By Stacy Caplow*

Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]

No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.

 

I. Changes to the Practices and the Culture of the Immigration Court

 Immigration hearings are adversarial. While the stakes are very high and often punitive—removal, ongoing detention, family separation—the proceedings are civil. Yet this court bears little resemblance to typical civil litigation settings in both the pretrial or trial context. Most of the characteristic judicial tools regulating litigation are absent: pretrial discovery, pretrial settlement or status conferences to resolve or narrow issues, rare stipulations, or enforcement tools to require government lawyers to participate in a meaningful way until shortly before the hearing.

Generally, no Trial Attorney [TA] from the Office of the Principal Legal Advisor [OPLA], a division of Immigration and Customs Enforcement [ICE], the prosecutors in Immigration Court, is assigned to or takes responsibility for a case until a few weeks prior to an individual hearing.[3]  If a case is pending for several years, as so many are these days, except in the rare instance, it is impossible to have any kind of substantive discussion in advance about the conduct of the hearing, possible forms of settlement or alternative relief, narrow issues. Stipulations are rare or unhelpfully last minute. There are no enforcement tools that require government attorneys to participate in a meaningful way until shortly before the hearing. This can and should be changed. The Immigration Court can adopt practices familiar in civil and criminal tribunals around the country. Common litigation management tools could expedite and rationalize Immigration Court proceedings.

 

1. Assign Trial Attorneys to Cases Promptly

A TA should be assigned to review a case at the earliest possible time following the initial Master Calendar appearance where pleadings are entered. At a minimum, a TA should be assigned at the request any Respondent who wants to discuss a case regardless of when the hearing is scheduled. The government lawyers in Immigration Court, like prosecutors in any busy court, can handle a caseload without waiting until the last minute to review the claim. In order to foster meaningful discussions, these TA assignments should occur as soon as the respondent has completed her evidentiary filings.

The positive impact of a prompt TA assignment system will benefit everyone—Respondents, TAs, and the IJs. For example, although many cases require a credibility finding based on in-person testimony, some claims simply do not. If there is no basis for doubting credibility in light of the evidence, and the law is clear, a one, two or three-year wait for a decision is unconscionable. Under the current system, the TA does not review the submissions until shortly before the hearing. Faced with cases in which credibility is not an issue, more often than not, the TA does not seriously contest the facts or the eligibility for relief once she has reviewed the submissions. This results in half-hearted cross-examination, if there is any at all, and a quick grant of relief without opposition. Unfortunately, this happens only after years of delay and anxiety as well as extensive preparation often requiring logistical headaches and inconveniences to witnesses. Earlier, thorough case assessment could avoid the stress to Respondents of a life on hold, could result in fewer or more focused hearings, and could accomplish timeliness and efficiency goals of EOIR.

2. Require Pre-Hearing Conferences

The EOIR Practice Manual provides for a Pre-Hearing Conference.[4] This tool, commonplace in other kinds of courts, is rarely used. Neither Immigration Judges nor TAs routinely invite or encourage pre-hearing conferences. Following the lead of many civil and criminal courts, there should be a regularly scheduled status conference in every case upon a simple request from either party, conducted as expeditiously as possible after the pleadings at the Master Calendar. This could achieve great efficiencies and fairer outcomes.

A mandatory pre-hearing conference would necessitate assigning an individual ICE Trial Attorney to a case well in advance of the hearing. For an effective conference, a Respondent’s lawyer would generally need to submit evidence and even a memorandum of law. A process similar to a summary judgment motion might result. If the Trial Attorney concedes that there are no factual disputes or lack of credibility, the judge could decide the legal basis for relief. This procedure might require an abbreviated hearing, an oral argument, or could be decided on written submissions.

A few prototypical cases illustrate how this might work. Imagine an asylum seeker who has suffered or who has a well-founded fear of persecution on account of sexual orientation who comes from a country whose homophobic laws and oppression of people who are LGBTQ are undisputed. If the asylum seeker is credible, well settled law would surely warrant a granted of asylum. Or suppose a woman who was subjected to genital circumcision has medical records confirming this condition. Again, under well-settled law she is likely to be granted asylum. Or a one-year filing deadline bar could be resolved without the need for testimony based on written submissions. These issues could be resolved at a pre-hearing conference. Another set of cases might involve requests for Cancellation of Removal. The pre-hearing conference could conclude that objective evidence satisfies most of the statutory factors. This could narrow the case so that the Immigration Judge would only hear evidence relevant to the hardship determination. If the Trial Attorney reviewed the evidence and conceded that the hardship standard had been satisfied, this could eliminate the need for a hearing altogether.

Immigrants and their advocates shoulder the burden of multi-year delays and suffer from the resulting uncertainty and angst. Meanwhile, they build lives despite their unpredictable future, increasing the harsh impact of eventual deportation. During the interval, immigration advocates’ caseloads multiply. Years later, when a hearing is finally held, the consequences of delay are substantial. Court submissions need updating. Legal claims may be affected by changes in the law. Witnesses may be unavailable. Memories may fade. The is particularly harsh for asylum seekers whose credibility is at the heart of any immigration hearing[5] but whose trauma may have affected their ability to recall events, particularly the persecution they would prefer to forget. Accelerating resolution through pre-hearing processes following a full presentation of the claim by the Respondent and a full review of the evidence by the government would divert cases from the court’s hearing dockets.

A serious and sincere discussion of the claims and the evidence might resolve cases more expeditiously. Relief could be granted without a hearing. In some instances, TAs could choose to terminate the proceedings through an exercise of prosecutorial discretion. Good case management, effective communication, and open-mindedness are imperative to making the system work more smoothly and more quickly.

