Cyrus Mehta

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

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Indian Prime Minister Narendra Modi has been welcomed by the Indian diaspora without reservations in the United States. This is his first trip to the United States after his tourist/business was revoked on May 18, 2005 under Section 212(a)(2)(G) of the Immigration and Nationality Act (INA). Under INA Section 212(a)(2)(G), any alien who while serving as a foreign government official and who was responsible for or directly carried out particular violations of religious freedom is inadmissible. At that time, Mr. Modi was the Chief Minister of Gujarat state and was not eligible for the A-1 diplomatic visa. In May 2014, Mr. Modi’s Bharatiya Janata Party won an outright majority in the Indian Parliament, and as the party’s leader, he became India’s Prime Minister.

Mr. Modi, as India’s Prime Minister, has presently come to the United States under the A-1 visa, which is granted to diplomats, including heads of state. The A-1 visa overcomes grounds of inadmissibility pursuant to INA Section 102, including the religious freedom ground, but that is only when a person is admitted on the A-1 visa. If Mr. Modi ceases to be a head of state, and does not qualify for an A-1 visa as a diplomatic official under any other capacity, the Section 212(a)(2)(G) ground of inadmissibility may still apply with respect to a new tourist/business visa application that he may apply for, unless it is determined that the factual basis for the prior finding of inadmissibility have changed. The U.S. State Department may also reconsider a prior revocation of a visa, which it has not done so until now with respect to Mr. Modi’s revocation.

The article that I co-wrote with Elizabeth Reichard on March 25, 2005, appended below, discusses how the religious freedom ground of inadmissibility was applied to Mr. Modi. Following the publication of this 2005 article, however, in December 2010, a special investigative team (SIT) appointed by the Supreme Court of India found “no substantial incriminating evidence” that Chief Minister Modi had let the rioters rampage against the Muslims in February 2002. A local court in India subsequently upheld the closure of the SIT in December 2013, although appeals from victims to reopen proceedings remain pending.  The Gujarat High Court has continued to criticize Chief Minister Modi for “inaction and negligence” during the violence. House Resolution 417 passed in the US Congress in 2013 continues to support the visa ban. Questions still linger about Mr. Modi’s passive role during the riots.

So long as Mr. Modi enters on an A-1 visa, all grounds of inadmissibility will remain inapplicable. The President still has authority under INA Section 212(f) of any foreign national whom the President deems will be detrimental to the national interest, but it is readily obvious that this provision was not considered with respect to Mr. Modi’s present visit to the United States. Indeed, Mr. Modi is scheduled to have meetings with President Obama and other top US officials, and has also met with leading US industry executives. Mr. Modi also enjoys broad based support from many in the Indian-American community. The question is whether Section 212(a)(2)(G) will trigger if Mr. Modi applied for another nonimmigrant visa in the future? The United States has not officially declared that this inadmissibility ground will not be applied and has never reconsidered the prior revocation. A new visa application would have to be considered in light of the set of facts that apply at that time. The fact that Mr. Modi has been admitted on an A-1 visa to the United States does not in any way mean that the prior visa ban has been rescinded or will not apply in the future.

 

Published March 25, 2005 on  www.cyrusmehta.com  

RELIGIOUS FREEDOM INADMISSIBILITY GROUND INVOKED FOR THE FIRST TIME AGAINST NARENDRA MODI

by

Cyrus D. Mehta* & Elizabeth T. Reichard**

On March 18, 2005, the U.S. Department of State issued a decision to deny a visa to the democratically elected Chief Minister of Gujarat, India, Narendra Modi. Mr. Modi, an important figure in the Hindu nationalist Bharatiya Janata Party (BJP), is one of the most divisive politicians in India – loved by Hindu nationalists and despised by others who uphold India’s secular ideals. The decision to deny his visa was largely based on his alleged role in the riots that occurred in Gujarat between February and May of 2002. The riots were spawned after an attack by Muslims on a train in Godhra that resulted in the deaths of 58 Hindus.1 Hindu mobs responded to this attack through violent riots, resulting in the deaths of some 2,000 Muslims and the displacement of some 100,000 Muslims.2

It has been alleged that the riots were supported and possibly encouraged by Mr. Modi, his government and the police in Gujarat. Many have asserted that Mr. Modi personally instructed police officers to allow “peaceful” reactions to the train attack.3 As a result of this instruction, police officials told victims of the riots that they had not been instructed to help them.4 In spite of these allegations, however, Mr. Modi has never been indicted or convicted for his involvement or encouragement in the Gujarat riots. India’s National Human Rights Commission implicated Mr. Modi’s government, but not him specifically, holding that there “there was a comprehensive failure on the part of the State Government to control the persistent violation of the rights to life, liberty, equality and dignity of the State.5 It further indicated that the government’s response to the violence was “often abysmal or even non-existent, pointing to the gross negligence in certain instances or, worse still, as was widely believed, a complicity that was tacit if not explicit.”6 The Indian Supreme Court has also implicated Mr. Modi’s government by transferring criminal prosecutions of persons connected to the riots out of courts in Gujarat.

Still, even with these findings, Mr. Modi has never been officially charged for his role in the riots. The closest documents assigning him blame are the U.S. Department of State’s 2002 Report on Human Rights Practices and International Religious Freedom Report.7 Both reports specifically mention the allegations brought against Mr. Modi in the Gujarat riots, and it was these reports that could have served as the basis for the denial of Mr. Modi’s admission to the United States.

I. Analysis of Section 212(a)(2)(G) of the Immigration and Nationality Act (INA) 

Mr. Modi sought admission to the United States after having received an invitation as the keynote speaker for an event organized by the Asian-American Hotel Owners’ Association (AAHOA) as well as other meetings organized by the Indian-American community in the U.S. He hoped to enter the country on either a diplomatic visa or his already issued B1/B2 tourist/business visa. The diplomatic visa was denied because according to INA §101(a)(15)(A), such visas are granted to those coming to the U.S. for official government business. A speech for the AAHOA does not qualify as official government business. This decision has not been met with controversy. The decision to deny his B1/B2 visa is actually what has attracted so much publicity in recent days. This denial was based on §212(a)(2)(G) of the Immigration and Nationality Act (INA).

Section §212(a)(2)(G) of the INA, which was first enacted in 1998, has never been invoked against a public official prior to the decision to revoke Mr. Modi’s visa. It maintains that an individual is inadmissible to the United States if “while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedoms.” Violations of religious freedoms are defined by the International Religious Freedom Act, as any of the following acts committed on account of an individual’s religious belief or practice: “detention, interrogation, imposition of an onerous financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious conversion, beating, torture, mutilation, rape, enslavement, murder and execution.”8

Prior to December 17, 2004, there was a two year statute of limitations attached to this ground of inadmissibility. So, for example, had Narendra Modi sought admission to the U.S. in November 2004, he would not have been denied a visa under §212(a)(2)(G) because the alleged violations of religious freedom were committed more than two years prior to admission. The Office of Senator Patrick Leahy (D-Vermont), who introduced the amendment to remove the statute of limitation, prepared a section-by-section analysis of law.9 The analysis rationalized the removal of the statute of limitations because it was “not consistent with the strong stance of the United States to promote religious freedom throughout the world. Individuals who have commit[] particularly severe violations of religious freedom should be held accountable for their actions and should not be admissible to the United States regardless of when the conduct occurred.”10

Under this new broader statute, Mr. Modi was found inadmissible for being a government official responsible for violations of religious freedom. It is likely that the violations referred to are the murders, beatings and mass relocations of Muslims in Gujarat during the riots. The decision has been met with a tremendous amount backlash. Critics claim that the decision is baseless because Mr. Modi was never officially charged for violations of religious freedom. While it is true that Mr. Modi has never been officially charged for these acts; in the view of the authors, it was reasonable for the State Department to deny the visa because it was based on ample evidence against Mr. Modi. U.S. law allows the State Department to make a finding of inadmissibility based on a reasonable belief and without there being an actual conviction on the individual’s record. For example, a person can be found inadmissible if the consular officer knows or has reason to believe that the individual was a trafficker of controlled substances.11The consulate has no duty to provide due process for a visa applicant who desires entry to the U.S. It also is not required to conduct a “pseudo” hearing to determine if the act was actually committed. U.S. consulates all over the world deny thousands of visas every day, without giving the applicants due process rights or opportunities to contest the denials.

II. Factual Basis for Inadmissibility Finding 

Critics of the decision should note that any finding of inadmissibility under this ground cannot be made in haste. According to the Foreign Affairs Manual, consular officers must seek an advisory opinion if they “reasonably believe” the applicant was responsible for severe violations of religious freedom.12  The advisory opinion will be drafted by the country desk and any relevant offices at the State Department, assessing whether the individual in question was responsible for the violations. In other words, a visa denial on this basis involves a great deal of research and takes into account multiple factors. It is not based upon an actual conviction or admission, but rather an in depth assessment of the situation, resulting in a reasonable belief that the action was committed.

