Tag Archive for: Chevron deference

Cyrus Mehta

What Kisor v. Wilkie Means For Auer Deference and USCIS’s Interpretation of its Regulations Relating to H-1B Visa Petitions

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By Cyrus D. Mehta and Sonal Sharma*

In Wilkie v. Kisor, the Supreme Court issued a significant decision regarding whether courts should still be paying deference to the government’s interpretation of its own regulations. Here’s some background on how we got to this deference standard.

Over 35 years ago, the Supreme Court established a two-step analysis in Chevron USA Inc. v. Natural Resources Defense Council for evaluating whether an agency’s interpretation of a statute it is entrusted to administer is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further.  Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute.  A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.

In Auer v. Robins, the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations.

It was thought that Kisor would strike the death knell for the Auer deference, but instead, the plurality provided more guidance on how to apply Auer and under what circumstances may a court not pay deference to the agency’s interpretation of its regulations notwithstanding Auer.  The Kisor court opinion holds that the Auer doctrine “is potent in its place, but cabined in its scope”. Specifically, Justice Kagan noted that “this Court has cabined Auer’s scope in varied and critical ways-in exactly that measure, has maintained a strong judicial role in interpreting rule.” During oral arguments, Justice Gorsuch identified concerns of particular regulated classes such as “immigration lawyers” because it allows agencies to adopt binding interpretations without prior notice to the regulated entities. Justice Gorsuch touched the point at the heart of the opposition of Auer deference by noting that it comes in the way of courts performing their duty entrusted upon them under the Administrative Procedure Act (APA) “to ‘decide all relevant questions of law’ and ‘set aside agency action’”. Despite the doubts, the Court decided that Auer deference is not “unworkable” and hence not required to be abolished entirely. However, it is required to be confined in its application.

The question before the Supreme Court was how much weight courts should give to an agency’s interpretation of its regulations. Auer deference rests on the presumption that even though not explicitly assigned, Congress intended that government agencies interpret  regulations that have been crafted to implement the statute.

What happens when such a regulation itself is ambiguous? Who gets to decide what it means. For long, it has been established under Auer that administrative agencies are better suited to interpret such ambiguous gaps in their own regulations based on their “substantive expertise in the subject matter”.

In Kisor, Justice Kagan noted that the Supreme Court in Seminole Rock (which later became Auer deference) declared that “ [w]hen the meaning of [a regulation] is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”. Justice Gorsuch concurring in the opinion noted that  under the APA, the courts are directed to “determine the meaning of the any relevant agency action including any rule issued by the agency”. He further noted that under Auer deference, a court “adopts something other than the best reading of a regulation”. Critics of  Auer deference have said that it takes away the fundamental authority of the court to decide what the actual interpretation of the law is. Under Kisor, the Supreme Court announced that Auer deference is now a “general rule” which will need analysis and scrutiny before it applies in a case.

The Supreme Court essentially “cabined the scope” of Auer deference, and set forth a  three-step approach under Kisor. The court must determine that (i) the regulation is “genuinely ambiguous”- the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is in fact genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, does it meet the “minimum threshold” to grant the Auer deference requiring the court to conduct an “an independent inquiry” into if (a) it is an authoritative or official position of the agency; (b) it reflects its substantive expertise; (c) if the agency’s interpretation of the rule reflects “its fair and considered judgment”.

What kind of impact will Kisor have on challenges to recent USCIS denials?

There has been a surge in denials of H-1B petitions mostly on the basis that either the position doesn’t qualify as a specialty occupation or there is no employer-employee relationship because the beneficiary is placed at the third-party client location. AILA had filed an amicus curie brief in Kisor highlighting how Auer deference allows the agency to “circumvent the critical requirements of APA” especially by just changing the standards of review or interpretation of the regulations without public notice and comments. It also brought to the attention of the Court that Auer deference has been followed by courts, challenging the agency’s arbitrary decisions, so liberally that the courts deferred to the agency interpretation “based on nothing more than a brief filed in court, a letter posted on a website, or an internal memorandum sent to agency staff.”  USCIS has been adopting a new interpretation of the regulations by just issuing internal memos and under the earlier deference standard, the courts have been allowing and accepting such interpretations.

Under the new Auer deference standard set forth in Kisor, a federal court will need to assess if that is the authoritative/official position of the agency. Because of these recent developments, it will be interesting to see how the agency will respond to the question regarding what has been their official position in approving these H-1B petitions for decades and how it has now changed without any change in the statute or regulations. All the recent policy memos shifting the USCIS’s position are not aligned with its prior statements, memos, and opinions. One example of such a shift is the memo issued in February 2018 relating to third-party worksites placements. The policy has been analyzed in detail in an earlier blog post here. With the issuance of this memo, USCIS rescinded three earlier memos, which provided guidance relating to supporting documents for H-1B petitions and also the itinerary requirements for the petitions involving more than one location. The USCIS issued this memo to be read as a supplementary guidance to the Employer-Employee Memo of 2010.

As to itineraries in case of placement at a location more than one, 8 CFR 214.2(h)(2)(i)(B) reads as follows:

Service or training in more than one location. A petition which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with the Service office which has jurisdiction over I-129H petitions in the area where the petitioner is located. The address which the petitioner specifies as its location on the I-129H petition shall be where the petitioner is located for purposes of this paragraph.

While interpreting the above mentioned regulation, the Itinerary memo of 1995 was issued which clearly stated that “since the regulation does not require that the employer provide the Service with the exact dates and places of employment” and that the “[t]he itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States”.

The Service followed this interpretation of the regulations for more than two decades. Precipitously, in February 2018, the USCIS issued the above mentioned new policy memorandum superseding the 1995 memo. Interestingly, the new February 2018 memo also interprets the same regulations quoted above and notes that “[t]here is no exemption from this regulatory requirement. An itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services”. (Emphasis added)

There is clearly a stark difference in the approach of the two memos interpreting the same regulations. The 2018 memo has already been challenged in court. See IT Serve Alliance v USCIS. It will be noteworthy if the Service would rely on Auer deference on this issue. Apparently, in their supplemental response brief in this litigation, the USCIS raised an argument of argumentum ad antiquitatem which means “this is right because we’ve always done it this way”. Does it mean that the USCIS essentially invoked the Auer deference (even if not in clear terms) arguing that this is agency practice to interpret its own regulations even if it is in contrast to its previous interpretation? Under the new standard, the court will have to make an independent inquiry as to reasonableness of the interpretation especially in this case when under the garb of it being an interpretive rule, the agency has tried to promulgate a legislative rule, which amends and adopts a new position inconsistent with the existing regulations. Under the new Kisor standard, the court will be equipped to delve into these inquiries and make a determinative finding if the deference is warranted.

With the surge in H-1B denials, there is also a rise in federal litigation challenging USCIS’s arbitrary interpretation of the regulations. One such case is Flexera Global Inc. v. USCIS, in which the plaintiff has sued USCIS after receiving multiple short-term approvals. USCIS has been rigidly enforcing an itinerary requirement relying on the February 2018 memo to issue approvals ranging from only a few months or weeks to even a few days (as short as one (1) day), despite requesting a full three-year validity period as allowed under the regulations. USCIS filed a motion to dismiss in this case asking the court to rule if under the regulations USCIS has the authority to issue short-term H-1B approvals and whether it needs to explain itself when doing so. USCIS has relied on 8 C.F.R. § 214.2(h)(9)(iii)(A)(1), which authorizes the agency to approve a petition for “up to three years”. The regulation reads as follows:

H-1B petition in a specialty occupation. An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in a specialty occupation shall be valid for a period of up to three years but may not exceed the validity period of the labor condition application.