3. Enforce the Practice Manual Equably

After years without any standardized practices, the EOIR published a Practice Manual.[6]  This guidance was a welcome development. On its face, it appears to govern all aspects of practice neutrally. A closer reading of the Manuel, however, reveals how one-sided these rules and the practice they govern really are. The everyday reality is even more blatantly lopsided because only Respondents’ attorneys actually do the work that the Manual regulates. The power imbalance between the parties and the close relations between the immigration bench and the prosecutors is embedded in the contents, language and impact of the Manual

In most cases before IJs the burden of proof to secure relief is on the Respondent, once removability is established.[7]  This means that Respondents, represented in only about 60% of all cases,[8] submit all of the evidence to support their application for relief. In the Manual, there are detailed rules relating to filings, motions and the conduct of hearings down to the types of tabs, cover sheets, identifiers for motions, cover pages, tables of contents, proof of service, witness lists and hole-punching. Submissions must be filed and served at least 30 days in advance of the hearing (up from 15 in a prior version of the Manual)

Since government lawyers rarely submit any evidence other than proof of removability if the Respondent does not concede, none of these rules affect their workload. On the rare occasion that the ICE lawyers do file a proposed exhibit, they often do so on the day of the hearing—with impunity since the IJs permit this. In a typical court, flagrant disobedience of the rules would be sanctioned without prejudice to the other party. More typically a Hobson’s choice is given to the Respondent:  accept the poor service or postpone the case. These days, postponement can mean years. The Respondent, anxious and prepared for that day’s testimony, is likely to opt for the former letting the government ignore the rules with the IJs permission.

This is an example of how IJs could behave more forcefully—preclude the evidence. Or cite the government for contempt in egregious cases. Instead, a tolerance of  lazy lawyering only inspires even less compliance with the rules

4. Encourage Prosecutorial Discretion as a Case Management Tool

Resolving a case through an exercise of prosecutorial discretion [PD] is another tool available to, but rarely employed by, the government. IJs cannot force Trial Attorneys to take certain actions relating to the merits of a case, but they can review the evidence in a pre-trial conference and make a strong suggestion about the best resolution.

The May 2021 Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities is a vehicle for re-evaluating prosecutorial discretion [PD] as part of the holistic case management reforms that will benefit the TAs. the Immigration Court and the Respondents.[9]  The Interim Guidance reestablishes priorities and encourages a resuscitation of vigorous prosecutorial discretion. The guidance gives express permission to the Trial Attorneys to consider prosecutorial discretion even in the absence of a request.[10] Its reference to “mutual interest” strives to break down the adversarial barriers that obstruct judiciously exercised discretion and encourages shared problem-solving.

Some OPLA offices have established protocols for submitting requests for prosecutorial discretion. It is too early to tell whether this change in policy will result in a change in culture in the field. In the past, requests were not very successful despite encouraging guidelines and priorities.[11] But even if the Trial Attorneys do not take initiative, at the very least, there is a structure in which to engage in serious discussions about the direction of a case on the court’s docket. While the ultimate exercise of discretion belongs exclusively to the TAs, IJs could and should identify and encourage active consideration of appropriate cases for PD at a Pre-Hearing Conference.

 5. Apply Disciplinary Rules to Government Lawyers as well as Immigration Advocates

Lawyer disciplinary rules must be applied equally to ICE attorneys as well as attorneys for Respondents. This recommendation may seem obvious. Yet, the 2018 Policy Guidance promulgated by the EOIR raised serious concerns.[12] It established policies and procedures for reporting ineffective assistance of counsel or other violations of rules of professional conduct identified by the EOIR itself. Of course, protecting immigrants against unscrupulous or incompetent lawyers is a worthy goal. But these disciplinary rules apply only to immigrant advocates and not government lawyers.[13] EOIR should promptly issue equivalent guidance that applies to ICE attorneys who might commit ethical violations. In the absence of attempts by EOIR to be evenhanded, the 2018 policy guidance is a troubling example of bias within the court system.

6. Be Attentive to Professional Standards in the Courtroom

All of these practical manifestations of the imbalance of power—the reluctance to regulate, sanction or discipline—and the very environment of the courtroom expose the cozy connection between the immigration bench and the prosecution and destroy any fiction of independence. IJs preside in courts in which former colleagues (perhaps friends) appear. They chitchat with the government lawyers while Respondents sit in the room, often in a cone of incomprehension. The appearance if not the reality of this relationship is visible to any observer. The integrity and objectivity of the court is seriously undermined by these everyday departures from appropriate courtroom conduct. The obvious and easy remedy for this appearance of partiality inferred from the comradery between the prosecutor and the judge would be a change in atmosphere to elevate the inside of these courtrooms to the same degree of dignity and seriousness that all courtrooms should possess.

 

II. Changes to the Selection Process of Immigration Court Judges

 

To transform the present obstacles to effective judicial performance, remove the damaging management directives of the former administration. As so many commentators already have suggested, roll back the heavy-handed Attorney General imposed operating guidelines relating to case management to restore a system of logical adjudication priorities[14] and remove the Damoclesean sword of quantitative performance metrics or quotas which only encourage hasty outcomes that devalue the stakes involved in most hearings. These steps require only will, not legislation or rule making. While a return to the old normal will not fully address the structural capture of this court by the Department of Justice [DOJ] and the widely divergent outcomes between courts,[15] restoring decision making to IJs will improve morale and incentivize judges to be independent thinkers without fear of interference or reprisals.[16]

The Attorney General recently took significant steps to reverse many of the more controversial and harmful administrative policies inflicted by the prior administration that limit the ability of Immigration Judges to decide their cases carefully and fairly.[17]  But more can be done.

Changes to the eligibility criteria and the selection process for Immigration Judges also would make a difference both to how the Court operates and how its integrity is perceived by the people appearing before it and by the public.