In this case, such a reasonable belief existed. According to Len Scensy, Deputy Director, Office of Public Diplomacy, State Department Bureau of South Asian Affairs, the decision was made after looking at the law, the findings of the Indian Human Rights Commission, and the U.S. State Department Reports. Mr. Scensy in an interview with News India Times, indicated that these reports “say the same thing.” They are consistent with each other and take into consideration the overwhelming number of allegations against Modi. Therefore, it is safe to assume that it was reasonable to believe that Mr. Modi was responsible for the violations of religious freedom against Muslims in Gujarat. Mr. Modi was explicitly implicated in U.S. reports on the riots and while the Indian Human Rights Commission never explicitly named him, it did indicate that his government had tacit complicity if not explicit involvement in the violence.13

III. Consequences of the Decision 

The decision to deny Mr. Modi a visa is not without its consequences. This was the first time §212(a)(2)(G) has been invoked by the State Department, and it is likely that it will use it again against other government officials, former and present, who seek entry to the U.S. So, for example, in the case of India, former Congress party officials implicated in the killings of Sikhs after Indira Gandhi’s assassination in 1984 may find themselves inadmissible to the United States on this ground.

A decision under §212(a)(2)(G) is final and there is no room for appeal in a U.S. Court. Government officials found subject to this ground may find themselves permanently inadmissible to the U.S. The only possibility they have for admission is a discretionary waiver, granted by the Secretary of the Department of Homeland Security, under §212(d)(3). Such a waiver, however, may cause these officials further difficulties as the Secretary can prescribe conditions to the admission. For example, he/she may require an admission to the crimes committed. Such an admission is clearly deadly as it would open the floodgates to both criminal and civil liability under domestic and international law.

________________________________________

Cyrus D. Mehta’s current profile can be found at https://blog.cyrusmehta.com/Sub.aspx?MainIdx=ocyrus200591701543&SubIdx=ocyrus200591721646) and 

Elizabeth T. Reichard’s current profile can be found at http://www.fragomen.com/ourprofessionals/reichard-elizabeth/.  (The old profiles as existed in the original article have been deleted). 

1U.S. DEPT. OF STATE, INTERNATIONAL RELIGIOUS FREEDOM REPORT: INDIA (2002); U.S. DEPT. OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: INDIA (2002).

2 Id. 

3 Id 

4 Id.

5 National Human Rights Commission, Order on Gujarat, *64 (31 May 2002).

6 Id. at 24.

7 Supra note 1.

8 22 USC §6402.

9 Office of Sen. Patrick Leahy, Anti-Atrocity Alien Deportation Act of 2003: Section-By-Section Analysis, available at  http://leahy.senate.gov/press/200303/032603b.html.

10The December 17, 2004 amendment also removed a provision which made the spouse and children of a government official inadmissible under this ground.

11 INA §212(a)(2)(C)(ii).

12 9 FAM 40.26 N2.1.

13 Supra  note 5, at 24.

Cyrus Mehta

Impact of EB-5 Retrogression on the Regional Center Loan Model

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In light of the retrogression in the employment-based fifth preference (EB-5) for China, which is predicted to occur as early as May 2015, the delays will once again impede much needed investment into the United States, which in turn will also dampen job creation. The negative effects of priority date retrogression in family and employment-based preferences have already had an adverse impact on families, who are unable to unite, and employers, who cannot employ a much needed worker even after the labor market has been unsuccessfully tested for qualified US workers. Due to retrogression, children may be less likely to be able to seek the protection of the Child Status Protection Act from aging out.

The China EB-5 retrogression will result in other unique problems not experienced in other immigrant visa preference categories. Most EB-5 regional center investments are based on a loan rather than an equity model. EB-5 investors invest into the new commercial enterprise (NCE) of a regional center. The NCE in turn invests in a project or a business, known as the job creating enterprise (JCE). The JCE is a project that will result in at least 10 indirect jobs per EB-5 investor, such as a hotel or assisted living home or some other business operation. The NCE’s investment in the JCE can either be through an equity investment or a loan. The loan model is more favored than the equity model in EB-5 projects. Although a direct loan by an EB-5 investor is disallowed, as the investment is not at risk if the loan is guaranteed to be paid back, the EB-5 investor makes an equity investment in the NCE as a limited partner, which in turn loans the investors’ aggregated funds to the JCE. Thus, the EB-5 investor still has an equity interest in the NCE, while the NCE makes a loan to the JCE. The loan model has been permitted by the USCIS as the EB-5 investor is really buying an equity interest in the NCE while the NCE makes a loan of the aggregated investors’ capital to the JCE.

When the NCE makes a loan to the JCE, there is an agreement for the JCE to pay back the loan to the NCE. If the time frame is 5 years or more, this period would cover the point of time when the investor obtains conditional residence, and two years later, when the investor applies for removal of conditional residence. With the EB-5 quota retrogression, these two events will be stretched out even further in time, and it is likely that by the time that the investor applies for removal of conditional residence, it may be beyond five years from the date of the initial adjudication of the Form I-526 application. Would the USCIS now take the position that the investment is no longer at risk if the JCE pays back the loan to the NCE before the investor has removed the conditions on residence? If retrogression becomes even more severe, like the India and China EB-2 for example, the JCE may have paid the loan back at the time that the investor makes the initial application for conditional residence.

Although the USCIS has not yet addressed this issue, it can be argued that the JCE is paying back the loan to the NCE, and not to the investor, and this did not alter the investment, which was always at risk. The investor is not being paid back on a guaranteed basis, and this arrangement is distinguishable from the facts in Matter of Izummi, 22 I&N Dec. 169 (AAO, July 13, 1998). There, the investors were promised that the NCE would repurchase their interests at a fixed price after six years, and such an investment was not considered “at risk.”  Here, the JCE is paying back the loan to the NCE, and the decision to repay the investor is entirely in the discretion of the general partner of the NCE. The investor is clearly not the beneficiary of the repayment of the loan; rather it is the NCE. The NCE can use the repaid loan for other purposes rather than repay the investors.

In light of the crushing backlogs in the EB-2 and EB-3 preferences, Gary Endelman and this author have proposed various ameliorative solutions through administrative fixes, including not counting derivatives separately from the principal beneficiary, and these should apply with equal force to prospective EB-5 backlogs too. The Obama administration has been actively considered administrative fixes in the face of Congressional inaction to expand visa numbers and reform the broken immigration system, and it is urged that the administration also broadly interpret the “at risk” element of the investment so as to relieve EB-5 investors from uncertainty if the loan of the JCE is paid back to the NCE. Even if the JCE has paid back the loan to the NCE, the investor’s investment was always at risk at the time of the project’s inception, and at the time of filing the initial I-526 application. It is this point of time that ought to be considered when adjudicating EB-5 applications, in the case of potential crushing EB-5 China retrogression, and the administration has ample flexibility to maintain that the capital was “at risk” despite the JCE repaying the loan to the NCE prior to the investor either obtaining conditional residence or filing an application to remove conditional residence. After all, the requirement that the capital be “at risk” is found in the regulation and not the INA at 8 CFR 204.6(j)(2), and it only applies at the point of filing the I-526 application. Moreover, in a similar context where the EB-5 financing replaces bridge financing, the jobs were created at the point of bridge financing and not when the EB-5 capital replaced bridge financing. According to the May 2013 EB-5 Policy Memo, the use of bridge financing is permitted and is given credit for purposes of job creation so long as replacement financing, even if it was not EB-5 financing,  was  contemplated. Therefore, in the context of bridge financing, the length of time when the investment remains at risk, or when the investment creates the requisite number of jobs is irrelevant. What should really count is that the investment was “at risk” at some point of time and that investment did result in job creation at some point in time, although it can be legitimately argued that the investment still remains at risk even if the loan has been repaid to the NCE and not to the investor.   Similarly, the requirement that the investment have been sustained under INA 216A(d)(1)(A)(ii) throughout the conditional residency period be broadly construed so long as the repaid loan is still in the NCE and the investor has not been repaid.

