Florida Detox Centers Provides Further Guidance on Resume Review in Labor Certification Recruitment

By Cyrus D. Mehta & Jessica Paszko*

Under the Immigration and Nationality Act (“INA”), U.S. employers wishing to sponsor a foreign worker for employment and permanent residence must first prove to the Department of Labor (“DOL”) that there are no sufficient workers who are able, willing, qualified and available for the prospective job and that hiring the foreign worker will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. INA § 212(a)(5)(A)(i).

Before employers can file an Application for Permanent Employment Certification, or Form 9089, sponsoring a foreign worker, they must conduct a good faith recruitment effort and ascertain whether there are U.S. workers available for the job. Employers may only reject applicants for lawful, job related reasons in accordance with 20 C.F.R. § 656.10(c)(9), such as when an applicant is not qualified for the job opportunity. However, the regulations also provide that a U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. 20 C.F.R. § 656.21(e)(4). Therefore, an employer may lawfully reject a U.S. worker for being unqualified, only if the employer determines that a U.S. applicant does not meet the requirements listed on Form 9089 and the U.S. applicant could not acquire the skills during a reasonable period of on-the-job training.

Previous decisions by the Board of Alien Labor Certification Appeals (“BALCA”) have indicated that where an applicant’s resume shows a broad range of experience, education, and training that raises a reasonable possibility that the applicant is qualified, even if the resume does not expressly state that the applicant meets all the requirements, the employer bears the burden of further investigating the applicant’s credentials. See Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997); Matter of Goldman Sachs & Co., 2011-PER-01064 (June 8, 2012). These decisions discussed in a previous blog put pressure on employers to interview U.S. applicants, no matter how convinced they may have been that the applicants were unqualified for the position based on their resumes, or else risk a denial of the foreign worker’s labor certification. However, a recent BALCA decision, Florida Detox Centers, 2017-PER-00236 (Aug. 24, 2021), may offer some leeway to employers by allowing them to reject applicants on the basis of their resumes.

In Florida Detox Centers, the employer sought to employ an “Operations Analyst” with “two years of experience in the job offered,” and having found no such U.S. worker, filed Form 9089 sponsoring a foreign worker for the position. The employer was subjected to supervised recruitment by the DOL. In its recruitment report, the employer stated that it received 240 applications for the job opportunity, interviewed 20 applicants it found to be potentially qualified and rejected 220 applicants because they did not possess the minimum of two years of experience based on the face of their resumes. The DOL denied labor certification, finding that the employer rejected a potentially qualified U.S. applicant without an interview even though there was a reasonable possibility that the applicant met the requirements of the job opportunity.  The applicant’s resume clearly indicated that the applicant lacked the required two years of experience in the job offered. Nonetheless, the DOL argued that the employer did not meet its burden by failing to investigate the applicant further and conducting an interview. The DOL pointed to the applicant’s resume which indicated experience similar to the job duties described on Form 9089 as well as the applicant’s four years of experience in the Operations Analyst/Strategic Sourcing Coordinator industry.

In the matter before the BALCA, the employer, on reconsideration, thoroughly expanded on its reasons for rejecting the applicant and detailed why the applicant was unqualified for the job opportunity such that an interview or further inquiry was unnecessary. The employer argued that it was not able or willing to accept less than two years of experience, as stated on Form 9089, nor should it have been required to do so, given the high specific vocational preparation level (“SVP”) of 8 assigned by the DOL for the occupation of Operations Analyst under O*Net Code 13-1111. An SVP of 8 generally requires between four and ten years of education, training, and/or experience, but the employer was only requiring two years of experience in the job offered. The employer compared each duty identified in the Form 9089 to the applicant’s resume and determined that the applicant only had experience in 25% of the job duties described in the form. The employer also stated that the applicant lacked any experience in three important job duties described in the form. According to the employer, it was “unrealistic to . . . consider an applicant completely lacking experience in nearly 40% of the job duties,” especially given the employer’s requirement of a minimum of two years of experience in each job duty. The employer claimed not to have a duty to investigate the applicant further given the level of detail in the applicant’s resume which allowed it to readily determine that the applicant’s experience was not similar or relevant to the job opportunity.

The BALCA was satisfied with the employer’s explanation for rejecting the applicant and that the employer, in the selection process, concluded that based on the applicant’s resume and its business operations and staffing, that the applicant possessed two years of experience in only 25% of the job duties, and that for the remaining 75% of the job duties, the applicant would require a full two years of training in 40% of the job duties, and more than the normal six months of training in the remaining 55% of the job duties. The BALCA found that the employer’s explanation, which the employer substantiated by detailing the specific period of time that training would take, sufficiently demonstrated that the applicant could not acquire the necessary experience through a reasonable period of on-the-job training. The BALCA accepted the employer’s argument that it should not be required to offer more than 6 months of on-the-job training for an Operations Analyst assigned an SVP level of 8 because the additional training “would severely jeopardize the operational and financial well-being of the business, particularly when the specific purpose of [the job opportunity] is to improve and maximize efficient and effective operations” of the business.

While the BALCA’s conclusion appears helpful to employers, it should not be taken to mean that all employers can avoid a labor certification denial by relying on the argument that necessary job experience cannot be acquired through a reasonable period of on-the-job training. Indeed, in a 2012 decision, Kennametal Inc., 2010-PER-01512 (Mar. 27, 2012), the BALCA found that the employer rejected a number of applicants for other than lawful, job-related reasons. There, the employer did not merely reject applicants based on their resumes alone but rather interviewed them and only after the interview determined that they did not possess the requisite qualifications, namely knowledge in Unigraphics and heat transfer and fluid dynamics. According to the BALCA, the employer’s argument that training unqualified employees in using Unigraphics and learning heat transfer and fluid dynamics would involve a substantial and unreasonable amount of training was “not acceptable.” Apparently, the employer had not met its burden in establishing that it was not feasible to train a U.S. worker. The employer’s failure to substantiate its claims that the applicants would only be qualified if they already possessed these skills and failure to give the specific time that training would take proved fatal to its application.

While Florida Detox Centers may offer a reprieve from the rather harsh ruling of Matter of Goldman Sachs & Co. by allowing employers to reject unqualified candidates on the basis of their resumes alone, employers must detail the specific period of time that training the applicant would take and explain why the applicant could not acquire the necessary experience through on-the-job training. However, coupled with Kennametal Inc., it is clear that what the DOL or the BALCA really care about is that employers investigate how long training an unqualified applicant would take. In Florida Detox Centers, the employer clearly required that an applicant possess two years of experience in a number of job requirements and thus an unqualified applicant could only acquire that experience in two years’ time. Whereas in Kennametal Inc., the employer wholly failed to consider that training unqualified applicants in two specific job duties could take six months, or a reasonable period of time. Indeed, had the employer in Kennametal Inc., determined that such training would take much longer, the BALCA may have decided differently. In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16., 2012), the employer too won based on a resume review alone when the resumes did not indicate that the applicants met the employer’s requirement, which was “Proficiency in Excel or Access,. . .understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines . . . .” The key issue for the BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. Note that in Florida Detox Centers, on the other hand, the employer did not ask for any specific requirements which it could establish through business necessity and instead simply required two years of experience in the duties of the offered position. The BALCA in JP Morgan Chase stated that the employer had submitted a business necessity explanation in its recruitment report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the DOL did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, the BALCA held that the DOL cannot dismiss the employer’s stated requirements and substitute its judgment for the employer’s.

Therefore, while employers may survive a labor certification denial even where they fail to interview potentially qualified applicants, they must provide details of why the applicant did not meet the duties or requirements of the position based on a review of the resume as well as detail the specific period of time that training the applicants would take. A bare assertion that it is not feasible to train a U.S. worker will not be accepted.

[This blog is for informational purposes and should not be considered as a substitute for legal advice]

*Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

The Facebook Settlement Resolving Claims of Discrimination Against U.S. Workers Only Adds to the Contradictions in the Labor Certification Program

By Cyrus D. Mehta and Kaitlyn Box*

On October 19, 2021, the U.S. DOJ and DOL announced that they had reached separate settlement agreements with Facebook regarding the company’s purportedly discriminatory PERM labor certification practices. These settlement agreements stem from a December 2020 DOJ complaint, in which the government alleged that Facebook had discriminated against qualified and available U.S. workers by “refus[ing] to recruit, consider, or hire” them for over 2,600 positions, which were tied to labor certifications filed on behalf of foreign national workers. Interestingly, Facebook was not accused of violating DOL rules, which require merely that employers test the labor market and discontinue the labor certification process if a qualified U.S. worker is found, but do not mandate that the company actually hire the U.S. worker or terminate the foreign national who currently holds the position pursuant to H-1B status. Instead, Facebook was charged with discriminatory practices under INA § 274B(a)(1), despite adhering to the DOL’s rules for recruitment.

