David Isaacson

IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA

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On February 16th, as the holiday weekend was coming to an end, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a Memorandum Opinion and Order in the case of State of Texas, et al., v. United States, et al.,  granting the motion of the plaintiff States for a preliminary injunction against the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program, known as DAPA, and the expansion of Deferred Action for Childhood Arrivals, known as DACA, that were set out in a November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson.  (The original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, was not challenged by the plaintiff States, and is not affected by the injunction.)  According to Judge Hanen, the plaintiff States have shown a likelihood of success on the merits of their claim that DAPA and the DACA expansion were authorized in violation of the Administrative Procedures Act (APA), as well as meeting the other requirements for a preliminary injunction.

The Memorandum Opinion and Order is more than 120 pages long, so a full analysis is not feasible in a blog post, especially one being published just two days after the Memorandum Opinion and Order itself.  In this blog post, however, I will focus on what I think is one of the most important conceptual flaws in the Memorandum Opinion and Order.  It appears to overlook key sources of statutory and regulatory authority for DAPA and expanded DACA, particularly the portions of DAPA and expanded DACA which relate to the grant of employment authorization and related benefits.

In the Memorandum Opinion and Order, Judge Hanen accepts that the Department of Homeland Security (DHS), and in particular the Secretary of Homeland Security, Jeh Johnson, has the authority to set priorities regarding whom to remove from the United States.  “The law is clear that the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.”  Memorandum Opinion and Order at p. 69.  “The States do not dispute that Secretary Johnson has the legal authority to set these priorities,” Judge Hanen writes, “and this Court finds nothing unlawful about the Secretary’s priorities.”  Memorandum Opinion and Order at 92.

Judge Hanen asserts in his Memorandum Opinion and Order, however, that DHS’s statutorily granted authority to set enforcement priorities does not go so far as to authorize DAPA because of the affirmative benefits which are to be granted under the program.  He similarly holds that the usual presumption against APA review of decisions not to enforce a statute, as set out by the Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), does not apply in this case because DAPA is not merely a determination not to enforce:

Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. 

Memorandum Opinion and Order at 85-86.  A similar theme is sounded later in the opinion when contrasting DHS’s statutory authority to set priorities, of which Judge Hanen approves, with the benefits conferred under DAPA:

The [Homeland Security Act]’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country.

Memorandum Opinion and Order at 92.

Setting aside for the moment the ability to travel internationally, which is offered only as part of a subsequent application by those already granted DAPA or DACA and is granted when appropriate pursuant to the discretionary parole authority of INA §212(d)(5)(A), 8 U.S.C. §1182(d)(5)(A), the core of Judge Hanen’s concern (or at least a key portion of it) appears to be with the grant of employment authorization and the related documentation, such as a Social Security number, for which one who is granted employment authorization becomes eligible.  It is certainly true that those who receive Employment Authorization Documents (EADs), and are thereby able to receive Social Security numbers, become in an important sense “documented” where they were previously “undocumented”.  But it is not true that DHS has acted without statutory authority in giving out these important benefits.

It is at this point in the analysis that Judge Hanen appears to have overlooked a very important part of the legal landscape, what one might term the elephant in the room.  The statutory authority for employment authorization under the INA is contained in section 274A of the INA, otherwise known as 8 U.S.C. §1324a.  That section lays out a variety of prohibitions on hiring and employing an “unauthorized alien”, and concludes by defining the term as follows:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

8 U.S.C. §1324a(h)(3).

That is, the Attorney General – whose functions have now been in relevant part taken over by the Secretary of Homeland Security – is statutorily empowered to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  There are a few restrictions on this authority noted elsewhere in the INA: for example, 8 U.S.C. §1226(a)(3) states that an alien who is arrested and placed in removal proceedings may not be provided with work authorization when released from custody unless he or she is otherwise eligible for such work authorization “without regard to removal proceedings”.  But overall, the authority provided by 8 U.S.C. §1324a(h)(3) is quite broad.

Moreover, it is not as though this authority has gone unremarked upon in the context of DAPA and DACA expansion.  The November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson regarding DAPA and DACA (or “Johnson DAPA Memorandum” for short)  states that “Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act.”  Johnson DAPA Memorandum at 4-5.  Nonetheless, other than a quote from this section of the Johnson DAPA Memorandum at page 13 of the Memorandum Opinion and Order, Judge Hanen’s Memorandum Opinion and Order does not appear to address the authority provided by INA §274A(h)(3), 8 U.S.C. §1324a(h)(3).

Pursuant to the authority contained in 8 U.S.C. §1324a(h)(3), the Attorney General and then the Secretary of Homeland Security have promulgated regulations for many years listing various categories of people who are authorized to accept employment by virtue of their status, or who can apply (initially to the INS, and now to USCIS) for authorization to accept employment.  The list is currently contained in 8 C.F.R. §274a.12, and as noted in earlierversionsof that regulatory section, it has existed in substantively similar form since at least 1987, when it was put in place by 52 Fed Reg. 16221.  Included on the list are not only such obvious categories as Lawful Permanent Residents, asylees, and refugees, but also those with various sorts of pending applications for relief, certain nonimmigrants, and many other categories.

One subsection of the 8 C.F.R. §274a.12 list that is particularly relevant here is 8 C.F.R. §274a.12(c)(14), the existence of which is acknowledged in passing by the Memorandum Opinion and Order at page 15 and footnote 66 of page 86 but is not discussed elsewhere.  That provision has long included among the list of those who may apply for employment authorization: “An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”

As noted in footnote 11 of the Office of Legal Counsel memorandum regarding the legal basis for DAPA, which also addresses much of the authority discussed in the foregoing paragraphs, a prior version of this regulation authorizing employment for deferred-action recipients actually dates back to 1981.  But for present purposes, it is sufficient to point out that the 1987 version of the employment-authorization regulations has continued in force, with various modifications not relevant here, for over 35 years.  The validity of 8 C.F.R. §274a.12(c)(14) as it has been in effect for over three decades does not appear to have been challenged by the plaintiff States or by Judge Hanen, nor is it clear how it could be, given the broad authority provided by 8 U.S.C. §1324a(h)(3).

This long-existing regulation, grounded firmly in explicit statutory authorization, clearly states that an alien beneficiary of “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), which is called “deferred action,” id., may be granted employment authorization upon a showing of economic necessity.  (Such a showing of economic necessity is, in fact, required when seeking employment authorization under DACA, the instructions for which require the filing of the Form I-765 Worksheet regarding economic necessity; the instructions for DAPA, when they are published, will presumably have the same requirement.)  Thus, the regulation at 8 C.F.R. §274a.12(c)(14) authorizes the very features of DAPA and DACA which so troubled Judge Hanen as explained in the Memorandum Opinion and Order: the jump from the setting of enforcement priorities to the granting of affirmative benefits.  The notion that those whose cases are given lower priority as a matter of administrative convenience to the government, should potentially be granted employment authorization as a consequence, is not some new idea created for DAPA and DACA without notice and comment, but has been set out in regulations for many years.