USCIS has argued that when reasonably interpreting “up to three years” in the regulations, it has the authority to issue approval less than three years based on the evidence submitted by the petitioner as to period of the specific work assignments.

The plaintiff in response to a motion to dismiss has argued that the plain language of the regulations requires the agency to approve the petition for full three years. It can only be less than three years when granting three years will exceed the validity of the labor condition application. In 1998, USCIS proposed a rule, Petitioning Requirements for H Nonimmigrant Classification, 63 Fed. Reg. 30419, in an attempt to codify the prohibition on speculative/non-productive status through notice and comments rulemaking. It abandoned the proposed rule when Congress essentially denied its regulatory approach by passing the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”), Title IV, Pub. L. 105-277 (October 21, 1998) codified at INA 212(n)(2)(C)(vii)(III).

Plaintiff has also argued that the requirement of demonstrating a specific work assignment for the requested validity is contradictory to INA 212(n)(2)(C)(vii)(III), which fixed the benching problem by expressly requiring employers to pay the prevailing wage to workers whether or not they are in productive status. Congress unequivocally entrusted DOL with the authority enforce the non-productive status provision through enforcement actions against employers.

The response to motion to dismiss also highlights a practical problem these short approvals are creating for the families of the H1-B beneficiaries which definitely was not the intention of the Congress. So, requesting specific work assignment evidence for a specific duration defies the Congressional mandate acknowledging the non-productive periods and DOL’s authority to regulate it.

Hence, USCIS practically has requested the court to defer to its interpretation of the above referenced regulation. However, under Kisor now, the court will delve into three-prong test explained earlier in the post.

There are numerous examples where USCIS has either have issued policy memos contradictory to its earlier position or have attributed a new interpretation to the regulations, which is inconsistent with its long-standing practice. Another example is “employer-employee relationship” issue.

The 2010 Employer-Employee memo referred to 8 CFR 214.2(h)(4)(ii) noting that the regulations do not provide enough guidance on definition of employer-employee relationship. It is worth noting here that the regulations does provide a regulatory definition of an “Employer” at 8 C.F.R. 214.2(h)(4)(ii). The memo also specifically states that USCIS interprets it to be “conventional master-servant relationship as understood by common-law agency doctrine”. Despite the clear definition in the regulations and the agency’s official position that the common law standard applies, the agency has been interpreting the regulations much more restrictively and has been issuing the denials based on the lack of evidence of employer employee relationship even when it meets the standard mentioned in the regulations and common law. If USCIS will raise the Auer deference for the restrictive interpretation of the regulatory definition of “employer”, the court will have to go into a deep analysis of the regulations first to see if the definition of “employer” is ambiguous. Given the fact that the regulations recognize the possibility of employment at more than one location, argument that it is ambiguous as to the third party placement would not fly.

Under the new framework applicable for Auer deference, “Agency consistency” will play an important role. It will be hard for USCIS to explain how it has been changing its long-standing position and interpretation of the regulation without any statutory basis.

The regulated entities such as employers of H-1B workers have been deeply impacted by the earlier approach as it takes away the transparency from the process and deprives them of regulatory stability to plan for their business activities. For example, an H-1B holder has been working with a company for the last 10 years as software developer, which USCIS has long considered a specialty occupation. Suddenly, without any change in the statue or regulations and in blatant contrast to its earlier interpretation of the regulations under which it has approved multiple petitions for this candidate establishing that position of software developer qualifies as a specialty occupation, denies the petition declaring it not a specialty occupation. If that decision is challenged before the court and USCIS raises the Auer deference, the court now will first look at the definition of the “Specialty Occupation” and the criteria laid down in the regulations. At first step itself, the USCIS will have a challenge explaining the denial because the USCIS Adjudicator’s Field Manual (“AFM”) 31.3 (g) provides:

[A]lthough the definition of specialty occupation is included in the statute itself and the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation…

Keeping this in mind coupled with the earlier decisions approving the same position as the specialty occupation, the court will now assess that if the statue and the regulations are not “genuinely ambiguous” then it should be interpreted “as is”. Even if USCIS can pass muster at the first step and second step of reasonableness, it will be troublesome for USCIS to justify the third step of the analysis, where the a court will take into consideration if it is an authoritative or official position of the agency; (b) it reflects it substantive expertise; (c) if the agency’s interpretation of the rule reflects “its fair and considered judgment”. As discussed in a prior blog, 8 C.F.R. § 214.2(h)(4)(iii)(A) combined with INA 214(i)(1) clearly provides a broader definition of specialty occupation. The definition and requirements for qualification as specialty occupation has been analyzed by the courts in multiple cases such as Tapis International v INS, 94 F. Supp. 2d 172 and Residential Finance Corp. v. USCIS, 839 F. Supp.2d. 985(S.D. Ohio 2012). Despite the fact that the four criteria’s are in alternative, USCIS has been interpreting and applying the regulations in an erroneous way. The regulations nowhere mention that a bachelor’s degree in a specific specialty is a “must”. Rather, the regulations specifically mention that it is “normally” required or is a “common” requirement. If the USCIS were to raise Auer deference as to their interpretation of regulatory language “normally” or “common” to mean, “must”, the court will not defer to the agency’s interpretation of their own language. In most likelihood, under the first step of the Kisor analysis, the court will be able to establish the regulations are not ambiguous. It is as clear as it can be. Under the second step, it will be stimulating to see how the Service will justify the reasonableness of inventing a new meaning of simple words that gives away the legislative intent with the plain dictionary meaning.

A great example of a federal court applying Kisor in an immigration case is the recent Fourth Circuit decision Romero v Barr. The court in Romero overturned Matter of Castro-Tum where the Attorney General had issued an opinion that the IJ’s and BIA do not have the authority under the regulations to close the cases administratively. The court  first held the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted. Even if these regulations are ambiguous, the court citing Kisor noted that Auer deference cannot be granted when the new interpretation results in “unfair surprise” to regulated parties especially when agency’s current “construction “conflict[ing] with a prior” one.” The Romero court further identified that “an agency may—instead of issuing a new interpretation that conflicts with an older one—set forth an interpretation for the first time that is contrary to an established practice to which the agency has never objected.” Romero v Barr is a great example of how and to what extent Kisor has narrowed the Auer deference restoring the authority of the court to analyze in detail if deference is warranted to agency interpretation. Specifically towards the “Agency Consistency” the court noted, “numerous petitioners have relied on this long-established procedural mechanism to proceed through the immigration process. To suddenly change this interpretation of the regulation undermines the significant reliance interests such petitioners have developed”.