In particular, the complaint alleged that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process”, citing Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The complaint accused Facebook of designing recruitment practices specifically intended to deter US workers from applying for the relevant positions, a policy which discriminated against U.S. workers in violation of INA § 274B(a)(1)(A). At issue in particular were Facebook’s use of different recruitment methods for PERM labor certifications than those employed for regular positions, such as requiring resumes to be sent by postal mail for advertisements related to labor certifications while accepting resumes by email for other open positions. In a previous blog, we discuss in greater depth the context of the complaint and its contradictions with actual DOL recruitment rules.

Although Facebook will pay a civil penalty of $4.75 million to the United States and up to $9.5 million to workers impacted by its practices, a sum that is likely small change to one of the largest companies in the world, the settlement carries more worrying implications for smaller companies that lack Facebook’s resources. The complaint against Facebook emphasizes that employers must make “good faith” recruitment efforts, but paradoxically implies that it may not be sufficient for companies to follow the DOL regulations, particularly where an employer’s PERM recruitment differs from the way it advertises regular job openings. DOL regulations are largely outdated and require employers to carry out recruitment practices, such as placing print advertisements in two Sunday newspapers, that are out of touch with modern employment practices. In addition to conforming their recruitment practices to the specific and anachronistic methods prescribed by the regulations, the Facebook complaint implies that employers must conduct PERM recruitment that mirrors their regular recruitment, requirements which may be near impossible to reconcile. Among the grievances leveled against Facebook were its failure to hire qualified U.S. workers who applied for PERM-related positions and its rejection of free online advertisements when it had purchased print versions, neither of which are prohibited by the regulations.

Even if an employer mirrors its real world recruitment with its labor certification recruitment,   it will still be vulnerable to a citizenship discrimination claim by the DOJ’s Civil Rights Division’s Immigrant and Employee Rights Section (IER) because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers and replace the foreign national worker,  before the labor certification can be filed and certified by the DOL. If the employer hires the US worker, the labor certification may be denied. Even if the employer hires this minimally qualified US worker, and files the labor certification on behalf of the foreign worker, the employer may be found to be in violation as a result of “diversion.” The Board of Alien Labor Certification Appeals (BALCA) has held that a US applicant cannot be diverted to another position, even a more senior position. See Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam’s Exxon, 91-INA-362 (BALCA 1992). BALCA has found “diversion” even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992).

As part of the settlement,  Facebook is required to consider applicants who apply for PERM positions on Facebook’s Career website. Furthermore, the settlement requires the entry into “Facebook’s recruiting system (“FBR”) all applicants to all PERM related positions who apply via Facebook’s Careers website, enabling such applicants to be searchable and remain searchable in the same manner as applicants to non-PERM related positions at Facebook, and allowing Facebook’s recruiting team to identify, consider, and/or hire such applicants for Facebook job opportunities, including but not limited to ones in the same job profile group as the PERM-related position to which they previously applied. “It is hoped that if applicants for PERM positions are hired for other positions, the DOL does not deny the labor certification under its antiquated “diversion” doctrine.

These conflicting requirements may well prompt some employers to stop sponsoring foreign national workers for permanent residence. The penalty paid by Facebook would be ruinous to smaller employers and may deter them from even wading into the PERM domain. Further adding to the deterrent effect, Facebook faced not only a monetary penalty, but will also be forced to conduct supervised recruitment in future and will be subject to increased scrutiny even of its H-1B program. The latter penalty may be particularly off putting to companies who employ a large H-1B workforce.

Skilled foreign national workers already face several limitations in the US immigration system. There is a paucity of H-1B visas every year. The annual cap is set at a paltry 65,000 plus an additional 20,000 for those who have graduated with advanced degrees from US institutions of higher education. Skilled foreign national workers born in countries such as India and China also face disproportionate backlogs when they are sponsored for permanent residence due to the per country limits. The latest action against Facebook would now provide a disincentive for employers to file labor certifications. This would impact those caught in the backlogs who wish to change employers and obtain new labor certifications but retain their place in the queue by capturing the original priority date

The safest course for employers to pursue in light of the Facebook settlement may be to hew as closely as possible to their non-PERM recruitment practices when conducting PERM recruitment, within the dictates of the DOL regulations. If the employer normally accepts resumes by email, they should not require that applicants for PERM related positions send their resumes only by postal mail. When regular positions are advertised online, it may be prudent for the employer to do the same for PERM positions, rather than advertising only in print newspapers. At the same time, the employer must comply with the DOL regulation of advertising in two Sunday print newspapers even though they do not normally advertise in print for their normal recruitment.

Although the labor certification process requires an employer to conduct a “good faith” test of the US labor market to determine whether US workers are qualified or available for the position held by the foreign national, the very notion of “good faith” seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in the labor certification world do you win by losing.  The real solution, though, would be for Congress or the Biden administration to amend the regulations to comport with real, modern recruitment practices, ensuring that employers will not be tripped up by the contradiction between the “good faith” recruitment suggested by the Facebook complaint and the antiquated practices laid out in the DOL rules.

(This blog is for informational purposes, and should not be relied as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as an Associate at Cyrus D. Mehta & Partners PLLC.

 

Handling Confidentiality, Adverse Interests, and Settlements in Group Suits

By Cyrus D. Mehta and Brad Banias*

Immigration lawyers have filed lawsuits on behalf of several hundred plaintiffs challenging various immigration policies. These lawsuits have involved demanding that the government  speed up the processing of  work permits, or asking the government to reserve visas before the expiration of the program. Many of the lawsuits have resulted in settlements.

What ethical issues must a lawyer consider when signing on plaintiffs as clients? In the event that the government desires to settle, should the lawyer take into account additional ethical considerations?

There are certainly advantages when an attorney represents multiple clients in the same matter. One lawyer representing multiple plaintiffs in a litigation can ensure better coordination and communication. Legal costs are also reduced.  On the other hand, the lawyer will be representing plaintiff clients with different expectations regarding the outcome of the same litigation. Representing clients with differing interests can result in conflicts of interest.

Before representing multiple clients in a lawsuit against the government seeking injunctive relief, the lawyer must get informed consent from the clients.  ABA Model Rule 1.0(e) provides:

“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Practice Pointers on What to Communicate to Plaintiff Clients Before Commencing Litigation

Professor Simon recommends that the following pointers, among others, be communicated to multiple clients before embarking on group litigation[1]:

 

  • One lawyer representing multiple plaintiffs can facilitate better coordination and communication, and thus lower expenses.
  • However, if the clients get into a dispute with each other, none of them will be able to claim the attorney client privilege as to each other with respect to communications with the common lawyer
  • Where the lawyer represents multiple clients in any litigation, some clients may accept a settlement offer while others may not. This can cause conflicts. For example:
  • Some plaintiffs may get the benefit they are seeking while others may not, and this can result in competition and jealousy
  • If there is a settlement offer, the lawyer will seek informed consent from the clients before participating in a settlement
  • In group litigation, where plaintiff clients may have different stories, the lawyer may need to emphasize one client’s version of facts over another client’s story.
  • If the lawyer has a long standing relationship with one client, or likes one over the other, then the lawyer may subconsciously tend to favor the client they like or hope to represent again in other matters.
  • If a conflict arises that cannot be resolved, then the lawyer may have to withdraw from representing some or even all the clients. When the lawyer withdraws, then the clients will have to get another lawyer or lawyers, which in turn will result in additional expenses.
  • Some information obtained from one client may be shared with the other clients in the group. Clients agree to waive any confidentiality if one client in the group discloses the information to third parties (such as on social media).
  • If the lawyer will be seeking fees under Equal Access to Justice Act if victorious, whether all of the clients are eligible for such fees or whether each client receives the same pro rata reimbursement (despite actual work on each individual case).

 

Although providing the communication as outlined above to multiple plaintiff clients may be onerous, it may be well worth the effort because a conflict can ruin the relationship not only with the lawyer but also with the other clients. Full disclosure will also alert the clients to the dangers of the multi-party representation, and the lawyer will also be able to get advance notice of any conflicts before launching the litigation on behalf of the group.