The ethical risks in representing a client have been further exacerbated by the prospect of EB-5 quota retrogression. There is also more cause for conflicts of interest if the same attorney who represents the NCE and/or project also represents the EB-5 investor, given that the repayment of the loan, which will benefit the JCE, may adversely affect the investor if the investment is no longer considered “at risk” or continue to be “sustained.” There is no prohibition under ABA Model Rule 1.7 for an attorney to take on multiple clients where there is a potential conflict of interest, if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;  the representation is not prohibited by law;  the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and  each affected client gives informed consent, confirmed in writing. The attorney representing both the investor and the NCE/JCE has to be mindful about the conditions pursuant to Rule 1.7 when undertaking or continuing the joint representation. In the event that the attorney faces an irreconcilable conflict, it may be incumbent upon the attorney from withdrawing representation of both clients. In some situations, an attorney may be able to represent one client and withdraw from the other one when the conflict was not foreseeable and was “thrust upon” the attorney. See e.g. New York City Bar Formal Opinion 2005-05.  NYC Bar Op. 2005-5, which also discusses how other jurisdictions have dealt with “thrust upon” conflicts,  characterizes such a conflict  between two clients that 1) did not exist at the time either representation commenced, but arose only during the ongoing representation of both clients, where 2) the conflict was not reasonably foreseeable at the outset of the representation, 3) the conflict arose through no fault of the lawyer, and 4) the conflict is of a type that is capable of being waived. NYC Bar Op. 200505 further requires the lawyer to apply a balancing test in deciding whether to withdraw from the representation of one client and continue representation, with the other client. The opinion requires the lawyer to factor in whether there would be any prejudice that will be caused to the client due to confidences being placed at risk, and whether representation of one client over the other would give an unfair advantage to the client. A lawyer may wish to carefully use the “thrust upon” conflict doctrine if the conflict regarding the repayment of the loan was not foreseen prior to the announcement of the EB-5 quota retrogression, and the lawyer needs to decide whether to withdraw from representing both parties or one party.

Finally, the immigration attorney when performing due diligence of an EB-5 regional center and project needs to also factor in the timing of the repayment of the loan and the delays caused by EB-5 retrogression. While most immigration attorneys should provide only immigration related due diligence rather than investment advice,  investment advice may wittingly or unwittingly be factored  into  the  general advice the attorney  may provide when assessing the viability of an EB-5 project on behalf of an investor client. While it is always advisable for an immigration attorney to limit his or her representation to immigration advice,  and refer the investment advice out to another qualified professional who is a registered investment adviser or broker dealer, Section 202(a)(11) the Investment Advisers Act of 1940 does indeed carve out an exception for attorneys, accountants, engineers and teachers so long as the investment advice provided is incidental to their profession. According to an advisory by the Stroock law firm, the factors that will be considered are whether the professional holds himself or herself out as an investment adviser, whether the advice is reasonably related to the professional services, and whether the charge for advisory services is based on the same factors that determine the professional’s usual charge.

Cyrus Mehta

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

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By Gary Endelman and Cyrus D. Mehta

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

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

We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d). Let us examine what INA §203(d) says:

A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

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

There is no regulation in 8 Code of Federal Regulation (CFR) that truly interprets INA § 203(d). Even the Department of State’s regulation at 22 CFR §42.32 fails to illuminate the scope or purpose of INA 203(d). It does nothing more than parrot INA § 203(d). The authors recall the Supreme Court’s decision in Gonzales v Oregon, 546 US 243, 257 (2006) reminding us that a parroting regulation does not deserve deference:

Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.


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

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

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

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

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

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

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

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

Cyrus Mehta

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

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By Parisa Karaahmet and Cyrus D. Mehta

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.

Andrew Jackson 

The recent lawsuit filed against the Department of Justice by an Iranian American immigration judge, raises interesting questions regarding the use of a blanket recusal order by the Agency in the absence of a fact-specific analysis or showing of actual bias on the part of the Immigration Judge, See  Tabaddor v Holder, et al.  Immigration Judge Ashley Tabaddor filed suit in US District Court for the Central District of California last month, alleging, among other things, discrimination, retaliation and violations of her constitutional right to free speech under the first amendment. The suit was in response to the Executive Office of Immigration Review’s (EOIR) blanket recusal order issued to her in 2012 following Judge Tabaddor’s participation in a White House sponsored forum on Iranian Americans. The complaint states that Judge Tabaddor initially received permission to attend the White House roundtable discussion, to which she was invited ostensibly because of her status as a prominent member of the Iranian American community.  Consistent with EOIR policy, Judge Tabaddor was advised that she could attend the event in a personal capacity only, with the additional  recommendation that she recuse herself from all cases involving Iranian nationals to avoid the appearance of impropriety following the event.  The complaint alleges that upon her return from the White House event, Judge Tabaddor sought clarification regarding the recommendation, which was then elevated to a recusal order.  She has complied with the recusal order to date, albeit, under protest.

How common are blanket recusal orders by the EOIR?  Although there may have been other less publicized instances of EOIR requiring a Judge to recuse himself or herself from a specific case, the use of a blanket recusal order would appear to be rare indeed.  A good starting point in understanding the history and use of blanket recusal orders is to look to EOIR’s internal guidance on this  issue.   EOIR’s March 22, 2005 memorandum to Immigration Judges on Procedures for Issuing Recusal Orders in Immigration Proceedings cautions them to tread carefully in deciding whether recusal is appropriate. Judges are advised to review the overall circumstances of a matter, employing a “reasonable person” standard in deciding whether recusal is warranted in a particular case.  “A judge should recuse him or herself when it would appear to a reasonable person, knowing all the relevant facts, that a judge’s impartiality might reasonably be questioned.”  Citing Liteky v. US, 510 US. 540 (1994); Liljeberg v. Health Servs. Acqusition Corp, 486 U.S. 847 (1988); US v Winston, 613 F.2d. 221 (9th Cir. 1980); Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975).

The memorandum cites certain situations enumerated in 28 USC § 455(b) where recusal would be mandated.  These circumstances are largely fact-specific but can be summarized under two situations. First, where the Judge would appear to have an existing or prior relationship to one of the parties that is personal in nature, including financial or familial. Second, where the adjudicator has a personal bias, prejudice or knowledge of the evidentiary facts related to the underlying proceeding.  Absent these specific circumstances, the general tone of the memorandum encourages Immigration Judges to consider carefully, on a reasoned, objective and fact-specific basis, whether recusal is a necessary and equitable action warranted under the circumstances.  The memorandum stresses that a Judge has an obligation not to recuse him or herself arbitrarily and must therefore base his or her decision to do so on “compelling evidence” indicating that his or her judgment would be compromised, “rather than mere allegations or conclusory facts.” Citing U.S. v. Balistrieri, 779 F.2d 1191, 1220 (7th Cir. 1985); Sexson v. Servaas, 830 F. Supp. 475, 477 (S.D. Ind. 1993); Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir. 1989).

EOIR’s directive to carefully consider the grounds of recusal to ensure that they are based in fact and not on innuendo or inference is supported by the relevant case law. For example, in Matter of Exame, 18 I&N Dec. 303 (BIA 1982), the Board recognized that a respondent is not denied a fair hearing when a Judge has a “point of view about a question of law or policy.”  Id. at 306.  Specifically, the Board noted that in order to warrant a recusal order a Judge must have a personal bias arising out of an “extrajudicial” source which would inform his or her opinion on the merits of the particular proceeding.  Id.

Moreover, several notable decisions issued by Federal District Court Judges following recusal hearings seem to support the Board’s position.  In particular, a spirited 1988 opinion from Judge William M. Acker, Jr., addressing allegations of bias made by the government on appeal, stresses that innuendo of bias made by a party is alone insufficient for a Judge to recuse himself.  In re Possible Recusal of William M. Acker, Jr. in Government’s Cases, 696 F. Supp. 591, 597 (D.N.A. 1988).  Similarly, a more recent decision by Judge Paul D. Borman in the Eastern District of Michigan maintains that a Judge’s prior activities have to be specifically connected to the matter under consideration in order to make a credible argument regarding his or her bias.  U.S. v. Odeh, Case No. 13-cr-20772 (Jul. 31 2014). In that decision, a Palestinian-American defendant accused of fraud in her naturalization application moved for Judge Borman’s recusal because of his strong support for Israel.     After reviewing the case law, Judge Borman concluded that “[l]ike every one of [his] colleagues on the bench, [he has] a history and heritage, but neither interferes with [his] ability to administer impartial justice to [the Defendant] or to the Government.”  Id. at 9. Judge Borman’s remarks should be understood in light of the reasonable person standard that governs EOIR and federal recusal case law. Although Judge Borman later recused himself after he realized that he had tangential financial ties to the supermarket in Israel that was allegedly bombed by the criminal defendant (the facts of which were not disclosed in her naturalization application) his prior ruling against recusal is a good example of why a judge should not be biased even if he or she has political affiliations and interests. Therefore, the prevailing view appears to be that if  a judge has no specific close familial or financial relationship to the parties in a case, and there is no demonstrated personal  bias relating to the evidentiary facts, recusal would be unwarranted, nothwithstanding the judge’s political views or support for particular causes.

While it is too early to judge the merits of Judge Tabaddor’s case, her complaint raises important questions about EOIR policy with respect to an adjudicator’s impartiality and the careful balance between an appearance of bias and actual bias.    The United States District Court for the Central District of California has not yet ruled on this or any other contention made in the complaint.  It, therefore, remains to be seen whether Judge Tabaddor’s suit will have a lasting impact on EOIR policy with respect to recusal.