 

1. The Past Decade of Immigration Court Growth

Injecting new resources into the Immigration Courts is a common prescription for a system that is overloaded, backlogged, and inefficient. This approach seems sensible, and it has indeed been tried but without much success. Between 2017 and the end of 2020 more than 330 judges were added to the ranks in an effort to reduce the enormous backlog. The table below shows the exponential growth in judges.

Executive Office for Immigration Review Adjudication Statistics[18]

 

Over that same four-year period, almost 100 courtrooms were added, totaling 474 at the end of 2020.[19] Now, approximately 535 immigration judges preside over 68 immigration courts and three adjudications centers.[20]

Despite the infusion of resources, waiting times have grown to an average of 54 months.[21]  Although the Executive Office of Immigration Review asserts that, “The timely and efficient conclusion of cases serves the national interest,”[22] today many hearings are adjourned for as long as two or three years. Swift and certain justice after a full and fair removal proceeding eludes most people.

While some of this eye-popping number of pending matters is attributable to the influx of asylum-seekers at the southern border,[23] Immigration and Customs Enforcement [ICE] also has been filing new removal cases.[24] In addition, the pandemic shut most of the courts for more than a year. These external forces have been intensified pressures, but they are not the root causes of the Court’s dysfunction. Adding more judges will not solve the well-recognized structural defects of the court itself.

An immigration  bench that has been populated to serve political goals lacks genuine independence and is subject to political branch dictates.[25]  The Trump Department of Justice only further diminished judicial independence by imposing performance metrics,[26] limiting the exercise of discretion,[27] litigating to decertify the judges’ union,[28] muzzling individual judges,[29] and radically changing longstanding legal principles.[30] On its own website, the stature of this tribunal is degraded to “quasi-judicial,” dropping the pretense of independence and reducing its stature.[31]

The breakdown of the court is also attributable to recent mismanagement decisions and its almost total departure from normal litigation practices that prevents judges from supervising their caseloads and promptly presiding over life-altering deportation proceedings. Administrative inefficiencies that have longed plagued this court only worsened under the policies adopted by the four-year, multi-faceted Trump assault on immigration. Old cases languished while new cases poured in.

In light of this grim reality, the time has come to rethink of some embedded assumptions and practices, particularly those that do not have to wait for structural court reform.

2. Surveying the Newly Appointed Immigration Judges

The job of Immigration Judge, as one IJ famously said, consists of hearing “death penalty cases in a traffic court setting.[32] Immigration Court needs to be staffed by experienced judges committed to applying the law with both rigor and compassion. Immigration Judges need to be able to use the tools that judges normally employ in other settings to administer their courts effectively. Knowledgeable, fair-minded, even-tempered, confident and courageous judges should be the norm.

The following collective profile of the newest IJs has been noted widely but some aspects deserve a bit more detailed attention because they call into question whether this goal can be achieved if past practices are simply replicated as more IJs are appointed.

a. Government Enforcement Background

From 2017 to 2020, the Department of Justice hired 166 judges who were drawn predominantly from current or former employees of one or more government-side immigration prosecution, enforcement or related agencies.[33] Filling the bench with lawyers from this career path is not new, or particularly surprising, since these are candidates who actually do have a deep knowledge of the law and a familiarity with the court. But a career in enforcement risks distorting objectivity and impartiality.

There is, however, a striking imbalance among the IJs with considerable immigration practice backgrounds. A review of their biographies reveals that only a handful—about 10 or 11—worked in either private practice or public interest organizations representing immigrants. Thus, one of the two obvious source of experienced immigration attorneys—immigrant advocates—is barely represented.

Another conclusion that these numbers forcefully imply is that not only are government-side lawyers overly represented but, even when the few former immigrant advocates are added to this group, close to half of new IJs appear to have no discernable knowledge of immigration law or experience in immigration practice.[34]

Lawyers with government immigration careers are not the only former law enforcement employees sitting on the Immigration Court bench.

 

• Fifty-four percent of new IJs’ credentials include past positions as either federal and/or state prosecutors, or both.

• Many have military records (often in combination with prosecutorial pasts), an advantage in the selection process. But they report no immigration law experience.

Many individual biographies include a combination of these experiences—e.g., government enforcement jobs, prior prosecutorial positions and military service. At the risk of overgeneralizing, there are many common characteristics in these backgrounds that could discourage independence, critical or creative thinking, as well as produce intolerance for inefficiency, aggressive advocacy or other challenges to authority.

 

b. Judicial Experience

Prior judicial experience would seem to be a plus but only a handful of the new IJs, 46, have sat on any bench, all of which are state-level tribunals or courts with no obvious immigration jurisdiction.

The haste to seat these judges and put them to work with minimal training[35] and little opportunity for ongoing mentorship by experienced judges, only incentivizes them to rush through hearings, and predisposes them to deny applications accompanied by incomplete or sloppy reasoning.[36] Just as more judges are being added, veteran judges are leaving the bench, some in reaction to the new pressures to perform.[37]  As witnesses to the degrading of the court, the increasingly active and expanding Round Table of Former Immigration Judges has been a vocal critics both before Congress and as amicus curiae.[38]

 

c. Legal Experience

Generally, ascent to the judiciary occurs after a lawyer acquires expertise in a legal field, and demonstrates maturity, judgment and capacity. Knowledge of the law, an even temperament, impartiality and the ability to make reasoned decisions are the basic qualities associated with judging. Lawyers usually requires years of legal experience to gain and deepen these qualities. The requirement of seven years post-bar admission seems quite minimal.

