Cyrus Mehta

Questions Arising from Foreign Entity Changes after an L-1 Petition is Approved

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By Cyrus D. Mehta & Rebekah Kim

An L-1 visa may be issued to a foreign national employee who has worked abroad for at least one continuous year within the last three years for a qualifying, related business entity (e.g., parent, subsidiary, or affiliate) in an executive, managerial, or specialized knowledge capacity, and who is being transferred to the U.S. to work for the same employer or a parent, subsidiary, or affiliate of the employer. See INA § 101(a)(15)(L).

An interesting question arises when, during the course of the employee’s valid L-1 employment in the United States, the foreign entity goes through a corporate reorganization, and thereby ceases operations, merges with another company, or undergoes some other change in its corporate structure or ownership.

Is a foreign national employee who earned his/her one year of qualifying work experience at a foreign entity that undergoes corporate reorganization eligible to maintain L-1 status? 

According to 8 CFR §214.2(l)(1)(ii)(G)(2), the employer must be doing business in the U.S. and at least one other country for the duration of the employee’s stay in the U.S. as an L-1 nonimmigrant. A foreign qualifying entity (i.e., affiliate, subsidiary, etc.), also, must be doing business the entire time the beneficiary is in L-1 status. However, it is less clear whether the foreign qualifying entity needs to be the same one that employed the L-1 while s/he was abroad.

Is an amended L-1 petition required when the foreign entity undergoes corporate reorganization?

There is scant guidance regarding the need to file an amendment when there is a change in the foreign entity, such as when the foreign entity goes out of existence but the U.S. employer has subsidiaries in other countries, or when the U.S. employer acquires another entity in the foreign country while it sells the former foreign entity where the beneficiary had previously worked. In the absence of clear authority, and in an abundance of caution, some employers may choose to file an amendment.

However, we may draw clues from at least two sources that strongly suggest that an amendment is not necessary.

In Matter of Chartier, 16 I&N Dec. 284 (BIA 1977), the L-1 employee was employed by a company in Canada, then transferred to work for the same employer in the U.S. The Service granted, then later revoked, the foreign national employee’s L-1 status because it found that the employer did not have a subsidiary or affiliate in Canada. The Service contended that without an established foreign branch, there was no place for the alien to return to, and his L-1 employment could not be deemed temporary. The Board rejected this argument, concluding in its Interim Decision that the L-1 employee could be sent back to Canada, or to the company’s affiliate in Belgium. The Board’s decision indicates that the L-1 remained valid so long as the company had a qualifying entity abroad, even if it was not the foreign entity where the L-1 employee gained his qualifying experience.

This conclusion may also be drawn from USCIS L-1 training materials, which were uncovered in response to a FOIA request, and can be found on AILA InfoNet at AILA Doc. No. 13042663 (posted April 26, 2013). The materials contain the following example: “An L-1A was a manager for Company A in Italy. L-1A transfers to the U.S. to work for affiliated Company B. After L-1A transfers, Company A ceases to do business and becomes a dormant company. Company B still has foreign affiliate, Company C, that is doing business in Japan. Therefore, the petition remains valid.” Although training materials are not as authoritative as case law, they still reflect the government’s view that an L-1 petition remains valid even when the foreign entity where the foreign national employee gained his qualifying employment becomes dormant, as long as the employer has another qualifying entity abroad.

In some instances, the change to the foreign entity’s organizational structure may affect the terms and conditions of the L-1 beneficiary’s employment in the United States – for example, if some of the job duties were dependent on the continued existence of the entity abroad. However, in the absence of such a material change to the L-1 employee’s position in the United States, a change in the foreign entity’s organization should not warrant the filing of an amendment so long as the petitioner continues to do business in at least one other country through a qualifying branch, parent, affiliate or subsidiary. However, the petitioning entity in the US may still want to file an amendment out of an abundance of caution.