Another case where the court has cited Kisor standard is Sagarwala v L Francis Cissna,. The court seemed to have dived straight into the second step of reasonableness deciding that such interpretation is “typically entitled to judicial deference” citing Auer v Robins. It appears that the court deferred to agency interpretation because it was not “plainly erroneous or inconsistent” with the regulations. Eventually, the court cited Kisor and agreed that the agency decision is “fair and considered judgment” under Kisor standard. The court noted “both the statutory and regulatory definitions of “specialty occupation” state that the position at issue must require the “attainment of a bachelor’s or higher degree in [a] specific specialty.” It is important to note that the complete text in INA is attainment of a bachelor’s or higher degree in a specific specialty or its equivalent. We have previously analyzed here that how USCIS does not consider the interpretation of “or its equivalent” as interpreted by the courts. At core of this case was whether the education requirements of the position were too broad. Perhaps, the plaintiff could not justify the requirements, which led the court to decide that USCIS reading is a reasonable one. Even if the result would have been same, it appears that the court did not conduct a comprehensive inquiry into the issue as required by the Kisor standard.

Further, the court in Sagarwala just assumed that the agency has the “substantive expertise”. It would have been true under Auer deference; however, we believe that Kisor changes that notion. Now, if the court has to delve into specific inquiry about the ambiguity of the regulations and the reasonableness of the interpretation, we believe that it also will be under court’s purview to assess if the agency truly has the substantive expertise, not generally as the regulating agency but on the specific technical requirements of the position to determine if the position is “complex enough” under one of the specialty occupation criteria especially when the agency always resort to discretion on a case to case basis.

We believe that under the Kisor standard, it will be hard for USCIS to argue that it has the substantive expertise over an opinion of an expert – in most cases a professor who has decades of experience in teaching and consulting in the specific field. In most cases, the USCIS wrongly disregards the opinion of a well-established expert with expertise through decades of years of demonstrated relevant experience, research, and study in contravention of the AAO decision in Matter of Skirball Cultural Center, ID 3752, 25 I&N Dec. 799 (AAO 2012), where it held that uncontroverted testimony of an expert is reliable, relevant and probative as to the specific facts of the issue. In fact, it does so without providing a cogent reason to reach the conclusion that the expert’s review of the duties of the position was “limited”. Often times, USCIS while disregarding the Expert Opinion relies on that the fact because the Expert did not visit the location and has only relied on the materials provided by the employer, the opinion is not credible enough. Under the Federal Rules of Evidence, Rule 702, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:

  1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. The testimony is based on sufficient facts or data;
  3. The testimony is the product of reliable principles and methods; and
  4. The expert has reliably applied the principles and methods to the facts of the case.

It is interesting to note that under these federal rules, an expert may base his/her opinions on facts or data that he has been made aware of (like providing detailed job duties to the expert for H-1B petitions) or upon using reliable principles and methods (like an expert’s extensive knowledge and experience in the field). According to the USCIS that is not a good enough standard for an expert professor to opine on whether the duties and job responsibilities of the position would require having the knowledge that is generally imparted through a bachelor’s degree in a specific field. Under the Kisor standard, the court should be able to analyze whether the expert opinion based on the detailed information provided by the employer is credible and sufficient to rule that the Expert has the substantive expertise on the matter than the agency where the adjudicating officer might not have the technical background to assess whether the duties are complex enough to meet the statutory and regulatory requirements.

Further, how will it justify the “fair and considered judgment” prong in Kisor when the agency blatantly disregard all the evidence presented under all the four regulatory prongs at 8 CFR 214.2(h)(4)(iii)(A) that establish a specialty occupation even though only one of the four criteria need to be met?

Under the ‘Buy American Hire American’ Executive Order, USCIS has been issuing new policies, based upon their current interpretation of regulations. The common denominator in challenging all these policy memos is that the regulations have not changed. Another example of a policy shift despite no change in statue or regulations is the new RFE and NOID memo. 8 CFR 103.2(b)(8) provides discretion to the adjudicating officer to issue RFEs and NOIDs in appropriate circumstances, OR to issue a denial without first issuing an RFE or a NOID in some circumstances. It is significant to note that the regulations (8 CFR 103.3(a)(i)) specifically mention that the discretion is not unfettered and the officer shall explain in writing the specific reasons for the denial. The regulations mention that the applicant or petitioner has to demonstrate the eligibility of the requested immigration benefit and demonstrating eligibility means each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. It also clarifies that the Burden of Proof lies with the applicant/petitioner to prove qualification for the requested benefit.

In June 2013, after the OIG published report requesting clarification as to when an RFE has to be issued, USCIS issued a memo clarifying to issue RFE or NOID unless denial is warranted by the statute. Under the 2013 memo, the emphasis was- an RFE is not to be avoided; it is to be used when the facts and the law warrant- to ask for more information and as to standard of discretion, it clarified that if totality of the evidence submitted does not meet the applicable standard– the officer should issue an RFE unless he or she determines there is no possibility that additional evidence available to the individual might cure the deficiency. The effect of the policy memo was only statutory denials could be issued without RFE. In July 2018, USCIS issued a new policy memo governing these issues, which superseded all earlier memos. The major turnaround on the policy under this memo was to restore the full discretion of the adjudicating officer to deny the cases not only when warranted statutorily but also due to a lack of initial evidence. It will be rousing to see if challenged in court how would USCIS defy that they have been reading and applying the regulations in a certain way and then suddenly decide to interpret it in a more restrictive way.

It is clear that the USCIS has been trying to override the legislative power of creating the law through expansive and erroneous interpretations of its own regulations rather than the delegated authority of implementing the law passed by the Congress. Multiple cases have been filed on grounds that USCIS has abused its discretion and the authority under the Auer deference by issuing inconsistent guidance and raising the evidentiary standards. If the agency will rely on the Auer deference in future H-1B litigation, plaintiffs who challenge denials should definitely invoke Kisor, which hopefully will create an uphill battle for the agency to fight and justify the change in its interpretation of a regulation as not just reasonable but also official, consistent, fair and considered. Our blog has provided potential plaintiffs with an overview on how to invoke Kisor in limiting Auer deference when seeking review in federal court over arbitrary H-1B denials.

 

* Guest author Sonal Sharma is a Senior Attorney at Jethmalani & Nallaseth PLLC in New York. Her practice involves both temporary nonimmigrant visa and permanent employment cases. She represents and advises clients – medium to large multinational corporate entities – from a wide variety of industries on intricate and comprehensive immigration matters.

 

Cyrus Mehta

Save Optional Practical Training for Foreign Students

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DHS promulgated the F-1 STEM optional practical training (OPT) benefit, with the publication of the “24-month STEM OPT Rule” that became effective on May 10, 2016. See 81 FR 13039. This rule has been the subject of contentious litigation.  The Washington Alliance of Technology Workers (WashTech) filed suit against both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule in the U.S. District Court for the District of Columbia. A summary of the progress of the litigation is available on this page on NAFSA’s website.

On July 1, 2019, the federal district court in DC in Washington Alliance of Technology Workers v. DHS issued an important decision holding that the 12-month Optional Practical Training program regulation finalized in 1992 had been reopened by the 24-month STEM OPT Rule, which raises the issue of whether DHS has authority to administer a practical training program after an F-1 student completes the underlying degree. The court found that the 24-month STEM OPT rulemaking also had the legal effect of reopening the legacy INS 12-month post-completion OPT regulation that had been finalized in 1992. This means that the court no longer considers a challenge to DHS’s statutory authority to implement standard post-completion OPT to be outside the statute of limitations, and that the WashTech plaintiffs can challenge DHS’s underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well. There will be briefing and an ultimate court decision on whether DHS has authority to administer both the 12-month OPT and STEM OPT extension programs.

