary by regulation. This would also apply in the reverse. A discretionary statute cannot be made non-discretionary by regulation, or by standards set forth by the AAO in precedent decision such as Dhanasar.

While Poursina v. USCIS may have immunized national interest waiver denials from judicial review, the holding should be limited to national interest waivers only and should not impact the ability to challenge denials of other visa petitions in federal court, such as H-1B, L, or EB-1 cases.  The language of INA 214(c)(1) about how a nonimmigrant petition “shall be determined by the Attorney General” is even further away from explicit discretion than the national interest waiver language , and INA §203(b)(1)(A) regarding EB-1 cases doesn’t even have that level of Attorney General authority specified. Thus, in an APA action challenging a religious worker denial under INA §203(b)(4), the Third Circuit in Soltane v. US Dep’t of Justice, 381 F.3d 143 (3rd Cir. 2004) held that the provision did not specify that the Attorney General had discretion.  In Residential Finance Corporation v. USCIS, a federal district court in Ohio reversed a denial of an H-1B case and the court also overrode the objections of the government that it did not have jurisdiction under INA §242(a)(2)(B)(ii). None of the provisions governing approval of an H-1B petition specified that granting a petition is in the discretion of the Attorney General. The court in Residential Finance distinguished the facts from those in CDI Information Services Inc. v. Reno, 278 F.3d 616 (6th Cir. 2002) which refused to review the denial of an H-1B application for extension of stay as the grant of such an extension was within the discretion of the attorney general under INA §214(a)(1).

While one may disagree with the holding in Poursina v. USCIS, seeking review of a denial of a national waiver request in federal court is more likely to fail than the review of denial of other petitions. Even the DC Court of Appeals in Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) has agreed. The Ninth Circuit even refused to extend its holding in ANA International v. Way, 393 F.3d 886 (9th Cir. 2004), which held that the visa revocation statute, INA §205, was not subject to the jurisdiction stripping provision although it was linguistically similar to the national interest waiver statute as it did not contain any language suggesting discretion. Thus, unless another circuit court disagrees with Poursina v. USICS and Zhu v. Gonzales, an APA challenge seeking review of a national interest denial, without more, may not succeed. In a future case, an argument can be made that when the statute, which in this case INA § 203(b)(2)(1)(A) does not specify that the grant of a waiver is in the discretion of the Attorney General, the court should not be able to divine discretion from other words in the statute as the Ninth Circuit did in Poursina v. USCIS. This is especially so, when unlike the companion jurisdictional stripping provision under INA §242(a)(2)(B)(i), there is no specific mention of discretionary applications that immunize them from a court’s jurisdiction such as an adjustment of status application or cancellation of removal. Until there is such success, prospective litigants should be made aware that the USCIS’s Appeals Administrative Office rather than a federal court will likely have the final word when USCIS denies a national interest waiver request.