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LET’S HOPE THAT’S WHAT IT MEANS: DOES EXECUTIVE INITIATIVE REALLY PROVIDE FOR EARLY ADJUSTMENT OF STATUS?

December 15, 2014/0 Comments/in Blog/by Cyrus Mehta

By Gary Endelman and Cyrus D. Mehta

Most of the commentary and attention on the recent blizzard of White House and DHS memoranda on immigration reform quite properly fell on executive initiatives to bring the undocumented and their parents in from the shadows. This is what the Administration clearly cares most about for logical political reasons. The White House perception, rightly or wrongly, is that the ever growing Hispanic constituency that the President wants to win over simply is not deeply concerned with having a more rational legal immigration system. Yet, there are a variety of positive steps that DHS Secretary Johnson outlined which do offer real benefits to workers and employers alike who know suffer from the sclerotic effects of chronic visa backlogs. The most promising innovation is the anticipated ability for the beneficiaries of approved I-140 petitions to apply for adjustment of status even in the absence of current priority dates. That, we all enthused, was something to rally round..

Now that we have had a chance to exhale, a nagging doubt clouds this emerging optimism: Is early adjustment of status really what is contemplated? While White House briefings and talking points certainly suggested this was the case, a stubborn yet deliberate reading of the various memoranda uncovers no explicit mention of early adjustment, only an intention to foster clarity, predictability, and transferability once the USCIS has approved an employment-based immigrant visa petition, Form I-140. DHS Secretary Johnson offers only the following:

“ I direct that USCIS carefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

Some doubting voices now raise up the possibility that the next step after I-140 approval will fall short of I-485 submission, perhaps only going so far as to allow for the granting of advance parole travel permission and issuance of employment authorization documents. We do not know if such doubts are justified but write now to explain why, if true, this is a very bad idea especially if it is offered without early I-485 submission as an alternative.

Let’s start with the reasons why allowing for early adjustment of status makes sense. We acknowledge that INA § 245(a) (3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).

The only regulation that defines visa availability is 8 C.F.R. § 245.1(g) (1), which provides:

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey, as we have proposed previously. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary. So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).

We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

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

Allowing early adjustment of status with companion work authorization, travel permission, and AC 21-like adjustment portability will make possible the green card on a provisional basis in all but name. However, this is not all. The most important benefit may be the freezing of children’s ages under the formula created by the Child Status Protection Act (CSPA). If the White House will only grant EAD and Parole to I-140 beneficiaries, but stop short of allowing adjustment, then, on a massive scale, their children will turn 21, thereby aging out, long before the magic time for I-485 submission ever arrives. This is because Section 3 of the CSPA only speaks of freezing the child’s age when the petition has been approved and the visa number has become available. Also, the child must seek to acquire lawful permanent resident status within one year following petition approval and visa availability. Since Matter of O.Vazquez, absent extraordinary circumstances, only the filing of the I-485 can do that. Under the current definition of visa availability, joined at the hip to the Visa Bulletin, they have no hope. Only through a modified definition coupled with the notion of provisional adjustment can they retain the CSPA age. This is why invocation of early adjustments themselves, not merely EAD and Parole, to beneficiaries of I-140 petitions is so manifestly necessary. However, precisely as in the INA, the CSPA contains no definition of visa availability. A change in the applicable regulatory meaning along the lines we suggest will apply to CSPA and prevent the children of I-140 beneficiaries from aging out. Granting the EAD and advance parole will sadly have no such effect. Only early adjustment can do that. This is especially relevant now since the Supreme Court in Scialabba v. Cuellar De Osorio substantially narrowed the utility of priority date retention. The redefinition of visa availability that we propose not only provides the legal underpinning for early adjustment of status but also allows the children of I-140 petition beneficiaries to derive a priceless immigration benefit through this family relationship that would otherwise be lost. Given the importance of preserving the age of a child under the CSPA, why only restrict early I-485 filings to beneficiaries of I-140 petitions? Our proposed redefinition of visa availability ought to also apply uniformly to beneficiaries of family based I-130 petitions too.

It is entirely possible that the White House may realize all of this and more. We would be most happy to be rendered redundant. The best advice is that which is entirely unnecessary. Yet, unless and until we see it in writing, perhaps the time for celebration should be postponed.

(Guest author Gary Endelman is Senior Counsel at Foster)

JUSTICE, JUSTICE SHALL THOU PURSUE: WHY THE LAWSUIT AGAINST THE IMMIGRATION ACCOUNTABILITY EXECUTIVE ACTIONS IS A WASTE OF TIME AND MONEY

December 8, 2014/0 Comments/in Blog/by Cyrus Mehta

By Gary Endelman and Cyrus D. Mehta

For I was hungry and you gave me food, I was thirsty and you gave me drink, I was a stranger and you welcomed me

Matthew 25:35

A lawsuit was expected as soon as President Obama dramatically announced that his immigration executive actions could impact more than 5 million people. It is already here. On December 3, 2014, Texas took the lead with 18 other states in a lawsuitagainst the United States asserting that the President’s unilateral Immigration Accountability Executive Actions are unconstitutional. The coalition of states in addition to Texas include Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin.

The complaint essentially alleges that the DHS directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed” under Article II, §3, Cl. 5 of the United States Constitution. Another basis for the complaint is that under the Administrative Procedure Act, 5 U.S.C. § 553, the President’s executive action is akin to a rule, which needs to be promulgated through notice-and-comment rulemaking. The complaint also cites APA, 5 U.S.C. § 706, which gives a federal court power to set aside an agency action that is, among other things, arbitrary or capricious, contrary to constitutional right or in excess of statutory authority. But it reads more like a white-hot tabloid, and instead of providing a forceful legal basis, loudly proclaims in bombastic fashion several prior utterances of President Obama claiming that he could never bypass Congress. Here are two out of many examples:

“I am president, I am not king. I can’t do these things just by myself…[T]here’s a limit to the discretion that I can show because I am obliged to execute the law…I can’t just make the laws up by myself.”

“[I]f in fact I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal. “

The President still went ahead and changed the law himself despite his many previous assertions that he could not, according to the complaint, as if that can be a legal basis to challenge the actions. Interestingly, the President consistent with these prior utterances of his still insists even after November 20, 2014 that only Congress can change the law and bring on meaningful reform. The centerpiece of the President’s executive actions is to broaden deferred action, which has always been deployed by the Executive Branch. The November 20, 2014 announcement defers the deportation of people who were in unlawful status as of the date of the announcement, and who were also the parents of US citizen or permanent resident children, provided they were in the United States before January 1, 2010. The previous Deferred Action for Childhood Arrivals (DACA) program has been expanded to include those who came to the United States when they were below 16 years prior to January 1, 2010 instead of January 15, 2007. The previous age limit of 31 that was imposed in the June 15, 2012 announcement has been lifted. Eligible people who are a non-priority for enforcement purposes can apply for deferred action, and obtain employment and travel authorization.

The lawsuit is a waste of time and taxpayers money. The authors have argued in A Time for Honest Truth: A Passionate Defense of President Obama’s Executive Actions that the President clearly has the legal authority to exercise discretion with respect to prioritizing on whom to enforce the law against, especially when Congress has not provided sufficient funding to deport 12 million undocumented people all at once. Even the conservative establishment refers to those who desire to deport 12 million as the “boxcar” crowd. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there. Never has the size of a vulnerable population been a valid reason to say no. Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a “twilight zone” in which he may have concurrent authority with Congress. Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the executive branch under the recent immigration actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. INA Section 103(a)(1) charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien..” INA § 212(d)(5), which Congress also enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.” Parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other actions to help businesses have not been attacked in the law suit. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. Operating in Justice Jackson’s “twilight zone,” such constructive ambiguity creates the opportunity for reform through executive initiative. In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A(h)(3)(B), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. Furthermore, INA § 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

We reproduce the very penetrating and insightful comments of our esteemed colleague Jose R. Perez, who is a partner at Foster:

It’s my hope that Federal Judge Andy Hanen in Brownsville, TX, will do the right thing and dismiss this lawsuit based on:

·   #1: Lack of subject matter jurisdiction since the alleged cause of action is a ‘political question’ or a dogfight between the executive & legislative branches as there is no case or controversy for an Article III Court to decide;

·         #2: The plaintiffs lack ‘standing’ since the states have NOT suffered a palpable injury suffered and the ‘alleged injury’ is baseless and at best highly speculative since no undocumented alien has benefited from the executive actions of November 20, 2014; and

·         #3: Once implemented, the executive actions do NOT circumvent Congress or usurp our Constitution since President Obama has the executive authority under Article II of the U.S. Constitution and the statutory authority under the INA to grant deferred action based on law enforcement priorities as an act of prosecutorial discretion. This is an presidents have done so. [ My family and I came to the U.S. as ‘parolees’ based on President Johnson’s exercise of discretion that allowed approx. 1 Million Cubans to be paroled and to eventually benefit from the Cuban Adjustment Act of 1966, a very open-ended and most favorable statute.]

We wish to double down on these sage comments concerning lack of state standing to bring this lawsuit for they are its Achilles heel. This is not a case where a federal agency like the Environmental Protection Agency has declined a request by an affected state actor to regulate the emission of toxic greenhouse gas emissions whose presence in our air and water present a clear and present danger of environmental catastrophe.. For this reason, the holding by the Supreme Court that the State of Massachusetts did have requisite Article III standing to sue the EPA is fundamentally inapposite both in logic and law. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Undocumented immigrants who work long hours at low pay doing the hard and dirty jobs on which we all depend but are loath to perform are not the cause or harbinger of global warming. Whatever grievances Texas and her sister states have , the proper forum for their expression and resolution in our system of governance is the Congress not the courts. See Lajan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992)..