In the same July 1, 2019 decision, the federal district court further held  that organizations seeking to be intervenors had standing to do so, despite opposition by both plaintiffs WashTech and defendant DHS. This means that the Information Technology Industry Council (ITI), National Association of Manufacturers (NAM), and US Chamber of Commerce will be carrying the important load of making the key arguments defending DHS’s authority, which is made most critical because it is not clear that DHS under the Trump administration, presently beholden to Buy American Hire American,  will zealously argue and defend its own authority.

If WashTech prevails, and OPT is eliminated, the result would be catastrophic.  After foreign students graduate from a US school, they can apply for one year of OPT. Those who graduate in STEM fields can pursue an additional 24 months of OPT.  The lawsuit claims that DHS has no authority under the Immigration and Nationality Act to issue employment authorization to foreign students. The ability to pursue practical training following graduation is one of the main attractions for foreign students seeking to study in the US.

Although the DHS formally opposes WashTech, there are forces in the administration that would probably want the plaintiffs to prevail. Hence, the role of the intervenor organizations is crucial to ensure that OPT remains available for foreign students. Otherwise, foreign students would have to immediately leave the US upon graduation. A victory for the plaintiffs here would virtually eliminate the ability for foreign graduates to easily seek employment, which they can now do during the OPT period, and then apply for H-1B visas and other employment-based immigration options.

The provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is admittedly ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after they have completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i).  DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute.

The court in the WashTech litigation ought to uphold the ability of DHS to grant OPT to foreign students under Step 2 of the Chevron analysis. The DHS’s interpretation of INA 101(a)(15)(F)(i) should be given deference. Even if there is a judicial decision interpreting 101(a)(15)(F)(i) differently, the DHS’s interpretation ought to prevail under Brand X. In addition to Chevron deference, there is yet another doctrine that can uphold OPT. In Lorillard v. Pons, 434 U.S. 575, 580 (1978), the Supreme Court held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has existed even prior to 1952, and since the enactment of the INA in 1952, and during the overhaul in 1990, Congress and has not enacted any provision that would eliminate student practical training. There are old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

There are many good arguments that can be made to preserve OPT in the WashTech litigation. In addition to the legal arguments addressed above, imagine the damage that would befall US schools if they were not able to attract foreign students. US schools would suffer both financially and in terms of reputation to academic institutions in other countries. Those who come to the US to study also understand America more deeply, and would be able to promote American values when they return and assume important positions in their own countries. Hence, every effort should be made to uphold OPT that has been an integral part of the US immigration system for over 50 years. One effective way to do this is for employers, business organizations, foreign student associations, think tanks, bar associations and other interested organizations to file amicus briefs in the court case. Outside the courtroom, there is also need to convince the American people about the benefits that foreign students bring to the US, and that the elimination of OPT will encourage foreign students to pursue their newly acquired skills in other countries that will compete against America. The OPT program ought not to be viewed as a source for cheap labor, as some critics contend, as the program is temporary and allows a foreign student educated in the US to gain meaningful experience, and preventing that would harm the US economy. Another study states that the OPT allows employers to hire STEM graduates who are in short supply, and provides a bridge for students with badly needed skills to ultimately secure a chance under the H-1B visa lottery.    In the unlikely event that the courts agree with the plaintiffs, Congress would need to step in to enact provisions in the INA that uphold the OPT programs for foreign students as presently enshrined in the regulations. There is too much at stake for America to allow OPT to die just like that.

Cyrus Mehta

Opportunity Knocks in Disappointing Decision Vacating Stem Optional Practical Training Rule for Foreign Students

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Adversity is the mother of progress

Mahatma Gandhi

I was at first greatly disappointed to find out that a federal district court judge vacated the 2008 STEM Optional Practical Training rule that extended practical training to F-1 students by an additional 17 months. However, if one reads Washington Alliance of Technology Workers (WashTech) v. DHS closely, the decision does not look so bad and provides an opportunity for the Obama administration to further expand STEM practical training, as promised in the November 20, 2015 executive actions for skilled workers.

Foreign students can receive up to 12 months of OPT upon graduation. In 2008, the Department of Homeland Security under President Bush’s administration published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. Plaintiffs WashTech challenged both the 12 month OPT and the STEM OPT. The challenge to the original 12 month OPT rule was dismissed, but on August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the rule that extended OPT by 17 months for a total period of 29 months for STEM graduates. The 2008 rule was published without notice and comment, and the court agreeing with the plaintiffs ruled that the DHS had not shown that it faced a true emergency situation that allowed the agency to issue the rule without notice and comment.

It is disappointing that Judge Huvelle granted plaintiffs standing in the first place on the flimsy ground that they were currently employed as computer programmers, who were a subset of the STEM market. [Contrast this with the DC Circuit Court of Appeals ruling in Arpaio v. Obama  two days later dismissing Sherriff Arpaio’s standing claim on the spurious grounds that the executive actions would serve as a magnet for attracting more undocumented immigrants to Arizona and fewer people would be deported as a result of these executive actions.] Although the plaintiffs in WashTech were not unemployed, Judge Huvelle speculated that “[a]n influx of OPT computer programmers would increase the labor supply, which is likely to depress plaintiffs’ members’ wages and threaten their job security, even if they remained employed.” It is also somewhat amusing that the judge found the F-1 and H-1B interrelated in order to justify that plaintiffs also had standing under the “zone of interests” doctrine. Without considering that the F-1 visa requires a non-immigrant intent while the H-1B allows for dual intent, the judge held that “F-1 and H-1B perform the interlocking task of recruiting students to pursue a course of study in the United States and retaining at least a portion of those individuals to work in the American economy.”

While this is the bad part of WashTech, the good news is that Judge Huvelle left intact the legal basis for the OPT rule on the ground that the DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Pursuant to the oft quoted Chevrondoctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts. Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it.

Judge Huvelle in WashTech agreed that under Step 1 of Chevron, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is  ambiguous and that Congress has not clarified the word “student”. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. Under Step 2 on Chevron, the 2008 rule was held to be a reasonable interpretation of the ambiguous statutory provision.  For over 50 years, Judge Huvelle acknowledged, the government has allowed students to engage in practical training relating to their field of studies, which Congress has never altered. Indeed, in the Immigration Act of 1990, Congress included a three-year pilot program authorizing F-1 student employment for positions that were “unrelated to their field of study.” Congress would only do this, Judge Huvelle reasoned, because Congress recognized that practical training regulations long existed that allowed students to engage in employment in fields related to their studies. The decision goes into fascinating detail describing the history of practical training from at least 1947. Even after Congress overhauled the law in 1952, practical training continued, and still continued even after the Immigration Act of 1990 overhauled the H-1B visa by setting a numerical limit and imposing various labor protections. The decision also cites old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

Judge Huvelle finally and unfortunately, agreeing with the plaintiffs,  held that there was no emergency to justify the promulgation of the 2008 rule without notice and comment. H-1B oversubscription as a reason for the emergency in 2008 was “old hat” as the government conceded that the H-1B program has been consistently oversubscribed since 2004. Fortunately, Judge Huvelle sensibly realized that vacating the rule immediately would force “thousands of foreign students with work authorizations…to scramble to depart the United States.” Hence, the court stayed vacatur till February 12, 2016 during which time the DHS can submit the 2008 rule for proper notice and comment.  In the meantime, foreign students in STEM OPT have some respite, and those who are eligible for STEM OPT should be able to apply for a 17 month extension so long as they do so before February 12, 2016, although we need some affirmative guidance from the USCIS on this.