One might say that DAPA and DACA are composed of two logically separable components: first, the designation of certain cases as lower priority, and second, the tangible benefits, principally employment authorization and related benefits, which flow from that designation.  Judge Hanen has found the designation of certain cases as lower priority to be unobjectionable, and has held the provision of tangible benefits in those cases to be in violation of the APA.  But according to a long-existing regulation which no one has challenged, the second component of DAPA and DACA may permissibly flow from the first.

It is therefore logically problematic to say, as Judge Hanen has done in his Memorandum Opinion and Order, that the provision of benefits under DAPA violates the APA even though the prioritization of cases would not.  The bridge from the first step to the second was, as it were, installed a long time ago.  Although Judge Hanen refers to “a new rule that substantially changes both the status and employability of millions,” Memorandum Opinion and Order at 112, it is in fact a very oldrule that has provided that those who are treated, as a matter of convenience, as being lower priority, should be made employable if they can demonstrate economic necessity.  Since the prioritization is concededly acceptable, it follows that the employment authorization and related benefits should be acceptable as well.

The only thing which Secretary Johnson’s November 2014 Memorandum really added to the pre-existing rules governing deferred action and its consequences was a set of criteria for DHS officers to use in determining whether to grant deferred action.  But since the grant of deferred action, as it has long been described in regulation, is merely “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), it can hardly be less permissible under the APA, or for that matter under the Constitution (the basis of another challenge which Judge Hanen did not reach), to grant deferred action than it is to give certain cases lower priority.  If DHS is indeed free to give certain cases lower priority, a proposition which is difficult to seriously dispute given basic background norms of prosecutorial discretion, then pursuant to 8 C.F.R. §274a.12(c)(14) as promulgated under the authority of 8 U.S.C. §1324a(h)(3), DHS is also free to grant employment authorization to those whose cases it has given lower priority and who can show economic necessity for employment.

In a world of finite resources, deciding which cases are worth pursuing necessarily implies deciding which cases are not worth pursuing.  Every dollar of funding or hour of officer time that DHS were to spend seeking to remove someone who meets the DAPA criteria would be a dollar of funding or hour of time that it could not spend seeking to remove a more worthy target.  The DAPA criteria are flexible by their nature, including a final criterion of “present[ing] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate,” Johnson Memorandum at 4.  But where no such negative factors exist, DHS has reasonably determined that parents of U.S. citizens and Lawful Permanent Residents who meet the other DAPA criteria are likely to be appropriate candidates for deferred action—which is, to repeat, simply “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14).  Having made that determination, DHS is authorized by both statute and regulation to confer employment authorization on those whose cases it has given this lower priority.  In ruling otherwise, without addressing either 8 C.F.R. §1324a(h)(3) or the implications of 8 C.F.R. §274a.12(c)(14) promulgated under its authority, Judge Hanen appears to have overlooked the proverbial elephant in the room.

David Isaacson

A QUICK KNOCKOUT: SHERIFF JOE ARPAIO’S LAWSUIT AGAINST PRESIDENT OBAMA’S EXECUTIVE ACTION DISMISSED FOR LACK OF STANDING

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By  David A. Isaacson

On November 20, 2013, the very same day that President Obama announced a series of executive actions aimed at “Fixing Our Broken Immigration System”, a lawsuit against the newly announced executive actions and against the existing Deferred Action for Childhood Arrivals program (DACA) was filed by Maricopa County Sheriff Joe Arpaio.  Sheriff Arpaio’s name may be familiar to readers of this blog: among other lowlights of a long and controversial career, he has been found by the Justice Department to have engaged in “unconstitutional policing” targeting Latinos, and was similarly found by a federal judge in the private class-action lawsuit Ortega Melendres v. Arpaio to have engaged in unconstitutional racial profiling.  Barely a month after Sheriff Arpaio’s lawsuit was filed, on December 23, 2013, the Arpaio v. Obama lawsuit was dismissed by a Memorandum Opinion and Order issued by Judge Beryl A. Howell of the U.S. District Court for the District of Columbia.  
In his lawsuit, Sheriff Arpaio sought to challenge DACA as originally implemented, DACA as revised by the November 20 announcement, and the new Deferred Action for Parental Accountability program that will provide deferred action similar to DACA to some parents of U.S. citizens and Lawful Permanent Residents.  Judge Howell’s Memorandum Opinion found that Sheriff Arpaio lacked standing to sue regarding any of these programs, for a number of reasons. 
As Judge Howell explained in her Memorandum Opinion, the Supreme Court has held that the power of federal courts under Article III of the U.S. Constitution to hear “Cases” and “Controversies” is restricted to instances in which the plaintiff meets certain requirements of standing to sue.  

The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” [Lujan v.] Defenders of Wildlife, 504 U.S. [555,] 560 [(1992)]. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be “likely” that the complained-of injury will be “redressed by a favorable decision” of the court. Id. at 561. In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014).

Sheriff Arpaio, Judge Howell found, failed to satisfy all three of these requirements.  First of all, he had not properly alleged any injury in fact to him resulting from the challenged deferred action programs.  To the extent that he sued in his personal capacity, and claimed only the interest of every citizen in governmental compliance with the law, Sheriff Arpaio was asserting a generalized grievance of the sort that the Supreme Court has consistently held not to confer standing.  His assertion of past threats against him by undocumented immigrants was not a basis for standing because those threats, besides being in the past, were not traceable to the challenged deferred action programs and would not be redressed by any action the court might take against those programs. As for Sheriff Arpaio’s claims in his official capacity as Sheriff of Maricopa County, the injuries he asserted there as well, having to do with alleged increases in workload, were generalized to the point of not being cognizable, and extremely speculative to boot: he alleged that the deferred action programs would attract new undocumented immigrants into Maricopa County, and yet the programs by their own terms applied only to those who had already been present in the United States prior to January 1, 2010.
Nor did Sheriff Arpaio’s complaint demonstrate causation and redressability, the other key requirements of standing.  As Judge Howell’s Memorandum Opinion explained, “it is the actions taken by undocumented immigrants—migrating to Maricopa County and committing crimes once there—that are purportedly the direct cause of the plaintiff’s injury.”  Arpaio v. Obama slip op. at 22.  But those actions would not be authorized by the challenged government programs.  Indeed, by enabling federal authorities to focus their resources on actual criminals, the challenged deferred action programs might help rather than harm Maricopa County:  

In the present case, the challenged agency action—the ability to exercise enforcement discretion to permit deferred action relating to certain undocumented immigrants—does not authorize the conduct about which the plaintiff complains. The challenged deferred action programs authorize immigration officials to exercise discretion on removal; they do not authorize new immigration into the United States (let alone Maricopa County); they do not authorize undocumented immigrants to commit crimes; and they do not provide permanent status to any undocumented immigrants eligible to apply for deferred action under any of the challenged programs. Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect. The deferred action programs are designed to incorporate DHS’s enforcement priorities and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes. Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.