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993). Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the true reason why: “[a] principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…” The decision by President to order ICE to focus its enforcement activities on designated priorities is a policy judgment which the courts have neither the time nor inclination to second guess:

This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion. See United States v. Batchelder, 442 U. S. 114, 123-124 (1979); United States v. Nixon, 418 U. S. 683, 693 (1974); Vaca v. Sipes, 386 U. S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.

Heckler v. Chaney, 470 U.S. 821, 8311 (1985)

The Constitution neither allows nor encourages any of the state litigants in this extra-constitutional litigation to micromanage the enforcement or implementation of current immigration law or regulation. That is up to the President and those federal agencies to whom he delegates his authority: “An agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-845 (1984). Under the oft-quoted Chevron doctrine, federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 (2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute. There is simply no case or controversy here for the federal courts to settle. None of these Plaintiffs identify or present such a “ personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Baker v. Carr, 369 U.S. 186, 204 (1962). Where is their standing then one wonders? In all of the hyperbolic protestations that suffuse this complaint, where rhetoric often masquerades as reality, one looks in vain for any allegation or evidence that any of the state complainants can “ show that it has suffered a concrete and particularized injury that is fairly traceable to thte defendant and that a favorable decision will likely redress that injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

Still, one should not be too sanguine about Judge Hanen doing the right thing who will hear this case in the United District Court for the Southern district of Texas, Division. In US v. Nava-Martinez, a case that involved a human trafficker who sought to smuggle an El Salvadorian girl into the United States, Judge Hanen chastised the DHS for completing the crime by delivering the minor to the custody of the parent, even though the DHS was obliged to unify the child under the 1997 Flores v. Reno, CV-85-4544-RJK, settlement agreement. Judge Hanen equated this policy to “taking illegal drugs or weapons that it had seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.” Id. at 10. The plaintiffs have cleverly cited Nava-Martinezin their complaint as an example of DHS laxity encouraging illegal migrants, and also disingenuously conflated the surge of unaccompanied minors this summer with the President’s previous DACA program, even though it has been well documented that these children may have come to the US for other legitimate reasons, such as fleeing horrific gang persecution in countries such as Honduras, el Salvador and Guatemala. . A December 5, 2014 NY Times article confirms this:

At the National Immigrant Justice Center in Chicago, lawyers interviewed 3,956 migrant children this year. Lisa Koop, associate director of legal services there, said the number of children who had heard of the 2012 program was “in the single digits.”

“It is clear that DACA was not a driving force behind the migration,” Ms. Koop said. “What we heard time and again was that violence in Central America and the need for safe haven was what prompted these children to undertake the journey north.”

Even if Judge Hanen does not rule the way we think he should, it is hoped that the Fifth Circuit will swiftly reverse him. Indeed, the Fifth Circuit has recently recognized the supremacy of federal immigration law over state law as well as federal discretion in enforcing immigration law. In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5^th Cir. 2013), the Fifth Circuit struck down a local housing ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government could exercise discretion:

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.

The creation of law by federal agencies in the implementation of executive initiative has become the norm rather than the exception in our system of governance , if for no other reason than that the sheer multiplicity of issues, as well as their dense complexity, defy traditional compromise or consensus which are the very hallmarks of Congressional deliberation. Despite the assertion in Article I of the Constitution that “ All legislative Powers herein granted shall be vested in a Congress of the United States,” it is far from novel to acknowledge as we must that independent federal regulatory agencies also exercise legislative powers. As Justice White noted in his dissent in INS v Chadha,462 U.S. 919, 947 (1983) (White,J., dissenting) after reviewing prior cases upholding broad delegations of legislative power:

These cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without passage of new legislation. For some time, the sheer amount of law- the substantive rules that regulate private conduct and direct the operation of government- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question that agency rulemaking is lawmaking in any functional or realistic sense of the term.

Immigration has historically been linked to foreign policy. Indeed, a core reason for the plenary federal power over immigration is precisely because it implicates real and genuine foreign policy concerns. This is another reason why the Executive enjoys wide, though not unchecked, discretion to effect changes in immigration procedures through sua sponte regulation. Indeed, it is perhaps only a modest exaggeration to maintain that the INA could not be administered in any other way. The President’s executive action does not displace Congress as the primary architect of federal immigration policy but rather is in aid of the legislative function and, as such, is in harmony with the constitutional injunction to diversify authority. The President is not divorced from lawmaking; that is the very reason why the Framers provided an executive veto power. If the President had no role in lawmaking, why give such a weapon to limit congressional prerogative? Once we accept the fact that the Executive is a junior partner in lawmaking, then the President’s executive actions become a strong but unremarkable expression of this well-settled constitutional concept. To suggest that the President is powerless to act simply because only Congress can modify the INA is to isolate one co-equal branch of our national government from another beyond what the Constitution suggests or requires. This is not what the Framers had in mind:

Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of government…The mean who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Buckley v. Valeo, 424 U.S. 1, 121 (1976)

Not only is it appropriate for the President to direct the formulation of immigration policy on technical issues of surpassing importance, this is the way it must be; this is what the Constitution expects. The decision by President Obama to do now what he had been reluctant or unwilling to do earlier suggests not a reversal of position or a grab for imperial power but a willingness to change, to grow, to embrace solutions that meet the exigencies of an ever-changing challenge stubbornly resistant to what has been tried before and failed. We are reminded of what President Lincoln wrote to Albert G. Hodges on April 4, 1864 : “I claim not to have controlled events, but confess plainly that events have controlled me.” In perhaps the most famous judicial exposition of the need for pragmatic presidential initiative, we end our advocacy in confident reliance upon the still cogent observations of Chief Justice John Marshall in McCulloch v. Maryland:

To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur

17 U. S. 316 (1819)

The President’s proposals do nothing to inhibit or prevent Congress from enacting amendments to the INA. He has not attempted to supplant Congress when it comes to the exercise of the legislative function over which in alone enjoys plenary power. President Obama has acted solely in furtherance of what the Congress has already done to give America the immigration policy that it needs and deserves, one that is more effective and adaptable to the exigencies of the moment so that both the nation and the immigrants who have sacrificed all to write the next great chapter in the American story can benefit in full measure.

(Guest author Gary Endelman is Senior Counsel at Foster)

A TIME FOR HONEST TRUTH: A PASSIONATE DEFENSE OF PRESIDENT OBAMA’S EXECUTIVE ORDERS ON IMMIGRATION

November 24, 2014/2 Comments/in Blog/by Cyrus Mehta

You shall neither vex a stranger, nor oppress him: for you were strangers in the land of Egypt.

EXODUS 22:21

By Gary Endelman and Cyrus D. Mehta

November 20, 2014 was a historic night. The President announced a series of executive actions to expand enforcement at the border, prioritize deporting felons not families, and require millions of undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation. The authors welcome this development as they have been advocating for executive actions since 2010 to repair a broken immigration system in the face of Congressional inaction. In The Tyranny of Priority Dates we first advocated that the President had broad authority under the Immigration and Nationality Act to ameliorate the plight of many who were caught in the crushing immigrant visa backlogs, followed by many widely disseminated blogs thereafter that further fine-tuned and refined the proposals made in our original article. We were there at the very beginning and so the executive actions personally mean a lot to us just as they mean to the millions who will get relief from our harsh immigration laws. As we summarize the executive actions, we point to our blogs that may be helpful to further advance and develop these measures.

The most audacious and bold of these executive actions is to provide deferred action to at least 4 million immigrants who on the date of the announcement are parents of US citizens and lawful permanent residents and who have continuously resided in the United States since before January 1, 2010. They also must have no lawful status on November 20, 2014, and must have also been physically present on that date and at the time of making the request for consideration of deferred action. They must also present no other factors that would make a grant of deferred action inappropriate and are not an enforcement priority. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy. As bold as this policy seems, in a larger sense, it stands as a reaffirmation of a well-established tradition that affords the Executive Branch wide discretion in the enforcement of our nation’s immigration laws.

Another bold move is to expand the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. DACA will be expanded to include a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. The entry date will also be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

Critics have assailed these two executive actions in isolation as being unconstitutional and usurping the power of Congress. These arguments have been made before, especially after DACA was implemented. In Yes He Can: A Reply to Professors Delahunty and Yoo, we argued that even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. That is precisely why the Obama Administration has focused its removal efforts, which as stated in a letter by the former DHS Secretary Napolitano to Senator Durbin, on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there. Never has the size of a vulnerable population been a valid reason to say no. Critics fail to consider INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA section 274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR 274a.12(c)(14), which grants employment authorization to one who has received deferred action, has been around for several decades.

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007). It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney, 470 US 821, 835 (1985). Arizona v. United States, 132 S.Ct. 2492, 2499 (2012) articulated the true reason why: “(a) principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…” Furthermore, critics of the executive orders do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute. Surely the “body of experience” and the “informed judgment” that DHS brings to INA section103 provide its interpretations with “ the power to persuade.” Skidmore v. Swift& Co., 323 US 134,140 (1944).

It is also worth mentioning that while there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the executive actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

While the focus of the criticism is on the two deferred action programs that will potentially cover 5 million people, there are also executive actions that include measures to strengthen Southern border security and to reorder removal priorities. Under this reordering top priority with respect to removal will be placed on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion. DHS will also end Secure Communities and replace it with the Priority Enforcement Programthat closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.