The survey showed that most new IJs do have more than the minimum amount of

experience. But, when their years in practice is seen are measured by the kind of experience the majority of these seasoned lawyers have—government enforcement—it is fair to conclude that their often extensive and formative careers opposing or obstructing relief and challenging credibility have shaped their judicial outlook.

d. Bias in Results

The opaque selection process seems to yield judges with questionable qualifications and possible biases.  The data tends to confirm the prediction that the newly appointed IJs with these credentials are granting fewer requests for asylum relief.[39] According to EOIR’s own statistics, the denial rate since 2018 increased from a range of 20-32%) to continuously increasing ranges of 31.75% to 54.53% by 2020.[40]

Looking at the list of individual IJs the change is even more obvious. Between 2013 and 2018, 58 judges denied asylum more than 90% of the time, and 69 judges denied asylum between 80-90% of the time.[41] Over the five-year period 2015-2020, the number of IJs who denied asylum more than 90% of the time rose to 109 and the number denying asylum between 80-90% of the time rose to 111.[42] While some toughening of legal standards imposed by the prior administration might account for a portion of this upsurge in denials,[43] the coincidence between these dramatic numbers and the infusion of new IJs appointed by the Trump Department of Justice is hard to ignore.

 

e. A Better Judicial Selection Process

 

An infusion of new personnel in the near future provides an opportunity to look closely at and reform the appointment process of Immigration Judges to make it less vulnerable to political influences. By many accounts, it was intensely politicized over the past four years. Appointment to the court is governed by the Department of Justice, allowing the country’s chief prosecutor to unilaterally advance a frequently biased agenda.[44] This undeniable conflict is nothing new but it demeans the integrity of the bench. Even worse, the opaqueness of the selection process shields an agenda that is suspect, based on the profile of the IJs appointed over the past four years.[45]

A cleaner, more transparent merit selection process, typical of most judicial systems, would enhance the reputation of the Court and might attract a more diverse applicant pool through a recruitment process that is attractive to a wider range of applicants. The work is very demanding, but it pays well.[46]

In addition, the criteria for the job, are now absurdly undemanding.  Aside from a law degree and licensure in any U.S. jurisdiction, an applicant must have

[A] full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level. Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority. Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body.[47]

Knowledge of or experience in immigration law is not an expressed job qualification although it may be an advantage.

Without the need for legislative reform, the Department of Justice and the EOIR could improve the perception and reality of the Immigration Court selection process. Simple improvements include the following steps:  1) elevating the selection standards to require more than 7 years’ experience and more direct knowledge of immigration law; 2) assuring a neutral merit selection process that incentivizes. applications from immigrant advocates; 3) opening the selection process for more public input; 5) improving training and oversight that emphasizes competence more than productivity; 6) restoring morale by recognizing and respecting the responsibility placed on IJs and treating them not as employees but as judicial officers; and 7) overseeing and questioning the basis for abnormally high denial rates.

 

III. Conclusion

 

Is there a life preserver on this sinking ship?  Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]

Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.

Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.

Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.

 

Footnotes

[1] President Biden’s proposal is part of his overall budget planning, See Letter from Executive Office of the President, Apr. 9, 2021, at 22:

Supports Efforts to Reduce the Immigration Court Backlog. In order to address the nearly     1.3 million outstanding cases before the immigration courts, the discretionary request makes   an investment of $891 million, an increase of $157 million or 21 percent over the 2021             enacted level, in the Executive Office for Immigration Review. This funding supports 100       new immigration judges, including support personnel, as well as other efficiency measures to        reduce the backlog.

available at https://www.whitehouse.gov/wp-content/uploads/2021/04/FY2022-Discretionary-Request.pdf.  See also Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System, Jan. 20, 2021, available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.

 

[2] TRAC Immigration, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, available at https://trac.syr.edu/immigration/reports/637// (last visited July 28, 2021). This statistic is complicated and does not fully account for all matters since some have been “inactive” thereby excluded from the final figure. Id. at n. 1. The Executive Office of Immigration Review reports 1,277,152 pending cases as of the first quarter of FY2021 i.e. Dec. 31, 2020. See https://trac.syr.edu/immigration/reports/637/ (last visited July 28, 2021).

 

[3] “The Office of the Principal Legal Advisor (OPLA) is the largest legal program in DHS, with over 1,250 attorneys and 290 support personnel. By statute, OPLA serves as the exclusive representative of DHS in immigration removal proceedings before the Executive Office for Immigration Review, litigating all removal cases including those against criminal aliens, terrorists, and human rights abusers.” See https://www.ice.gov/about-ice/opla.

 

[4] “Pre-hearing conferences are held between the parties and the Immigration Judge to narrow issues, obtain stipulations between the parties, exchange information voluntarily, and otherwise simplify and organize the proceeding.” OCIJ Practice Manual, Sec. 4.18, available at, https://www.justice.gov/eoir/eoir-policy-manual/4/18.

[6] Office of the Chief Immigration Judge, Practice Manuel, available at https://www.justice.gov/eoir/eoir-policy-manual/part-ii-ocij-practice-manual (updated March 24, 2021).

 

[7] INA § 240 (c)(4).

 

[8] Interestingly, while there is general consensus that representation makes a huge difference to positive outcomes, the denial rate for asylum increased12% between 2108 and 2020 notwithstanding representation. Executive Office for Immigration Review Adjudication Statistics Current Representation Rates, available at

https://www.justice.gov/eoir/page/file/1062991/download(Date generated April 2021).

 

[9]  John D. Trasivina, U.S. Immigration & Customs and Enforcement, Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities INA § 240 (c)(4)(C), May 27, 2021, available at , https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf.

 

[10] Id. at 7-8.

 

[11]  An example of the policies for the exercise of prosecutorial discretion during the Obama administration is the Policy Memorandum Number: 10075.1 issued by John Morton, then Director of ICE entitled Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, June 17, 2011, available at https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

 

[12] Internal Reporting of Suspected Ineffective Assistance of Counsel and Professional Misconduct, PM 19-06, Dec. 18, 2018.

 

[13] AILA Letter to Director James McHenry, February 15, 2019 (AILA Doc. No. 192159 (on file with author).