Practice Pointers on Communicating with Clients in the event of a Settlement

A settlement may not benefit all the plaintiffs. For instance, if the settlement involves the allocation of a certain number of recaptured visas, then all will not benefit. Moreover, if the settlement in a delay litigation lawsuit only includes the resolution of applications filed as of a certain date, then those plaintiffs who applications were file after that cutoff date will not benefit.

How does the attorney spearheading group immigration litigation of this kind resolve the conflicts that may arise? Another important concern is how must the attorney handle confidentiality issues? If there is a settlement offer involving hundreds of plaintiffs who are likely to communicate every development of the case on social media, how can the attorney ensure confidentiality of such communications?

ABA Model Rule 1.8(g) provides guidance to the lawyer in such instances. It provides as follows:

g)  A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

 

Comment 16 to ABA Model Rule 1.8(g) states:

 

[16]  Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients’ informed consent. In addition, Rule 1.2(a) protects each client’s right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class.

 

Although the lawyer already made the appropriate disclosures to obtain informed consent before embarking on litigation, in the event of a settlement offer, Rule 1.8(g) requires the lawyer to again make disclosure before participating in making an aggregate settlement that would “include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.”[2] Since  Rule 1.8(g) requires obtaining informed consent from each client, taking a decision regarding a settlement based on a majority vote is disfavored.  The lawyer would need to specifically disclose what claims will be settled if the plaintiffs accept the offer and what claims may remain if they take the offer.

 

Rule 1.8(g) intersects with Rule 1.7, which governs how a lawyer needs to go about representing multiple clients when there is a potential or actual conflict. Rule 1.7(a) prohibits a lawyer from representing two or more clients when the representation of one will be directly adverse to the other, or where there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to the other client. However, Rule 1.7(b) nevertheless allows such representation even if there is a conflict if the lawyer believes that he or she can still provide competent and diligent representation to the affected client.  Rule 1.8(g) also intersects with Rule 1.2(a) which requires the lawyer to abide by a client’s decision whether to accept a settlement. Underpinning all of these rules is to ensure that the lawyer has obtained informed consent under Rune 1.0(e) and that the lawyer has appropriately communicated with the client under Rule 1.4 to obtain this informed consent.

Finally, a lawyer must also maintain the confidentiality of communications with all the plaintiff clients under Rule 1.6, although when the lawyer is representing multiple clients, information provided by one client may be shared with the other clients. If the lawyer wishes to keep confidential certain communication with one client, then the lawyer must obtain the informed consent from the entire group that certain communication with individual clients may not be shared with other clients so long as maintaining such confidentiality does not adversely impact the lawyer’s ability to represent all the clients competently and diligently. As noted above, plaintiffs may have a propensity to leak out confidential communications with the attorney on social media. While the lawyer may not be able to prevent such disclosure, Rule 1.6(c) states that “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

 

Good Faith Allegations, Candor to the Court, and Hundreds of Clients You Will Never Meet

Twitter and Facebook are replete with attorney advertising directed at potential plaintiffs who live abroad. Recent group suits—sometimes including thousands of plaintiffs each—challenging travel bans and consular delays, by definition, comprise hundreds of plaintiffs who are currently abroad. In such a situation, it may be impossible to investigate the stories and facts (often provided through a standard, self-guided questionnaire) that are provided by your very own clients. So, how can you be sure the facts are true? What do plaintiffs’ counsel need to do to satisfy their obligations under Rule 11 to do a good faith investigation of the facts they aver in a pleading and their ethical obligations of candor toward the tribunal?

● ● ●

 

The relevant rules and controlling principles are as follows:

Federal Rule of Civil Procedure 11(b)(3):

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . .

 

Fed. R. Civ. P. 11(b).

ABA Model Rule 3.3:

(a) A lawyer shall not knowingly:

 

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . .

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

 

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

● ● ●

 

Best Pre-Allegation Practices:   

These apply when you are preparing your case and drafting the pleadings. First, demand copies of actual documents from your clients. Require that clients in the far reaches of the world upload official documents substantiating their claims (receipts from State, USCIS, or Labor; Consular emails; Consular returns; Actual payment receipts). This also includes identity documents that match the potential plaintiffs alleged name, date of birth, and nationality. You should also REVIEW these documents and compare them to the information in the questionnaire. Second, require your clients to sign declarations under 28 USC 1746. This provision of federal law allows individuals to declare factual matters subject to penalty of perjury from inside and outside the United States. Whether you attach the declaration to the complaint or not, you now have an additional declaration subject to penalty of perjury to rely upon should a court require you to prove that you had a good faith basis for certain allegations. Third, avoid allegations “upon information and belief.” Such allegations also need a good faith basis, though the attorney has more liability exposure on such allegations. Finally, go easy on hyperbolic allegations. Do you have a good faith basis that the consulate refused a visa because of personal animus, political bias, or sheer prejudice? While you may be able to intimate through such possibilities through circumstantial evidence, be mindful of your obligations to have a good faith basis to make certain factual allegations.

 

Best Post-Allegation Practices:

So, you’ve filed a pleading with factual allegations and, now, you’ve learned they are not true. First, determine whether the allegations are material and require remedial action. If the false allegation relates to something immaterial, there is likely no duty under Rule 3.3 to conduct remedial measures. However, it is a good practice to go ahead and correct any falsity through an errata, footnote, or notice. Again, while it may not be required because the “falsity” is immaterial and will be “fixed” through the course of litigation, there is a strategic benefit to fix the misstatement before the government points it out to attack you and your client’s credibility. Second, if it is a material misrepresentation, you must take “reasonable remedial measures.” Of course, there is no black and white on what is a “reasonable” remedy for correcting falsities. But the remedial measure must fix the misstatement. Reasonable measures may include an amended pleading with the proper information; a notice of correction of certain facts; or a supplemental declaration from the client correcting the information. There is no way to identify all possible remedies, but one principal is clear: you must identify and fix the falsity. And unfortunately, if the client refuses to fix the falsity and demands you push the case forward based on the falsity, you will likely need to withdraw from representation based on an irreconcilable conflict and notify the court of the falsity. This can be very tricky in a group case to have one plaintiff unrepresented (who lives somewhere far, far away) while you continue forward with the remainder of the group.

 

*Guest author Brad Banias is a partner in Wasden Banias, and is a nationally recognized in federal court immigration litigation. See https://www.wasdenbanias.com/

 

[1] See Simon’s New York Rules of Professional Conduct Annotated Volume 1, §1.7:81, 2020-21 Edition.

[2] To bind multiple clients jointly represented by the same lawyer, an aggregate settlement requires the informed written consent of each and every client, and the requirement of  individual informed consent may not be waived by any of the jointly represented clients. See NYC Bar Opinion 2009-06, available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/aggregate-settlements-formal-opinion-2009-06

 

November 2021 Visa Bulletin Seesaw: Frequently Asked Questions

By Cyrus D. Mehta and Kaitlyn Box*

On Thursday, October 14,  2021, the Department of State released the November 2021 Visa Bulletin, which has brought significant retrogression in employment-based third preference (EB-3) India dates, among other significant changes. The EB-3 India Date for Filing (DFF) retrogressed to January 22, 2012 and the Final Action Date (FAD) almost two years to January 15, 2012. By contrast, the  India EB-3 DFF  under the October 2021 Visa Bulletin is January 8, 2014 and the EB-3 India FAD is January 1, 2014. On the other hand, the Employment-based Second Preference (EB-2) India DFF has advanced to January 8, 2013 and the FAD to December 1, 2011. As it did in October 2021, USCIS has elected to use the DFF for employment-based adjustment of status applications. Thousands of applicants who filed concurrent I-140 petitions and I-485 applications when India EB-3 DFF dates rapidly advanced under the October 2020 Visa Bulletin, as well as under the November 2020 and December 2020 Visa Bulletins, are now justifiably disappointed that the USCIS has failed to  approve their I-485 applications and will remain stranded in the backlogs if their applications are not approved by October 31. The retrogression of EB-3 India dates, in particular, has thus been the source of much concern and confusion, so we address a few common questions below.

 

Q: I have approved I-140s under both India EB-2 and India EB-3 with the same employer. I filed my I-485 adjustment application concurrently with the EB-3 I-140, but it has yet to be approved due to Service Center backlogs and now EB-2 dates are moving ahead. Should I file a second adjustment at a different Service Center based on the EB-2 I-140?

If the Form I-485 was filed concurrently with the EB-3 I-140, it is generally not advisable to file another I-485 for the EB-2 I-140. There is no guarantee that a separately filed I-485 based on the now current EB-2 I-140 will be processed faster at a different service center than the Texas Service Center, which has been extremely backlogged and processing cases very slowly. USCIS designates the appropriate filing addresses for applications, and the filing location for adjustment applications based on an approved I-140 depends on the applicant’s address.  Thus, many adjustment applications will go to the Texas Service Center regardless, and one cannot select an alternative filing location.