Arpaio v. Obama slip op. at 24.  Sheriff Arpaio, the court found, had “submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.””  Id. at 25.
Moreover, given the limited resources available to the executive branch for removal of noncitizens from the United States, Sheriff Arpaio also could not establish that his alleged injuries would be redressed by the relief he requested, an injunction against the challenged deferred action programs.  Such an injunction, after all, 

w[ould] not grant additional resources to the executive branch allowing it to remove additional undocumented immigrants or to prevent undocumented immigrants from arriving. Thus, the plaintiff’s complaint regarding the large number of undocumented immigrants and the limited number of removals w[ould] not change as a result of any order by the Court in this litigation. 

Given Sheriff Arpaio’s lack of standing to bring the suit, Judge Howell found herself compelled to dismiss the suit for lack of jurisdiction.  She did, however, go on to detail, in the course of addressing Sheriff Arpaio’s request for a preliminary injunction, some of the other obstacles that his lawsuit faced as well.  Among those obstacles were the fact that “the challenged deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation’s immigration laws,” that they “still retain provisions for meaningful case-by-case review,” and that they “merely provide guidance to immigration officials in the exercise of their official duties.”  Arpaio v. Obama slip op. at 31-32.  For all of these reasons, and given the absence of irreparable harm to Sheriff Arpaio and the public interest weighing against a preliminary injunction Judge, Judge Howell denied the motion for a preliminary injunction and dismissed the suit.
For any readers who may be disturbed that a case of this nature would be dismissed before entirely reaching the merits, it is worth noting that the requirements of standing have played an important role in other controversial areas of law as well.  It was these requirements that led the Supreme Court to rule in Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), that proponents of a California initiative prohibiting the marriage of same-sex couples did not have standing to appeal a decision striking down the statute enacted by that initiative where the governor and Attorney General of California did not appeal.  It was also those same standing requirements that led the Supreme Court to order dismissal of a lawsuit by environmentalists seeking to overturn an administrative rule that limited application of the Endangered Species Act in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Whatever one thinks of modern standing doctrine, it has clearly gored the proverbial oxen of plaintiffs of all ideological persuasions, immunizing government actions across the political spectrum from judicial review at the behest of bystanders without a sufficient concrete stake in a particular matter.
Sheriff Arpaio’s lawsuit against the President’s executive actions may not be the last to founder for lack of standing.  As explained in a recent post on this blog by Gary Endelman and Cyrus D. Mehta, even the lawsuit filed in December 2013 by a group of states led by Texas to challenge President Obama’s immigration initiatives is likely to fail for lack of standing.  The United States’ Memorandum in Opposition to the states’ request for a preliminary injunction in that litigation also sets out in great detail why standing is lacking there.  The states’ lawsuit, like Sheriff Arpaio’s, is also deeply problematic on the merits, for the reasons explained in that same blog post and in the United States’ Memorandum in Opposition.  For both reasons, the Texas lawsuit may soon meet the same fate as Sheriff Arpaio’s.
David Isaacson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

David Isaacson

CERTIFICATION OF QUESTIONS OF STATE LAW: A NEW TREND IN SECOND CIRCUIT IMMIGRATION CASES?

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In both February and May of this year, the U.S. Court of Appeals for the Second Circuit did something that it appears not to have done in an immigration case in more than fifteen years, and that is rare for other courts to do in such cases as well.  In Nguyen v. Holder, on February 14, 2014, and Efstathiadis v. Holder, on May 20, 2014, the Second Circuit chose to certify questions of state law about which it was uncertain to the highest court of the relevant state – New York in Nguyen, and Connecticut in Efstathiadis — rather than seeking to answer those questions itself.  This is at least a notable coincidence given the historical rarity of such certification in immigration cases, and merits watching to see if it is the beginning of a broader trend.

The issue in Nguyen involved the validity, under New York law, of a marriage between an uncle and his half-niece.  The petitioner, Huyen V. Nguyen, had been admitted to the United States in 2000 as a conditional permanent resident based on her marriage to Vu Truong, a U.S. citizen.  Her joint I-751 petition to remove those conditions, filed in 2002, was ultimately denied by U.S. Citizenship and Immigration Services (USCIS) in 2007 because she was the half-niece of her husband—that is, her grandmother was also her husband’s mother.  USCIS concluded that this marriage was incestuous and void, and an Immigration Judge (IJ) reached a similar conclusion in removal proceedings, holding that a New York statute which voids a marriage between “an uncle and a niece” also applies to a marriage between a half-uncle and a half-niece.  On appeal, the Board of Immigration Appeals (BIA) affirmed the IJ’s conclusion that “a marriage between a niece and a half-uncle is invalid under New York law.”  Nguyen, slip op. at 4.

The Second Circuit, however, was not sure that the BIA and IJ were correct. The relevant New York statute, N.Y. Domestic Relations Law §5, voids as incestuous a marriage between
  1. An ancestor and a descendant;
  2. A brother and sister of either the whole or the half blood;
  3. An uncle and niece or an aunt and a nephew.

N.Y. Dom. Rel. Law §5, quoted in Nguyen, slip op. at 6.  Subsection 2 of the statute, regarding siblings, specifically includes relationships “of either the whole or the half blood”, but subsection 3 does not.  As the Second Circuit noted, “two cases from New York’s intermediate appellate courts,” that is,Audley v. Audley, 187 N.Y.S. 652 (N.Y. App. Div. 1921), and In re May’s Estate, 117 N.Y.S.2d 345 (N.Y. App. Div. 1952), aff’d, 305 N.Y. 486 (1953), “hold that marriages between half-nieces and half-uncles are void for incest notwithstanding the omission of the ‘whole or the half blood’ language from subsection (3) of the statute.”  Nguyen, slip op at 6.  However, this holding is drawn into question by dicta in In re Simms’ Estate, 26 N.Y.2d 163 (1970), a decision of the New York Court of Appeals, New York’s highest court.  As the Second Circuit explained:

In Simms, the Court of Appeals did not decide the question of statutory interpretation that is before us here, see id. at 167, but it nevertheless cast doubt upon the analysis given by the Appellate Division in Audley. TheSimms opinion observed that the omission of the phrase “whole or half blood” from the applicable statutory language was troublesome given the inclusion of that language in the statute’s immediately preceding interdiction of marriages between brothers and sisters, and further noted that “it seems reasonable to think that if the Legislature intended to prohibit marriages between uncles, nieces, aunts and nephews whose parents were related to the contracting party only by the half blood, it would have used similar language.” Id. at 166. The Court of Appeals further opined that 

[i]f the Legislature had intended that its interdiction on this type of marriage should extend down to the rather more remote relationship of half blood between uncle and niece, it could have made suitable provision. Its failure to do so in the light of its explicit language relating to brothers and sisters suggests it may not have intended to carry the interdiction this far.