The DHS now has a golden opportunity to expand practical training through notice and comment even beyond a total of 29 months, and must do so on or before February 12, 2016 in compliance with the WashTech decision. Despite the protestations of Senator Grassley, who like WashTecstridently opposes the notion of foreign student practical training, Judge Huvelle’s decision has blessed the legal authority of the DHS to implement practical training under Chevrondeference. As discussed in my prior blog, Senator Grassley in his angry missive to the DHS had leaked that the DHS was  moving on new regulations to allow foreign students with degrees in STEM fields to receive up to a 24 month extension beyond the original 12 month OPT period even prior to the final Washtech decision.  If a student obtains a new degree, he or she can again seek a 24 month extension after the original 12 month OPT period. The proposed regulations would further authorize foreign graduates of non-STEM  degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

While this will put tremendous pressure on the DHS to propose a rule for notice and comment before February 12, 2016, it would be well worth it before all talented foreign students who would otherwise benefit the United States are forced to leave. As a result of the H-1B cap, it is the STEM OPT that has allowed foreign students to be employed in the United States. The prospect of no STEM OPT combined with the limited number of H-1B visas annually would be devastating not only for the tech sector, but for American universities, foreign students and for the overall competitiveness of the United States.  WashTech may have successfully been able to obtain a vacatur of the 2008 rule effective February 12, 2016, but theirs is only a Pyrrhic victory since the court has essentially endorsed the legality of both the 12 month practical training periods and any extensions beyond that.

Cyrus Mehta

Extension of STEM Optional Practical Training for Foreign Students Under President Obama’s Executive Actions?

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Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s  executive actions of November 20, 2014.  While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT  extension regulation relating to its promise to retain skilled foreign talent. It is also refreshing that the Obama Administration is endeavoring to implement a key executive action, especially after a  noted immigration blogger justifiably began to wonder whether the Obama Administration was fulfilling its promise or not.

According to Senator Grassley’s letter dated June 8, 2015, the DHS is moving forward with new regulations on OPT

– allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and

– authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

Presently, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. The Senator’s letter also seems to suggest that the agency is considering that employers will certify that they have not displaced US workers.  The STEM OPT extension is presently subject to a legal challenge by the  Washington Alliance of Technology Workers (Washtech). See Washington Alliance of Technology Workers v. DHS, Civil Action No. 1:14-cv-529.   Plaintiffs have alleged that the OPT STEM extension period is a deliberate circumvention of the H-1B visa cap in violation of Congressional intent, and have also been granted competitor standing, which recognizes that a party suffers injury when a government agency lifts regulatory restrictions on competitors or allows increased competition.

Notwithstanding Senator Grassley’s protest and the lawsuit, this is good news for foreign students, especially those who were not selected in the H-1B visa lottery for FY2016.  While the current lawsuit could potentially thwart the  efforts of the administration to extend STEM OPT especially in the face of mounting law suits,  we can also take comfort in an earlier failed legal challenge against STEM OPT.

Soon after the DHS extended OPT from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevrondoctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand Xinvolved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevronor Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

So, why is Washtech again challenging the STEM OPT extension after another challenger had previously failed? This is because the DC Circuit is a favorable court to get standing, which it has already been granted. Even if plaintiffs ultimately prevail on their competitor standing theory, which requires them to show that they are direct and current competitors to F-1 students, plaintiffs still have an uphill task. The plaintiffs rely on International Bricklayers Union v. Meese (another reason why they have commenced legal action in the DC Circuit),  which struck down an INS Operating Instruction that allowed foreign laborers to come to the US on B-1 visas to install equipment or machinery after it had been purchased from an overseas seller. The court in International Bricklayers agreed with the plaintiffs that the laborers were not properly in the United States on a B-1 business visa, which under INA 101(a)(15)(B) precluded one from “performing skilled or unskilled labor.” In fact, Congress had enacted the H-2B visa for this sort of labor pursuant to INA 101(a)(15)(H)(ii)(b).

On the other hand, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is more ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i) under Chevron and Brand X even if it expanded STEM OPT beyond the maximum available  period of 29 months. From a policy perspective, the Administration should be given room to expand STEM OPT in order to retain skilled talent in the United States. Global competition for STEM students has increased dramatically, and many countries have reformed their immigration systems to attract such students. American innovation will fall behind global competitors  if we cannot find ways to attract foreign talent especially after they have been educated at American universities.

Senator Grassley’s misgivings about extending STEM OPT  are misplaced, and it is fervently hoped that the Administration will not pay heed to his letter and cynically scrap the program after putting up a show that it had tried it’s best. If extended STEM OPT is implemented, it will provide the impetus for the implementation of other key executive actions such as allowing entrepreneurs to be paroled into the United States and permitting beneficiaries of approved I-140 petitions to work and enjoy job mobilityeven if their priority dates have not become current. Each and every action will surely get challenged, but the Administration should fight on and prevail, like it did when the motion to preliminarily enjoin the granting of work authorization to H-4 dependent spouses failed.

David Isaacson

ZOMBIE PRECEDENTS, THE SEQUEL: HOW RECENT DECISIONS OF THE SECOND CIRCUIT AND THE BIA POINT TO A BETTER WAY OF DEALING WITH PRECEDENT DECISIONS THAT HAVE BEEN VACATED BY A COURT

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In my October 2014 post 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, I discussed why such vacated “zombie precedents” should not be given deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), by Courts of Appeals that address subsequent unpublished BIA decisions purporting to rely on them.  Recent decisions of the Court of Appeals for the Second Circuit and of the Board of Immigration Appeals (“BIA”) provide additional support for that suggestion.

On April 9, 2015, the Court of Appeals for the Second Circuit issued its opinion in Lugo v. Holder.  In that case, Ms. Lugo disputed whether her 2005 conviction for misprision of a felony under 18 U.S.C. §4 constituted a crime involving moral turpitude (“CIMT”).  She had been found barred from cancellation of removal based on the Immigration Judge’s ruling that misprision was indeed a CIMT, as the BIA had held in Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006).  The BIA had affirmed the Immigration Judge’s ruling in an unpublished decision.

As the Second Circuit discussed in Lugo, the BIA had originally held in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966) that misprision of felony was not a CIMT.  In Matter of Robles-Urrea, however, the BIA agreed with the decision of the Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), to the effect that misprision of felony under 18 U.S.C. §4 was in fact a CIMT, and overruled Matter of Sloan in relevant part.  Subsequently, the Court of Appeals for the Ninth Circuit vacated Matter of Robles-Urrea in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), and held that misprision of felony was not categorically a CIMT.  (The complicated history of the case law regarding whether misprision of felony is a CIMT was also discussed in Cyrus D. Mehta’s March 2014 post on this blog, Was the Attorney Really Ineffective in Kovacs v. United States?.)