Even while we wait for an outcome on this law suit, the authors wonder whether such a blanket recusal reveals a lack of independence of Immigration Judges.  The EOIR is already part of the Department of Justice, and under the direction of the Attorney General. Immigration Judges are thus employees of the DOJ.  Quite apart from the facts in Judge Tabaddor’s case, will an Immigration Judge feel secure if his or her decisions are contrary to the Administration’s policy?  For instance, the Administration has created “rocket dockets” to expeditiously hold removal proceedings against child migrants and their families who recently came from Central American countries. If an Immigration Judge issues rulings or sets procedures that run contrary to the Administration’s efforts to quickly deport such respondents, will such an Immigration Judge feel insecure? The following extract from the Supreme Court’s decision in  Bridges v. Wixon, is worth noting: “Although deportation is not technically a criminal proceeding, it visits a great hardship on the individual, and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times, a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.” 326 U.S. 135 (1945).  In light of these important rights at stake in removal proceedings, it is imperative that the DOJ make every effort to ensure that Immigration Judges can issue rulings concerning the lives of immigrants in a totally impartial setting.
(Guest author Parisa Karaahmet is a Partner at Fragomen. The views expressed herein are not intended to represent those of the organizations that Ms. Karaahmet or Mr. Mehta have been part of in the past and presently)

Cyrus Mehta

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

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

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

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

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

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

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

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

9 FAM 42.55 PN1.1 Qualifying Dates

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

We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.

Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.
Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, https://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.
The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.

David Isaacson

BURNING DOWN THE HOUSE: THE SECOND AND THIRD CIRCUITS SPLIT ON WHETHER ARSON NOT RELATING TO INTERSTATE COMMERCE IS AN AGGRAVATED FELONY

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The lyrics of the Talking Heads song “Burning Down the House” do not mention whether the house in question was involved in commerce.  According to Jones v. United States, 529 U.S. 848 (2000), however, arson of “an owner-occupied residence not used for any commercial purpose” does not qualify as a violation of 18 U.S.C. §844(i), which makes it a crime to “maliciously damage[] or destroy[] . . . by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce.”  Under INA §101(a)(43)(E)(i), 8 U.S.C. §1101(a)(43)(E)(i), a conviction for an offense “described in” 18 U.S.C. §844(i) is an aggravated felony for immigration purposes.  The Courts of Appeals for the Second and Third Circuits have recently come to differing conclusions regarding whether an arson conviction under a state law that does not require such involvement in commerce, and thus would cover burning down a house, qualifies as such an aggravated felony.

In Bautista v. Attorney General, 744 F.3d 54 (3d Cir. 2014), the Third Circuit, whose jurisdiction includes New Jersey, Pennsylvania, and Delaware, ruled that conviction for attempted arson under New York State law lacking such a commerce requirement “cannot qualify as an aggravated felony because it lacks the jurisdictional element of § 844(i), which the Supreme Court has found to be a critical and substantive element of that arson offense.” Bautista, slip op. at 1-2.  Robert Bautista, a lawful permanent resident of the United States since 1984, had been convicted of attempted arson in the third degree under N.Y. Penal Law §110 and 150.10, and sentenced to five years of probation (and had also been convicted of uttering a forged instrument under New Jersey law, for which he was sentenced to one year of probation).  After being placed in removal proceedings upon his return from a trip abroad, he applied for cancellation of removal for permanent residents under INA 240A(a), 8 U.S.C. §1229b(a), but his application was pretermitted by the Immigration Judge on the ground that the attempted arson conviction was an aggravated felony.  The BIA agreed with this finding in a precedential decision, Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), but the Third Circuit disagreed and vacated that decision.

As the Third Circuit explained, it was clear that the New York arson statute and the federal statute at §844(i) differed with respect to the interstate-or-foreign-commerce requirement but had very similar elements in other respects.

Bautista does not dispute that the New York statute and the federal statute contain three identical, substantive elements: 1) damaging a building or vehicle, 2) intentionally, 3) by using fire or explosives. The Government does not dispute that the jurisdictional element of § 844(i), requiring that the object of arson be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,” is not contained in the New York statute.

Bautista, 744 F.3d at 60, slip op. at 12.

The Government argued that the jurisdictional element of §844(i) should not count for purposes of the aggravated felony analysis because it was not “substantive”.  The Third Circuit, however, held (in a 2-1 split panel decision) that this element, like the other elements of §844(i), must be present in order for a conviction to qualify under the categorical approach as “described in” §844(i) for purposes of the aggravated felony designation of §101(a)(43)(E)(i). If Congress had wanted to include all generic arson as an aggravated felony, the Third Circuit reasoned, Congress could simply have referenced arson as a generic offense in the statute.  Referencing the federal statute instead evinced a deliberate choice to require the jurisdictional element.  As the majority wrote:

We cannot undermine the categorical approach and Congress’s deliberate choice to include § 844(i), rather than generic arson, in § 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to § 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony “described in” § 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. We are loath to suggest that Congress would use a federal statute, like § 844(i), to “describe” offenses outside the parameter of that very federal statute without an unequivocal indication that it was doing something so counterintuitive.

Bautista, 744 F.3d at 66, slip op at 24.  “The bottom line,” the Third Circuit concluded, “is that § 844(i) does not describe generic arson or common law arson, but arson that involves interstate commerce.”  Therefore, the Third Circuit held that Bautista’s conviction for attempted arson in the third degree under New York law did not constitute an aggravated felony.

Last week, however, the Court of Appeals for the Second Circuit, which includes New York, Connecticut, and Vermont, came to a different conclusion.  In its opinion in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), the Second Circuit deferred to what it found to be the BIA’s reasonable interpretation of the INA.  The Second Circuit did not find the BIA’s conclusion regarding the meaning of INA §101(a)(43)(E)(i) to “follow[] inexorably from the INA’s text and structure.” Luna Torres, slip op. at 13.  However, “[c]onsidering the language of clause 1101(a)(43)(E)(i) and its place in paragraph 1101(a)(43) and the INA as a whole,” the Second Circuit “conclude[d] that the statute is ambiguous as to whether a state crime must contain a federal jurisdictional element in order to constitute an aggravated felony.”  Id. at 11. The Second Circuit therefore determined that the BIA’s interpretation of the statute, in which the BIA had found that such a jurisdictional element need not be included in order for a statute to qualify as an aggravated felony, was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Finding the BIA’s interpretation at least a reasonable one, the Second Circuit deferred to it and denied the petition for review.

One issue that was not addressed in Luna Torres (and may not have been raised) is whether, at the time the Second Circuit made its decision, there was any precedential BIA opinion to defer to.  The BIA’s decision in Matter of Bautista, after all, had already been vacated by the Third Circuit prior to the Second Circuit’s decision.  It seems in some sense disrespectful of that action by the Third Circuit to say, as the Second Circuit did in a section of its opinion addressing and rejecting a retroactivity argument, 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.  The decision in Matter of Bautista, in an important sense, no longer existed by the time of the Second Circuit’s decision.

Moreover, 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.”  Thus the nonprecedential decision in Luna Torres’s case, by itself, cannot be 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 been vacated by a Court of Appeals and no longer existed.  It might have made more sense for the Second Circuit to vacate the nonprecedential decision in Luna Torres’s case and remand to the BIA as it had vacated the nonprecedential BIA decision in Rotimi and remanded, saying 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 not only whether it continued to stand by its reasoning from Matter of Bautista in light of the Third Circuit’s contrary decision, but whether it was troubled by the prospect of its ruling being valid only in some judicial circuits but not others, and would 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.

Of course, since the Second Circuit found INA §101(a)(43)(E)(i) to be ambiguous and deferred to the BIA’s decision only as a matter of Chevron deference, the BIA could still reconsider Matter of Bautista in the next appropriate case to come before it, and change course to follow the Third Circuit’s Bautista decision.  For the moment, however, if a noncitizen is convicted of burning down a house, whether an arson conviction for that burning is found to be an aggravated felony may depend on whether the noncitizen is placed into removal proceedings in New York or Connecticut, on the one hand, or in New Jersey or Pennsylvania, on the other.

Cora-Ann Pestaina

BALCA EN BANC ON WHETHER THE ADDITIONAL RECRUITMENT STEPS FOR PROFESSIONAL OCCUPATIONS MUST COMPLY WITH 656.17(f)

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BALCA (Board of Alien Labor Certification Appeals) has been examining the issue of whether a  Certifying Officer (CO) may deny an Application for Permanent Employment Certification (ETA Form 9089) for a professional occupation if one of the additional recruitment steps does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f). In an en banc decision, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), BALCA held that the additional forms of recruitment do not have to comply with 20 C.F.R. § 656.17(f).

The filing of a labor certification with the Department of Labor (DOL) is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. If the application is for a professional occupation, the employer must conduct the recruitment steps within 6 months of filing the ETA Form 9089. Two of the steps, a job order and two print advertisements, are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process as provided in § 656.18. Then, under 656.17(e)(1)(ii), the employer must also select three additional recruitment steps from the alternatives listed in paragraphs 656.17(e)(1)(ii)(A)-(J).