These measures relating to immigration enforcement can hardly be seen as a power grab by President Obama, and should further insulate him from legal actions such as law suits and even impeachment. Indeed, it would border on the ridicule, as suggested by a leading Yale scholar, if impeachment proceedings are commenced against President Obama for committing treason, bribery or other high crimes or misdemeanors. The enforcement measures in the executive actions show that they are balanced, and just like deferring the removal of low priority immigrants, the prioritization of removal of others is well within the authority of the President and are part of an overarching enforcement strategy. It is also worth reminding critics that the beneficiaries from these deferred action programs will be barred from the Affordable Care Act and will not be able to purchase health insurance or get any subsidies. These beneficiaries will also face the wrath of certain state governors who will deny them driver’s licenses as Arizona did to DACA recipients in 2012. Fortunately, in Arizona Dream Coalition v. Brewer, the Ninth Circuit struck down Arizona’s spiteful policy as being violative of the Equal Protection Clause. The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an employment authorization document (EAD) based on DACA category (c)(33) work while they continued to accept EADs based on (c)(9) and (c)(10) categories, which respectively correspond to applicants for adjustment of status and applicants for cancellation of removal. This decision should hopefully persuade other circuit courts to also strike down discriminatory laws that deny such recipients driver’s licenses.

There are other small bore benefits that will ensue from the executive action, but nevertheless make a meaningful and positive impact on people’s lives and endeavor to repair a broken system. The nation demands and deserves action now; there is no need to wait. These operational adjustments are well within the President’s legal authority and are summarized below. Their purpose and effect is not to thwart or frustrate the will of Congress. Rather, the President seeks to make it more effective by leavening the pernicious effects of legislative sclerosis through the injection of administrative flexibility that it so badly needs. In each of the initiatives listed below, the President does not create new law, which only Congress can do, but makes the current law relevant to the unique and emerging challenges of today and tomorrow:

• Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens

The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, DHS will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

This can hardly be viewed as a power grab. The provisional waiver program allows those who are potentially inadmissible as a result of the 3 and 10 year bars to apply for the waivers in the United States prior to proceeding overseas for consular processing of their immigrant visas.

• Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs

DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action – they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

In Through The Looking Glass: Adventures of Arrabally and Yerrabelly in Immigration Land, we advocated that Matter of Arrabally, 25 I.&N. Dec. 771 (BIA 2012) should be apply to every departure under advance parole, whether it was advance parole in the context of DACA or an adjustment of status application. We are pleased that the DHS has now directed its General Counsel to issue written legal guidance in this regard. We also encourage the DHS to use its parole authority under INA 212(d)(5) to parole entrepreneurs and other immigrants into the US, especially beneficiaries of approved I-130 and I-140 petitions, as we have previously done in Comprehensive Reform Through Executive Fiat. We also point to Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress: Not Counting Family Members and Parole in Place that advocate how parole in place, if applied retroactively, can also cure unlawful presence.

• Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee

To promote access to U.S. citizenship, DHS will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.

• Supporting High-skilled Business and Workers

DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, DHS will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions. Individuals with an approved employment-based immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people.

We refer our readers to Waiting for Godot: A Legal Basis for Filing An Early Adjustment Application where we show a way for this to be done. It is well within the power of the Executive Branch to redefine what is meant by visa availability so as to allow those who are caught in the crushing visa backlogs to apply for work authorization and portability.

The “same or similar” definition will be clarified for adjustment applicants who wish to exercise job portability under INA 204(j) when their adjustment applications have been pending for more than 180 days. This is a welcome step as those who are promoted and take on higher levels of responsibilities should also be able to demonstrate that they are still in the “same or similar” occupation and thus keep their underlying green card applications valid. The length of time in Optional Practical Training for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. The regulation that would authorize H-4 spouses to work will get finalized. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field are under consideration. A full rulemaking will be undertaken to modernize the PERM labor certification program. There will also be greater consistency with the L-1B specialized knowledge program. It is hoped that in providing guidance on specialized knowledge the DHS take into account the holding interesting reinterpretation of specialized knowledge, as discussed in Fogo De Chao v. DHS : A Significant Decision For L-1B Specialized Knowledge Chefs And Beyond.

• Visa Modernization

A Presidential Memorandum has been issued directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.

Although the direction provided by the Presidential Memorandum has been left deliberately vague, it is hoped that the DHS seriously consider not counting derivatives separately in the employment and family-based preferences as that will significantly reduce the backlogs. In The Family That Is Counted Together Stays Together: How To Eliminate Immigrant Visa Backlogs and Why We Can’t Wait: How President Obama Can Erase Backlogs With The Stroke Of A Pen, we advocated that there was no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d), which only states that derivatives shall be entitled to the same status and same order of consideration as the principal beneficiary and says nothing about whether they should be counted as one family unit or separately. Indeed, if the DHS does pay heed to our recommendation, which has gained national acceptance and has also been mentioned in a Congressional Research Report, it will make the executive actions more meaningful. If the family and employment preferences are cleared of their backlogs, and people can apply for green cards rapidly, the lack of H-1B visas should not be as hurtful to businesses as they are today. Indeed, this reinterpretation of the INA, again well within the authority of the President, will be as audacious for legal immigrants as the deferred action programs for the 5 million undocumented immigrants.

Needless to say, all of these executive actions are well within the President’s authority whatever critics may say, and are much needed to repair a broken immigration system. Still, these executive actions are clearly no substitute for reform through Congress, and as indicated in The Fate of Executive Action After The Midterm Elections these actions should spur the Republican controlled Congress to pass better and more meaningful reforms. The President can only do so much through executive actions and cannot create new visa or green card categories, and many are bound to be disappointed. Parents of DACA recipients have also been left out. A tentative intention to study the possibility of counting derivative family members as an integral unit rather than on an individual basis was announced, but nothing more and certainly not definite. At the same time, these actions provide a blueprint for Congress to pass meaningful comprehensive immigration reform. They provide the template for legalizing a deserving group of immigrants who are not a priority for enforcement purposes and also seek to account for future flows by endeavoring to attract entrepreneurs, clarifying existing processes such as PERM labor certifications and the L-1B visa, and providing relief to those who are caught up in the crushing visa backlogs. The spirit of audacious incrementalism that animates the executive orders comes from the finest American tradition of liberal reform. Such an approach sets a problem on the road to solution in the belief and expectation that future progress will follow in a way that minimizes disruption and maximizes acceptance. Once the concepts enshrined in the executive orders are established, there can be little doubt that the scope of future operations and events will grow to bring other and more significant gains.

The problems that plague our immigration system are not beyond our ability to solve them. Their continued existence is testimony to a lack of will, a failure of imagination. If the President’s critics and his supporters cannot agree on the legality or value of his executive orders, then let them agree on legislation to replace it. As Alfred Lord Tennyson’s Ulysses so famously reminds us : “ Come my friends, tis not too late to seek a newer world.”

(Guest author Gary Endelman is the Senior Counsel of Foster)

CHALLENGES IN FILING H-1B VISA PETITIONS FOR UNCOMMON SPECIALTY OCCUPATIONS

November 17, 2014/0 Comments/in Blog/by Michelle S. Velasco

The U.S. Department of Labor (DOL) regularly releases statistics on the H1B – the top occupations and the top employers that file Labor Condition Applications (LCA) for these nonimmigrant worker petitions. As of the Fourth Quarter of FY 2014, six of the top ten certified positions were computer-related occupations. The rest of the positions in the top ten are Accountants/Auditors, Management Analysts, Financial Analysts, and Electronics Engineers who do not work on computers. Altogether they make up about 77% of all LCAs submitted to the DOL for certification.

The USCIS last released an H-1B report in July 2013 for FY 2012. USCIS reported that approximately 59.5% of approved H-1B petitions were for computer-related occupations, and the rest of the top five were occupations in architecture, engineering, and surveying; administrative specializations; education; and medicine and health.

But, what of the other H-1B occupations? Such uncommon H-1B occupations may include food service managers and music managers, among others. These nontraditional H-1B “specialty occupations” are less often processed by USCIS and often pose a greater challenge for attorneys and their clients because they do not fit neatly with other “specialty occupations” that USCIS officers commonly see. This is also part of a growing trend where the USCIS is viewing such occupations more skeptically, even if the record contains evidence favoring an approval. It is helpful here to first define this doozy of a term.

8 CFR 214.2(h)(4) defines “specialty occupation” as one in which:

…requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

To hire a foreign worker under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR 214.2(h)(4)(iii)(A)

Practitioners may find that despite efforts to indicate to the USCIS that the complexity and specialized nature of the proffered position meets the definition of an H-1B specialty occupation, the USCIS will nonetheless issue Requests for Evidence (RFEs) or denials. This is because the USCIS is unwilling to issue H-1B approvals for positions that do not are dissimilar to common H-1B occupations, such as computer programmers or analysts, and are unwilling to consider evidence of the complexity of occupations as evidence. RFEs often request information such as:

Documentation describing the business, such as business plans, reports, presentations, promotional materials, newspaper articles, website printouts, etc.
Detailed description of the proffered position, including approximate percentages of time for each duty that the beneficiary performs
Copies of contracts or work orders from every company that will utilize the beneficiary’s services to show the beneficiary will be performing duties of a specialty occupation
Documentation of how many other individuals in the employer’s organization are currently or were employed in the same position, along with evidence such as employees’ degrees and evidence of employment in the form of paystubs or tax forms

Yet, despite providing such evidence, the employer may nevertheless, receive a denial of the petition even after carefully responding to an RFE. Attorneys are left scratching their heads at some of the frustrating reasoning posited by USCIS that often ignores regulation and precedent.