The USCIS has a policy of transferring the underlying basis of an I-485 from one I-140 petition to another. The USCIS Policy Manual contemplates such a transfer of underlying basis from an I-140 filed by one employer to an I-140 filed by another employer, and requires that the applicant write a letter, although USCIS often automatically approves the I-485 based on whichever I-140  is current if both have been filed by the same employer. This used to be USCIS policy some  years ago when the China EB-3 overtook the China EB-2.  Although the USCIS Policy Manual explains that portability cannot be exercised under INA § 204(j) until 180 days upon the  transfer of underlying basis, this applies when the transfer of underlying basis of the I-485 is with an I-140 filed by one employer to an I-140 filed by another employer, or when the second I-140 petition of the same employer is for a different position,  but should not apply when there are two I-140s filed by the same employer for the identical position. Thus, if an employee has two approved I-140s with the same employer and identical position, USCIS should automatically connect the adjustment application to the I-140 that becomes current fastest, without the need for what one may term as  interfiling or filing of a second adjustment application. In fact, filing a second I-485 may cause confusion at USCIS and result in further delays.

 

Q: My family filed I-485s when my priority date was current under EB-3 India DFF, but they are still pending and my priority date will no longer be current in November 2021. Will my child’s age still be protected if he or she turns 21 before our adjustment applications are approved?

 Although we view this policy as erroneous, the USCIS Policy Manual makes clear that the concurrent filing of an I-485 based on a current DFF does not protect a child from aging out under the Child Status Protection Act (CSPA).  The child’s age, according to USCIS, locks in only when the FAD becomes current.  (It may be possible for certain people adversely affected by this policy to challenge it in federal court.)  There is a likelihood that the India EB-2 FAD will advance ahead of the India EB-3 FAD in the next few months. Thus, an I-485 that was filed concurrently with an EB-3 I-140 ought to  lock in the child’s age when the EB-2 I-140 becomes current, even if the I-485 was filed concurrently with the EB-3 I-140 as there is a transfer of basis of the I-485 from the EB-3 to the EB-2 140.  Again, there does not seem any need to file a new I-485 only for the purpose of locking in the child’s age and the USCIS has not issued any guidance that one must do so, although it may be prudent to write a letter to the USCIS requesting the transfer of underlying basis. However, because of the lack of guidance from USCIS, those who want to play 100% safe may want to file a new I-485 in lieu of writing a letter to the USCIS requesting the transfer of underlying basis.

The CSPA ought to apply as the underlying basis of the I-485 filed with the EB-3 I-140 transfers to the I-140 filed under EB-2 provided the other conditions to lock in the child’s age under the CSPA are met. The I-140 must have been filed before the child’s 21st birthday, and on the date when the FAD is current on either of the I-140s, the child is under 21. If the child is over 21 at the time the FAD is current, the CSPA allows the child’s age to be subtracted  by the number of days it  took from the filing of the I-140 petition to its approval. If the child’s CSPA age falls below 21 after the subtraction, it gets locked in until the I-485 is adjudicated. The child would have also sought permanent residency within one year of visa availability based on the I-485 that was filed with the EB-3 I-140, which has been transferred to the EB-2 I-140. The letter requesting transfer of underlying basis should satisfy the requirement that the child sought permanent residency within one year of the EB-2 I-140 becoming current, although the filing of a second I-485 application under this circumstance is recommended in order to be 100% safe in the absence of USCIS guidance.

Even if there is retrogression of the FAD after the CSPA locks in the child’s age, the child’s age will continue to be locked in until the FAD becomes current again and the I-485 is adjudicated.

Our prior blog provides further clarification on CSPA issues.

 

Q: I have approved I-140s under both India EB-2 and India EB-3. I was in the processing of filing my I-485 under EB-3 in October 2021. Should I instead file under EB-2?

Since the USCIS has announced that it will accept I-485  adjustment applications under the DFF for November 2021, applicants in this position should consider filing under the already approved EB-2 I-140 if their priority date is current under the EB-2 Date for Filing, as the EB-2 dates appear to now be moving ahead faster. If the applicant’s priority date will not be current under the EB-2 DFF in November 2021, it is prudent to still catch the first bus and file the I-485 under EB-3 before the end of October. If the priority date subsequently becomes current under EB-2, the basis for the I-485 can then be transferred to the EB-2 I-140, as described above.

(This blog is for informational purposes, and should not be relied as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as an Associate at Cyrus D. Mehta & Partners PLLC.

 

Migration in the Time of COVID-19 Ebook – How Much Has the Pandemic Really Shifted the Immigration Landscape?

By Kaitlyn Box*

Together with my co-author, Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion, the Samuel Weiss Faculty Scholar, and Founder and Director of the Center for Immigrants’ Rights Clinic (CIRC) at Penn State Law, I recently contributed a chapter to the Frontiers in Human Dynamics e-book “Migration in the Time of COVID-19: Comparative Law and Policy Responses”. A PDF can be downloaded from the Frontiers website.  The e-book “aims to provide one of the first comparative analyses of migration law and policy responses to the COVID-19 pandemic”, by bringing together a collection of articles that “examine and assess destination states’ responses to COVID-19 from the perspective of migration law and policy, and consider how they build upon prior exclusionary regimes, offering suggestions for reform of domestic laws in the wake of the pandemic.”

Our article, entitled “COVID-19 and Immigration: Reflections From the Penn State Law Center for Immigrants’ Rights Clinic”, provides a review of significant COVID-19 -related immigration policy changes, and uses CIRC as a case study to demonstrate how the same tools that immigration advocates have developed to respond to the ever-evolving policies of the Trump administration can also be harnessed to address COVID-related immigration policies. In particular, we discuss three of CIRC’s central response tools: short, accessible fact sheets and FAQ sheets, informational “town hall” forums to discuss new immigration laws or policies as they impact the community, and direct representation of individual clients.

One central thread that emerged across the chapters of the ebook, as well as in last week’s book launch panel, was the idea of continuity, both in repressive immigration policies and the responses to them, both before and during the pandemic. Although the Trump administration, marked by its numerous and draconian immigration policy changes, has now been replaced by the Biden administration, many Trump-era policies still live on, situating COVID-related immigration policies within a broader harsh climate for immigration. Recent federal court decisions, for example, illustrate the revival of many of the Trump administration’s policies, as well as its jaundiced view of immigrants. A federal judge in Texas, for example, recently ordered the Biden administration to reinstate the Migrant Protection Protocols, which force asylum seekers to wait in Mexico for adjudication of their cases, often placing them in grave danger. In August, the Supreme Court refused to overturn the lower court order that would revive the program. Similarly, the U.S. District Court for the Southern District of Texas recently held that Biden’s immigration enforcement priorities, which would have focused removal efforts on only those noncitizens who were a national security risk, entered the United States on or after November 1, 2020, or posed a threat to public safety, were a violation of the Administrative Procedure Act, at least as applied to detention cases. However, the Fifth Circuit has issued a partial stay of the S.D. Texas order, allowing the provisions that provide guidance on when enforcement actions should be initiated to go into effect, among others. The Fifth Circuit’s order left in place only a handful of narrow provisions in the injunction that concern detention. The U.S. District Court for the Southern District of Texas has also held that the DACA program violates the APA, which will bar any new applications for the program.

Many of the COVID-related immigration policies outlined in the chapter continue, at least in some form, as well. For the moment, the slew of COVID travel bans continue, with the suspension on entry into the United States of nonimmigrants who have been physically present in India prior to traveling having been added by the Biden administration after publication of the ebook. As discussed in prior blogs, these bans have a disproportionately harsh impact on nonimmigrants, who are no more likely to transmit COVID-19 than the numerous categories of other travelers exempted by the bans. Although the bans are projected to be lifted in November, to be replaced with testing and vaccination requirements, the harm they created, particularly for nonimmigrants who traveled to be with family at the height of the pandemic and became trapped outside the U.S., is unlikely to be immediately resolved, particularly in light of lingering vaccine inequality issues.

Similarly, the suspension of non-essential travel by land and sea between the United States and Mexico and Canada remains in place for a little while longer. This suspension also includes a number of exemptions, including for U.S. citizens and permanent residents, as well as certain categories of essential workers. First implemented in April 2020, the restrictions were recently extended until at least October 21, 2021.