Section 656.17(f) lists the advertising requirements for advertisements placed in newspapers of general circulation or in professional journals. These requirements are that these ads must name the employer; direct applicants to report or send resumes, as appropriate for the occupation, to the employer; provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; not contain a wage rate lower than the prevailing wage rate; not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. The regulations do not address what content must be included in advertisements placed as additional recruitment steps.

In a previous blog, I briefly discussed BALCA’s decision in Matter of Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010) that the regulations at 656.17(f) govern all forms of advertisements including the additional recruitment steps. In that case, BALCA held that the advertisements must have the purpose and effect of appraising US workers of the job opportunity and in order for this to happen, the additional recruitment steps must contain sufficient information about the position.

In Symantec Corporation, 2011-PER-01856 (Feb. 11, 2014) the question was raised again. In this case, the employer filed an ETA Form 9089 for the position of “Financial Programmer Analyst.” The application was audited and the employer timely responded to the audit. The CO then denied the application because the employer’s advertisement placed on a job search website, as one of the three additional forms of recruitment required for professional occupations, contained a travel requirement not included in the ETA Form 9089 in violation of 656.17(f)(6) in that it contained job requirements or duties which exceeded the job requirements or duties listed on the ETA Form 9089.

The employer filed a request for reconsideration and argued that the requirements of 656.17(f), upon which the CO relied in issuing the denial, are limited to advertisements placed in newspapers and professional journals, and do not apply to additional recruitment steps found in section 656.17(e)(1)(ii). The employer also cited the Preamble to the regulations, which states that the additional recruitment steps need only advertise the occupation involved in the application, and not the specific job opportunity. The employer also argued that its website advertisement was for multiple positions and the travel requirement expressed by the phrase “may be required to be available at various, unanticipated sites throughout the United States” did not create a travel requirement for all of the multiple open positions listed in the advertisement. The employer stressed that the use of the term “may” indicated that travel “might or might not be part of the job.”

The CO denied the employer’s request for reconsideration and forwarded the case to BALCA arguing that US workers could consider the phrase travel “may be required” to be a term and condition of employment which could have deterred them from applying for the position.  A BALCA panel of three administrative law judges decided the case. They acknowledged Credit Suisse but noted that it was not an en banc decision and that BALCA, while it recognized, from a policy standpoint, that applying the content requirements to additional recruitment steps would further ensure that the job opportunity is open and available to US workers, does not have the authority to read into the regulations an additional requirement not stated therein. BALCA reversed the CO’s denial of the ETA Form 9089 and held that based on the plain language of the regulations and the regulatory history, the advertising content requirements of 656.17(f) do not apply to the additional recruitment steps.

Unwilling to accept this, the CO petitioned for en banc review arguing that the panel’s holding conflicted with BALCA precedent and that en banc review was necessary to maintain uniformity in the Board’s decisions. BALCA granted the CO’s petition, vacated the panel’s decision, ordered a rehearing en banc, and permitted the parties to file supplemental briefs. BALCA en banc considered the specific question of whether advertisements placed to fulfill the additional recruitment steps must also comply with the detailed content requirements listed in 656.17(f).

BALCA en banc pointed out that the regulations explicitly identify three situations in which an employer must comply with the advertising requirements in 656.17(f):  (1) when an employer places an advertisement in a newspaper of general circulation or a professional journal in fulfillment of the mandatory recruitment for applications involving professional occupations, 656.17(e)(1)(i)(B)(3); (2) when an employer places an advertisement in a newspaper of general circulation in fulfillment of the mandatory recruitment for applications involving nonprofessional occupations, 20 C.F.R. § 656.17(e)(2)(ii)(D); and (3), when an employer posts a Notice of Filing announcing its intent to file an ETA Form 9089 under the basic labor certification process, § 656.10(d)(4). BALCA noted that in all three situations the regulations at 656.17(f) were cross-referenced and that no such cross reference exists in the regulations governing additional recruitment for professional occupations suggesting that the DOL did not intend to impose the content requirements on all types of advertisements.

BALCA en banc also referenced the Preamble to the PERM regulations. When the DOL proposed amending the labor market test to include three additional forms of recruitment, it received a number of comments opposing the proposal. Commenters were concerned that additional recruitment steps would be costly and unduly burdensome.  The DOL responded to these concerns and pointed out that the additional recruitment steps represent real world alternatives and only require employers to advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. The Board pointed out that this clearly shows that the DOL was seeking to alleviate the burden of requiring three additional recruitment steps. BALCA en banc expressly disagreed with the conclusion in Credit Suisse and found that unambiguous regulations must be interpreted in a manner that is consistent with the common understanding of the terms used.

BALCA en banc further pointed out that if the CO does not believe that the existing recruitment regulations provide for an adequate test of the labor market then the recruitment regulations may be amended through a new notice and comment rulemaking process. But the CO may not disregard the plain language of the regulations for policy or other considerations. The en banc panel reversed the CO’s denial decision and directed the certification of Symantec’s ETA Form 9089.

For PERM practitioners, what is the practical take away lesson from Symantec? Does the fact that 656.17(f) does not apply to the additional forms of recruitment mean that these additional forms of recruitment can indeed contain job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089? Can the three additional forms of recruitment contain requirements that are more restrictive than the minimum requirements listed on the ETA Form 9089? In footnote No. 4 to its decision in Symantec BALCA en banc mentioned that the CO, in his argument, relied on East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc) where the Board concluded that an advertisement placed in fulfillment of an additional recruitment step must not include requirements not listed on the Form 9089, and stated that this conclusion is not binding upon the Symantec en banc Board as the issue was not raised or briefed by the parties, or necessary to the resolution of the appeal, and the Board did not analyze the scope of 656.17(f) in any depth. This could be seen as somewhat confusing to PERM practitioners. How can BALCA hold that 656.17(f) does not apply to the additional recruitment steps but then fail to address the East Tennessee en banc decision stating that the additional recruitment steps must abide by 656.17(e)? Which en banc decision governs?

I think that PERM practitioners ought not to read too much into Symantec’s footnote No. 4. The en banc panel in Symantec points out that recruitment must be conducted in good faith and that the Board believed that the employer had indeed done this. The Board paid much attention to the fact that the employer’s additional recruitment was for multiple positions with varying requirements and that the employer had indicated the word “may” at the start of each sentence thereby indicating that not all of the requirements applied to each of the multiple positions. The Board stated that the CO does not have to certify an application if he has reason to believe that the employer’s recruitment efforts were not sufficient to warrant certification and the CO may instead exercise his broad discretion to order supervised recruitment under 20 C.F.R. §656.21. Accordingly, pursuant to the en banc decision in Symantec, while the three additional forms of recruitment do not have to comply with 656.17(f) and may be significantly broader or perhaps substantially briefer than the mandatory advertisements and the Notice of Filing, there nevertheless cannot be any information listed on these additional advertisements that is not included on the ETA Form 9089 as this would indicate bad faith on the part of the employer and possibly trigger supervised recruitment.

Viewing Symantec more broadly, BALCA clearly articulated that 656.17(f) was unambiguous, thus precluding the DOL from interpreting the regulation more broadly and insisting that the additional recruitment steps also conform to the requirement for the mandatory advertisements and the Notice of Filing. Pursuant to Auer v. Robbins, 519 U.S. 452 (1997), courts are required to give deference to an agency’s interpretation of its own ambiguous regulation unless such an interpretation is clearly erroneous. By holding that 656.17(f)’s plan language is unambiguous, the DOL will not be able to take cover under Auer by interpreting its regulations willy-nilly to the detriment of employers who recruit in good faith based on the plain language of a regulation but are then snared by the DOL’s different interpretation of its regulation. Auer was similarly criticized by Justice Scalia in his dissent in Decker v. Northwest Environmental Defense Center.   If the DOL desires that the additional recruitment steps conform to the requirements for the mandatory advertisements and Notice of Filing, then it ought to amend the regulation through notice and comment so that it clearly imposes such a requirement.

Cyrus Mehta

UNACCOMPANIED CHILD MIGRANTS TO THE UNITED STATES: DROP IN THE BUCKET AND SO MUCH HYPE

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The overreaction surrounding  57, 000 unaccompanied children who have come to the United States, with a population of 300 million, is not befitting of  a great nation of immigrants. Indeed, some of the reaction against these children has been nothing short of disgraceful. The waiving of the American flag against busloads of dazed and frightened children by residents of Murrieta in California did a great disservice to the ideals symbolized by this flag. The summoning of the Texas National Guard to the border against these children, unschooled in the complexities of immigration law,  is also unwarranted. Are they going to shoot at these kids?  It is further worth noting  that developing countries host 80% of the world’s displaced population, while most of the anti-refugee sentiment is heard loudest in industrialized countries.