One problematic course that USCIS continues to take is overly relying on the DOL’s Occupational Outlook Handbook (OOH) when determining whether a bachelor’s degree is a normal requirement for an occupation. The OOH may guide the USCIS, but it does not in and of itself define what is a specialty occupation – only the regulations can do this. Moreover, the OOH should not be the only source USCIS should use when determining whether a bachelor’s degree is a normal requirement for a proffered position. The USCIS should not ignore the employer’s statements and evidence of its normal practice of requiring a bachelor’s degree for a proffered position. USCIS should analyze the proffered position based on the definition provided in 8 CFR 214.2(h)4)(iii)(A) instead of relying heavily on the OOH. See Fred 26 Importers, Inc. v. DHS, 445 F. Supp.2d 1174, 1180-81 (C.D. Cal. 2006)(court reversed AAO where it failed to address expert and other evidence and simply asserted that a small company did not require specialized and complex duties); The Button Depot, Inc. v. DHS, 386 F Supp.2d 1140, 1148 (C.D. Cal. 2005)(court reversed AAO decision and found AAO had abused discretion when it applied unrelated regulatory provisions and failed to provide a basis for its conclusion that “it does not agreed with the opinion evidence submitted by the petitioner); Matter of – (AAO unpublished decision, Aug. 15, 2006, WAC 0417253199)(AAO reversed, finding that although OOH does not state a baccalaureate level education is the normal minimum requirement, the duties of the position are so specialized and complex that knowledge required to perform them is usually associated with the attainment of a bachelor’s degree or higher).

Second, the USCIS ignores expert opinions that determine the proffered position is a specialty occupation by virtue of its complex and unique nature. In Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) the AAO directs the USCIS to examine each piece of evidence for relevance, probative value, and credibility, individually and in the context of the entire record according to the “preponderance of the evidence” standard. The USCIS may reject an expert opinion letter or give it less weight if it is not in accordance with other information in the record or if it is questionable. See Matter of Caron Int’l, Inc., 19 I&N Dec. 791, 795 (Comm’r 1988). However, if “the expert testimony [is] reliable, relevant, and probative as to the specific facts in issue” then the USCIS must not ignore it. See Matter of Skirball Cultural Center, 25 I&N Dec. 799, 805-806 (AAO 2012). In Matter of Skirball, the AAO reversed the USCIS’s denial of a P visa petition for a musical group, finding that the USCIS erroneously rejected expert opinion even though it did not question the credentials of the experts who provided opinions, take issue with the experts’ knowledge of the group’s musical skills, or find any reason to doubt the truthfulness of the testimony. The reasoning in Matter of Skirball must be applied to the adjudication of H-1B nontraditional specialty occupations where often the employer must rely on expert opinion and atypical evidence to support their assertion that the duties of the position are so complex and unique that a bachelor’s degree is required to execute those duties. Thus the USCIS should not ignore or reject expert opinions especially if they are submitted in conjunction with other supporting evidence when the USCIS has no reason to doubt the veracity of the testimony.

Although it may be daunting to file H-1B petitions for nontraditional or uncommon specialty occupations, attorneys can overcome or avoid the USCIS’s sometimes inconsistent and wrong application of the standards in place in 8 CFR 214.2(h)(4)(iii)(A). When preparing the H-1B petition, attorneys should research the occupation thoroughly and have a full understanding of the job duties, the nature of the organization, and the position’s standing within the company. The explanation of the duties should be detailed and, if possible, include the approximate percentage of time spent on each. Evidence to support the petition should include information about the company, the nature of the industry, the complexity of the position, and proof that the beneficiary has obtained the education and/or experience level required for the position. There may be times when the proffered position may fall within a category of occupation that the OOH has determined does not normally require a bachelor’s degree to perform. If this is the case, the employer should ensure that the appropriate occupation is used for the LCA and the employer should also consider submitting an expert opinion evaluating both the job duties of the proffered position and the education and experience of the beneficiary. Lastly, the employer may explain how its proffered position is analogous to similar jobs that either the OOH or case law has found to be specialty occupations. If one uses job postings by other employers requiring the same bachelor’s degree, USCIS can discount such evidence if the employers who posted such notices were not similar in size as the H-1B petitioning employer.

Until USCIS properly applies the standards for H-1B specialty occupations determined by the regulations and case law, employers of uncommon or nontraditional H-1B occupations must remain vigilant in their petition filings. They must keep in mind that when faced with a nontraditional H-1B occupation, the USCIS may look only to the OOH for guidance. Lastly, attorneys should provide adequate advice and warning regarding the filing of H-1B petitions for such nontraditional occupations and to prepare employers for fickle and nonsensical RFEs. Finally, attorneys must advise their clients that they must be prepared to seek administrative and even judicial review of erroneous denials.

THE FATE OF EXECUTIVE ACTION ON IMMIGRATION AFTER THE MIDTERM ELECTIONS

November 10, 2014/0 Comments/in Blog/by Cyrus Mehta

By Gary Endelmanand Cyrus D. Mehta

For courage–not complacency–is our need today–leadership–not salesmanship. And the only valid test of leadership is the ability to lead, and lead vigorously.

Senator John F. Kennedy’s speech accepting the 1960 Democratic nomination for President

Ever since the Democrats got a drubbing in the midterm elections, questions remain about the fate of immigration reform. President Obama had promised to reform the system through executive action after the election. The question is whether he will still do it despite the Republican Party gaining decisive control over both the Senate as well as the House. Last Friday, November 7, 2014, President Obama defiantly said that he would take executive action on immigration despite howls of protests from Republican leaders. They threatened that Obama’s unilateral action in the face of defeat in the midterm election would derail reform immigration legislation.

The authors believe that executive action ought not “poison the well, a term that has been oft repeated by the GOP against Obama’s proposed executive action, although it dare be said that the well no longer contains any water! If the President has authority under the Immigration and Nationality Act to take executive action in order to improve the decrepit immigration system, we do not see how it would usurp on Congress’s authority or violate the Separation of Powers doctrine. We have shown in Two Aces Up President Obama’s Sleeve To Achieve Immigration reform Without Congress: Not Counting Family Members And Parole In Place that the President can comprehensively reform the immigration system as part of his inherent authority. There is also sufficient ambiguity in many provisions of the Immigration and Nationality Act that beg reinterpretation so that they can bring ameliorative relief to millions. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”. When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.

Thus, there is no need for the Republicans to feel threatened by Obama’s proposed executive actions. If they do desire to pass immigration reform legislation, they can always do so and can even improve on the administrative measures that Obama can possibly implement. After all, executive action will always be limited and is no substitute for legislation. The President would only have the authority to defer the deportation of non-citizens who meet certain deserving criteria; he cannot issue them green cards or create new visa categories without Congressional action. The President may also have authority to reinterpret ambiguous provisions, such as INA section 203(d) so that family members are all counted as a single unit rather than separately, thereby reducing or even eliminating much of the crushing backlogs in the family and employment-based preferences. Indeed, Obama’s executive action could be conditioned on Congress passing meaningful immigration reform legislation, upon which such action can be withdrawn. Subsequent immigration legislation from Congress can also incorporate some of the administrative measures, such as not counting family members separately. The notion of not counting family already exists in S. 744, which was passed by the Senate in a bipartisan manner in June 2013, and which the House has never taken up. Indeed, the House can still vote on this measure today and can pass comprehensive immigration reform even before Obama acts.

The question is whether the GOP is ready to pass immigration legislation. The real reason that S. 744 was not taken up in the GOP controlled House, even prior to the midterm elections, was the dislike that many House members in legalizing millions of undocumented people who have deep ties with the United States and who are also part of American families. This dislike is grounded in nativist tendencies that many GOP House members have shown, and who receive support from xenophobic organizations such as NumbersUSA and Federation for American Immigration Reform. Even if President Obama gives the new GOP Congress time to enact immigration legislation, they may never be able to do so because of the nativist element within the party that will always be opposed to any immigration measures save border security and tough immigration enforcement.

Executive action on immigration is hardly novel. After Castro took power in Cuba, Presidents Eisenhower, Kennedy and Johnson paroled in more than 900,000 Cubans. Seven years later, Congress signified its approval through enactment of the Cuban Adjustment Act in 1966. In recent decades, when emergencies erupted and humanitarian crises presented themselves, Presidents of both political parties have not hesitated to act on their own initiative outside the customary channels of legislative activity, often to protect large numbers of vulnerable immigrants from deportation. This has happened over 20 times since the mid-1970’s. In almost all such instances, the Congress subsequently ratified such executive orders with appropriate legislation. This is, for example, what happened at the close of World War II when President Truman allowed 250,000 European refugees to enter or remain in the United States; three years later, in 1948, Congress enacted the Displaced Persons Act, allowing 400,000 additional admissions. In April 1975, at the end of the Vietnam War, President Ford asserted his parole authority to sanction the evacuation of 200,000 South Vietnamese. Further congressional approval of President Ford’s executive order came in 1980 with enactment of the Refugee Act making possible the resettlement of 1.4 million Indochinese people. That same year, President Carter took in 130,000 Mariel Cubans who eventually obtained “Cuban-Haitian entrant status” under President Reagan. Six years later, the Immigration Reform and Control Act made these Cuban-Haitian entrants lawful permanent residents of the United States. The next year, Attorney General Meese ordered the legacy INS not to remove some 200,000 Nicaraguans and, a little after that, extended similar protection to 190,000 Salvadorans seeking to escape from the horrors of civil war. Ten years after Attorney General Meese first acted, Congress made possible their adjustment of status. In 1989, following Tiananmen Square, the Bush Administration granted Deferred Enforced Departure to 80,000 Chinese students studying here; three years later, Congress paved the way for their green card status through the Chinese Student Protection Act. The point is always the same and remains instructive today: Executive Action in immigration is always a prelude to congressional legislation, not a substitute for it nor a barrier to its enactment.