The chapter also discusses the interruptions to visa processing that occurred when U.S. embassies and consulates suspended routine services. When the travel bans are lifted, some consular services may resume. However, consulates are likely to have significant backlogs and operations may still be disrupted by local COVID conditions. Thus, individuals who are waiting for visa interviews and the like are still likely to experience significant delays.

The climate for asylum seekers, too, has improved little since publication of the ebook. Our article discusses the summary removals that resulted from a CDC and U.S. Department of Health and Human Services regulation and notice that suspended the “introduction” into the United States of individuals who arrived at or between ports of entry without valid travel documents or permission. The Trump administration invoked Title 42, a provision of the 1944 Public Health Services Act permitting the federal government to prevent travel into the country in the event of a public health crisis, as the authority for this order. Despite relaxing the restrictions somewhat for unaccompanied minors and parents with children, the Biden administration has largely continued to rely on Title 42 to summarily remove adults who arrive at the border, effectively denying them any meaningful opportunity to seek asylum. This use of Title 42 plainly contradicts with the United States’ legal obligations to asylum seekers, as laid out at 8 U.S.C. § 1158, which states that any individual “who arrives in the United States…may apply for asylum”.

Although many hostile immigration policies linger on, the conclusion need not be an entirely negative one. Many of the pandemic’s most onerous restrictions, such as the travel bans, are soon to expire, which will provide relief to many. Further, one need not reinvent the wheel when responding to COVID-related immigration laws and policies. Immigration lawyers became very skilled at advising their clients about ever-evolving policies and finding creative solutions during the Trump administration. The tools highlighted in our chapter need not apply only to law school clinics. Practitioners of all varieties continue to support and counsel individual clients as the navigate immigration policy changes, COVID-related and otherwise, and community education can take the form of articles, blogs, webinars, or even social media posts that relay the latest policies in an accurate and digestible way. The same skills and tools that have been honed in recent years can still be utilized during the pandemic, however long it may last.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

 

Recent Trends in Requests for Evidence on I-140 Petitions

By Cyrus D. Mehta,  Sung-Min Baik* and Kaitlyn Box**

Employers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE).  These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India employment-based Second preference (EB-2) date.  Below are some examples of RFEs we have been seeing.  Although the USCIS is required to adjudicate over 100,000 pending I-485 adjustment cases by September 30, it is very likely that the USCIS will not be able to do so, and so we will continue to see these issues in the new 2022  fiscal year with respect to pending I-140 and I-485 cases.

Retention of the Priority Date, Ability to Pay

Under 8 C.F.R. § 204.5(g)(2), an employer filing an I-140 petition must demonstrate its ability to pay the proffered wage “at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.”  According to a policy memo dated May 4, 2004, by William R. Yates, the petitioning employer may receive a positive determination of this ability to pay with initial evidence establishing that its net income or net current assets are equal to or greater than the proffered wage or that it has paid or is paying the proffered wage to the beneficiary.

This seemingly unambiguous burden is often applied erroneously when an employer files an I-140 petition on behalf of a foreign national who is already the beneficiary of a previously approved I-140 petition and seeks to recapture the priority date associated with the earlier I-140.The new employer is required to obtain a new labor certification, but the new I-140 petition would ultimately receive the earlier priority date established by the former employer.

When this retention of the priority date is requested by a new employer under 8 C.F.R. § 204.5(e), the UCSIS interprets 8 C.F.R. § 204.5(g)(2) to insist that the new employer must show its ability to pay from a priority date that it seeks to retain, even though the labor certification establishing the earlier priority date was obtained with a job offer made by a former employer and is not claimed by the new employer as the legal basis for filing a new I-140 petition.

The relevant regulation does not support the USCIS’ interpretation. On ETA Form 9089, an employer attests in the context of a specific job offer that an offered wage “will equal or exceed the prevailing wage” and that it has “enough funds available to pay the wage.”  20 C.F.R. §§ 656.10(c)(1).  Accordingly, determining the employer’s ability to pay should not exceed the scope of the employer’s attestation made with respect to the specific job offer for which certification is sought and obtained.  Subjecting the employer to the conditions of a different job offer made by a former employer would violate 20 C.F.R. § 656.30(c)(2), which provides that “[a] permanent labor certification involving a specific job offer is valid only for the particular job opportunity.”  It would also be impossible for the current employer to obtain the financial documents from a prior employer. Furthermore, the current employer is also not required to provide financial records from the year when the prior employer filed the labor certification. Indeed, the current employer may not have existed when the prior employer filed the labor certification.

It should be argued that the USCIS should not confuse the current employer’s ability to retain a prior pririty date under 8 C.F.R. § 8 C.F.R. § 204.5(e) with its ability to pay pursuant to 8 C.F.R. § 204.5(g)(2). The current employer must be required to establish its ability to pay at the time when it filed the current labor certification based upon which the I-140 petition was filed, and not based on an earlier recaptured priority date.

Beneficiary’s Current Position v. Offered Position

With respect to an I-485 application, the USCIS sometimes questions the validity of a job offer if the beneficiary is currently employed by a petitioning employer but not in the offered position, even when the current position falls within the same SOC code as the offered position in the labor certification, with only minor distinctions such as a differe job title.  In such casse, the USCIS argues that the employer failed to establish that it would permanently employ the beneficiary in the offered position set forth in the labor certification.  But, there is no requirement that the employer must offer the  PERM position to the beneficiary prior to obtaining permanent residence.  8 C.F.R. § 204.5(c) provides only that “[a]ny United States employer desiring and intending to employ an alien may file a petition.”   The Board of Immigration Appeals has noted that “[a]n alien is not required to have been employed by the certified employer prior to adjustment of status.”  Matter of Rajah, 25 I&N Dec. 127, 132–33 (BIA 2009).  As long as the employer provides evidence demonstrating that the beneficiary would be employed as set forth on the labor certification, the employment of the beneficiary in a different capacity or position during the pendency of an I-485 application would not, despite the USCIS’ contention, necessarily be relevant to the validity of a job offer made to the beneficiary.

Determining Ability to Pay When There is a Financial Loss

Because 8 C.F.R. § 204.5(g)(2) requires the employer to be able to demonstrate its ability to pay from the date when the labor certification is filed to the date when the beneficiary obtains permanent residence, the employer must put forth evidence, at the time of filing and/or in response to a request for evidence, establishing its ability to pay for the entire period. However, due to unforeseen intervening factors, the employer may report a loss for some part of this period.  For example, many petitioners may have suffered financially in 2020 due to distruptions caused by the COVID-19 pandemic.  In these instances, the USCIS may argue that the employer has failed to maintain its ability to pay as required by the regulation, but the then Immigration and Naturalization Service took a broad approach and indicated that the important question is whether the loss would preclude the employer from establishing that she [petitioning employer] will be able to meet the conditions of the certification in the ‘Job Offer.’”  Matter of Sonegawa, 12 I&N Dec. 612, 615 (Reg. Comm. 1967).  To answer this question, the Board analyzed the factors that led the employer to report a substantially lower income in one year and accepted evidence indicating that the employer’s business was likely to grow and report profits.  Id. 614-15.  Accordingly, reporting a loss for one year would not automatically prevent an employer from establishing its ability to pay, but attention needs to be devoted to presenting a well-documented and plausible argument that the employer would be able to pay the proffered wage as set forth on the labor certification.

Work Experience

With respect to establishing that the beneficiary has qualifying experience, 8 C.F.R. § 204.5(g)(1) instructs that evidence be provided “in the form of letter(s) from current or former employer(s) … and shall include … a specific description of the duties performed.”  In general, an experience letter is prepared by a supervisor who has direct knowledge of duties performed by the beneficiary, but sometimes a former employer may have a policy of provides letters that include only the start and end date of the employment, the job title, and a very brief description of the duties. When the beneficiary cannot obtain a more detailed letter from the employer itself, a separate affidavit from a supervisor may provide a more complete description of the actual duties performed by the beneficiary that comports more closely with the description of the beneficiary’s experience in Section K of the ETA 9080 labor certifcation.  However, the USCIS sometimes asserts that the petitioning employer must first establish “the non-existence or other unavailability” of an expereince letter from the former employer before submitting an affidavit from a supervisor for consideration.

Because 8 C.F.R. § 204.5(l)(3)(ii)(A) states only that “[a]ny requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien”, one can argue that letters from supervisors are primary, rather than secondary evidence. Letters from trainers or employers must be authored by a person, such as a supervisor or a human resources professional, and are rarely signed by a corporation itself. 8 C.F.R. § 204.5(l)(3)(ii)(A) does not specify who must author an experience letter.  Indeed, the fact that Form ETA-9089 requests the contact information for an employee’s supervisor during the period of experience suggests that a supervisor and not human resources or some other officer within a company may actually be the preferred source of a letter from an employer.