The Second Circuit therefore held in Lugo that it was “left to wonder whether, going forward, the Board wishes to adopt the Ninth Circuit’s rule or the Eleventh Circuit’s.” Lugo, slip op. at 3-4.  It concluded that “it is desirable for the Board to clarify this matter in a published opinion.”  Lugo, slip op. at 4.  The Second Circuit remanded to the BIA to enable to answer both this question and a related question regarding retroactivity: that is, whether Matter of Robles-Urrea could appropriately be applied to Ms. Lugo even if the BIA otherwise wished to follow it, given that Ms. Lugo had pled guilty prior to the issuance of that published opinion.

One way to look at what the Second Circuit did in the first portion of its remand in Lugo is as an admirable refusal to defer to a zombie precedent.  Having been vacated by the Ninth Circuit in Robles-Urrea v. Holder, the BIA decision in Matter of Robles-Urrea fits the description of a zombie precedent as discussed in my post The Walking Dead.  It had been cancelled, rescinded, by a competent court, and thus, since “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013), it was properly seen as “not precedent.”  Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012).  The non-precedent decision in Lugo’s own case, meanwhile, was not entitled to deference because, as the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference.”  The Second Circuit therefore properly vacated the nonprecedential decision in Lugo’s case and remanded to the BIA for the issuance of a precedential decision.  That is, the Second Circuit did in Lugo essentially what I had suggested in The Walking Dead, and earlier in Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, that it should have done in Luna Torres v. Holder, No. 13-2498 (August 20, 2014).  Hopefully, this may be the start of a trend of Courts of Appeals not deferring to zombie precedents, but instead remanding to the BIA for further precedential analysis of whether the BIA wishes to follow in the footsteps of a prior precedent decision vacated by another Court of Appeals, or instead wishes to accede to the Court of Appeals decision which vacated that prior precedent.

The Second Circuit’s decision in Lugo is not the only recent development that I would submit gives support to my previously expressed views regarding zombie precedents.  As discussed in my prior post, the BIA has been known to reverse course and abandon a precedent following its rejection by one or more Courts of Appeals.  Earlier examples included Matter of Silva, 16 I&N Dec. 26 (BIA 1976), where 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)) rather than insisting on its own contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971), and Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), where the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005) (regarding the exercise of portability under INA §204(j) in immigration court proceedings), after its rejection by several Courts of Appeals, including the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007).  I acknowledged in The Walking Dead that 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, and gave as an example Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012): in that case, 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.  The BIA has now changed its mind on that point.

In Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), decided on May 12, the BIA withdrew E.W. Rodriguez and  Koljenovic in light of the rejection of the theory underlying them by nine Courts of Appeals.  The immigration court proceedings in Matter of J-H-J- had taken place within the jurisdiction of the Court of Appeals for the Eighth Circuit, which had, in Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014), accepted the BIA’s reasoning in E.W. Rodriguez and  Koljenovic as a reasonable interpretation of the statute.  Thus, the BIA was free to reaffirm E.W. Rodriguez and  Koljenovic in the case if it so wished.  However, given “the overwhelming circuit court authority,” Matter of J-H-J-, 26 I&N Dec. at 564, and the importance of “uniformity in the application of the immigration laws”, id. at 565 (citing Matter of Small, 23 I&N Dec. 448, 450 (BIA 2002)), the BIA instead held that “section 212(h) . . . only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction.” Matter of J-H-J-, 26 I&N Dec. at 565.

Strictly speaking, E.W. Rodriguez and  Koljenovic were not zombie precedents as I have defined that term, never having been themselves vacated by a court.  However, the BIA’s overruling of those precedents in Matter of J-H-J- is, like Matter of Silva and Matter of Marcal Neto before it, an example of the BIA’s willingness to reconsider its own precedent in light of contrary appellate case law from outside the circuit having appellate jurisdiction over the case at hand.

Against this background, it makes increasingly little sense for courts to implicitly assume that the BIA would necessarily insist on following in the footsteps of a precedent decision which has already been vacated by a Court of Appeals.  Rather than giving deference to a zombie precedent, the Courts of Appeals should remand to the BIA for reconsideration of whether it wishes to follow in the footsteps of that precedent, as the Second Circuit did in in Lugo.

Cyrus Mehta

THE FATE OF EXECUTIVE ACTION ON IMMIGRATION AFTER THE MIDTERM ELECTIONS

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By Gary Endelmanand Cyrus D. Mehta