President Obama is also in a bind now and of his own doing. He had promised to take executive action well before the midterm elections, but delayed doing so after being persuaded by Democratic Senators who were facing defeat such as Mark Pryor and Kay Hagan, and who in any event lost on November 2, 2014. Obama’s delay in reforming the broken immigration system through executive action thus backfired. The authors believe that had he taken immigration action prior to the election, it may have energized some of his base who could have turned up in the election. Perhaps, Mark Udall of Colorado may not have lost if he had been less ambivalent about immigration, and if Obama had been able to implement a major historic immigration initiative. The deferred action initiative for immigrant youth prior to the Presidential election in 2012 certainly helped Obama’s victory. Obama had promised immigration reform to the Hispanic community and has to live up to that promise in order to secure his legacy, and to improve the chances of Democratic Presidential candidates in 2016. It would be harder for him to implement administrative immigration reform now that his party has lost control of the Senate, but he still has the authority to do so and he must.

The political imperative for executive action is undeniable. According to an analysis of census data by the Center for American Progress, the Latino population in America increased by 43% in the first decade of the 21^st century. This year, 24.8 million Latinos were eligible to vote; in terms of eligible voters, they accounted for 11.3% of the entire population. Over the next four years, experts anticipate that more than 4 million Latino voters will be added to the rolls. This is a 17% increase in time for the 2016 election. The potential impact in key battleground states could be decisive. In Florida alone, projections by the Center for American Progress are that 600,000 Hispanics (as compared to 125, 000 new Anglo voters) will be eligible to vote in the next presidential election. In Texas, a state without which it would be virtually impossible for the GOP to win the White House, roughly 900,000 new Hispanic voters are expected to join the electorate by 2016, washing away the projected Anglo voter increase of 185,000. Remember also that more than 90% of Latinos under age 18 are US citizens and that 800,000 Latinos become voter eligible each year as the Anglo share of the American electorate continues to fall each election cycle

There is a political opportunity here for the Republicans if they can recognize it. The re-election of two Hispanic Republican Governors – Susan Martinez in New Mexico and Brian Sandoval in Nevada – show that the Hispanic vote can no longer be taken for granted. Texas Attorney General Greg Abbott won 44% of the Hispanic vote in thumping Democratic State Senator Wendy Davis by 30 points. In Georgia, Republican Governor Nathan Deal rode to re-election in no small part on the basis of 47% of the Hispanic vote while Senator-elect David Perdue defeated his Democratic challenger Michelle Nunn, daughter of former Senator Sam Nunn, having earned 42% of the Hispanic vote. In an election eve poll by Latino Decisions, some 67% of those surveyed revealed that immigration was either the most or one of the most important issues. For those political junkies interested in a state by state breakdown, we offer this also for their reading pleasure. If the Republicans recognize that they can woo the Hispanic electorate in their favor in light of these recent trends, it would be in their best interest to focus on passing comprehensive immigration legislation even while Obama takes executive action.

In 1924, in a vain effort to tap down the anticipated political influence of surging Jewish and Catholic immigrant populations from Southern and Eastern Europe, the Republican Party created a national origins quota using 1890 as a baseline population year to increase Protestant migration from Northern and Western Europe. This remained in effect until its abolition in 1965. But, it did not work. The children and grandchildren of those disfavored ethnic and religious groups who had already made it to the New World before the gates closed did not forget this slap in the face and became the cornerstone of a New Deal coalition that swept the Democratic Party to national victory in 5 straight presidential elections. For the Republican Party to block President Obama now would be to repeat that historic mistake and consign itself to minority status on the presidential level for decades to come. It would be a political miscalculation of epic proportions. The stakes are no less high for the Democrats. No longer competitive in the states of the Old Confederacy, if they want to retain the electoral college advantage and popular vote majority they have enjoyed in the last 6 presidential elections, the Democratic Party must seize and hold the high ground in the key states of Florida, Arizona, Nevada, Colorado, New Mexico as well as retain their dominant position in California. Much as civil rights has spelled their political irrelevance in the Old South, immigration can be their salvation in the battleground swing states where the Hispanic vote is and will remain the path to power. Both political parties have a vested interest in a robust embrace of immigration reform. For America’s sake, let us devoutly wish that they realize it.

(Guest author Gary Endelman is the Senior Counsel at Foster)

FOGO DE CHAO v. DHS: A SIGNIFICANT DECISION FOR L-1B SPECIALIZED FOREIGN CHEFS AND BEYOND

October 27, 2014/3 Comments/in Blog/by Cyrus Mehta

The best way for a great nation of immigrants such as America to showcase its richness and diversity is through fine ethnic restaurants. A better appreciation of different cuisines can also foster tolerance and social harmony. Cities and towns become more interesting and thrive if they have restaurants with diverse cuisines. For such restaurants to exist, though, there needs to be an immigration policy that would allow restaurants to access foreign specialty chefs. This unfortunately is not the case. The United States Immigration and Citizenship Services (USCIS) views applications for chefs under the limited and narrowly drawn nonimmigrant visa categories with a jaundiced eye. One such pathway for chefs is the L-1B visa for specialized knowledge employees who are being transferred from a foreign entity to a qualifying US entity. The Brazilian restaurant chain Fogo de Chao successfully brought in 200 specialty chefs on the L-1B visa, when the USCIS changed its mind and denied one of their visas. The restaurant appealed the denial.

On October 21, 2014, the United States Court of Appeals for the District of Columbia Circuit in Fogo de Chao v. DHS, No. 13-5301, skewered the USCIS for denying the L-1B visa to a Brazilian churrasqueiro or gaucho chef. Fogo de Chao contended that it sought to recreate for its customers in the United States an authentic churrascaria experience, and it did so by employing a number of gaucho chefs from Brazil who learned this style of cooking first hand by growing up in the Rio Girande do Sul region and through training and at least two years of experience in Fogo de Chao’s Brazilian restaurants. A gaucho chef who possessed this knowledge would be capable of i) preparing and cooking five to six skewers of meat on an open grill; ii) circulating through the dining room to carve meats for guests; iii) educating those guests about both the cuts of meat being served and gaucho culinary and cultural traditions, and iv) monitoring the estimated future demand for food over the course of the evening.

The key issue in Fogo was whether a foreign national chef could gain such specialized knowledge through one’s own cultural traditions, upbringing or life experience. The USCIS, including its Administrative Appeals Office, held that one’s own cultural upbringing falls within the realm of general knowledge rather than specialized knowledge, and thus such a chef would not qualify for an L-1B visa. The Court of Appeals in Fogo disagreed with the USCIS’s rather wooden application of the law. (Many immigration practitioners like me will take great delight in the scolding given to the USCIS for being so wooden as we have experienced this tendency first hand!) The Fogo Court held that there was nothing in INA section 214(c)(2)(B) which precludes culturally acquired knowledge as a form of specialized knowledge. That INA section defines specialized knowledge in a rather circular way, as follows:

…an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company

A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”. Most are deterred from seeking review of a “wooden” decision in federal court to challenge an erroneous decision of the USCIS because of the Chevron deference the court will give to the government’s interpretation of a particular visa statutory provision. The Fogo Court gave no such deference because the USCIS regulation at 8 CFR section 214.2(l)(1)(ii)(D) merely parroted the statutory L-1B definition in the same circular manner, and a parroting regulation deserves no deference. Gonzales v Oregon, 546 US 243, 257 (2006). Instead, the Court applied the lower standard under Skidmore v. Swift & Co, 323 U.S. 134 (1944) where the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.” Even under the lower Skidmore standard, the Fogo Court held that the Administrative Appeals Office lacked the power to persuade that it could categorically exclude cultural knowledge as a basis for specialized knowledge.

Also noteworthy in Fogo was the government’s dismissal of the relevance of the economic hardship the restaurant would suffer if it had to train another employee to perform the gaucho chef’s proposed duties. The Fogo Court disagreed, emphasizing that economic inconvenience is sometimes the most concrete evidence that can be used to determine whether knowledge is specialized. According to the FogoCourt: “Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts….That specialized knowledge may ultimately be a ‘relative and empty idea which cannot have plain meaning’…is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.” Id.at 28 (citations omitted).

Although Fogo applied to a Brazilian gaucho chef, it can arguably be applied to other occupations involving specialized knowledge. Skills gained through certain cultural practices may be relevant in determining specialized knowledge in other settings, such as Japanese management techniques. Similarly, acquiring deep knowledge in a particular software application through another employer can equip the L-1B visa applicant with specialized knowledge that can stand out in comparison to others. Moreover, demonstrating economic hardship as a way to prove specialized knowledge has gained more force after Fogo. The 1994 Puleo Memorandum was resurrected in Fogo, which endorsed a dictionary definition of the terms “special” and “advance” rather than solely tether specialized knowledge to the company’s products or processes. Fogo has also paved the way to argue that the USCIS’s interpretation of specialized knowledge does not deserve Chevron deference. Finally, Fogo ought to potentially have more precedential value than other circuit court decisions since under 28 U.S.C. §1391(e)(1)(B) a petitioner could seek review in the U.S. District Court for the District of Columbia as the Administrative Appeals Office is located in the District of Columbia.