Even if USCIS does not accept that letters from supervisors are primary evidence, a petitioning employer can argue that primary evidence is unavailable because the former employer has a policy of not providing detailed experience letters. When responding to an RFE that question’s the beneficiary’s work experience, the petitioning employer should instruct the beneficiary to reach out the the former empoyer(s) and request a new, detailed experience letter that includes all the necessary components. Ideally, the beneficiary will be able to obtain an updated experience letter that can be included with the RFE response. Even if the employee is unsuccessful, however, and the former employer’s policy prevents it from issuing a more detailed letter, copies of the emails or letter from the former employer can serve as proof that an experience letter is unavailable.

Other RFEs question the content, rather than the format, of the experience letters. For example, if the requirements in the labor certification state that candidates must have experience in a certain industry, such as IT or finance, USCIS may reject experience letters that do not specifically mention the field of experience. Petitioners should follow a similar process to respond to these RFEs, and ask the employee to attempt to obtain new experience letters. If more detailed letters are not available, publicly available information about the former employer, such as website printouts, can be submitted with the RFE response to demonstrate that the company operates within a certain industry and so the beneficiary gained the necessary experience.

Many of these RFEs emanate when an EB-3 I-140 petition is upgraded to premium processing, and are issued even when the prior EB-2 was approved based on the same supporting evidence. Therefore, care must be taken to properly address the RFEs, particularly because a denial of an EB-3 I-140 can potentially even jeopardize the underlying EB-2 I-140. Because many employment-based second and third preference green card backlogs, employers should also evaluate whether the job has drastically changed since the filing of the original labor certification before beneficiaries file a downgrade and concurrent adjustment. As outlined in our previous blog, however, employers may still rely on the old labor certification if the job duties remain largely the same and the beneficiary is merely using updated tools or technologies. Cases involving a slight change in the job are thankfully not being questioned by USCIS at this time.

(The information procided in this blog is for information purposes, and should not be viewed as a substitute for legal advice)

*Sung-Min Baik graduated with a JD from George Mason University School of Law in 2014, is an Associate at Cyrus D. Mehta & Partners PLLC.

** Kaitlyn Box graduated with a JD from Penn State Law in 2020, is an Associate at Cyrus D. Mehta & Partners PLLC.

Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas

By Cyrus D. Mehta & Isabel Rajabzadeh*

One of the many benefits of filing an Adjustment of Status Application (AOS) is the ability to concurrently apply for work authorization (Form I-765/EAD). In addition, the applicant can remain in the United States while the AOS is pending without maintaining status, although most opt to maintain their dual intent nonimmigrant status for as long as possible. One of the most popular dual intent visas are H-1Bs. By extending their nonimmigrant H-1B status, the individual would not start accruing unlawful presence if the AOS is denied for whatever reason. Extending nonimmigrant status while the AOS is pending is also beneficial in some nonimmigrant visa categories, including the H-1B visa, because it allows the individual to continue to work with the same employer without having to separately apply for an EAD.

As USCIS service centers continue to be severely backlogged, we are required to adjust legal strategy to combat these delays. One of the most affected is the processing of work authorization. Earlier this year, the USCIS updated its expedite request policy. Unfortunately, notwithstanding the broadening of the criteria, the requests seem to be met with high scrutiny and are successful in limited cases. Nonetheless, we recommend filing the request if one meets the criteria. Absent a successful expedite request, EADs based on pending AOS applications are taking 9+ months to process. As explained above, individuals therefore find themselves relying on their nonimmigrant status for work authorization while their AOS EADs are pending in the USCIS limbo.

For many nonimmigrant categories, the beneficiary must not have the intent to permanently immigrate to the U.S. As such, an important requirement for most nonimmigrant visas is having “a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” (INA 101(a)(15)(B)). Although the H-1B visa is a nonimmigrant visa, it allows for dual intent. This means that the H-1B visa holder can have the intention of immigrating to the U.S. while still maintaining his/her H-1B nonimmigrant status. The Immigration and Nationality Act carves out the dual intent doctrine by explicitly excluding H-1B visa beneficiaries from the requirement that “every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” (See INA 214(b)). Therefore, when an H-1B visa holder applies for adjustment of status, he/she is able to maintain both the nonimmigrant status and have the immigrant intent. Other visas permitted to have dual intent also include the L and V visa, under the carve out in INA 214(b). The O, P, and E visas are quasi dual intent visas established by regulations.  While they allow the nonimmigrant to be in the U.S. in that status without needing to have a foreign residence, they still do not permit them to intend to seek permanent residence in the U.S. As an illustration of quasi dual intent, under 8 CFR 214.2(o)(13), an intent to remain temporarily in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon.

As visa holders enjoy the benefits of dual intent, we honor the memory of Dale Schwartz, the late immigration attorney who was highly respected in the field and was a former President of the American Immigration Lawyers’ Association. Mr. Schwartz had faced criminal charges in the 1980s in the wake of federal officials investigating applications submitted on behalf of a British businessman who came to the United States in 1980 to work for an American aerospace company. The government charged Mr. Schwartz with eight counts of mail fraud and false statements and asserted that the British businessman intended to live in the U.S. permanently even though he was seeking a temporary visa. The officials ultimately dropped the criminal charges, and we remember him here as a zealous advocate for nonimmigrant dual intent. It is because Mr. Schwartz took the fall for everyone that Congress enacted the dual intent carve out in INA 214(b) in 1990.

Even before dual intent got recognized in the INA, the Board of Immigration Appeals in Matter of Hosseinpour recognized way back in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. There, the BIA was tasked with reviewing an F-1 visa holder’s eligibility for nonimmigrant status after filing an adjustment of status application. In that case, the BIA explicitly held that the filing of an adjustment of status application “is not necessarily inconsistent with the maintenance of lawful nonimmigrant status,” although F-1 visas are not dual intent visas. In its reasoning, the BIA referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)). Further, the BIA reasoned that the F-1 student who applied for adjustment of status kept his intention to remain a nonimmigrant student even though he had applied for adjustment of status. In that case, the student was willing to return home when his studies were completed if ordered to do so. However, the BIA ultimately dismissed the F-1 visa holder’s appeal because the individual did not timely extend his nonimmigrant stay and remained beyond the authorized length of his stay.

In instances where the beneficiary does not hold a dual intent nonimmigrant visa such as a TN or H-1B1 and applies for AOS, they must wait long months for their work authorization to be processed by the USCIS in order to work. If they apply for an extension of the underlying nonimmigrant status while the adjustment application is pending, they will likely receive push back from the USCIS on the ground that the nonimmigrant visa status does not allow for dual intent notwithstanding Matter of Hosseinpour. These nonimmigrants who face this sort of push back from the USCIS when extending their status should invoke the holding in Hosseinpour, which is still good law, that they should be entitled to the extension of nonimmigrant status even if they have expressed an intention to apply for permanent residence. Indeed, as in Hosseinpour, these nonimmigrants would be willing to depart the U.S. at the end of their nonimmigrant status in the event that their adjustment of status application gets denied.

Moreover, when nonimmigrants enter the U.S. in a B-2 visitor status, they are required to maintain an intention to return home to a foreign residence, although Hosseinpour also allows them to have a desire immigrate to the US. Thus, one who is the beneficiary of an I-130 petition can still legitimately enter the U.S. as a visitor if the objective is to process for the immigrant visa at the U.S. consulate. Furthermore, one with a desire to immigrate is also allowed to change one’s mind after being admitted and apply for adjustment of status in the US. During Covid-19, many nonimmigrants who came with the intention of returning home decided to stay in the U.S. and apply for adjustment of status as immediate relatives of U.S. citizen spouses or children when the Covid situation got exacerbated in their home countries.

The project to carve out dual intent in the INA for H-1B, L, and V visa holders is only half completed. Enshrining dual intent in the law will ensure that noncitizens will not be denied a visa or admission if they are able to extend, change or adjust status legally. They will also be able to maintain nonimmigrant status while their adjustment applications are pending. INA 214(b) should be amended to remove the presumption that every noncitizen is an immigrant unless proven otherwise.  The relevant concern to ensure compliance with a temporary visa should solely be focused on whether the noncitizen will violate status by overstaying or working in an unauthorized capacity, and not whether they will pursue other lawful visa options, including adjustment of status, once they enter the U.S. It is important to enact dual intent for all nonimmigrant visa categories to remove needless contradictions and complications in U.S. immigration law.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice.)