To also characterize the flow of these children to our borders as illegal migration is a canard. People escaping harm in their countries are able to seek the protection of the United States through the asylum process under the rule of law.  As a signatory to the United Nations Refugee Convention, the United Nations Convention Against Torture and other international instruments, the United States cannot ignore expressions of fear of harm and turn these children and their families away. Section 208 of the Immigration and Nationality Act (INA), which Congress enacted in accordance with the obligations of the United States under the Refugee Convention, allows children fleeing harm to apply for asylum.   These children are not evading the border guards; rather they approach them and could hardly be charged under INA section 275 for an improper entry. Those who argue that these children have been brought here by smugglers and coyotes may have a point, but most people use all sorts of assistance while fleeing desperately persecution, and this should not bar them from seeking asylum under INA section 208. According to Commissioner Gil Kerlikowske, these mothers and children often run towards U.S. agents, turning themselves in and seeking detainment.

There is an incident in this nation’s history that is considered a grave blemish, which should never be repeated again.  In May 1939, the St. Louis set sail for Havana, Cuba carrying mostly Jewish refugees escaping the Third Reich in Nazi Germany. Most of them planned to immigrate to the United States as they were on the waiting list for admission, and had landing certificates permitting them entry into Cuba. When Cuba refused to honor the landing certificates, the ship sailed towards Florida and the captain appealed for help. The U.S. Coast Guard refused to allow the ship to dock in Florida and also prevented anyone from jumping  for freedom into the water. When the St. Louis turned back to Europe, Belgium, the Netherlands, England and France admitted the passengers. However, within months, the Germans invaded Western Europe,  and  hundreds of these passengers became victims to the Nazi’s “Final Solution.”

While it is difficult to compare any other event to the horror of the Holocaust,  a child who may be fleeing gang violence and certain death in San Pedro Sula,  Honduras, known as the murder capital of the world, should not be turned back by the United States. The poignant story of Alejandro, only 8 years old, making it all alone to the United States in search of his mother,  and also fleeing gang violence, should prompt us to find compassionate ways to find a solution rather than spit on these children. The Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) applies to all unaccompanied minors under the age of 18. It would be wrong for President Obama and the Congress to modify the TVRPA, and thus diminish the child’s ability to apply for asylum. Under the TVRPA, for unaccompanied minors coming from countries other than Mexico and Canada, the child must be turned to the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services within 72 hours. ORR has more expertise than border agents to help children make their asylum claims in a humane setting.   If the government wishes to remove the child, the child must still be provided a full and fair removal hearing before an Immigration Judge under INA section 240 where he or she can assert all rights available under law, including asylum and related relief, the trafficking visa and special immigrant juvenile status. The TVRPA also incorporates a policy in favor of releasing the child or placing the child in the least restrictive and most humane detention setting as possible. While unaccompanied children from Mexico and Canada do not get the same initial protections, they too will be covered under TVRPA if the answer to any of the following three questions is “No”: 1) whether the child is unlikely to be a victim of trafficking; 2) whether the child has no fear of returning to his or her country of origin; and 3) whether the child has the ability to make to make an independent decision to withdraw his or her application for admission to the United States.

Although the protections in the TVRPA do not apply to children who are accompanied, they too along with their parents may apply for asylum after passing a credible fear test and even if they face expedited removal. Still, after the increased migration from the Central American countries, there are reports of claimants not being able to adequately express their fear of persecution at the Artesia detention facility in New Mexico. According to a press release of the American Immigration Lawyer Association,  “[w]omen are being asked to share intimate details about past persecution and violence right in front of their children because DHS has not created a safe and separate interview space,” said Karen Lucas, AILA Legislative Associate. Congress now wishes to lower the standards in the TVRPA, and if the HUMANE Act introduced by Sen. Cornyn and Rep. Cuellar got passed, vulnerable children will be forced back to the same dangerous conditions from which they recently fled without proper screening for ascertaining the harm or the sexual abuse they may have faced and will face. Furthermore, under the HUMANE Act, victims may be further traumatized when questioned by officers who lack training and sensitivity, especially with respect to sexual assault interviewing techniques. Clearly, the best interest of the child is paramount when addressing this humanitarian crisis, and asylum standards should not be compromised for the sake of political expediency. Lowering safeguards and sending back children under the specious ground that they would bring diseases to the United States is repulsive. Under such perverse reasoning, lice infested concentration camp survivors may never be able to seek asylum in another country.  Fear of opening the floodgates is also not a reason for sending back people fearing harm without hearing their claim. Each asylum case must be individually judged on its own merits under the applicable law.

Rather than diminish  the ability of minors to seek asylum, the United States must instead provide more funding for better access to courts and lawyers, where they can meaningfully make claims for asylum and other relief. As the Supreme Court famously stated in a case regarding the appointment of counsel in juvenile delinquency proceedings, “The child requires the guiding hand of counsel at every step of the proceeding against him.” In re Gault, 387 U.S. 1, 37 (1967) (quoting Powell v. State of Alabama, 287 U.S. 45, 69 (1932)). If after the child has meaningfully asserted all claims for relief, and been turned down after exhausting all appeal options, he or she may be removed from the United States in a humane manner. Alternatively, the child can also be the subject of prosecutorial discretion if he or she meets the criteria under the Morton June 2011 memo. All children deserve protection, and Congress should be focused on strengthening protections rather than weakening them through the oxymoronic HUMANE Act. The recent announcement by the United States to consider refugee claims of children in their own countries is salutary, but that should still not diminish their ability to seek asylum here.

The United States, as the world’s sole superpower and the lumbering giant in the backyard of countries of Central America, ought to step up and take more responsibility. It is no coincidence that the gang related violence in Central America, resulting in harm to the children fleeing,  stems from  the insatiable demand for illicit drugs in the United States.  Moreover, the love that bonds a parent to the child and vice verca pervades through all countries and cultures. With so many people living in the United States in an undocumented capacity and under a broken immigration system, many of these children, who are vulnerable to gang violence and poverty,  would be united with parents in a more legal and orderly process if we had immigration reform.  The recent calls from GOP leaders to abolish the Deferred Action for Childhood Arrivals (DACA) program is ill-conceived and will backfire against the party in future Presidential elections. DACA has nothing to do with the flood of unaccompanied child migrants to the United States.  What we need is sensible immigration reform, so that the undocumented leading productive lives in this country can legalize and have their children, vulnerable to gang violence,  join them in a legal manner. If Congress continues to obstruct immigration reform, President Obama should have the guts – and he has the authority to do so under the INA – to improve the immigration system through bold administrative fixes.  It is also equally, if more important, to preserve the asylum protections so that people, especially children,  fleeing harm are never turned away like those on the St. Louis.

Michelle S. Velasco

DACA RENEWALS AND THE UPHOLDING OF EXECUTIVE ACTION IN ARIZONA DREAM ACT COALITION V. BREWER

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August 15, 2014 marks the two-year anniversary of the implementation of Deferred Action for Childhood Arrivals (DACA) by the Department of Homeland Security (DHS).  The policy was announced through a memorandum by then Secretary of Homeland Security Janet Napolitano on June 15, 2012.  The Memo directed the heads of Customs and Border Protection (CBP), Citizenship and Immigration Services (CIS), and Immigration and Customs Enforcement (ICE) to implement DHS’s decision to grant deferred action, and employment authorization, to certain eligible individuals who entered the U.S. when they were younger than 16 years old.  Now, nearly two years have passed since DHS began accepting applications for the program on August 15, 2012.  DACA recipients who were among the first to apply and receive DACA and employment authorization must now undergo the process of renewing their DACA.

ICE and USCIS released their renewal processes in February and early June, respectively.  ICE had begun issuing DACA to eligible immigrants in removal proceedings prior to August 15, 2012, when USCIS began accepting applications.  To be eligible for DACA renewal, the recipient must (1) not have departed from the U.S. on or after August 15, 2012 without advance parole; (2) have continuously resided in the U.S. since the first DACA approval; and (3) not have been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national safety or public safety.

The renewal process for ICE-granted and USCIS-granted DACA recipients is the same:

Complete and submit the following forms:

    • The new version of Form I-821D (6/4/2014 edition)
    • Form I-765
    • Form I-765 Worksheet
  • Submit the $465 fee for the employment authorization application
  • Submit only new documents involving removal proceedings or criminal history that was not previously provided to USCIS (Note: USCIS does not require previously submitted documentation establishing the applicant’s DACA eligibility)

USCIS has advised DACA recipients to renew approximately 120 days (4 months), but no more than 150 days (5 months), before their current DACA grant expires.  USCIS also anticipates that in the event it cannot process the submitted applications before the initial DACA expires, it might issue extensions of the initial DACA to prevent any lapse in time before the renewal is approved.

Since its implementation, DACA has been granted to over 550,000 recipients, according to USCIS statistics released on March 2014.  DACA has provided more than half a million young immigrants security from removal and a means to work lawfully in the U.S. The DACA recipients, sometimes also called Dreamers, can now live openly, work, and contribute to their own and their families’ wellbeing.  The economic and social repercussions of this have not yet been fully studied or revealed, though the American Immigration Council recently published a studyof the economic impact of DACA on the recipients.  The study found that through DACA, many young immigrants have benefitted economically through such activities as obtaining new jobs, getting driver’s licenses, and opening bank accounts.  We can also imagine what has been the psychological impact on these young immigrants of coming out of hiding and being able to be productive members of American society and the American workforce.  They have experienced the excitement of receiving an approval notice and the much sought after work permit, then a valid Social Security Number and card, and then oftentimes a State Identification Document in the form of an ID or driver’s license.