In recent times, the USICS has had the upper hand in L-1B visa adjudications by literally reading specialized knowledge out of the statute. Fogo thus comes as a breath of fresh air and should hopefully temper the USCIS’s zeal in “woodenly” debarring specialized knowledge workers who can otherwise bring great value to America. We all need to forcefully deploy the hidden nuggets in Fogoto restore the more commonsensical definition of specialized knowledge.

THE WALKING DEAD: WHY COURTS OF APPEALS SHOULD NOT DEFER TO BIA OR ATTORNEY GENERAL PRECEDENT DECISIONS THAT HAVE ALREADY BEEN VACATED BY ANOTHER COURT OF APPEALS

October 20, 2014/0 Comments/in Blog, uncategorized/by David Isaacson

In my previous post Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, I raised the issue of whether the Court of Appeals for the Second Circuit in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), should have deferred as it did to the decision of the Board of Immigration Appeals (BIA) in Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), after the Court of Appeals for the Third Circuit had already vacated that decision in Bautista v. Attorney General, 744 F.3d 54 (3d Cir. 2014). As I was reminded by Matthew L. Guadagno in the comments to that post, it is a conventionally accepted rule that “when a precedent decision of the Board is struck down by a circuit court, that precedent decision continues to be followed by the Board in all other circuits unless the Board renders a new decision.” But one of the points I had been trying to make in Burning Down the House, although evidently not clearly enough, is that the federal courts should not give deference to the Board’s common practice in this regard. This follow-up post attempts to clarify my thinking on the matter.

As I noted in Burning Down the House, it seems in some sense disrespectful of the Third Circuit’s decision vacating Matter of Bautista for the Second Circuit to have said, as it did, that “Matter of Bautista . . . governs Luna’s case.” Arguably, there was no extant decision and judgment of the BIA in Matter of Bautista which could so govern, since it had already been vacated by a court of competent jurisdiction. The precedential decision in Matter of Bautista, in an important sense, no longer existed by the time of the Second Circuit’s decision. And while the BIA had reached the same result in its unpublished decision in Luna Torres’s case as in Matter of Bautista, the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), that “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference” (that is, deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). Thus, the nonprecedential decision in Luna Torres’s case cannot, under Rotimi, have been what the Second Circuit was deferring to in its opinion. Deference was evidently given to Matter of Bautista itself, and yet one might reasonably ask why the Second Circuit should have felt itself bound to defer to a precedential decision that had already been vacated by another Court of Appeals.

The general rule, as has been recognized by the Second Circuit and by other courts, is that “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013). That is, “vacated opinions are not precedent.” Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012). Or, as the Ninth Circuit has put it more emphatically, “a decision that has been vacated has no precedential effect whatsoever.” Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) (emphasis in original). These opinions referred to the vacating of a federal court decision, not the vacating of a BIA decision, but logically the principle should apply to a vacated BIA decision as well.

To vacate, after all, has been defined as “to annul; to cancel or rescind; to render an act void; as, to vacate an entry of record, or a judgment.” Matter of Bautista was annulled, was cancelled, was rescinded, by the Court of Appeals for the Third Circuit, in a case over which that Court properly had jurisdiction. It was, one might say, dead, having been killed by a competent authority. And yet, the Second Circuit in Luna Torres deferred to the BIA’s vacated decision in Matter of Bautista as a precedent nonetheless—perhaps because the argument was not made that it ought not do so. One might refer to Matter of Bautista, under such circumstances, as a zombie precedent, one which has risen from the grave to walk the earth again even after being killed.

To be sure, a vacated decision can under some circumstances have “persuasive authority” even though it is not binding. Brown v. Kelly, 609 F.3d 467, 477 (2d Cir. 2010). The analog of such persuasive authority in the context of a BIA decision under review by a Court of Appeals, however, would be not Chevron deference, but the more limited form of deference given under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to an administrative opinion with the “power to persuade,” Skidmore, 323 U.S. at 140, which some Courts of Appeals have found applicable to non-precedential BIA decisions, as in Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014), Siwe v. Holder, 742 F.3d 603, 607 (5th Cir. 2014), and Latter-Singh v. Holder, 668 F.3d 1156, 1160 (9th Cir. 2012). (The Second Circuit has reserved the question whether unpublished, non-precedent BIA opinions are even entitled to Skidmore deference, for example in Mei Juan Zheng v. Holder, 672 F.3d 178, 186 n.4 (2d Cir. 2012).) Even if a zombie precedent still walks the earth in some form, therefore, it should not have the same force and effect as a precedential opinion that has not been vacated, killed, by a Court of Appeals.

The somewhat obscure question of whether certain arson crimes constitute aggravated felonies is far from the only context in which zombie precedents play a significant role in immigration law. The decision of former Attorney General Michael Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), for example, which altered the long-standing approach for determining whether certain convictions qualified as crimes involving moral turpitude, was vacated by the Court of Appeals for the Fifth Circuit in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014). The American Bar Association has written a letter to Attorney General Eric Holder urging him to withdraw Matter of Silva-Trevino, but Attorney General Holder appears content to let the process play out in the Courts of Appeals. (Now that Attorney General Holder has announced his impending resignation, we may eventually get to see whether his successor feels differently.) So for the moment, under the BIA’s conventional practice, Matter of Silva-Trevino would continue to govern in the circuits whose Courts of Appeals have not yet specifically rejected it. Although vacated by the Fifth Circuit, Matter of Silva-Trevino may continue its existence as a zombie precedent. If the Second Circuit, in a future case, were to address an unpublished BIA opinion purporting to rely on Matter of Silva-Trevino, one might expect, based on the Second Circuit’s decision in Luna-Torres, that the Second Circuit would continue to defer to the rule of Matter of Silva-Trevino despite that precedent’s zombie status, rather than refusing under Rotimi to give Chevron deference to the unpublished opinion which had purported to rely on Matter of Silva-Trevino. One might also hope, however, that the Second Circuit would handle the matter differently, if an alternative possibility were brought to its attention.

There is indeed an alternative to respecting zombie precedents, which would still allow the BIA to perform its functions as an administrative agency entitled generally to Chevron deference, while giving more appropriate weight to the actions of a Court of Appeals that has overturned a precedent decision despite such deference. As discussed in Burning Down the House, the Second Circuit could in Luna Torres have vacated the nonprecedential decision in Luna Torres’s case and remanded to the BIA for the issuance of a precedential decision, just as it had vacated the nonprecedential BIA decision in Rotimi and remanded for the issuance of a precedent decision. The Court of Appeals would thereby have said to the BIA, in effect, that it should, in light of the Third Circuit’s decision in Bautista, issue a new precedential decision, Matter of Luna Torres. The BIA could then have determined in this new decision not only whether it continued to stand by its reasoning from Matter of Bautista in light of the Third Circuit’s contrary reasoning, but whether it was troubled by the prospect of its ruling being valid only in some judicial circuits but not others, and whether it might therefore find it appropriate to acquiesce in the Third Circuit’s ruling in the interest of national uniformity. It does not appear that this possibility was considered by the Second Circuit in Luna Torres.

It is not as though the BIA’s action, when presented with such a choice, would necessarily be foreordained. Admittedly, the BIA has in some instances made a precedential choice to reaffirm the reasoning of a prior precedent even after its rejection by multiple circuits. In Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), for example, the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding regarding the ineligibility of certain Lawful Permanent Residents for waivers of inadmissibility under INA §212(h) had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it. However, in some instances, the BIA has also been known to reverse course following rejection of its precedent by one or more Courts of Appeals.

In Matter of Silva, 16 I&N Dec. 26 (BIA 1976), for example, the BIA acquiesced in the Second Circuit’s decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), regarding the availability of relief under former INA §212(c) to certain lawful permanent residents who had not departed from the United States following a criminal conviction. In so doing, the BIA declined to follow its own earlier contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971).

Similarly, in Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), which had barred Immigration Judges from evaluating the continuing validity of an I-140 petition following the exercise of portability under INA §204(j), after the rejection of Perez Vargas by several Courts of Appeals. Matter of Perez Vargas had by that time been vacated by the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007), and thus was already what I have called a zombie precedent. The conventional view would say that Courts of Appeals should have deferred to Matter of Perez-Vargas until Matter of Marcal Neto was decided; I would argue that after Perez-Vargas v. Gonzales was decided, unpublished decisions relying on Matter of Perez Vargas were no longer entitled to deference, since Matter of Perez Vargas itself no longer existed. In the end, the BIA did decide to retreat from its zombie decision and adopt the view of the Court of Appeals for the Fourth Circuit (as well as other Courts of Appeals that had addressed the matter).

In some cases, the BIA might, after a Court of Appeals decision rejecting its analysis of an issue, find some third approach that incorporated the wisdom of the Court of Appeals decision without following it exactly. In Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), for example, the BIA overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), in part following its rejection by some circuit Courts of Appeals. The BIA in Matter of Alyazji did not entirely adopt the theory of those Courts of Appeals that an adjustment of status was simply not an “admission” for purposes of determining deportability under INA §237(a)(2)(A)(i) for conviction of a crime involving moral turpitude committed within five years after the date of admission. The BIA in Alyazji accepted a similar result in most contexts and retreated from Shanu, however, by holding that the date of admission for purposes of INA §237(a)(2)(A)(i) deportability was “the date of the admission by virtue of which the alien was present in the United States when he committed his crime”—so that the clock would run from a prior admission as a nonimmigrant that had been followed by an adjustment of status, and would not restart anew from the adjustment of status, unless the person being adjudged deportable had adjusted status after entering the United States without inspection (and thus had no prior admission by virtue of which he was present in the United States at the time). Here as well, therefore, the BIA did not simply insist that it would adhere to a prior precedent decision until that precedent decision was rejected by every Court of Appeals or by the Supreme Court, in the way that the conventional view of what I have called zombie precedents seems to suggest.