For courage–not complacency–is our need today–leadership–not salesmanship. And the only valid test of leadership is the ability to lead, and lead vigorously.
Senator John F. Kennedy’s speech accepting the 1960 Democratic nomination for President
Ever since the Democrats got a drubbing in the midterm elections, questions remain about the fate of immigration reform. President Obama had promised to reform the system through executive action after the election. The question is whether he will still do it despite the Republican Party gaining decisive control over both the Senate as well as the House. Last Friday, November 7, 2014, President Obama defiantly said that he would take executive action on immigration despite howls of protests from Republican leaders. They threatened that Obama’s unilateral action in the face of defeat in the midterm election would derail reform immigration legislation.
The authors believe that executive action ought not “poison the well, a term that has been oft repeated by the GOP against Obama’s proposed executive action, although it dare be said that the well no longer contains any water! If the President has authority under the Immigration and Nationality Act to take executive action in order to improve the decrepit immigration system, we do not see how it would usurp on Congress’s authority or violate the Separation of Powers doctrine. We have shown in Two Aces Up President Obama’s Sleeve To Achieve Immigration reform Without Congress: Not Counting Family Members And Parole In Place that the President can comprehensively reform the immigration system as part of his inherent authority. There is also sufficient ambiguity in many provisions of the Immigration and Nationality Act that beg reinterpretation so that they can bring ameliorative relief to millions. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. 
Thus, there is no need for the Republicans to feel threatened by Obama’s proposed executive actions. If they do desire to pass immigration reform legislation, they can always do so and can even improve on the administrative measures that Obama can possibly implement. After all, executive action will always be limited and is no substitute for legislation. The President would only have the authority to defer the deportation of non-citizens who meet certain deserving criteria; he cannot issue them green cards or create new visa categories without Congressional action.  The President may also have authority to reinterpret ambiguous provisions, such as INA section 203(d) so that family members are all counted as a single unit rather than separately, thereby reducing or even eliminating much of the crushing backlogs in the family and employment-based preferences.  Indeed, Obama’s executive action could be conditioned on Congress passing meaningful immigration reform legislation, upon which such action can be withdrawn. Subsequent immigration legislation from Congress can also incorporate some of the administrative measures, such as not counting family members separately. The notion of not counting family already exists in S. 744, which was passed by the Senate in a bipartisan manner in June 2013, and which the House has never taken up. Indeed, the House can still vote on this measure today and can pass comprehensive immigration reform even before Obama acts.
The question is whether the GOP is ready to pass immigration legislation. The real reason that S. 744 was not taken up in the GOP controlled House, even prior to the midterm elections, was the dislike that many House members in legalizing millions of undocumented people who have deep ties with the United States and who are also part of American families. This dislike is grounded in nativist tendencies that many GOP House members have shown, and who receive support from xenophobic organizations such as NumbersUSA and Federation for American Immigration Reform. Even if President Obama gives the new GOP Congress time to enact immigration legislation, they may never be able to do so because of the nativist element within the party that will always be opposed to any immigration measures save border security and tough immigration enforcement.
Executive action on immigration is hardly novel.  After Castro took power in Cuba, Presidents Eisenhower, Kennedy and Johnson paroled in more than 900,000 Cubans.  Seven years later, Congress signified its approval through enactment of the Cuban Adjustment Act in 1966.  In recent decades, when emergencies erupted and humanitarian crises presented themselves, Presidents of both political parties have not hesitated to act on their own initiative outside the customary channels of legislative activity, often to protect large numbers of vulnerable immigrants from deportation. This has happened over 20 times since the mid-1970’s.  In almost all such instances, the Congress subsequently ratified such executive orders with appropriate legislation. This is, for example, what happened at the close of World War II when President Truman allowed 250,000 European refugees to enter or remain in the United States; three years later, in 1948, Congress enacted the Displaced Persons Act, allowing 400,000 additional admissions. In April 1975, at the end of the Vietnam War, President Ford asserted his parole authority to sanction the evacuation of 200,000 South Vietnamese. Further congressional approval of President Ford’s executive order came in 1980 with enactment of the Refugee Act making possible the resettlement of 1.4 million Indochinese people. That same year, President Carter took in 130,000 Mariel Cubans who eventually obtained “Cuban-Haitian entrant status” under President Reagan.  Six years later, the Immigration Reform and Control Act made these Cuban-Haitian entrants lawful permanent residents of the United States. The next year, Attorney General Meese ordered the legacy INS not to remove some 200,000 Nicaraguans and, a little after that, extended similar protection to 190,000 Salvadorans seeking to escape from the horrors of civil war. Ten years after Attorney General Meese first acted, Congress made possible their adjustment of status. In 1989, following Tiananmen Square, the Bush Administration granted Deferred Enforced Departure to 80,000 Chinese students studying here; three years later, Congress paved the way for their green card status through the Chinese Student Protection Act. The point is always the same and remains instructive today: Executive Action in immigration is always a prelude to congressional legislation, not a substitute for it nor a barrier to its enactment.
President Obama is also in a bind now and of his own doing. He had promised to take executive action well before the midterm elections, but delayed doing so after being persuaded by Democratic Senators who were facing defeat such as Mark Pryor and Kay Hagan, and who in any event lost on November 2, 2014. Obama’s delay in reforming the broken immigration system through executive action thus backfired. The authors believe that had he taken immigration action prior to the election, it may have energized some of his base who could have turned up in the election. Perhaps, Mark Udall of Colorado may not have lost if he had been less ambivalent about immigration,   and if Obama had been able to implement a major historic immigration initiative. The deferred action initiative for immigrant youth prior to the Presidential election in 2012 certainly helped Obama’s victory. Obama had promised immigration reform to the Hispanic community and has to live up to that promise in order to secure his legacy, and to improve the chances of Democratic Presidential candidates in 2016. It would be harder for him to implement administrative immigration reform now that his party has lost control of the Senate, but he still has the authority to do so and he must.
The political imperative for executive action is undeniable. According to an analysis of census data by the Center for American Progress, the Latino population in America increased by 43% in the first decade of the 21st century.  This year, 24.8 million Latinos were eligible to vote; in terms of eligible voters, they accounted for 11.3% of the entire population.  Over the next four years, experts anticipate that more than 4 million Latino voters will be added to the rolls. This is a 17% increase in time for the 2016 election. The potential impact in key battleground states could be decisive. In Florida alone, projections by the Center for American Progress are that 600,000 Hispanics (as compared to 125, 000 new Anglo voters) will be eligible to vote in the next presidential election. In Texas, a state without which it would be virtually impossible for the GOP to win the White House, roughly 900,000 new Hispanic voters are expected to join the electorate by 2016, washing away the projected Anglo voter increase of 185,000.  Remember also that more than 90% of Latinos under age 18 are US citizens and that 800,000 Latinos become voter eligible each year as the Anglo share of the American electorate continues to fall each election cycle
There is a political opportunity here for the Republicans if they can recognize it. The re-election of two Hispanic Republican Governors – Susan Martinez in New Mexico and Brian Sandoval in Nevada – show that the Hispanic vote can no longer be taken for granted.  Texas Attorney General Greg Abbott won 44% of the Hispanic vote in thumping Democratic State Senator Wendy Davis by 30 points. In Georgia, Republican Governor Nathan Deal rode to re-election in no small part on the basis of 47% of the Hispanic vote while Senator-elect David Perdue defeated his Democratic challenger Michelle Nunn, daughter of former Senator Sam Nunn, having earned 42% of the Hispanic vote. In an election eve poll by Latino Decisions,  some 67% of those surveyed revealed that immigration was either the most or one of the most important issues. For those political junkies interested in a state by state breakdown, we offer this also for their reading pleasure. If the Republicans recognize that they can woo the Hispanic electorate in their favor  in light of these recent trends, it would be in their best interest to focus on passing comprehensive immigration legislation even while Obama takes executive action.
In 1924, in a vain effort to tap down the anticipated political influence of surging Jewish and Catholic immigrant populations from Southern and Eastern Europe, the Republican Party created a national origins quota using 1890 as a baseline population year to increase Protestant migration from Northern and Western Europe.  This remained in effect until its abolition in 1965. But, it did not work. The children and grandchildren of those disfavored ethnic and religious groups who had already made it to the New World before the gates closed did not forget this slap in the face and became the cornerstone of a New Deal coalition that swept the Democratic Party to national victory in 5 straight presidential elections. For the Republican Party to block President Obama now would be to repeat that historic mistake and consign itself to minority status on the presidential level for decades to come. It would be a political miscalculation of epic proportions. The stakes are no less high for the Democrats. No longer competitive in the states of the Old Confederacy, if they want to retain the electoral college advantage and popular vote majority they have enjoyed in the last 6 presidential elections, the Democratic Party must seize and hold the high ground in  the key states of Florida, Arizona, Nevada, Colorado, New Mexico as well as retain their dominant position in California. Much as civil rights has spelled their political irrelevance in the Old South, immigration can be their salvation in the battleground swing states where the Hispanic vote is and will remain the path to power. Both political parties have a vested interest in a robust embrace of immigration reform. For America’s sake, let us devoutly wish that they realize it. 

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

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

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

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

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

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

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

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

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

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

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.

Cyrus Mehta

TWO ACES UP PRESIDENT OBAMA’S SLEEVE TO ACHIEVE IMMIGRATION REFORM WITHOUT CONGRESS – NOT COUNTING FAMILY MEMBERS AND PAROLE IN PLACE

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Nothing more poignantly describes the current humanitarian crisis at the Southwest border than a recent New York Times article describing the journey of Alejandro, 8, who came to the United States on his own with only his birth certificate looking for his parents who are somewhere in San Antonio or an aunt in Maryland. The story of an adorable, courageous and resourceful 8 year old braving a dangerous journey in search of his parents will pull at the heartstrings of any parent. 