 

[14] See, e.g., Recommendations for DOJ and EOIR Leadership To Systematically Remove Non-Priority Cases from the Immigration Court Backlog, AILA Doc. No. 21050301

(posted 5/3/2021), available at file:///Users/stacycaplow/Downloads/21050301.pdf.

 

[15] Philip G. Schrag, Andrew I. Schoenholtz and Jaya Ramji-Nogales, Refugee Roulette. (2011). NEED FULL CITE For example, in the Atlanta Immigration Court, every judge’s denial rate exceeds 90% in contrast to the New York Immigration Court where 29 judges deny in less than 30% of cases. TRAC Immigration, Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2015-2020, available at https://trac.syr.edu/immigration/reports/judge2020/denialrates.html.

 

[16] This essay does not address the longstanding arguments advanced for an independent Article I Court.  For a selection of perspectives on that see, e.g., Dana Leigh Marks, An Urgent Priority: Why Congress Should Establish an Article I Immigration Court, 13-1 Bender’s Immig. Bull. 3, 5 (2008) (the author is an Immigration Judge); Maurice Roberts, Proposed: A Specialized Statutory Immigration Court, 18 San Diego L. Rev. 1, 18 (1980) (the author was the retired Chair of the Board of Immigration Appeals); American Bar Association Commission on Immigration, Reforming the Immigration System: Proposals to Create independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases, Feb. 2010 and Update 2019, available at. https://www.americanbar.org/news/abanews/aba-news-archives/2019/03/aba-commission-to-recommend-immigration-reform/(containing more than 100 specific recommendations); AILA, Featured Issue: Immigration Courts, available at, https://www.aila.org/advo-media/issues/all/immigration-courts; Hearing before House Committee on the Judiciary, Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts, Jan. 29.2020, available at, https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2757; New York City Bar Association, Report on the Independence of the Immigration Courts, Oct. 21, 2020, available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/independence-of-us-immigration-courts. Statement of Immigration Judge A. Ashley Tabbador on behalf of National Association of Immigration Judges before House Committee on the Judiciary, Jan. 29, 2020, available at https://docs.house.gov/meetings/JU/JU01/20200129/110402/HHRG-116-JU01-Wstate-TabaddorA-20200129.pdf. https://www.fedbar.org/wp-content/uploads/2019/10/19070802-pdf-1.pdf. Other voices include the Roundtable of Former Immigration Judges, law professors (see, e.g., Letter to Attorney General Merrick Garlard, available at, https://www.aila.org/File/Related/21050334a.pdf) and the Marshall Project, Is It Time to Remove Immigration Courts From Presidential Control?, Aug. 28, 2019, available at https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control; Federal Bar Ass’n, Congress Should Establish an Article I Immigration Court, https://www.fedbar.org/government-relations/policy-priorities/article-i-immigration-court/ (last visited May 17, 2021; Mimi Tsankov, Human Rights Are at Risk, ABA Human Rts. Mag., Apr. 20, 2020, available at https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/immigration/human-rights-at-risk/.

 

[17] Attorney General Garland has been actively withdrawing decisions issues by his predecessors. See, e.g., Matter of A-C-A-A, 28 I&N Dec. 351 (A.G. 2021), vacating in its entirety Matter of A-C-A-A, I&N Dec. 84 (A.G. 2020) and restoring discretion to IJs in case management; Matter of Cruz Valdez, 28 I&N Dec. 326(A.G. 2021), overruling Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) and restoring ability of IJs to administratively close cases. These decisions also free up Trial Attorneys to exercise PD.

 

[18] Executive Office for Immigration Review Adjudication Statistics, available at, https://www.justice.gov/eoir/page/file/1242156/download (last visited June 1, 2021).

 

[19] Executive Office for Immigration Review Adjudication Statistics Number of Courtrooms, available at  https://www.justice.gov/eoir/page/file/1248526/download Data collected as of April 2021).

 

[20] Executive Office of Immigration Review, Workload and Adjudication Statistics, Tables 25 and 25A, available at https://www.justice.gov/eoir/workload-and-adjudication-statistics (data collected as of April 21, 2021).

 

[20]  Dept. of Justice, EOIR, Office of the Chief Immigration Judge, available at https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios  (last visited May 29, 2021).

[21] TRAC, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, available at, https://trac.syr.edu/immigration/reports/637/.

[22] Memorandum from the Attorney General for the Executive Office of Immigration Review, Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest, Dec. 5, 2017, available at, https://www.justice.gov/eoir/file/1041196/download.

[23] The total number of pending cases from El Salvador, Guatemala and Honduras is 715,557. An additional 212, 859 cases from Mexico raise the total to 928,416. Id. at Appendix Table 3. Backlogged Immigration Court Cases and Wait Times by Nationality.

[24] Austin Kocher, ICE Filed Over 100,000 New Cases and Clogged the Courts at the Peak of the Pandemic, Documented, Sept 16, 2020, available at, https://documentedny.com/2020/09/16/ice-filed-over-100000-new-cases-and-clogged-the-courts-in-the-peak-of-the-pandemic/ (last visited May 18, 2021).

[25] Patt Morrison, How the Trump administration is turning judges into ‘prosecutors in a judge’s robe.’ L.A. Times, Aug. 29, 2018., available at, https://www.latimes.com/opinion/op-ed/la-ol-patt-morrison-judge-ashley-tabaddor-20180829-htmlstory.html/

[26] Memorandum of James McHenry, Director, Executive Office of Immigration Review, Case Priorities and Performance Metrics, Jan. 17, 2018, available at, https://www.justice.gov/eoir/page/file/1026721/download.

 

[27] Matter of Castro-Tum, 27 I. & N. Dec. 271, 272 (A.G. 2018).