The analysis changes if the L-1 beneficiary is sponsored by the U.S. entity for lawful permanent residency under the employment-based first preference for multinational executives or managers pursuant to INA § 203(b)(C), and the foreign entity where the beneficiary worked no longer exists as a result of a reorganization. There is no parallel regulatory provision as 8 CFR § 214.2(l)(1)(ii)(G)(2), and the analogous provision at 8 CFR § 204.5(j)(3)(i)(C) provides the “prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas”. While an argument can still potentially be made that USCIS adopt the same reasoning as it does with L-1s, the Administrative Appeals Office (AAO) in a non-precedential decision has interpreted the section to mean that the foreign entity where the beneficiary worked at abroad has to continue to exist at the time of filing, because the language of regulation uses the word “is”, signifying present existence of the foreign entity. See Matter of ___, LIN 0800457652 (AAO Apr. 8, 2010). On the other hand, the door does not shut totally. If the employee worked in the foreign country for a branch of the petitioner as opposed to a distinct entity, which subsequently closes, the AAO in another non-precedential decision has reasoned that the beneficiary is working for the “same” employer and can thus be classified as a multinational executive or manager.  See Matter of ____, LIN 0618952335 (AAO Nov. 7, 2008). One can also potentially argue that if the distinct entity that hired the beneficiary closes, another foreign entity, either in the same or a different foreign country,  could serve as a successor in interest if it assumes substantially all assets and liabilities. In the immigration context, a  transfer of a particular business line and its employees to the new entity may suffice for purposes of establishing a successor in interest entity.

(The blog is for informational purposes only, and should not be considered as a substitute for legal advice).

The authors thank Dagmar Butte, Bryan Funai, Hanah Little, Angelo Paparelli and Lynn Susser for their invaluable input. 

Cyrus Mehta

Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants?

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By Cyrus D. Mehta and Amani M. Abuhamra*

In a promising development for F, J, and M nonimmigrants battling unlawful presence policy, a federal district court in North Carolina has granted a preliminary injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The August 2018  Policy would render students in F, J and M status unlawfully present thus subjecting them to 3 and 10 year bars  from reentering the United States.

The May 3, 2019 Guilford College et al v. Mcaleenan et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction prohibiting USCIS and DHS from “enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit.”

As previously discussed on our blog, the August 2018 Policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 Policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

Plaintiffs in the Guilford College case sued DHS and USCIS alleging, among other things, that 1) USCIS had issued the August 2018 Policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 Policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court held that for the purposes of granting the Preliminary Injunction, the Plaintiffs had demonstrated a likelihood to succeed on their challenges to the policy, and found that the Plaintiffs were “likely to suffer irreparable harm absent entry of a preliminary injunction.”

Promising decision for future litigation challenging USCIS policy memos

For immigration lawyers fighting harsh USCIS policies and denials of petitions on behalf of their clients, the possible ramifications of Judge Biggs Opinion and Order are promising.

The Court found the Plaintiffs likely to succeed in showing that the language, purpose, context, and effect of the USCIS policy rendered it a legislative rule. This is significant because “[f]or a legislative rule to be valid … it must have been promulgated in compliance with the APA’s notice and comment procedures [under U.S.C. § 553].” So, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy.

This may open the door for future litigation challenging other USCIS policy memos issued without proper APA notice and comment procedure. Attorneys can now look to challenge other USCIS changes to policy that have legislative rule characteristics, and similarly subject them to challenge for failing to follow proper APA rulemaking procedure. These could include, for example, USCIS’s  October 23, 2017“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” and USCIS’s February 23, 2018 “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. Both these policies, see blogs here and here, contradict existing regulations.  In fact, the February 23, 2018 policy requiring petitioners who place H-1B workers at third party sites to impossibly rigid itinerary and documentary requirements is being challenged in federal court. At a recent hearing on plaintiff’s motion for summary judgement, the judge sharply questioned the high rate of denials under this USCIS policy that plaintiffs allege was designed to kill the IT consulting industry business model.