Id. While the Court of Appeals’s analysis in Simms can fairly be called dicta, it nonetheless gives us pause in considering the continued vitality of Audley’s interpretation of subsection (3).

Nguyen, slip op. at 8-9.  If, as Simms suggested, marriages between a half-uncle and a half-niece are actually permitted under New York law, then Huyen Nguyen’s marriage would have been valid and the removal proceedings against her would need to be terminated.

Rather than attempting to predict how the New York Court of Appeals would decide this outcome-determinative issue of New York law, the Second Circuit decided to certify the question to the New York Court of Appeals, allowing that court to provide the answer. As the Second Circuit explained, there are criteria established in case law for such certification:

Before exercising our discretion to certify the question before us to the New York Court of Appeals, we must satisfy ourselves that the question meets the following criteria: 1) it must be determinative of this petition; 2) it must not have been squarely addressed by the New York Court of Appeals and the decisions of other New York courts must leave us unable to predict how the Court of Appeals would rule; and 3) the question must be important to the state and its resolution must require value‐laden judgments or public policy choices.

Nguyen, slip op. at 10.  The Second Circuit determined in Nguyen that these criteria were met. The New York State Court of Appeals appears to agree, as it has already accepted the certification in Nguyen and included it on its list of certified questions pending before that court, by an order reported at 22 N.Y.3d 1150 (2014).  Once the New York Court of Appeals answers the certified question, the Nguyen case will return to the Second Circuit for a final ruling.

In Efstathiadis, decided three months after Nguyen, the issue was not one of state family law, as in Nguyen, but one of state criminal law.  Petitioner Charalambos Efstathiadis was a lawful permanent resident of the United States, having immigrated to the US in 1967.  In 2005, he pled guilty to four counts of sexual assault in the fourth degree under Connecticut General Statute (CGS) §53a-73a(a)(2), which criminalizes subjecting “another person to sexual contact without such other person’s consent.” Under the related definitional provision at CGS §53a-65(3), “sexual contact” is defined as contact “with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”  Efstathiadis, slip op. at 3.  Mr. Efstathiadis was placed in removal proceedings and ultimately found deportable under INA §237(a)(2)(A)(ii), 8 U.S.C. §1227(a)(2)(A)(ii), on the basis that each of his convictions was for a crime involving moral turpitude (CIMT), and that they did not arise out of a single scheme of criminal misconduct.  

In attempting to determine whether a conviction for sexual assault in the fourth degree under CGS §53a-73a(a)(2) was indeed a CIMT so as to support Mr. Efstathiadis’s removal, the Second Circuit found itself stymied by uncertainty regarding the mens rea, that is, “the degree of mental culpability with which a defendant committed the acts underlying a conviction,” that was required under the Connecticut statute with regard to the element of lack of consent of the victim. Efstathiadis, slip op. at 11.  Based on the text of the statute, some case law applying the statute as written, and the model jury instructions, it appeared that there might be no mens rea requirement at all—that with respect to lack of consent, the crime might be a strict-liability offense, where it was not necessary for the government to prove any particular mental state of the defendant. However, the decision of the Connecticut Supreme Court in State v. Smith, 554 A.2d 713 (Conn. 1989), addressing a different provision of law relating to sexual assault in the first rather than fourth degree, could potentially be read to imply that a reasonable mistake of fact as to consent was a valid defense, meaning that some culpable mens rea would effectively be required for a conviction.  

The question of what if any mens rea or “evil intent” was required for a conviction was potentially key to the determination whether the crime was a CIMT, since a CIMT has been variously described as requiring “a vicious motive or corrupt mind,” or “[a]n evil or malicious intent,” and Second Circuit case law has indicated that “corrupt scienter is the touchstone of moral turpitude” and that “it is in the intent that moral turpitude inheres.” Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir. 2000) (internal quotation marks omitted),quoted in Efstathiadis, slip op. at 14.  Moreover, as the Second Circuit pointed out, while the statute at issue in Efstathiadis does at least have some mens rea requirement insofar as the sexual contact must be committed “for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating [the victim],” this is not necessarily dispositive, because “the intent to receive sexual gratification, standing alone, is not evil.”  Efstathiadis, slip op. at 14.  Thus, the mens rearequirement, or lack thereof, with respect to the lack of consent element was significant.  But the Second Circuit could not definitively determine whether such a mens rea requirement existed, and if so, what it was.

In Efstathiadis as in Nguyen, the Second Circuit therefore decided to certify the question that was puzzling it to the highest court of the relevant state.  In addition to being potentially dispositive, the Second Circuit said, the question of the mens rea requirement with regard to lack of consent in a sexual assault case had significant policy implications, since “[w]hether or not Connecticut imposes strict liability for intentional sexual touching without consent implicates important policy concerns,” Efstathiadis, slip op. at 21. The Second Circuit therefore certified the following two questions to the Connecticut Supreme Court: 
  1. Is C.G.S. § 53a‐73a(a)(2) a strict liability offense with respect to the lack of consent element?
  2. If C.G.S. § 53a‐73a(a)(2) is not a strict liability offense with respect to the lack of consent element, what level of mens rea vis‐à‐vis that element is required to support a conviction?

Id. at 22.  It does not appear that the Connecticut Supreme Court has yet decided whether to accept or reject the certification in Efstathiadis.

The certification of two questions of state law in immigration cases by the Second Circuit in a single year (a year that is not yet half over) is noteworthy, given the historical rarity of such certifications.  Before 2014, the last time the Second Circuit appears to have sought to certify a question of state law in an immigration case was in 1998.  In Yesil v. Reno  and Mojica v. Reno, two of the consolidated cases addressed in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), the Second Circuit attempted to certify a question relating to the existence of jurisdiction over a non-New-York District Director of the then-Immigration and Naturalization Service under the New York “long arm” statute. The New York Court of Appeals respectfully declined the certified questions, Yesil v. Reno, 705 N.E.2d 655 (N.Y. 1998), and the appeals were subsequently withdrawn after the parties settled, as explained in Yesil v. Reno, 175 F.3d 287 (2d Cir. 1999).  

Yesil and Mojica appear to be the only immigration cases, before this year, in which the Second Circuit attempted certification of questions of state law. Historically, the Second Circuit has more commonly utilized certification of questions of state law in other legal settings, but not in the immigration context.  Nor is the technique especially common among other courts in the immigration context, although it is not entirely unheard of.  