 

[28] U.S. Department of Justice, Executive Office for Immigration Review (Agency) and National Association of Immigration Judges International Federation of Professional and Technical Engineers, Judicial Council 2, 71 FLRA No. 207 (2020).

 

[29] Amiena Khan & Dorothy Harbeck (IJs), DOJ Tries to Silence the Voice of the Immigration Judges—Again! The Federal Lawyer, Mar.Apr. 2020; available at https://immigrationcourtside.com/wp-content/uploads/2020/04/Immigration-TFL_Mar-Apr2020.pdf; Laila Hlass et al., Let Immigration Judges Speak, Slate, oct. 24, 2019, available at, https://slate.com/news-and-politics/2019/10/immigration-judges-gag-rule.html.

[30] Matter of A-B-, 27 I&N Dec. 316 (A.G.2018) (virtually disqualifying victims of domestic violence and gang violence for asylum). See also, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, effective date, Jan. 11, available at 2021https://www.federalregister.gov/documents/2020/12/11/2020-26875/procedures-for-asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review.

[31] Executive Office of Immigration Review, Immigration Judge, available at

https://www.justice.gov/legal-careers/job/immigration-judge-16 (last visited May 15, 2021).

[32] IJ Dana Marks provided this unforgettable description on Immigration Courts: Last Week Tonight with John Oliver (HBO), Apr. 2, 2018, available at  https://www.youtube.com/watch?v=9fB0GBwJ2QA&t=11s (last visited May 20, 2021).

[33] These charts were prepared from the biographical information contained in EOIR announcements of new IJs appointed by an Attorney General serving in the Trump administration between May 2017 and April 2021. The government agencies include The Office of Principal Legal Advisor [OPLA] is the prosecution branch of Immigration and Customs Enforcement [ICE] which in turn is a branch of Department of Homeland Security [DHS]. The Office of Immigration Litigation [OIL], a division of the Department of Justice [DOJ] that represents the government in federal court.

 

[34] In a picture of the newly installed judges sitting in the New York Immigration Court, 8 of the judges previously worked for immigration enforcement agencies, 3 had represented immigrants and 3 had no prior immigration practice experience. Beth Fertig, Presiding Under Pressure, NY Public Radio, May 29, 2019, available at, https://www.wnyc.org/story/presiding-under-pressure.

 

[35] Training now is only a few weeks rather than months. Reade Levinson, Kristina Cooke & Mica Rosenberg, Special Report: How Trump administration left indelible mark on U.S. immigration courts, Mar. 8, 2021 (describing inter alia) the selection and abbreviated training processes), available at, https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179.

 

[36] This is not necessarily a new criticism. For example, more than 15 years ago, Judge Richard A. Posner decried “the systematic failure by the judicial officers of the immigration service to provide reasoned analysis for the denial of applications for asylum.”  Guchshenkov v. Ashcroft, 366 F. 3d 554, 560 (7^th Cir. 2004).

[37] Eighty-two experienced Immigration Judges have resigned since 2017. TRAC Immigration, More Immigration Judges Leaving the Bench, https://trac.syr.edu/immigration/reports/617/. See also Outgoing SF Immigration Judge Blasts. Immigration Court as ‘Soul Crushing,’ Too Close to ICE, S.F. Chronicle, May 19 2021, available at https://www.sfchronicle.com/politics/article/Exclusive-Outgoing-SF-immigration-judge-blasts-16183235.php;  Immigration Judges are quitting or retiring early because of Trump, L.A. Times, Jan. 27, 2020, available at, https://www.latimes.com/world-nation/story/2020-01-27/immigration-judges-are-quitting-or-retiring-early-because-of-trump; Why This Burned-Out Immigration Judge Quit Her Job, The Immigration Post, Feb. 27, 2020, available at, https://www.theimmigrationpost.com/why-this-burned-out-immigration-judge-quit-her-job/; Katie Benner, Top Immigration Judge Departs Amid Broader Discontent Over Trump Policies, NY Times, Sept. 13, 2019, available at https://www.nytimes.com/2019/09/13/us/politics/immigration-courts-judge.html; Hamed Aleaziz, Being An Immigration Judge Was Their Dream. Under Trump, It Became Untenable, BuzzFeed News, Feb. 13,2019, available at, https://www.buzzfeednews.com/article/hamedaleaziz/immigration-policy-judge-resign-trump; Ilyce Shugall, Op-Ed, Why I Resigned as an Immigration Judge, L.A.Times, Aug. 4, 2019, available at, https://www.latimes.com/opinion/story/2019-08-03/immigration-court-judge-asylum-trump-policies.

[38] See, e.g., Statement to the House Judiciary Committee on Immigration Court Reform, Jan. 29, 2020 (36 signers) available at, https://docs.house.gov/meetings/JU/JU01/20200129/110402/HHRG-116-JU01-20200129-SD022.pdf; Brief for Amici Curiae Former Immigration Judges in Support of Petitioner, Barton v. Barr, 140 U.S. 1142 (2020).

 

[39] In FY 2020, the denial rate for asylum, withholding or removal or CAT relief increased to 71.6 percent, up from 54.6 percent in FY 2016. 73.7 percent of immigration judge decisions denied asylum. TRAC Immigration, Asylum Denial Rates Continue to Climb, available at https://trac.syr.edu/immigration/reports/630/ (last visited May 116, 2021); see also, Paul Moses & Tim Healy, Here’s Why the Rejection Rate for Asylum Seekers Has Exploded in America’s Largest Immigration Court in NYC, Dec. 2, 2019, available at, https://www.thedailybeast.com/heres-why-the-rejection-rate-for-asylum-seekers-has-exploded-in-americas-largest-immigration-court-in-nyc.

 

[40] Executive Office for Immigration Review Adjudication Statistics, Asylum Statistics, Data Generated: April 19, 202, available at  https://www.justice.gov/eoir/page/file/1248491/download

 

[41] TRAC Immigration, Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2013-2018, available at https://trac.syr.edu/immigration/reports/judge2018/denialrates.html.