Perhaps even more promising is the effect Judge Biggs decision will have on curtailing USCIS power to alter statutory construction by way of policy changes and promulgating regulations. The decision noted that based on the statutory text of the INA, the Court found it likely that unlawful presence does not begin when one becomes out of status. Therefore, the August 2018 Policy, in altering unlawful presence accrual to commence when one becomes out of status, most likely conflicts with the existing law and is invalid.

The Court’s decision on invalidating policy which conflicts with existing statute may be even more crucial for future challenges to USCIS policies. This is because without the ruling on statutory construction, the USCIS could essentially overcome a future policy challenge by simply engaging in notice and comment procedures beforehand. Attorney H. Ronald Klasko, who serves as co-counsel and immigration subject matter expert in the Guilford College litigation, thinks the Court’s decision instead makes it harder for USCIS to get around policy challenges, because “if the interpretation of unlawful presence embodied in [a] Memorandum conflicts with the INA as a matter of law, that defect could not be addressed even by properly promulgated regulations. Rather, it would require a statutory change from Congress.”

So what does the preliminary injunction mean for current F, J and M nonimmigrants and the immigration lawyers who advise them?

Though certainly a victory, there now exists some doubt and uncertainty regarding how much reliance can be placed on the Guilford College preliminary injunction. The nationwide injunction, which will prohibit enforcement of the unlawful presence policy by USCIS until the Court issues its final order, has left many unsure as to what the preliminary injunction means for currently at-risk nonimmigrants. Should the Court rule in favor of USCIS and the August 2018 Policy is reinstated, what would that mean for the nonimmigrants who were at risk of triggering bars to admission prior to the preliminary injunction? The following scenarios highlight this uncertainty:

Scenario 1: A PhD student on an F-1 visa travels out of the country after the May 3rd preliminary injunction is issued. Prior to the preliminary injunction, the student was at risk of triggering a 3-year-bar of admission for having accrued over 180 days of unlawful presence without his knowledge. This was due to a reporting mistake the school made in regards to his course load which caused him to inadvertently fall out of status. If the student returns to the country on an O-1 visa while the preliminary injunction is still in effect, and the Court then issues a final ruling upholding the August 2018 Policy shortly afterwards, will the student be found to be inadmissible under 212(a)(9)(B)(i)(I)or(II)?

Scenario 2: A research scholar on a J-1 visa discovers she inadvertently violated her status months prior causing her to unknowingly accrue unlawful presence under the August 2018 Policy. Though she had not yet accrued 180 of unlawful presence when the preliminary injunction was ordered on May 3rd, she was close. Today the research scholar visits her attorney and informs him that tomorrow marks 180 days since she has fallen out of status. The Court has yet to issue its final ruling and the preliminary injunction is still in place. She is unsure whether she should leave the country tomorrow out of precaution of triggering a 3-year-bar of inadmissibility. She has a lot to lose if she were to travel today, and would like to remain in the country. She wants to know, should the Court lift the injunction in the near future, whether the days in which the government was enjoined from enforcing the policy are considered void from unlawful presence calculation, or whether the upheld 2018 August Policy is effective retroactively?

In scenarios like these, it is unclear how the government would rule. It may be difficult for attorneys to best advise their at-risk nonimmigrant clients due to this ambiguity. Leaving or not leaving the country during the period where the preliminary injunction is in effect should be carefully considered and discussed with clients, all options carefully weighed. It may be best to exercise abundant caution and leave not leave the US in Scenario 1 and leave the US in Scenario 2  Even if the Court lifts the preliminary injunction, it will at least order that the August 2018 Policy not be applicable while the preliminary injunction was in effect and takes effect prospectively. On the other hand, one can also be cautiously optimistic that the plaintiffs will prevail in their motion for summary judgment (expected in June 2019) and that the August 2018 Policy will effectively be rescinded by the Court. After all, a motion for preliminary injunction is only granted when there is a likelihood of success on the merits. There is also a risk that the Court of Appeals will overturn the lower court’s decision even if the plaintiffs prevail on the merits. Nevertheless, despite the risks, the Guilford College preliminary injunction is cause for celebration, and as Facebook’s founder Mark Zuckerberg once famously said, “The biggest risk is not taking any risk…”

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

* Amani Abuhamra is pursuing her JD degree at Brooklyn Law School and is  currently an Extern at Cyrus D. Mehta & Partners PLLC.