In 2011, the U.S. District Court for the Middle District of Tennessee, in the case of Renteria-Villegas v. Metropolitan Government of Nashville and Davidson County, certified to the Supreme Court of Tennessee an issue relating to the powers of the Metropolitan Government of Nashville and Davidson County under state law.  That lawsuit was filed by a U.S. citizen who had twice allegedly been subjected to an investigation of his immigration status following his arrest, pursuant to an October 2009 Memorandum of Agreement between Immigration and Customs Enforcement (ICE) and the Metropolitan Government which he believed to be illegal.  The Supreme Court of Tennessee accepted the certified question, and ruled in an October 4, 2012, decision that the agreement was not illegal as a matter of state law.  

Earlier, the U.S. District Court for the District of Nebraska had attempted to certify a somewhat similar question regarding the powers of a local government body in the Keller v. City of Fremont litigation, regarding a local anti-immigrant ordinance somewhat similar to that struck down by the Third Circuit in Lozano v. City of Hazleton.  However, in November 2010 the Supreme Court of Nebraska declined the certified question in Keller, just as the Court of Appeals of New York had done years earlier in Yesil andMojica. The Court of Appeals for the Eighth Circuit ultimately upheld that Fremont ordinance as a matter of federal law, and the U.S. Supreme Court recently denied certiorari in the case, allowing the Eighth Circuit’s decision to stand.

Going back further into U.S. legal history, there is also the Supreme Court’s 1978 decision in Elkins v. Moreno, 435 U.S. 647, which certified to the Maryland Court of Appeals the question whether Maryland state law prevented G-4 nonimmigrants from acquiring domicile in that state.  But overall, certification of questions of state law has been fairly rare in the immigration context, not only in the Second Circuit but elsewhere, at least until this year.

It is possible that the reappearance of certification in two unrelated Second Circuit immigration cases this year is merely a coincidence, but the possible trend merits further observation. Certification can be, in many areas of the law, a valuable tool for determining the proper answer to a question of state law rather than leaving that question to speculation by a federal court.  If the increased use of certification in immigration cases is indeed a trend in the Second Circuit, it is a potentially promising one for some immigrants whose cases may turn on questions of state law, and for their attorneys.
David Isaacson

HIZAM v. KERRY: IF THIS IS THE RIGHT RESULT UNDER CURRENT LAW, THEN THE LAW NEEDS TO BE CHANGED

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Imagine for a moment that, since you were nine, your parents had told you that you were a U.S. citizen.  And not just told you: your father filed papers with the U.S. government, and obtained official proof of your citizenship.  You grew up in the United States from age nine onward as a U.S. citizen, attended school and college here, and got a job here.  Imagine further that more than twenty years later, the government suddenly told you that your parents had been wrong: you were not a U.S. citizen after all, and thus you had no right to be here.

Surely, you would think after recovering from your initial shock, this must be because your father did something improper back when you were a child.  Perhaps he had been lying to the government, and to you, all along?  Perhaps the papers he filed with the government to obtain proof of your citizenship were fraudulent?  Surely he must have done something wrong, for the government to take away your citizenship after all these years.  Surely they would not simply take away the citizenship you had always thought you had, unless there were some fault on your family’s side.

But if that was what you thought, it is you who would be wrong.  This is the story of Abdo Hizam, who the State Department decided in 2011 was not actually a U.S. citizen, even though they had repeatedly documented him as a citizen since 1990.  According to the State Department, it was the government, not Hizam or his father, who made the mistake; and yet it is Hizam, not the government, who must pay the price.  On March 12, 2014, the Court of Appeals for the Second Circuit, in the case of Hizam v. Kerry, ruled that the State Department was right, and that Hizam has no legal remedy.

Abdo Hizam was born in 1980.  As recounted in a 2012 New York Times article, his father, a naturalized U.S. citizen, worked at that time at a Chrysler plant in Michigan, while his mother was living in Yemen.  In 1990, as explained in the Second Circuit’s opinion, Hizam’s father submitted an application for a consular report of birth abroad (“CRBA”) for his son, which even the government agrees was entirely truthful, and which was granted, documenting Hizam as a U.S. citizen.  A CRBA has “the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction” according to 22 U.S.C. §2705.

Also in 1990, Hizam’s maternal grandparents, who like his father lived in Michigan, visited Yemen and brought Hizam back to the United States. After moving to the United States with his grandparents, Hizam grew up here and built his life here.  As the Second Circuit explained:

After receiving a CRBA and passport, Hizam traveled to the United States to live with his grandparents. Hizam attended elementary, middle and high school in Dearborn, Michigan. He became fluent in English and did well in school, where he was a member of his high school’s swim team. Hizam began working while in high school, and worked two jobs to support himself while attending college in the United States. He graduated from Davenport University in 2003 with a degree in business administration. He eventually moved to the Bronx, New York, to live with his brothers. During his residence in the United States from 1990 through 2002, his passport was renewed twice without incident.
In 2002, Hizam traveled to Yemen, where he married, and subsequently had two children. Between 2002 and 2009, Hizam traveled back and forth regularly between the United States and Yemen, where his wife and children reside. At the time he commenced this litigation, Hizam worked at the family business, Moe’s Deli, in New York. He is the primary caretaker for one of his brothers, a minor, and is pursuing a master’s in business administration at Mercy College.

Hizam v. Kerry slip op. at 7.

When Hizam in 2009 sought to obtain CRBAs and U.S. passports for his own children, the State Department began a review of his citizenship status that ended in the cancellation of his passport and CRBA on the ground that he was not a U.S. citizen.  As the Second Circuit explained:

In 2009, Hizam applied for CRBAs and U.S. passports for his two children at the U.S. Embassy in Sana’a, Yemen. U.S. officials at the embassy told Hizam there was an issue with his passport, and retained his passport for about three weeks. After his passport was returned, Hizam returned to the United States. In April 2011, while Hizam was in the United States, the State Department notified him via letter that his CRBA and passport were wrongly issued “due to Department error.” The letter stated that while “[t]his error was evident from your CRBA application[,] there is no indication that your father fraudulently obtained citizenship documentation for you,” and “there is no evidence of fraud on your part.” It concluded that “[u]nfortunately . . . the Department of State lacks authority to create a remedy that would in some way confer U.S. citizenship on anyone absent a statutory basis for doing so.” Subsequent letters from the Department of State informed Hizam that his CRBA had been cancelled, and his passport revoked, and requested that he return those documents, which he did in May 2011.

Hizam v. Kerry slip op. at 8.

The problem, it appears, was that Hizam’s father’s CRBA application for him had been adjudicated based on the wrong version of the relevant statute.  Generally, the law governing the acquisition of citizenship by a child is that in effect at the time of the child’s birth.  The law had changed between the time of Hizam’s birth and the time that his father applied for his CRBA (in 1986 to be precise), however, and the consular officer seems to have applied the new version of the statute, in effect at the time of the application, rather than the old version, in effect at the time of Hizam’s birth.  To quote again from the Second Circuit’s opinion:

Hizam’s father truthfully stated in the [CRBA] application that he had arrived in the United States in 1973, and was physically present in the United States for approximately seven years at the time of Hizam’s birth in October 1980. . . . .