 

[42] TRAC Immigration, Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2015-2020, available at https://trac.syr.edu/immigration/reports/judge2020/denialrates.html

 

[43] Matter of A-B-, 27 I&N Dec. 316 (A.G.2018).

 

[44] The Attorney General has the power to certify matters for their review. 8 C.F.R. § 1003.1 (h).

 

[45] Tanvi Misra, DOJ hiring changes may help Trump’s plan to curb immigration, Roll Call, May 4, 2020, available at, https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration; Tanvi Misra, DOJ changed hiring to promote restrictive immigration judges, Roll Call, Oct. 29, 2019, available at, https://www.rollcall.com/2019/10/29/doj-changed-hiring-to-promote-restrictive-immigration-judges/; see James R. McHenry III, Director EOIR, Memorandum for the Attorney General, Immigration Judge and Appellate Immigration Judge Hiring Process , Feb. 19, 2019, available at, https://www.justice.gov/oip/foia-library/general_topics/eoir_hiring_procedures_for_aij/download. The DOJ has been called out in the past for making political appointments during the last Republican administration, see Monica Goodling, et al., Office of the Inspector General, Attorney General, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the, Chapt. 6, Evidence and Analysis: Immigration Judge and Board of Immigration Appeals Member Hiring Decisions, July 2008.

 

[46] As of January 2020, the lowest starting salary is $138, 630 and ultimately caps at $181,500. Executive Office for Immigration Review, 2020 Immigration Judge Pay Rates, available at,

https://www.justice.gov/eoir/page/file/1236526/download.

 

[47] EOIR, Immigration Judge, https://www.justice.gov/legal-careers/job/immigration-judge-7. This website refers to a section called “How You Will Be Evaluated” which appears nowhere. Military service assures a strong preference.

 

[48] Jean King, Acting Director, Policy Memo 21-25 Provides EOIR policies regarding the effect of Department of Homeland Security enforcement priorities and initiatives, June 11, 2021.

 

 

In response to the Biden administration’s invitation to comment, I submitted several proposals to reform the immigration system through executive actions so that many can be quickly helped without waiting for Congress to act. You too can submit a proposal  by May 19, 2021 at https://www.regulations.gov/document/USCIS-2021-0004-0001 

 

May 19, 2021

Samantha Deshommes
Regulatory Coordination Division Chief
Office of Policy and Strategy
U.S. Citizenship and Immigration Services, DHS
5900 Capital Gateway Drive
Camp Springs, MD 2074

 

Re: USCIS-2021-0004

Identifffying Barriers Across U.S. Citizenship and Immigration Services (USCIS) Benefits and Services; Request for Public Input

 

Dear Ms. Deshommes:

I would like to propose ideas that would provide relief to beneficiaries of immigrant visa petitions caught in the backlogs.  While I understand that President Biden has proposed the US Citizenship Act of 2021, my proposals do not need legislative action and can bring about far reaching reform and restore balance to the immigration system whether Congress acts or does not act.

I submit the following ideas for consideration under the following headings: 1. Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment Filings; 2. Parole of Beneficiaries of Approved I-130 and I-140 Petitions; 3. Protecting the Age of the Child Under the Filing Date, and 4. Counting the Family Together So That They May Stay Together.

1. Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment Filings

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

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can apply for adjustment of status and get ameliorative relief. Other fixes could include allowing beneficiaries of petitions overseas to enter the US on parole, and protecting more derivative children from aging out under the Child Status Protection Act.

The State Department’s October 2020 Visa Bulletin was thus refreshing. It advanced the Dates for Filing (DFF) for the India employment-based third preference (EB-3) from February 1, 2010 to January 1, 2015. This rapid movement allowed tens of thousands of beneficiaries of I-140 petitions who were languishing in the backlogs and born in India to file I-485 adjustment of status applications. Although an I-485 application filed pursuant to a current DFF does not confer permanent residence, only the Final Action Dates  (FAD) can,  the DFF provides a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Even derivative family members can also get EADs and travel permission upon filing an I-485 application.

The DFF in the November 2020 Visa Bulletin continued to remain at January 1, 2015 for the India EB-3, thus enabling many more in the backlogs to file I-485 applications and take advantage of job portability. In the December 2020 Visa Bulletin the DFF for the India EB-3 was pulled back to January 1, 2014. From January 1, 2021 onwards, the USCIS closed I-485 filings under the DFF for EB cases.  While the advance to January 1, 2015 in October and November 2020 was a positive development, there is a legal basis to advance the DFF even further, perhaps to as close as current, without regard to whether the FAD will move to the DFF within a year or not. The Biden administration should seriously consider this proposal.

INA 245(a)(3) allows for the filing of an adjustment of status application when the visa is “immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 CFR 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Fortunately, under the advances in the October 2020 Visa Bulletin and a bit beyond, the beneficiary of an I-140 petition under EB-2 was able to “downgrade” by filing an I-140 under EB-3 and a concurrent I-485 application.  Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the Dates for Filing Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

See https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates.

Taking this to its logical extreme, visa availability for establishing the DFF may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the foreign national beneficiary. So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). DFF could potentially advance and become current, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

8 CFR 245.1(g)(1) could be amended (shown in bold) to expand the definition of visa availability:

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

 

2. Parole of Beneficiaries of Approved I-130 and I-140 petitions

With respect to beneficiaries of approved I-130 and I-140 petitions who are outside the US, they too can be paroled into the US upon their DFF becoming current. This would provide fairness to beneficiaries of approved petitions who are within or outside the US.