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

If the US Does Not Eradicate Vaccine Inequality, the Requirement of COVID Vaccinations for Many Green Card Applicants Will Result in a De Facto Ban

By Cyrus D. Mehta

Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a “Class A inadmissible condition,” the Centers for Disease Control and Prevention (CDC) announced. The CDC explained that the COVID-19 vaccination meets the criteria for required vaccinations and is a requirement for applicants eligible for the vaccine regardless of evidence of immunity, a negative COVID-19 test, or prior COVID-19 infection. The new vaccine requirements apply to a foreign national filing an I-485 application for adjustment of status and completing the I-693 medical examination with a designated USCIS civil surgeon or to a foreign national applying for an immigrant visa or refugee status at a US consulate and undergoing a medical examination with a panel physician.

With respect to I-485 adjustment applicants, the CDC  has stated that the applicant “must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before completion of the medical examination.” The COVID-19 vaccination requirement differs from previous requirements in that “the entire vaccine series (1 or 2 doses depending on formulation) must be completed in addition to the other routinely required vaccines. COVID-19 vaccinations can now be given at any time, without regard to the timing of other vaccinations.” Acceptable vaccines include Pfizer-BioNTech, Moderna, and Janssen (Johnson & Johnson).

Panel physicians in countries outside the US may accept vaccines authorized for emergency use or approved by the US Food and Drug Administration  or vaccines listed for emergency use by the World Health Organization. In addition to the three vaccines used in the US, the WHO lists many other vaccines used outside the US such as AstraZeneca, Covishield and Covaxin, Sputnik, Sinopharm and Sinovac, among others. Given that the US vaccines are not widely available in many countries, it is good news that other vaccines will be recognized when intending immigrants overseas must be vaccinated against Covid-19.

Waivers are available for  under both circumstances if the vaccine is not age appropriate, the vaccine is medically contraindicated, or the applicant does not have access to one of the approved vaccines in their home country. Applicants may also apply for an individual waiver on religious or moral grounds.

According to reports, the Biden administration also is developing plans for a COVID-19 vaccine mandate for almost all foreign visitors to the United States, with some exceptions. Note though that proof of the vaccination does not exempt international travelers from the preexisting requirement of presenting proof of a negative Covid-19 test within three days of boarding an international flight to the US.

As there is a great disparity in vaccination programs across the world, the mandating of vaccines for green card applicants and visitors may hinder the ability of people to easily come to the US. According to the NY Times vaccine tracker, https://www.nytimes.com/interactive/2021/world/covid-vaccinations-tracker.html, the UAE has the highest percentage of  fully vaccinated people within its population (76%), while the percentage of fully vaccinated people in countries such as India (10%),  Senegal (3.5%) and Haiti (<0.1%) is abysmally low.

Until now, even if a country was subject to a Covid ban, one applying for an immigrant visa is exempted from the ban.  The lack of vaccine access in a country will surely hinder the immigrant visa process and impose a de facto ban. Those who have won the DV lottery must be processed for the immigrant visa by September 30 each year, and a delay in getting fully vaccinated by the deadline will result in the loss of an immigrant visa under this category. This is not to suggest we should object to the mandatory vaccination of intending immigrants before arriving in the US because of the lack of vaccine availability in many countries, especially in low and lower-middle income countries,  that send many immigrants to the US.  Indeed,  the US needs to ensure in concert with the WHO that there is no vaccine inequality and people from all over the world must have quick and easy access to vaccines. It is a sad state of affairs that vaccine hesitant people in the US refuse to get vaccinated when there is so much  vaccine availability while it is difficult to get a vaccine in other countries.

Finally, we have consistently maintained that the Covid proclamations imposing travel restrictions are ineffective in curbing the spread of the coronavirus as they are riddled with exceptions. US citizens, permanent residents and noncitizens with US citizen or permanent resident children are exempted from the ban. So are those who can obtain national interest exception waivers on a variety of grounds. On the other hand, those subject to the ban have to suffer immeasurable hardships by remaining separated from employers and family members who are in the US. It will make more sense if the US insists that everyone entering the country be fully vaccinated rather than subject countries to Covid Proclamations. However, to make this a worthy goal, the US as a global leader must ensure vaccine equality to everyone in the world. Ensuring equality would be in the interest of the US and the whole world as it would create the best chance to eradicate the coronavirus pandemic once and for all.

 

 

“The Process By Which Removability Will Be Determined”: How the Recent District Court Decision Ordering the Reinstatement of MPP Contradicts Itself

On Friday, August 13, U.S. District Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an Opinion and Order ruling in favor of the states of Texas and Missouri in a lawsuit that they had brought against the Biden Administration, seeking to force the Administration to reinstate the so-called “Migrant Protection Protocols” (MPP) created by the Trump Administration.  Human Rights First, among others, had previously observed that MPP was more aptly described as Migrant Persecution Protocols; I will use only the initials from this point on, since they can apply either way.

The gist of MPP was the return of asylum applicants to Mexico, pursuant to 8 U.S.C. § 1225(b)(2)(C), while their applications were pending. As the American Immigration Council explained, many applicants were placed in grave danger in Mexico, and many were unable to return to the United States for their hearings at the appointed time. Upon taking office, the Biden Administration suspended new enrollments into the program on January 20, 2021, and terminated the program on June 1. Texas and Missouri sued to overturn that decision.

The Opinion and Order, the effect of which was stayed for seven days to allow an emergency appeal, held that the termination of MPP violated the Administrative Procedure Act and 8 U.S.C. § 1225. Judge Kacsmaryk therefore vacated the June 1 memorandum terminating MPP, and ordered the government

to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.

Opinion and Order at p. 52, ¶ 3.

There are a great many problems with the reasoning supporting the Opinion and Order, which I am sure will be elucidated in the coming days by others. Rather than seeking to give a comprehensive account of everything wrong with the Opinion and Order, however, I want to focus here on one particular issue: assuming that it is meant to have significant practical effect, the Opinion and Order is internally contradictory. While it is not completely clear what exactly the government is being ordered to do, the only way for the answer not to be, “almost nothing”, is for various statements in the Opinion and Order to be incorrect.

To see the problem, it is necessary to look at the text and structure of 8 U.S.C. § 1225, one of the two statutes that Judge Kacsmaryk held the government to be violating by terminating MPP.  In particular, the relevant section is 8 U.S.C. § 1225(b), which divides applicants for admission into two groups, those processed under 8 U.S.C. § 1225(b)(1) and those processed under 8 U.S.C. § 1225(b)(2):

(b) Inspection of applicants for admission

(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled

(A) Screening

(i) In general

If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.

(ii) Claims for asylum

If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).

(iii) Application to certain other aliens

(I) In general

The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.

(II) Aliens described

An alien described in this clause is an alien who is not described in subparagraph (F), who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.

(B) Asylum interviews

(i) Conduct by asylum officers

An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General.

(ii) Referral of certain aliens

If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.

(iii) Removal without further review if no credible fear of persecution

(I) In general

Subject to subclause (III), if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.

(II) Record of determination

The officer shall prepare a written record of a determination under subclause (I). Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer’s analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer’s interview notes shall be attached to the written summary.

(III) Review of determination

The Attorney General shall provide by regulation and upon the alien’s request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I).

(IV) Mandatory detention

Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.

(iv) Information about interviews

The Attorney General shall provide information concerning the asylum interview described in this subparagraph to aliens who may be eligible. An alien who is eligible for such interview may consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.

(v) “Credible fear of persecution” defined

For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

(C) Limitation on administrative review

Except as provided in subparagraph (B)(iii)(III), a removal order entered in accordance with subparagraph (A)(i) or (B)(iii)(I) is not subject to administrative appeal, except that the Attorney General shall provide by regulation for prompt review of such an order under subparagraph (A)(i) against an alien who claims under oath, or as permitted under penalty of perjury under section 1746 of title 28, after having been warned of the penalties for falsely making such claim under such conditions, to have been lawfully admitted for permanent residence, to have been admitted as a refugee under section 1157 of this title, or to have been granted asylum under section 1158 of this title.

(D) Limit on collateral attacks

In any action brought against an alien under section 1325(a) of this title or section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii).

(E) “Asylum officer” defined

As used in this paragraph, the term “asylum officer” means an immigration officer who-

(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title, and

(ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.

(F) Exception

Subparagraph (A) shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.