At the time of Hizam’s birth, the child of a United States citizen born outside of the United States was eligible for citizenship if the parent was present in the United States for at least 10 years at the time of the child’s birth. 8 U.S.C. § 1401(g) (Supp. III 1980). However, the law had changed by the time Hizam’s father sought a CRBA on Hizam’s behalf. The amended law required the parent to be present in the United States for just five years. 8 U.S.C. § 1401(g). It appears that the consular officer erroneously applied the five ‐ year rule in granting Hizam a CRBA.

Hizam v. Kerry slip op. at 6-7.

Hizam sued for the return of his CRBA, and won in the district court, but was rebuffed at the Second Circuit.  The Court of Appeals concluded that the statute authorizing the State Department to revoke CRBAs was not impermissibly retroactive, and, perhaps more startlingly, that the State Department’s long delay in correcting its error, even though undeniably prejudicial to Hizam, did not entitle him to any remedy despite the compelling equities of his case.  As the Court explained:

In the alternative, Hizam argues that the State Department should be precluded from revoking his CRBA under a laches theory, because the State Department unreasonably delayed revoking the CRBA, and Hizam was prejudiced by the undue delay. Laches is an equitable defense that requires proof of lack of diligence by the party against whom the defense is asserted, and prejudice to the party asserting the defense. See Costello v. United States , 365 U.S. 265, 281 ‐ 82 (1961). The State Department certainly lacked diligence in correcting its error, as the correction did not occur for 21 years, during which time Hizam used his CRBA to renew his passport twice. And Hizam was certainly prejudiced by the State Department’s delay in correcting its error, because, as he delineates in his brief, there were several other avenues to citizenship that he could have pursued but are now foreclosed to him.

The equities in this case overwhelmingly favor Hizam. Indeed, even the State Department recognizes “the considerable equities of his case.” Despite sympathy for Hizam’s position, however, we conclude that courts lack the authority to exercise our equitable powers to achieve a just result here. Well ‐ settled case law bars a court from exercising its equity powers to naturalize citizens. See Pangilinan , 486 U.S. at 885; Fedorenko v. United States , 449 U.S. 490, 517 (1981); Wong Kim Ark , 169 U.S. at 702. The courts lack authority to provide Hizam with the relief he seeks.

Hizam v. Kerry slip op. at 20-21. The Court quoted the State Department’s representation that it “has brought the matter to the attention of [USCIS], and will continue to support other lawful means to provide relief to Hizam, including a private bill in Congress should one be introduced.”  Id. at 22.  If no private bill is introduced, there is no obvious route back to citizenship or even lawful permanent residence for Hizam, absent further factual developments not evident from the Second Circuit decision.

It is worth pausing at this point to discuss some of the “several other avenues to citizenship” that the Court acknowledged Hizam “could have pursued but are now foreclosed to him.”  Hizam v. Kerry slip op. at 21.  Had Hizam and his father been notified of the problem before Hizam turned 18, for example, Hizam’s father could have sought expedited naturalization of his son under INA §322, 8 U.S.C. §1433.  That provision, as it existed in the years before 2000, allowed a U.S. citizen parent to apply for expedited naturalization of a child if, among other things, the parent had been physically present in the United States for the period of five years, two after the age of fourteen, that would be required to transmit citizenship automatically to a child born after 1986.  See See 8 U.S.C. §1433(a)(5) (1999).  (Under current law, INA §322 applies only to children residing outside the United States with their U.S. citizen parents, likely because under INA §320, a child under the age of 18 who is residing inside the United States as a lawful permanent resident in the legal and physical custody of a U.S. citizen parent becomes a U.S. citizen automatically, without the need for a separate application other than to provide evidence of the status they have already come to possess.)  Or, if the problem had been discovered after Hizam turned 18 but before he turned 21, his father could perhaps have sponsored him for lawful permanent residence as the immediate relative of a U.S. citizen.  See INA §201(b)(2)(A)(i) (describing “children . . . of U.S. citizens”) as immediate relatives; INA §101(b)(1) (describing a “child” in part as “an unmarried person under twenty-one years of age”).  Now, however, neither of those options are available.

One small consolation for Mr. Hizam is that he likely qualifies as inspected and admitted to the United States, should he in the future, for example, enter into a bona fide marriage with a U.S. citizen and seek adjustment of status under INA §245(a) as an immediate relative of that U.S. citizen.  Under the rule of Matter of F-, 9 I&N Dec. 54 (Reg. Comm’r 1960, Asst. Comm’r 1960), one who innocently enters the United States under a claim of U.S. citizenship that turns out to be incorrect is inspected and admitted, even though one who enters under a knowing false claim of U.S. citizenship is not.

The BIA recently restated “the long-standing rule that an alien who enters the United States by falsely claiming United States citizenship effectively eludes the procedural regularity of inspection by an immigration officer.”  Matter of Pinzon, 26 I&N Dec. 189, 191 (BIA 2013). But since Matter of Pinzon cited Matter of F– with approval, see Matter of Pinzon, 26 I&N Dec. at 191, the best reading of Matter of Pinzon appears to be that “falsely claiming United States citizenship” within the meaning of that case implies doing so intentionally, knowing the claim to be false.  This would be consistent with the conclusion of the State Department and the DHS General Counsel that inadmissibility under INA §212(a)(6)(C)(ii)(I), which refers to “Any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act . . . or any other Federal or State law,” applies only to “a knowingly false claim”, as explained at Note 11(b.)(1) of Volume 9, section 40.63 of the State Department’s Foreign Affairs Manual.  In normal English usage, we would not describe someone who says something which they fully believed to be true as having “falsely” claimed it—rather, we might say that they had done so “incorrectly”, or “erroneously”.  An innocent but erroneous claim to U.S. citizenship is neither a ground of inadmissibility, nor a basis for invoking the exception to inspection and admission recognized by Matter of Pinzon. Thus, it can still qualify as an inspection and admission under Matter of F-.