However, due to a quirk in the law, beneficiaries of I-130 petitions should be able to file I-485 applications upon being paroled into the US since parole is considered a lawful status for purpose of filing an I-485 application. See 8 CFR 245.1(d)(1)(v). On the other hand, beneficiaries of I-140 petitions will not be eligible to file an I-485 application, even if paroled, since INA 245(c)(7) requires one who is adjusting based on an employment-based petition to be in a lawful nonimmigrant status. Parole, unfortunately, is not considered a nonimmigrant status.  Such employment-based beneficiaries may still be able to depart the US for consular processing of their immigrant visa once their FAD become current.

This proposal can be modelled on the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the US pursuant to INA 212(d)(5). See https://www.uscis.gov/humanitarian/humanitarian-parole/the-haitian-family-reunification-parole-hfrp-program. (The Filipino World War II Veterans Program also has a liberal parole policy for direct and derivative beneficiaries of I-130 petitions, https://www.uscis.gov/humanitarian/humanitarian-parole/filipino-world-war-ii-veterans-parole-program).  Once the beneficiaries of I-130 petitions are paroled into the US, they can also apply for an EAD, and adjust status once their priority date becomes current. The HFRPP concept can be extended to beneficiaries of all I-130 and I-140 petitions, and parole eligibility can trigger when the filing date is current for each petition. Beneficiaries of I-130 petitions may file adjustment of status applications, as under the HFRPP, once they are paroled into the US. On the other hand, Beneficiaries of I-140 petitions, due to the limitation in INA 245(c)(7) would have to proceed overseas for consular processing once the FAD become current.

 

3. Protecting the Age of Child Under the Filing Date

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the FAD protects the age of the child under the Child Status Protection Act (CSPA). Using the DFF to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the final date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, the child can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the final date becomes available while the child’s application gets denied.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visa availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: “If an applicant files based on the filing date chart prior to the date of visa availability according to the final date chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the final date chart. Applicants who file based on the filing date chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the final dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

USCIS must reverse this policy by allowing CSPA protection based on the DFF.

 

4. Count the Family Together So That They May Stay Together

Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012,  I have steadfastly maintained that the current and prior administrations  have got it wrong when counting visa numbers under the family and employment preferences. I do hope that the Biden administration will seriously consider this proposal, which I reiterate below.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based (EB) or family based (FB) preference visas in the Immigration and Nationality Act.  While they must still be counted, they should be counted as “one” with the principal family member. Each family unit takes up one visa rather than separate visas. The treatment of family members is covered by INA 203(d), enacted by the Immigration Act of 1990, which states:

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

Nothing in INA 203(d) 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 allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

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

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

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

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

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

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

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

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

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

In a recent not so positive development, a federal district court in Wang v. Pompeo  turned down a claim from EB-5 investors that derivatives should not be counted under the employment-based fifth preference (EB-5). Even though the claim focused on the EB-5 preference, it can be applied to all preference categories.   Although plaintiffs argued that the annual limits do not apply to derivatives pursuant to  INA §203(d) as enacted by the Immigration Act of 1990, Judge Tanya Chutkan disagreed on the ground  that §203(d) is identical to the prior §203(a)(9) as it existed after the 1965 Act. If derivatives were counted under 203(a)(9), under the doctrine in Lorillard v. Pons, 434 US 575, 580 (1978), “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that same interpretation when it re-enacts the statute without change.” Moreover, in footnote 1 in Wang v. Pompeo, the court agreed with the government that “Congress spoke unambiguously spoke to the question at issue” and so the court need not address whether the government was entitled to Chevron deference.

Since this is a district court decision, the Biden administration can disregard Wang v. Pompeo and still choose to interpret §203(d) to allow for the unitary counting of principal and derivatives. Plaintiffs have appealed this decision to the DC Circuit Court of Appeals. If the DC Court of Appeals affirms Judge Chutkan’s decision, especially footnote 1, which indicates that INA 203(d) is unambiguous, it would be impossible for the Biden administration to change the interpretation of §203(d) under Chevron and Brand X within the jurisdiction of the DC Circuit Court of Appeals.  This in turn will result in an untenable situation where those within the jurisdiction of the DC Court of Appeals would not be able to derive the beneficial impact of a reinterpretation of §203(d). It would thus be prudent for plaintiffs to delay taking up the appeal until the Biden administration decides whether they will change the interpretation under §203(d) or not. On the other hand, one would not complain if the DC Court of Appeals rules in plaintiff’s favor and overrules the district court decision.

Obviously, if Congress can affirmatively modify §203(d) to explicitly state that derivates will not be counted, that would be the best outcome. However, if Congress remains divided and there is no legislative fix forthcoming, and unless we are willing to watch the slow and tortured death of the priority date system in silence, President Biden must act on his own. Doing so will double or triple the number of available green cards without the creation of a single new visa. The waiting lines will vanish or be drastically reduced.

 

References

https://www.scribd.com/document/45650253/The-Tyranny-of-Priority-Dates-by-Gary-Endelman-and-Cyrus-D-Mehta-3-25-10

https://blog.cyrusmehta.com/2010/03/286.html

https://blog.cyrusmehta.com/2015/10/when-is-visa-immediately-available-for.html

https://blog.cyrusmehta.com/2018/09/recipe-for-confusion-uscis-says-only-the-final-action-date-in-visa-bulletin-protects-a-childs-age-under-the-child-status-protection-act.html

https://blog.cyrusmehta.com/2020/09/downgrading-from-eb-2-to-eb-3-under-the-october-2020-visa-bulletin.html

https://blog.cyrusmehta.com/2014/09/the-family-that-is-counted-together-stays-together-how-to-eliminate-immigrant-visa-backlogs.html

https://blog.cyrusmehta.com/2013/03/the-way-we-count.html

 

If you have further questions or need further input, please do not hesitate to contact me.

 

Sincerely,

 

 

Cyrus D. Mehta