In a case where the zombie precedent was originally decided by an Attorney General, it seems even less likely that the BIA would continue to follow it in a precedential decision if informed by a Court of Appeals that it had that option. Matter of Silva-Trevino was a departure by former Attorney General Michael Mukasey from many years of BIA precedent, and there is no apparent reason that the BIA, or current Attorney General Eric Holder, or his successor, should be so enamored of Silva-Trevino following its rejection by multiple Courts of Appeals as to insist on it in a new precedential decision. A refusal by Courts of Appeals to defer to Matter of Silva-Trevino as a zombie precedent, unless its reasoning were reaffirmed in a precedent decision made free of the original decision’s binding force, might therefore hasten its demise substantially.

We know from fiction such as The Walking Dead and Night of the Living Dead that zombies are not, ordinarily, thought to be especially appealing or worthy beings. For the reasons explained in this blog, zombie precedents should be given no more respect. If the BIA wants courts to defer to the reasoning of a precedent decision that has already been given a proper burial by a Court of Appeals, the BIA should be required to afford that reasoning new life through a new precedent decision, which gives proper consideration to the contrary views of the Court of Appeals that vacated the original decision and explains why those contrary views have been disregarded.

EBOLA AND INADMISSIBILITY

October 13, 2014/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta and David A. Isaacson

The United States has started Ebola screenings at 5 major airports. Will these screenings really be effective, or are they being implemented by the administration to demonstrate that it is doing something to assuage public fears? The administration has also been criticized by Republican leaders who are pushing to restrict, if not completely block off, air travel from West Africa. The tragic death of Thomas Duncan in Dallas from Ebola who had flown into the United States from Liberia has further exacerbated these fears.

While the airport screenings would apply to all travelers from affected West African countries, including U.S. citizens, non-citizens would certainly be more vulnerable. The fears stemming from the Ebola epidemic are redolent of an earlier time when immigrants who travelled to the shores of the United States were processed at Ellis Island and excluded for a host of diseases, notably including the eye infection trachoma. A Marine General recently warned about hordes of Ebola infected immigrants running for the U.S. border, stoking similar fears today. Anti-immigrant groups are using Ebola, along with ISIS, to further their argument that immigrants are dangerous to the United States, and several Republican politicians including former Massachusetts Senator and current New Hampshire Senate candidate Scott Brown, North Carolina Senate candidate Thom Tillis, and Senator Rand Paul, have cited Ebola to support increased border security along the U.S.-Mexico border.

Pursuant to section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA), aliens who are determined to have a communicable disease of public health significance are ineligible to receive visas and ineligible to be admitted in the United States. By regulation, under 42 CFR 34.2, the term “communicable disease of public health significance” includes “quarantinable communicable diseases as listed in a Presidential Executive Order,” a list which has included Ebola and other viral hemorrhagic fevers since President George W. Bush issued Executive Order 13295 in 2003. Under the authority of INA section 232, 8 U.S.C. 1222, aliens arriving in the United States may be subjected to detention and physical and mental examination to determine whether they are afflicted with a condition that would render them inadmissible, such as Ebola.

Interestingly, however, under INA 232(b) and 42 CFR 34.8, an applicant for admission who was suspected of having Ebola and found inadmissible on that basis, who disputed the finding, could appeal to a board of medical officers. Presumably, even if one has been quarantined after showing signs of being infected but has recovered, he or she ought to be admitted into the United States. And since INA §212(a)(1) is not among the grounds which can be a basis for expedited removal under INA §235, 8 U.S.C. §1225, this would presumably all take place, even for a nonimmigrant, in the context of regular removal proceedings before an Immigration Judge, unless DHS felt it could argue with a straight face that the nonimmigrant also fell under INA §212(a)(6)(C) or §212(a)(7) and was thus amenable to expedited removal. The nonimmigrant might, for example, be said to have lied to a consular officer or DHS officer about their illness and thus become inadmissible under INA §212(a)(6)(C)(i).

A Lawful Permanent Resident (LPR), on the other hand, at least if returning from a trip of less than 180 days and not having committed any crimes or taken any other actions which would otherwise cause them to be treated as an applicant for admission, would not be regarding as seeking admission to the United States, pursuant to INA section 101(a)(13)(C), 8 U.S.C. §1101(13)(C). That is, the LPR would be considered rather as if he or she had never left the United States at all, because under section 101(a)(13)(C), becoming medically inadmissible under section 212(a)(1) doesn’t cause an LPR to be regarded as seeking admission in the way that certain criminal conduct does. So the LPR would be allowed in, if perhaps under quarantine, not necessarily because he or she were admissible but because admissibility is irrelevant for someone who is not an applicant for admission. There does not appear to be any provision in INA section 237, regarding deportability, which would relate to those who become afflicted with contagious diseases after already having been admitted.

An LPR who had been out of the United States for more than 180 days could potentially be in a more troubling situation. Under INA §101(a)(13)(C)(ii), an LPR who “has been absent from the United States for a continuous period in excess of 180 days” is not entitled to the statutory protection against being regarding as seeking admission, so such an LPR could be found inadmissible under INA 212(a)(1)(A)(i) if infected with Ebola. And although a waiver of such inadmissibility is available pursuant to section 212(g)(1) of the INA, that section requires for a waiver of 212(a)(1)(A)(i) inadmissibility that the waiver applicant have a qualifying relative of one of various sorts, unless he or she is a VAWA self-petitioner. So an LPR absent from the United States for more than 180 days who does not have a spouse, parent (if the LPR is unmarried), son, or daughter who is either a U.S. citizen, or an LPR, or someone who has been issued an immigrant visa, might not be allowed back into the United States after being infected with Ebola, having become an inadmissible applicant for admission and being ineligible for a 212(g)(1) waiver.

We wonder whether such a loss of LPR status due to an infection would be constitutional, but we know that according to the Supreme Court, long-term absences from the United States can strip returning residents of some of their constitutional protections. The regrettable decision in Shaughnessy v. Mezei, 345 U.S. 2006 (1953), which upheld the refusal to admit a returning resident without a hearing and his resulting indefinite detention on Ellis Island, has never been overturned (though its practical effect with regard to the permissible length of detention under current statutes was limited by Clark v. Martinez, 543 U.S. 371 (2005)), and Mr. Mezei had lived in the U.S., apparently lawfully although before the INA of 1952 was enacted and the modern LPR status created, for many years before his 19-month absence. An LPR who is absent from the United States for more than 180 days and becomes infected with Ebola in the meantime may be at risk of becoming the modern Mezei. At the very least, however, the government should be held to the burden of showing such an LPR’s alleged medical inadmissibility by clear, convincing, and unequivocal evidence, as in Woodby v. INS, 385 U.S. 276 (1966), just as LPRs alleged to be inadmissible on other bases have been found entitled to the protection of the Woodby standard in such cases as Ward v. Holder, 733 F.3d 601 (6th Cir. 2013). (The BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011), has acknowledged that clear and convincing evidence is required to declare an LPR an applicant for admission under INA §101(a)(13)(C), although it reserved judgment on the question whether there is a difference for these purposes between clear and convincing evidence as mentioned in INA §240(c)(3)(A) and clear, unequivocal and convincing evidence as mentioned in Woodby.)

As a practical matter, it is unlikely that any non-citizen found to be infected with Ebola would be turned away on the next flight home, or even paroled into the US for a removal proceeding, as this would expose others to the Ebola virus. He or she would be quarantined in a hospital and treated in the United States. If this person fully recovers, he or she should be found admissible. Otherwise, this person will unfortunately under the current state of medical advances in the treatment of Ebola most likely not be alive.

While the United States should not be nonchalant about the spread of deadly infectious diseases such as Ebola, the question is whether screenings at airports are the right way to deal with the problem? Ebola can incubate in a person for up to 21 days before an infected person shows symptoms, as was the case with Mr. Duncan. It has recently come to light that Mr. Duncan’s treatment was less than satisfactory as he was discharged from the hospital when he had a high fever. There are very few passengers who fly into the United States each day from the three countries that are at the epicenter of the Ebola epidemic – Liberia, Sierra Leone and Guinea. Blocking off flights from these countries, due to political grandstanding, will hurt these countries’ economies even further, and will have an adverse impact on trade and investment. This will further hinder their efforts to stem Ebola, and one way to stem an epidemic is to keep people working and normal. In addition, perceived fears about who has Ebola can result in racial profiling of people of certain nationalities, resulting in wrongful denial of visas or admission into the United States.

As a recent editorial in the Washington Post aptly stated, “The answer to Ebola is fighting it there, at the source, not at the U.S. border. No one is protected when a public health emergency is used for political grandstanding.” Centers for Disease Control and Prevention Director Thomas Frieden sensibly told reporters, “Though we might wish we can seal ourselves off from the world, there are Americans who have the right of return and many other people that have the right to enter this country.” As The Economist noted in its recent article on the topic that Dr. Frieden and Dr. Anthony Fauci, head of the infectious diseases component of the National Institutes of Health, have explained, “quarantining West Africa would be unwise. It would weaken governments, trap Americans and spur travellers to move in roundabout ways that make them harder to track.” If the administration believes that screening those who arrive in the United States for Ebola symptoms may be a helpful component of a broader anti-Ebola strategy, it should not taken too far. We must also be careful not to exclude from the United States people who show no real signs of being infected, and accord those who do appear to have been infected full due process to either contest or overcome inadmissibility.