Still, to say to someone in Hizam’s position that he has been inspected and admitted, but has no right to remain in the United States unless he may seek adjustment of status as the immediate relative of a U.S. citizen, is extremely harsh.  Being well over the age of 21, and married, he is no longer the immediate relative of his U.S. citizen father.  See INA §201(b)(2)(A)(i); INA §101(b)(1).  And because Hizam’s father believed him to be a U.S. citizen, he had no reason to file a petition for his son before his son turned 21 and got married.  See INA §201(f)(1) (providing that age for purposes of qualifying as an immediate relative is determined on the date of filing of the petition).  As noted above, had the State Department corrected its error any time within more than 10 years after the error was made, Hizam could easily have become a Lawful Permanent Resident; now he cannot.  And had the State Department corrected its error less than 8 or so years after it was made, Hizam could easily have become a U.S. citizen under INA §322; now he cannot do that either.  Hizam’s father could theoretically file a petition for him under the Family Third Preference for married sons and daughters of U.S. citizens, as established by INA §203(a)(3), but the latest Department of State Visa Bulletin indicates a wait time of well over ten years before an immigrant visa number is available based on such a petition.  (To be precise, the Visa Bulletin indicates that those who had petitions filed on their behalf before July 15, 2003, should be able to seek immigrant visas based on those petitions in April of 2014.)

If the decision in Hizam v. Kerry is not overturned (either by the Second Circuit sitting in banc or by the Supreme Court), Congress should give serious consideration to addressing this problem by legislation.  With respect to Hizam himself, the problem can perhaps as the State Department suggested be solved by a private bill, granting him citizenship or at least lawful permanent residence.  But the problem is a broader one. Those who, through no fault of their own or of their parents, are incorrectly told by the U.S. government that they are U.S. citizens, and who in reliance on that advice live in the United States and/or forego other opportunities which would exist to gain citizenship or lawful permanent residence, should also be eligible for U.S. citizenship, or at least for lawful permanent residence.

If Congress will not allow favorable determinations of U.S. citizenship to stand when they are made due to government error, it could at least amend INA §322  to give those who miss their opportunity to naturalize as children due to such error another chance. Currently, that statute provides in relevant part that a parent who is a citizen of the United States and meets the relevant residence requirements may apply for the naturalization of a child who is “under the age of eighteen years,” INA §322(a)(3), and “is residing outside of the United States in the legal and physical custody of the applicant,” INA §322(a)(4). This author would suggest the addition of a new subsection of §322, providing that a person who is over the age of eighteen years (and who therefore may not be in anyone’s custody) may be naturalized under INA §322, upon appropriate application by that person, if at some time prior to the person reaching the age of eighteen years his or her parent was advised by the U.S. government, without any misrepresentation on the parent’s part, that their child was already a U.S. citizen, and this erroneous advice was not corrected until after the child reached the age of seventeen years. (Some margin for error before the age of eighteen would have to be allowed, since being advised a day before your child’s eighteenth birthday that he or she was not actually a U.S. citizen, as you had previously supposed, would not provide sufficient time to get the child sworn in before age eighteen.)

Alternatively, if Congress is reluctant to allow expedited naturalization of someone in Hizam’s position who is over the age of 18, it should amend the registry statute, INA §249, which currently allows the creation of a record of lawful admission for permanent residence of persons of good moral character who have resided in the United States since prior to January 1, 1972. That statute could be altered to include persons of good moral character who have entered the United States after January 1, 1972, on a U.S. passport which was issued to them without any misrepresentation by them or anyone acting on their behalf, but who are later determined not to be U.S. citizens.

If even this remedy is considered too extreme, then at the very least, INA §201(f)(1) should be amended to state that a child’s age, for purposes of qualifying as an immediate relative, is determined either (A) on the date of filing of a petition by that child’s parent, or (B) on the date the child or the child’s parent is informed by the U.S. government, due not to any misrepresentation by either of them but to government error, that the child is a U.S. citizen (and that there is therefore no point in filing a petition). This would not help Mr. Hizam himself, due to his marriage, but it could help others in similar positions.

What should not happen, in any case, is for the law to remain the way it evidently is today, according to the Second Circuit’s decision.  It is unfair and outrageous to place someone in a position where, through no fault of their own or their parents, they can spend decades in the United States under the impression that they are a U.S. citizen, and then be told that they actually lack not only U.S. citizenship but any straightforward way of even gaining the legal right to reside in this country.

Cora-Ann Pestaina

WHY WAS MY PERM SELECTED FOR AUDIT AND/OR SUPERVISED RECRUITMENT? #thatawfulmoment

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The filing of a labor certification 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. 

Foreign nationals (and their employers) often want to know why their PERM was selected for audit while PERMs filed on behalf of their colleagues were approved without audit. Many PERM practitioners are familiar with that awful moment when the PERM application for the foreign national who desperately needed a quick approval was issued a Notification of Supervised Recruitment signaling another year, or maybe even two!, on the scary PERM roller coaster. The mystery behind the PERM audit and supervised recruitment process has been no coincidence. The Department of Labor (DOL) has purposefully left employers in the dark about their selection process and frequently shifts their mechanisms all to protect against fraud. Solicitor of Labor Gregory F. Jacob once stated, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.”  

Nevertheless, through trial and error, certain triggers have been identifiable. We know that PERM applications can be selected for audit for reasons such as random selection; a foreign language requirement; a family relationship between the employer and the alien; an alien with ownership interest in the employer; layoffs in the same or related occupation; a combination of occupations; and more recently because the alien will telecommute; or the employer utilized an employee referral program. Some audits may also be chosen based upon the industry, the employer or the occupation. In recent times, the DOL has increased Supervised Recruitment for IT employers who will employ the foreign national in a roving or telecommuting position.

The DOL has now shed some much appreciated light on its audit and supervised recruitment selection mechanisms. On January 31, 2014, the DOL’s Office of Foreign Labor Certification (OFLC) published the following statement on its website (http://www.foreignlaborcert.doleta.gov/):

Section 212(a)(5)(A) of the Immigration and Nationality Act requires the Secretary to certify the admissibility of a foreign national for employment only when the Secretary can certify that the employment of that foreign worker will not adversely impact the wages and working conditions of US workers similarly employed, and that there is a job opportunity for which a US worker is unavailable. As the regulated community knows, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is responsible for maintaining the integrity and compliance of the primarily attestation-based PERM Program through the use of certain measures, including audit and supervised recruitment, under a broad integrity review authority. At the time of PERM’s implementation, the Department stated that OFLC would select certain applications for audit, employing “auditing techniques that can be adjusted as necessary to maintain program integrity”, as well as for quality control. 69 Fed. Reg. 77326, 77328 (Dec. 27, 2004). The Department noted at the time the need for changing audit criteria to focus integrity efforts on program abuse and adjust the audit mechanism as necessary as we gained program experience. 69 Fed. Reg. 77359. Finally, the Department reserved the process of supervised recruitment for a broad application “in any case in which the C[ertifying] O[fficer] deems it appropriate” as a reasonable quality control mechanism. 69 Fed. Reg. 77360, 77362. 

In response to a recent Freedom of Information Act (FOIA) request, we are releasing and making available to all of the regulated community the following documentation regarding the areas in the PERM Program that  have in the past warranted this closer examination. Click here to view the OFLC Audit Plan. These areas were deliberately chosen to ensure we are carrying out our statutory responsibilities while also recognizing the evolving nature of program integrity and quality control.