There may be many reasons for this crisis and what may draw unaccompanied young children to the United States, but one reason for this is our broken immigration system. This system does not allow people accessible pathways to come to the United States legally or gain legal status.  Even those who are here as permanent residents or naturalized citizens have to wait years before their loved ones can join them due to the backlogs in our family and employment-based immigration preferences.  Until recently there was some hope that the House would pass its own version of immigration reform after the Senate passed S. 744 last year. Those hopes have now been dashed. 

The impetus to preserve family unity is pervasive and exists across all cultures, and so is the deep love that parents have for their children and that children have for their parents. Many of the children fleeing violence in Central American countries are trying to unite with parents living in the United States. However, the broken immigration system does not allow families to unite through legal means Instead of beefing up the border with more enforcement; President Obama can bring some balance to the immigration system through bold administrative measures that will promote family unification in a legal and orderly manner. While there are several proposals on the table, one that resonates is to not count derivative family members in the employment and family preferences. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression, resulting in family members waiting endlessly, will quickly become a thing of the past. 

Not Counting Family Members 

Section 203(d) of the Immigration and Nationality Act (INA) is the provision that deals with family members. Let us examine what section 203(d) says: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.” There is nothing in section 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees, it makes no sense if half or more are used up by family members.  

There is no regulation in 8 Code of Federal Regulations (C.F.R.) instructing what section 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. 42.32 only parrots section 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. 42.32 does not provide further amplification on the scope and purpose of section 203(d). We acknowledge that section 203(d) derivatives are wholly within the preference system and bound by its limitations. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits.  

If the Executive Branch wanted to reinterpret section 203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X can be used as a force for good. For instance, in  Sciallaba v. Osorio: Does the Dark Cloud Have A Silver Lining, Cyrus  Mehta and David Isaacson propose that notwithstanding the Supreme Court’s recent decision concerning  section 203(h)(3) of the INA, where the Court agreed with the  Board of Immigration Appeal’s (BIA) more restrictive interpretation of this Child Status Protection Act provision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009),  the BIA has the power to reverse Matter of Wang under Brand X. Matter of Wang held that not all children who are unable to protect their age under the Child Status Protection Act can claim the earlier priority date under which their parent immigration to the United States.  

As the plurality opinion in Sciallaba v. Osorio explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33. 

Thus, when a provision is ambiguous such as section 203(d), the government agency may reasonably interpret the provision in a reasonable manner. In our prior article relating to not counting relatives, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm, we discussed  that  there are admittedly some statutory provisions which might be read as pointing against an interpretation to not count family members. Most notably, it has also been pointed to us that  INA section 202(b) permits a spouse or child to “cross charge” to the foreign state of either of the parents or the spouse to avoid family separation, and this may suggest that derivatives must be individually counted for purposes of the per country cap. Still, this too can be interpreted differently under Chevronand Brand X, namely, that the entire family be counted as single unit to the other spouse or parent’s country. Of course, the statutory provision which militates in favor of such an interpretation is most notably the text of INA §203(d) itself. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center!

Expansion of Parole in Place

The very idea of “parole” in section 212(d)(5) of the INA is linked to  allowing deserving aliens to come to the United States for “urgent humanitarian reasons or significant public benefit.” In most cases, we think this only applies to people who are not yet here. Not so. Digging a bit deeper into the INA, we find in section 235(a)(1) this golden nugget: an applicant for admission is “an alien present in the United states who has not been admitted…” Putting all of this together, there is nothing in law or logic that prevents the full embrace and unfettered application of parole to those already in the United States outside the color of law. The invocation of ‘parole in place” is another example of using new interpretive techniques to mine the existing law for greater benefits. It is the antidote to the inability of Congress to enact comprehensive immigration reform. There should be no concern over a possible infringement of separation of powers for the authority of Congress over the legislative process is being fully respected.  Part of the responsibility of the President to enforce the laws is to adopt an understanding of them that best promotes what Congress had in mind when it passed the law in the first place. Parole in place does precisely that. This is not amnesty. The requirements for obtaining legal status on a permanent basis apply in full. It is merely an attempt to think of the law we have not purely or primarily as an instrument of enforcement but as a platform for remediation of the human condition. Indeed, is this not how law in the American tradition is meant to function?

The creation of new solutions by federal agencies has become the norm rather than the exception in our system of governance if for no other reason that the sheer multiplicity of issues, as well as their dense complexity, defies traditional compromise or achievable consensus which are the hallmarks of Congressional deliberation. They require timely and directed executive action as a formula for keeping present problems from getting worse. This is exactly why Congress authorized the Attorney General to grant employment authorization without terms or limitations pursuant to INA 274A (h) (3)(B), a provision that should be linked with the robust exercise of the Executive’s parole power. The INA leaves the granting of parole completely up to the discretion of the Attorney General, now shifted to the DHS. It is hard to imagine a more open invitation to Executive rule- making to provide when parole can be extended, as there is absolutely nothing in the INA that would contradict a DHS regulation allowing parole in place. Not only is it appropriate for the DHS to formulate immigration policy on highly minute technical issues of surpassing moment such as parole in place, but the Constitution expects that to happen. Indeed, without this, who would do it? Far from crossing the line and infringing the authority of Congress, what we ask the DHS to do augments Congressional prerogative by providing a practical way for them to function.

In addition to not counting derivatives, the Obama Administration can extend parole in place (PIP) that has been granted to military families to all immediate relatives of US citizens, which would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility under sections 212(a)(9)(B)(i)(I) and (II) of the INA. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.

The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the current memogranting PIP to military families states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. For purposes of section  245(c) of the INA, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.

There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.

Our proposal to grant PIP retroactively so that it erases unlawful presence can also assist people who face the permanent bar under section 212(a)(9)(C) of the INA. If PIP can retroactively erase unlawful presence, then those who entered the country without inspection after accruing unlawful presence of more than 1 year will not trigger the bar under this provision if the unlawful presence has been erased.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 year, 10 year and permanent bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the bars.  Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation. 

Achieving Something Close to Comprehensive Immigration Reform Without Congress

Not counting family members and expanding parole in place can be a potent combination for nearing comprehensive immigration reform administratively in the face of Congressional inaction. The waits in the EB and FB preferences will disappear, and family members waiting abroad can unite with their loved ones more quickly and need not be forced to take the perilous path across the Southwest border in desperation. The expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would allow them to obtain lawful permanent residence, rather than being stuck in permanent limbo due to the 3 and 10 year bars. After removing the obstacle of the bars, the grant of lawful permanent residence would be more rapid as there would be no backlogs in the FB and EB preferences, and loved ones from abroad can unite with newly minted immigrants in the United States through an orderly and legal process. 

Our proposals fall squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. We acknowledge that immigration reform passed by Congress would solve more problems in a fundamental way. We seek less dramatic but no less meaningful advances through the disciplined invocation of executive initiative only because these are the ones that can be achieved sooner and with greater predictability. Our justifiable zeal for immigration reform must not blind us to the benefit of more moderate proposals. We are confident that future progress will follow in a way that minimizes disruption and maximizes acceptance. We hold fast to the distinction between prudence and absolutism, between incremental reform and revolutionary upheaval. In the long run, the American experience has been characterized more by the former than the latter and it has led to a fruitful stability that has been the envy of the world.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)