Though it has undoubtedly bettered the lives of half a million recipients, DACA has been a double-edged sword.  While it provides recipients protection from removal from the U.S. and allows them to work legally, DACA is still far less than what these young immigrants would have received from the government had the DREAM Act or Comprehensive Immigration Reform (CIR) passed in Congress.  The DREAM Act would have granted a way for eligible young immigrants to apply for permanent residence, and therefore, lawful status.  S.744, the CIR bill passed by the U.S. Senate on June 27, 2013, and that has since stalled in the House of Representatives, included stipulations for the implementation of the DREAM Act’s provisions.  In contrast, DACA is only granted for two years, and DACA recipients must renew before the expiration of their deferred action and work permits.  Moreover, DACA recipients do not have lawful status in the U.S. (although they do not accrue unlawful presence upon the grant of DACA since they are still authorized to remain), and there is no direct pathway to permanent residency or U.S. citizenship.

One limitation that some DACA recipients face is getting a driver’s license.  Until recently, two states, Arizona and Nebraska, refused to grant driver’s licenses to DACA recipients.  The Ninth Circuit, on July 7, 2014, struck down Arizona’s law that denied driver’s licenses to DACA recipients.  Arizona Dream Act Coalition v. Brewer, No. 13-16248, WL 3029759 (9th Cir. July 7, 2014).  This much-maligned law (see Cyrus Mehta’s take down of it here) was put in place as soon as DACA was first announced in the summer of 2012.  Governor Jan Brewer issued Executive Order 2012-06 “Re-Affirming Intent of Arizona Law In Response to the Federal Government’s Deferred Action Program,” August 15, 2012, directing Arizona state agencies to design rules to prevent DACA recipients from becoming eligible to obtain state identification such as driver’s licenses.  Arizona’s Department of Transportation’s Motor Vehicle Decision changed its requirements for state identification eligibility such that Employment Authorization Documents (EADs or work permits) with the DACA category code of (c)(33) would not be accepted as proof that the license or ID applicant’s presence was authorized in the U.S.  Five DACA recipients living in Arizona, along with the Arizona Dream Act Coalition, filed suit to stop Arizona from enforcing its policy.  The Ninth Circuit found that the law violated the Equal Protection Clause and there was no rational basis for the Arizona government’s policy.  The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an 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.  The Ninth Circuit systematically rejected each of Arizona’s arguments that it had a legitimate state interest in upholding the policy. Initially the Court rejected Arizona’s argument that (c)(9) and (c)(10) noncitizens could demonstrate authorized presence in the U.S. while (c)(33) could not.  Putting aside the nonsensical use of the term “authorized presence” which holds no actual meaning in immigration law, Arizona conflates the immigration concepts of unlawful presence and unlawful status – two very different things.  Unlawful presence is used in determining admissibility under the 3- and 10-year bars, while a noncitizen not in lawful status may be authorized to stay in the U.S.  The Court’s clearly did not make that mistake: “Employment Authorization Documents merely “tied” to the potentialfor relief [i.e. (c)(9) and (c)(10) categories] do not indicate that the document holder has current federally authorized presence, as Arizona law expressly requires.”  Arizona Dream Act Coalition, at *9.  Moreover, the Court found that Arizona’s other four arguments also could not hold up against a rational basis test. Arizona could not show it might have to issue licenses to 80,000 unauthorized immigrants (less than 15,000 Arizona residents have applied for DACA). DACA recipients cannot access state or federal benefits using a driver’s license alone.  Though the DACA program might be canceled at any time and DACAs could lose their authorized stay, the same could occur to (c)(9) and (c)(10) noncitizens whose corresponding applications are denied.  Therefore, these arguments also do not pass the rational basis test.  The Court went on and mentioned that additionally, Arizona’s policy “appears intended to express animus toward DACA recipients themselves, in part because of the federal government’s policy toward them.”  Id. at *25.  The court pointedly stated: “Such animus, however, is not a legitimate state interest.”  Id.

Interestingly, the Court struck down the law on equal protection grounds rather than conflict-preemption.  Generally, courts use preemption analysis to strike down a conflicting state law acting to regulate immigration.  In a concurrence, Circuit Court Judge Christen analyzed the case’s conflict-preemption argument and found that Arizona’s policy effectively created a new class of noncitizens who are not under “authorized presence” – a descriptor not recognized in immigration law.  The act of creating a new immigration classification, in Judge Christen’s view, is preempted by federal law because states may not directly regulate immigration.  Id. at *13, citing Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014).  Moreover, in footnote 3, the Court notes that Judges Pregerson and Berzon agree with the concurring opinion, and specifically that the plaintiffs in the case could succeed on a conflict preemption argument.

Here, however, the Court’s majority analyzed Arizona’s law from an equal protection perspective, which gives it lasting and powerful impact.  By going this route, the 9th Circuit recognized DACA recipients to be part of a protected class.  This can have huge implications for any other state laws that purport to discriminate against this now recognized protected class of noncitizens.  Moreover, the Court, in footnote 4, acknowledged that the Supreme Court in other cases applied strict scrutiny standard of review when state action discriminates against noncitizens authorized to be present in the U.S., see e.g. Graham v. Richardson, 403 U.S. 365 (1971).  But here, the Court states it did not have to analyze under strict scrutiny review because Arizona could not even make its case under the lower rational basis test.  In its analysis the Court found it could “identify no legitimate state interest that is rationally related to Defendant’s decision to treat DACA recipients disparately from noncitizens holding (c)(9) and (c)(10) Employment Authorization Documents”  Arizona Dream Act Coalition at *8. (emphasis added).  It is also worthwhile to note that, unlike the Arizona district court which also held that the Arizona government’s arguments failed a rational basis review, the 9th Circuit found that the protected class, here the DACA recipients, would likely suffer irreparable harm in the absence of a preliminary injunction.  The irreparable harm was the limiting of the DACA recipients’ professional opportunities, hurting their abilities to seek or maintain a job in a state where 87 percent of its workers commute by car.

The decision lays bare the type of backlash that occurred after the Obama administration introduced DACA.  Conservative pundits and anti-immigration groups believe that these young people should receive no acknowledgement or benefits from a country to which they do not belong.  This type of thinking is not only wrong, but it fuels hatred toward a group that, for all intents and purposes, took no part in the decision to enter the U.S. without inspection or to overstay visas.  The point of the DACA policy is to respond to the cries from millions of young immigrants brought into the U.S. as children, who have grown up in the U.S., but who are forced to stay in hiding.  They are punished for someone else’s sins.

I have personally processed over 100 DACA applications in the past two years.  When talking to these young immigrants and their families, it is often impossible to tell apart the individuals who were born here and the ones who were brought here.  DACA requestors speak like Americans, look like Americans, and dream the American dream like native-born Americans.  It is hard to put into words the unfairness of their lives: to live in a country that is oftentimes the only one they have known, and yet to be denied full recognition and basic equal treatment.  Worse, they are called “illegal” and are made to feel unwanted and unwelcome.  This treatment is confusing and painful to many of these young people who had no choice about coming to the U.S.  Yet they are undoubtedly the future of this country.  They will help shape the U.S. cultural, economic, and political landscape.  And we are not doing enough to acknowledge their presence, since they are here to stay, and provide them with the tools to be full active members of American society.

The Obama administration has implemented regulations and executive policies to alleviate some of the pain from long-standing immigration problems that Congress has time and again failed to address.  DACA, for instance, was the Executive’s response to Congress’s failure to pass the DREAM Act in 2010.  Recently President Obama spoke out angrily against Congress’s ability to compromise on immigration reform, calling it the reason behind his decision to direct more resources to address the ongoing crisis of unaccompanied children.  As has been pointed out on this blog, Obama can expand the use of Executive action to confront problems in immigration law while we wait for Congress pass CIR.  The Obama administration can do more than just grant deferred action to young immigrants.  DHS could grant deferred action to DACA parents.  The Department of Education could grant federal student loans to DACA recipients.  Paradoxically, the Obama administration has specifically rendered DACA recipients ineligible for healthcare benefits under the Affordable Care Act even though prior to the August 2013 rule, DACA recipients would have been eligible.  There are myriad ways Executive action, such as DACA, can provide relief to millions of immigrants who live and work beside us every day.  Until such time that Congress takes action, the Executive will have to be the branch taking action, and immigrants must be content with its limitations.