We hope the publication of this information assists filers, especially first-time filers, comply with the PERM Program’s various requirements.

The OFLC Audit Plan presents Audit and Supervised Recruitment Tiers which specify the types of cases that will be targeted for Audit Review and tagged for Supervised Recruitment. As the DOL has indicated, this plan is being released in response to a FOIA request. Past practice informs us that the DOL would certainly have preferred to continue keeping us in the dark. The plan is dated March 19, 2013 and there is no way to know whether these audit and Supervised Recruitment tiers remain active or whether new tiers have since been added. However, this information does reveal the DOL’s thinking with respect to audits and Supervised Recruitment and helps shed some light on the reasons why certain PERM applications are selected. According to the plan, there are eight (8) active tiers and (4) suspended tiers.  

The active audit tiers are as follows:

TIER ONE: PERMs will be audited if the primary requirement in Section H, Field 4 of the ETA Form 9089 is less than a Bachelor’s degree, e.g. “none”, “Associates” or “High School” AND the position is not classified under SOC Code 45-2093.00 – Farmworkers, Farm, Ranch, and Aquacultural Animals in Section F on the ETA Form 9089. 

TIER TWO: PERMs will be audited where the SOC Code in Section F, Field 2 on the ETA Form 9089 matches one or more of the trade related occupations contained in an attachment. 

The attachment was not published. However, this list would presumably include positions like Plumber, Electrician, Helpers-Carpenters or Helpers-Painters.  It is conceivable that these cases would be audited so that the employer can present its proof that an available US worker could not be found since it is typically easier to find U.S. workers in the trade occupations.

TIER FOUR:  PERMs will be audited where the employer is a public school listed on an attachment entitled PUBLIC SCHOOLS TO AUDIT. 

The attachment was not published.

TIER FIVE:  The DOL will audit 50% of PERMs where the offered position requires a degree but does not require any experience. This will be determined by the information presented in Section H, Field 4 and Section H, Field 6 of the ETA Form 9089. 

The logic behind this tier is confusing. It is possible for the employer to indicate a degree requirement in Section H.4; indicate “No” in Section H.6 and yet require experience for the offered position. Section H.6 asks “Is experience in the job offered required for the job?” Section H.10 asks “Is experience in an alternate occupation acceptable?” It is therefore possible for an employer to require no experience in the offered position but instead to require experience in an alternate occupation.  Employers commonly offer positions where experience in the job offered is not required but experience in a related position is required. For example, ABC, Inc. may require two years of experience as a Marketing Analyst for the offered position of Marketing Manager. Accordingly, the ABC, Inc. will indicate “NO” to the question in Section H.6 regarding whether experience in the job offered is required and then answer “YES” to the question in Section H.10 indicating that experience in an alternate occupation is acceptable. Also, in Section H.10-A, ABC, Inc. will indicate the number of months of experience required in the alternate occupation. This means that the experience listed in Section H.10-A is the primary experience requirement rather than an alternate requirement. In FAQs Round 10, the DOL, in the context of a question concerning the need to include the Kellogg language (language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc)) on the ETA Form 9089, confirmed that it is perfectly acceptable for an employer to require experience in an alternate occupation and not in the job offered.  But based on the information provided on the OFLC Audit Plan, there is a 50% chance that ABC, Inc.’s PERM application will trigger an audit for supposedly requiring a degree and no experience. 

Considering the additional processing time brought on by an audit (currently, in its audit queue, the DOL is only processing PERMs filed in October 2012!), the DOL ought to amend its review under this tier so as not to cause unfair processing delays for employers who actually do require a degree and experience for their offered positions. 

TIER TWELVE:  The DOL will audit 50% of cases where the employer has indicated on the ETA Form 9089 that they have had a layoff.  Specifically, if the employer has answered “YES” in Section I, Field 26 which asks “Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?”

The ETA Form 9089 goes on to ask, “If yes, were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?”

Layoffs have long been considered an audit trigger. With the economy continuing to flounder and many employers still reducing their workforce in order to remain competitive, the DOL will continue to more closely examine the employer’s good faith recruitment of U.S. workers. The PERM regulations at 20 C.F.R. § 656.17(k)(1) state: If there has been a layoff by the employer in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

The issue of layoffs is one that PERM practitioners ought to discuss with employers at the outset of the PERM process. If it has been determined that layoffs have indeed occurred (even just one) then the practitioner must go through the PERM regulatory analysis with the employer. 

The active Audit and Supervised Recruitment tiers are as follows:

TIER SEVEN:  A PERM may be tagged for audit and supervised recruitment if it was submitted after a denial within the same calendar year. Specifically, if the employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Denied _Cases table” AND  the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Denied _ Cases table.” 

This trigger is interesting because if a PERM is erroneously denied, the employer will usually have to decide whether to re-file the application or file a Request for Reconsideration with the Certifying Officer based on which process appears faster. Clearly, refiling may not always prove to be a faster route.  

TIER EIGHT: A PERM may be tagged for audit and supervised recruitment if it was re-submitted after it was withdrawn after audit. Specifically, if the Employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Withdrawn_Cases table” AND the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Withdrawn_ Cases table” AND the “Audit Notification Date” in the “Withdrawn_ Cases table” is not null.

Employers may not be saving themselves any time by withdrawing and re-submitting an audited PERM but in fact, may be delaying the processing of the application by a year or more if it gets selected for Supervised Recruitment.

TIER ELEVEN: A PERM may be tagged for audit and supervised recruitment if it was not filed electronically and had to be manually entered by staff at the Atlanta National Processing Center. 

No employer should knowingly venture down this road.
The OFLC Audit Plan also lists some inactive tiers which are currently suspended and therefore are not triggers for audits or supervised recruitment. These include:

TIER THREE: H-1B Dependent Employers.  

Hopefully this remains where it belongs as a non-trigger.

TIER SIX: Requiring a degree and indicating that the alien’s Class of Admission as H-2A, H-2B or EWI (Entered Without Inspection).

TIER NINE: Employers who recently issued layoffs. 

The DOL has apparently moved away from auditing every PERM indicating a layoff to now auditing only 50% of PERMs which indicate a layoff. 

TIER TEN: Employer with a history of roving. 

Practitioners who routinely file PERMs involving roving employees have definitely noticed that the DOL has calmed down its onslaught of audits and Supervised Recruitment Notifications on these types of PERMs. And it didn’t come a moment too soon.

This OFLC Audit Plan can be extremely helpful. Rather than waiting until the employer or foreign national demands an explanation as to why a PERM was selected for audit or Supervised Recruitment, the above list of active and inactive tiers allows practitioners to better advise employers thereby making the PERM process a tad less fraught with danger. Just a tad though.