(G) Commonwealth of the Northern Mariana Islands

Nothing in this subsection shall be construed to authorize or require any person described in section 1158(e) of this title to be permitted to apply for asylum under section 1158 of this title at any time before January 1, 2014.

(2) Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.

(B) Exception

Subparagraph (A) shall not apply to an alien-

(i) who is a crewman,

(ii) to whom paragraph (1) applies, or

(iii) who is a stowaway.

(C) Treatment of aliens arriving from contiguous territory

In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.

8 U.S.C. § 1225(b).

The process described in 8 U.S.C. § 1225(b)(1), applicable to applicants for admission who are inadmissible under section 1182(a)(6)(C) or 1182(a)(7), is known as expedited removal. Such applicants for admission are given the opportunity to establish that they have a credible fear of persecution, but are otherwise removed without proceedings before an immigration judge.  Applicants for admission under 8 U.S.C. § 1225(b)(2), on the other hand, are, with limited exceptions for crewmen and stowaways, to be placed into removal proceedings before an immigration judge under 8 U.S.C. § 1229a, otherwise known as INA § 240.

The BIA held in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011),  that DHS has prosecutorial discretion to place people into removal proceedings under INA § 240 even if they could also be placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1). For roughly a decade, therefore, and well before MPP was invented, the decision of whether to place an applicant for admission into expedited removal proceedings has been one for DHS to make.

The authority for MPP, as noted above, is 8 U.S.C. § 1225(b)(2)(C). This authority applies only to those who otherwise fall under 8 U.S.C. § 1225(b)(2). It does not apply to anyone subjected to expedited removal under 8 U.S.C. § 1225(b)(1). This is why all those placed in MPP were issued Notices to Appear and put into removal proceedings under INA § 240, otherwise known as 8 U.S.C. § 1229a: such proceedings were necessary in order for them to fall under 8 U.S.C. § 1225(b)(2).  There has been dispute over whether DHS can, under the statute, permissibly treat asylum applicants in this way, but there does not appear to be any dispute that if asylum applicants can be returned to Mexico under 8 U.S.C. § 1225(b)(2)(C), it must be because they have been placed in INA § 240 removal proceedings pursuant to 8 U.S.C. § 1225(b)(2).  (Under current regulations, those applicants who establish credible fear during expedited removal proceedings under 8 U.S.C. § 1225(b)(1) are also ultimately placed into INA § 240 removal proceedings, but the Administration that designed MPP did not think this an inevitable feature of the statutory structure, instead attempting to promulgate a rule that would have placed such applicants in asylum-only proceedings.)

The question, then, is what, if anything, Judge Kacsmaryk’s Opinion and Order has to say about the initial decision whether to place a particular applicant for admission into expedited removal proceedings, under 8 U.S.C. § 1225(b)(1), or directly into 8 U.S.C. § 1229a removal proceedings, under 8 U.S.C. § 1225(b)(2).  Logically, there are two possibilities. Either the Opinion and Order is meant to affect that decision, requiring it to be made “in good faith” under the auspices of the MPP program that the Opinion and Order sought to preserve, or it is not meant to affect that decision at all.

Taking the latter possibility first, if the Opinion and Order is not meant to affect the decision whether to place an applicant for admission into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), then it would seem to have very little practical effect. If the government is just as free to place anyone into expedited removal proceedings under 8 U.S.C. § 1225(b)(1) as it was before the Opinion and Order was issued, then the Opinion and Order will only apply to those applicants whom the government independently decides to place straight into § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2).  Only those people would be properly subject to 8 U.S.C. § 1225(b)(2)(C), the underlying authority for the MPP.  But if the government is not constrained by the Opinion and Order in making the decision whether to follow the § 1225(b)(1) track or the § 1225(b)(2) track, then there may be few people processed under § 1225(b)(2) at all. Perhaps the only applicants who will be so processed are those who cannot be subjected to expedited removal proceedings, such as those who are not inadmissible under 8 U.S.C. § 1182(a)(6)(C) (which covers fraud and false claims to U.S. citizenship), or 8 U.S.C. § 1182(a)(7) (which covers those without proper documents), but are thought to be inadmissible on some other basis—say, Lawful Permanent Residents with certain criminal convictions thought to render them inadmissible under 8 U.S.C. § 1182(a)(2). The effect of the Opinion and Order might then be largely academic, although still problematic in a limited number of cases.

One would think this probably was not what Judge Kacsmaryk had in mind. If so, however, then he must have meant for the Opinion and Order to have some impact on the decision whether or not to place particular applicants for admission into § 1225(b)(1) expedited removal proceedings, as opposed to processing them under § 1225(b)(2).  The problem is that this would contradict several statements made in the Opinion and Order, statements which provided critical underpinnings for Judge Kacsmaryk’s determination that he had the authority to issue the Opinion and Order in the first place.

First, in addressing why the jurisdictional bar of 8 U.S.C. § 1252(b)(9) purportedly does not preclude the exercise of jurisdiction over this suit, the Opinion and Order says:

42. Section 1252(b)(9) states: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this Section.” (emphasis added). This Section functions as a limit on where aliens can seek judicial review of their immigration proceedings.

43. But the Supreme Court has recently stated: “As we have said before, § 1252(b)(9) does not present a jurisdictional bar where those bringing suit are not asking for review of an order of removal, the decision to seek removal, or the process by which removability will be determined.” [DHS v. ] Regents [of the University of California], 140 S. Ct. [1891,] 1907 [(2019)] (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 841, 875–76 (2018) (plurality opinion) (internal marks omitted)). “And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.” Id.

Opinion and Order at 29.

If the Opinion and Order means to exert control over the determination whether applicants for admission should be placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1) or processed under 8 U.S.C. § 1225(b)(2) so that they can be subjected to MPP, however, then it makes no sense to say that “those bringing suit are not asking for review of . . . the decision to seek removal, or the process by which removability will be determined.” They very much are. The states bringing suit, on this interpretation, are asking for review of the decision to place certain applicants for admission in expedited removal proceedings, where removability will be determined under 8 U.S.C. § 1225(b)(1) and they cannot be returned to Mexico while their cases are pending, as opposed to placing those applicants in immediate § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2), so that the provisions of 8 U.S.C. § 1225(b)(2)(C) can apply and the applicants can be returned to Mexico under MPP. In this respect, the case is not like the challenge to the recission of Deferred Action for Childhood Arrivals (DACA) in Regents, which did not implicate a decision to seek removal or the process by which removability would be determined, given that the DACA recission did not involve commencement of removal proceedings against anyone. A broad interpretation of the Opinion and Order’s mandate that MPP be implemented would necessarily involve the commencement of a specific type of removal proceedings, under § 1225(b)(2) and § 1229a, as opposed to the commencement of proceedings under § 1225(b)(1).

This is not the only such contradiction in the Opinion and Order.  Later, addressing why the decision to terminate MPP is not “committed to agency discretion” and thus unreviewable, the Opinion and Order states:

Moreover, the MPP program is not about enforcement proceedings at all. Any alien eligible for MPP has already been placed into enforcement proceedings under Section 1229a. The only question MPP answers is where the alien will be while the federal government pursues removal — in the United States or in Mexico.

Opinion and Order at 32.  That is true if, and only if, the Opinion and Order does not mean to have any impact on the initial decision whether to place particular applicants for admission into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), as opposed to regular removal proceedings under 8 U.S.C. § 1229a by way of 8 U.S.C. § 1225(b)(2). But in that case, as discussed above, the Opinion and Order would not accomplish what it seems intended to accomplish.

As a crowning touch, the Opinion and Order says near the end: “Nothing in this injunction requires DHS to take any immigration or removal action nor withhold its statutory discretion towards any individual that it would not otherwise take.” Opinion and Order at 53. Again, it is not entirely clear what this means. But if DHS is truly not required to “take any immigration or removal action . . . that it would not otherwise take”, then it cannot be compelled to operate the MPP, because a necessary predicate of the MPP is the action of placing applicants for admission into immediate § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2) rather than placing them into expedited removal under § 1225(b)(1).

At bottom, the problem here may be that like the MPP itself, the Opinion and Order makes background assumptions that are not supportable when examined more closely. Like the MPP, the Opinion and Order seems superficially sensible when examined from a certain perspective.  But like the MPP, the seeming logic of the Opinion and Order does not withstand closer scrutiny.

The Sinking Immigration Court: Change Course, Save the Ship

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

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.

Prior Government Immigration Enforcement Experience

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.

Prior Prosecutorial Experience

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

Military Legal Experience (Including JAG)

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.

Prior Judicial Experience

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.

Years of General Legal Experience

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 (7th 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.