Because the basis of a deferred action grant is DHS’s policy of prosecutorial discretion, it remains only in the form of executive action and it is not an actual law passed by Congress and signed by the President.  DACA and any other executive action are thus vulnerable to attacks from groups and individuals who consider them an overreach by the Obama administration. These attacks, such as Arizona’s driver’s license law, are often informed by fear and a fundamental misunderstanding of immigration law.  Litigation to strike down these anti-immigrant and anti-immigration state laws, which are arguably preempted by federal law, can sometimes take years.  Moreover, executive action while necessary in the face of Congressional inaction is limited in scope: it cannot grant visas or permanent residence, which only Congress can do by expanding the eligibility categories for permanent residence.  Meanwhile, immigrants languish in backlogged visa lines, wait months and years for hearings before an immigration judge, face harsh vitriol from anti-immigration groups, and DACA recipients still do not have a way to become fully integrated into American life.

Cora-Ann Pestaina

LISTING THE FOREIGN NATIONAL’S QUALIFICATIONS ON THE PERM FORM

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One of the most surprising lessons to learn for practitioners who regularly file PERM labor certifications is that past certifications do not always mean future certifications. In other words, just because 10 PERM labor certifications prepared in the same way have all been certified without issue does not mean that the 11th one will also be certified. That is the nature of PERM. The Department of Labor (DOL) is notorious for suddenly coming up with new and previously unheard of reasons for denial.

Most recently, there have been reports of a slew of PERM denials, primarily for physician and teaching occupations, on the basis that Section H.14 of the ETA Form 9089 indicates that a medical or other license is required, but Section K does not list that the PERM beneficiary holds a license. What makes these denials even more baffling is that in many of these cases, the foreign national’s work experience practicing medicine or teaching in the US was listed in Section K thereby providing proof that the foreign national was indeed licensed.  Moreover, the ETA Form 9089 does not provide any specific section in which to list licenses. Most disturbing is the fact that the DOL did not previously deny any PERM applications for failing to list a license on the form. But that did not stop the denials from coming.  The American Immigration Lawyers Association (AILA) recommends that denials of a PERM labor certification solely because of not listing a license should be reported to the AILA-DOL liaison committee. A motion for reconsideration should be filed at the same time.

The DOL has promised to issue an FAQ (Frequently Asked Questions) on this issue. But since the ETA Form 9089 will remain unchanged, it is anticipated that the FAQ will advise practitioners to list the foreign national’s qualifications in Section K.9. AILA raised the issue of the denials in a DOL Stakeholders Meeting on December 12, 2013 (AILA Doc. No. 14011449). In sum, the DOL responded with:

In general, if an employer states that a specific position requires a license, the employer should indicate that the beneficiary has the license. The appropriate place to list the license is under K.9 so that the analyst can compare the requirements and the beneficiary’s qualifications. OFLC will issue an FAQ to spell this out more clearly. When stakeholders asked OFLC to consider in the future, issuing an FAQ in advance of the change in practice, OFLC agreed to take this into consideration if there is a decision to make a policy change. OFLC is continuing to examine how to address cases already denied on the basis that Section K did not list the license or certification. Employers with denials on this basis may wish to file a Request for Reconsideration of the denied case to at a minimum preserve the issue until OFLC develops further guidance.

At the recent AILA National Immigration Conference in Boston on June 18-21, 2014, representatives of the DOL indicated that the instructions in Section K.9 of the ETA Form 9089 already instruct practitioners to list “job duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc.” Accordingly, the DOL expects practitioners to list all the experience and qualifications gained with a particular job under the particular job experience listed on the ETA Form 9089. At the AILA national conference, it was also suggested that Section K of the ETA Form 9089 can be completed to only indicate the foreign national’s license or other special qualification earned during a specific time period when he was not also earning work experience and the ETA Form 9089 will not be denied for failure to list an employer’s name and other details. Other qualifications that need to be included in Section K.9 of the ETA Form 9089 include (See AILA InfoNet Doc. No. 14041655. (Posted 04/16/14):

 

  • Licensure, or eligibility for license, e.g., Medical License, Teacher Certification, Professional Engineer (PE).
  • Knowledge or coursework acquired in a course of study.
  • Professional certificates or diplomas, e.g., Microsoft certification, Health and Safety Certificate, CPR Certificate, Engineer-in-Training Certificate.
  • Board Certification, or Certification Eligible, e.g., Board Certification in Internal Medicine, Board Certification in Immigration Law.
  • Second degree, if required by employer, e.g., Bachelor’s in Civil Engineering, in addition to a Ph.D.
  • Degree or other credential required at H.4, “education: minimum level required,” does not match the foreign national’s credential at J.11, “highest level achieved relevant to the requested occupation” [e.g., H.4 requires a BS in Chemical Engineering; J.11 indicates foreign national has a (relevant) Ph.D. in Process Engineering, but foreign national also has a BS in Chemical Engineering that cannot be entered anywhere in Section J or K].

The issue of making every attempt to set forth the foreign national’s qualifications on the ETA Form 9089 in a manner that ensures the Certifying Officer’s (CO) comprehension was also highlighted in the Board of Alien Labor Certifications (BALCA) case, Matter of The Clariden School, 2011-PER-02857 (January 30, 2014). In that case, the primary job requirements for the position of “AMI Montessori Elementary Teacher” as listed on the ETA Form 9089 included a Bachelor’s degree in any discipline and AMI (Montessori) Certification. The Employer indicated in Section H.7 of the ETA Form 9089 that an alternative field of study was acceptable; specifically a Bachelor’s in Education plus AMI Certification. In Section H-8 the Employer also indicated that it would accept the alternative combination of a Master’s degree, and one year of experience. In Section H-14, the Employer noted that AMI Certification is required.

In Section J.11 of the ETA Form 9089 which requires the Employer to list the highest level of education achieved relevant to the occupation, the Employer checked “Other” from a list of options that included “None,” “High School,” “Associate’s,” “Bachelor’s,” “Master’s,” “Doctorate,” and “Other.” The Employer specified in Section J.11-A that the “Other” classification was AMI Certification. The Employer reported that the Alien obtained the AMI Certification in 2006 at the Montessori Institute of Milwaukee. The CO denied certification under 20 C.F.R. § 656.17(i)(1) on the ground that the application did not indicate that the foreign national met either the primary or the alternative educational requirements of a Bachelor’s degree in any discipline or a Master’s degree in any discipline.

In its request for reconsideration/review, the Employer argued that it answered Section J.11 accurately because AMI Certification was the highest education level achieved by the foreign national and that such a certification is a level of education higher than Bachelor’s but lower than a Master’s or a Doctorate. The Employer pointed out that the motion for reconsideration was its first opportunity to explain and clarify its answer on the ETA Form 9089, Section J, and that it was supplying supporting documentation which included a document from the Montessori Training Center of Minnesota stating that one of the admission requirements for its AMI Montessori Diploma program is that the applicant holds a Bachelor’s degree.

The CO refused to bend and affirmed the denial arguing that the employer’s representation on the ETA Form 9089 that Other – AMI Certification is the highest education level achieved by the foreign national did not enable the DOL to verify from the face of the application that the foreign worker earned a Bachelor’s degree which is the minimum education level required. The CO then went on to present the novel argument that “there is sufficient free form space on the ETA Form 9089” for the employer to disclose, for example, that the foreign national possessed a Bachelor’s degree (or its equivalent) in addition to AMI Certification.

BALCA thankfully saw reason and held that while the initial denial could be understood since it is hardly intuitive that AMI Certification is a higher level of education than a Bachelor’s degree, the CO’s insistence that the Employer disclose the foreign national’s holding of a Bachelor’s or Master’s degree be disclosed on the ETA Form 9089, even in the face of documentation on a motion for reconsideration showing that a Bachelor’s degree is a prerequisite for the foreign national’s admission to the Minnesota Montessori Training Facility for its AMI certification program, was unreasonable and unsupported by the regulations. BALCA was not persuaded by the CO’s claim that the ETA Form 9089 had adequate free form text fields finding, as any reasonable person would, that the form actually does not have any obvious free form space for clarifying why a person would necessarily have at least a Bachelor’s degree to have obtained an AMI certification.

Matter of Clariden and the recent PERM denials highlight the fact that practitioners need to find some way to list all of the foreign national’s credentials somewhere on the ETA Form 9089. While we await the DOL’s forthcoming FAQ, it is important to make every attempt to alert the CO that the foreign national possesses the qualification required for the offered position. If the offered position requires experience in specific technologies then these technologies need to be listed somewhere in the job descriptions of the foreign national’s past experience. If the offered position requires any license, certification, knowledge or anything other than work experience, it needs to be listed in Section K. This information can be listed in Section K.9 between asterisks or in capital letters or in any manner at the bottom of any job description for the foreign national’s past experience or it can be listed on its own in Section K.9.

The moral of the story is basically that anything which could remotely be unclear to the CO should be explained somewhere on the ETA Form 9089, notwithstanding the space limitations. But with regard to the recent Section K denials, the hope is that once the FAQ has been published the DOL will apply its requirement prospectively rather than to already pending cases. In such matters, the DOL really ought to hold itself accountable for setting a precedent for how the ETA Form 9089 should be completed merely by its certification of all prior cases.