KERRY V. DIN: AN OPPORTUNITY FOR THE SUPREME COURT TO RECONSIDER THE DOCTRINE OF CONSULAR NON-REVIEWABILITY

October 6, 2014/0 Comments/in Blog/by Cyrus Mehta

By Gary Endelman and Cyrus D. Mehta

The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country.

President Abraham Lincoln, Second Annual Message (December 1, 1862)

Not since the landmark case of Kleindienst v. Mandel, 408 U.S. 753 ( 1972) has the Supreme Court revisited the well-settled doctrine of consular nonreviewability. That may be about to change as the Supreme Court has agreed to hear Kerry v. Din, Docket No. 13-1402. The vehicle for this doctrinal review is not the complaint of the unadmitted alien but that of the American citizens the abridgement of whose constitutional rights provides the standing to find out what happened and why. Indeed, it is precisely when denial of a visa impinges upon the free and full exercise of such constitutional freedoms that the courts have recognized a meaningful but limited exception to consular non reviewability. Bustamanate v. Mukasey, 531 F. 3d 1059 (9th Cir. 2013).

It so often happens that a spouse or parent of a US citizen is denied an immigrant visa at a US consulate on opaque grounds. Although the I-130 petition was carefully reviewed and approved, the consular officer can use any number of grounds under INA section 212 to deny an application for an immigrant visa, thus causing the permanent separation of the relative with the US citizen. Worse still, the consul need not cite the factual basis for the denial and can only refer to the statutory provision. Take for example the “Security and related grounds” of inadmissibility under INA section 212(a)(3), which provide:

(A) In general – Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in –

(i) Any activity

(I) To violate any law of the United States relating to espionage or sabotage or

(II) To violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,

(ii) any other unlawful activity; or

(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the government of the United States by force, violence, or other unlawful means is inadmissible

A consul can merely cite “section 212(a)(3)” when denying an applicant seeking an immigrant visa based on an I-130 petition filed by a US citizen relative. It is impossible to know whether this individual was denied the immigrant visa because the consul had reasonable grounds to believe that he or she was seeking to enter the United States to violate a law relating to espionage or prohibiting the export of some sensitive technology or some other unlawful activity. This individual in any event would find it difficult to contest the denial under the plenary power doctrine, which upholds the power of Congress to establish rules for the admission or exclusion of aliens. Given the absence of a factual basis, it would be even more difficult for this individual to challenge the denial even informally with a consular officer if no factual basis has been provided under section 212(a)(3). The absence of such disclosure seems in direct contradiction of the State Department regulation requiring consular officials in the event of an immigrant visa denial to “inform the applicant of the provision of law or implementing regulation under which administrative relief is available.” 22 C.F.R. section 42.81(b). It is worth noting that this minimum level of disclosure does not prevent a more complete explanation to the visa applicant or the US citizen petitioner.

As noted above, despite the existence of the doctrine of consular non-reviewability, a visa applicant may still seek review under limited circumstances when the denial implicates the constitutional rights of citizens. Under such circumstances, a consular officer must give a facially legitimate and bona fide reason for the denial. See Kleindienst v. Mandel, supra. The level of review in Kliendienst v. Mandel was highly constrained, and the Court refused to look behind the consular officer’s denial on the ground that Mandel espoused the doctrines of world communism. That in itself was sufficient under the facially legitimate and bona fide test. The US interest in Kliendienst v. Mandel that triggered this limited judicial review were the First Amendment rights of US citizen professors who had invited Mandel to the United States to receive information and ideas from him. The facts as recited by the consular officer need not necessarily be true, but, for consular non-reviewability to shield it from further challenge, they must be stated with sufficient specificity and the consul must have a good faith belief in their veracity.

Despite the highly constrained review of the facially legitimate and bona fide test, an Islamic scholar was able to demonstrate that the consul was unable to meet this test in denying him a nonimmigrant visa under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(B)(i)(1). See American Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009). There the Second Circuit acknowledged that there was little guidance regarding the application of the facially legitimate and bona fide standard, and described it as “the identification of both a properly construed statute that provides a ground of exclusion and the consular officer’s assurance that he or she ‘knows or has reason to believe’ that the visa applicant has done something fitting within the proscribed category constitutes a facially legitimate reason.” Id. at 126.

The limited exception to the consular non-reviewability doctrine has also been extended to citizen’s who have a protected liberty interest in marriage that entitles them to seek review of the denial of a spouse’s visa. See Bustamante v. Mukasey, supra. Though not mentioned by the Ninth Circuit, it is perhaps not too large of a doctrinal enlargement to argue that the protection of such a liberty interest flows naturally from the recognition by the Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967), that the freedom to marry is a fundamental constitutional right. Surely, the opportunity to live together in marital union in the United States with their spouse is an integral exercise of such freedom by the US citizen visa petitioner. The same high value attached to immediate relative relationships should apply to visa applications by parents of US citizens. While the need to preserve the integrity of the marital union would not manifest itself under such slightly variant facts, the importance of facilitating the migration of older parents to live with their adult US citizen children should be given the same substantial deference. Nor should the wisdom of modifying the consular non-reviewability doctrine not enrich consideration of visa applications advanced by children, whether as immediate relatives, family first preference unmarried adult children or family third preference married adult sons or daughters of US citizens. A disciplined invocation of narrowly drawn statutory provisions and logical, if concise, factual summations brought in good faith are in the manifest interests of the consular corps and those it serves.

Indeed, when a consular denial recites a broad ground of inadmissibility that contains numerous categories of proscribed conduct such as in INA §212(a)(3)(B), the denial does not meet the facially legitimate and bona fide standard as all that the denial does is to cite a 1,000 word statute without providing a factual basis. See Din v. Kerry, 718 F.3d 856 (9th Cir. 2013). In Din v. Kerry, the applicant whose visa was denied, Mr. Berashk was an Afghan citizen who married Ms. Din, a US citizen. Mr. Berashk had previously worked for the Afghan Ministry of Social Welfare from 1992 to 2003, and the Afghan Ministry of Education from 2003 to present. Since the Taliban ruled Afghanistan for some of the period during his employment with the Afghan government, his visa was initially denied because of INA section 212(a), without citing anything more specific. After contacting the Consulate for clarification, Mr. Berashk was told that his visa was denied under the terrorism related inadmissibility grounds in INA section 212(a)(3)(B). This provision exceeds 1000 words. No factual basis was provided to support the denial. Therefore, the Ninth Circuit held that the government had not offered a facially legitimate and bona fide reason for the visa denial. The government must cite to a ground narrow enough to allow us to determine that it has been “properly construed” under the test set forth in American Academy, supra.

The government appealed the Ninth Circuit’s decision to the Supreme Court. The Supreme Court granted certiorari on October 2, 2014. See Kerry v. Din, Docket No. 13-1402. We fail to understand why the government chose to appeal this decision, which essentially upheld the highly constrained review of the facially legitimate and bona fide test set forth in Kleindienst v. Mandel. The Ninth Circuit insisted on the consul providing some factual basis for the denial rather than merely citing a broad statutory provision, but it did not articulate a test beyond what was established in Kleindienst v. Mandel, and further explained in Academy of Religion. As the provisions of inadmissibility get more verbose in INA 212, the applicant who is being denied a visa ought to know the factual basis so that he or she can endeavor to overcome it by trying to submit rebuttal evidence. The dissenting opinion in Din v. Kerry broadly upheld plenary power, and the nation’s desire to keep out persons who are connected with terrorist activities. It held that the citation of the statute, however broad, constituted a facially legitimate and bona fide ground. In a post 9/11 world, while there are obvious security concerns, the government cannot be allowed to loosely cite terrorism related grounds, without further explanation, that would lead to the permanent separation of a spouse from a US citizen.

It would be a set back if the Supreme Court reversed the limited review afforded to an applicant for a visa, especially when there is a legitimate US interest involved, by allowing the consul to broadly cite the statutory provision, or worse still, only INA section 212(a) as a basis for denial. While it is disappointing that the Obama administration chose to appeal the Ninth Circuit’s decision in Din v. Kerry, it is hoped that the Supreme Court affirm the limited ability for an individual to seek review of a visa denial that would affect a US interest, such as a spouse, a group of US citizen academics who would otherwise be denied the ability to hear and debate his or her views, or even a US employer who has sponsored a foreign worker for a work visa or for permanent residency. The liberty interest of a US citizen spouse who awaits marital reunion with keen anticipation should be deserving of the same minimal due process that an academic conference would trigger. The issue is not the need to give due deference to consular visa denials but to put the consul to a minimal burden of proof where the reason for the denial is identified and the facts sustaining it are articulated with sufficient particularity to allow for intelligent review and reasonable challenge. Just as the Obama Administration wisely declined to defend DOMA even before the Supreme Court cast it aside, in wise recognition of its obvious constitutional infirmity, so a willingness to relax the doctrine of consular non-reviewability should inform the Administration’s posture in this litigation and future cases like it. This may no longer be possible now that the Supreme Court has agreed to hear this case. Doubtless, however, this will not be the last time that the need for relaxation of the consular non-reviewability doctrine will present itself. When this happens, we urge that the Administration then in power adopt a more enlightened attitude. A compassionate nation deserves no less.
(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)

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