David Isaacson

Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal

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In 2011, I wrote an article on our firm’s website about how then-recent case law could provide an opportunity for some returning nonimmigrants to challenge, in federal court, the government’s efforts to subject them to expedited removal.  At the time, it seemed as though such a challenge might require a habeas corpus petition to be filed in federal court while the returning nonimmigrant was still detained at the airport by Customs and Border Protection (CBP).  A recent Second Circuit decision in a different context, however, suggests that this is not so.  Rather, even returning nonimmigrants who are only able to contact a lawyer after they have already been removed from the United States may have recourse in federal court.

As I explained in my 2011 post, Congress has sought to make expedited removal orders, which can be issued by CBP officers at the airport and carry with them a five-year bar on returning to the United States without advance permission, essentially unreviewable in court for most people who are not U.S. citizens, Lawful Permanent Residents, or refugees or asylees. This creates a significant risk of arbitrary and potentially unreviewable enforcement of immigration law.  Problems can arise, for example, when such enforcement is based on an arguably erroneous position taken by a CBP officer regarding the permissible scope of H-1B employment, as in the case of some expedited removal orders issued at Newark Airport that were discussed by Cyrus D. Mehta in January and February 2010.  Absent judicial review, CBP officers and supervisors may have the last word on such questions, whether legally correct or not.

However, the Supreme Court’s 2008 decision in Boumediene v. Bush, 553 U.S. 723 (2008), made clear that under the Suspension Clause of the U.S. Constitution, Congress cannot (unless exercising its authority to suspend the writ of habeas corpus in cases of rebellion or invasion) simply prevent people detained by the United States, even alleged enemy combatants at Guantanamo Bay, from seeking judicial review of their detention through a petition for a writ of habeas corpus.  Thus, even those subjected to expedited removal may be able to turn to habeas corpus to vindicate whatever other rights they have under statute or the Constitution.  The Court of Appeals for the Ninth Circuit recently recognized in its March 2019 decision in Thuraisiggiam v. Department of Homeland Security, for example, that habeas is an available mechanism for asylum-seekers to assert their rights to proper proceedings to determine whether they have a credible fear of persecution.  (The Court of Appeals for the Third Circuit has, in a decision I criticized in a prior blog post, limited the ability to use habeas as a vehicle to assert rights under immigration law in the context of recent entrants with no prior ties to the United States, but even the Third Circuit, in Osorio-Martinez v. Attorney General, recognized the habeas rights of those with somewhat greater ties to the United States, in that case juveniles with approved petitions for Special Immigrant Juvenile status.)

As I also explained in my 2011 post, previously admitted U.S. residents who are returning from a brief trip abroad would retain rights to due process of law under Landon v. Plasencia, 459 U.S. 21 (1982), and so could argue that they were entitled to greater procedural protection than expedited removal provides.  Moreover, residents in this sense need not be restricted to Lawful Permanent Residents, that is, people with “green cards”. The Second Circuit, in its January 2011 decision in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), recognized the due process rights of one who had been admitted as a visitor and overstayed the permitted period of admission, so returning resident nonimmigrants who did not overstay should be even more clearly entitled to due process rights.  While it would be difficult for certain categories of nonimmigrants, such as B-1 or B-2 visitors, who need to maintain a foreign residence, to claim returning-resident due process rights without fatally undercutting their own case for readmission, there are many types of nonimmigrants such as H-1B, L-1, E-1, E-2, and O-1 who are not required to maintain a residence abroad which they lack intention to abandon.  If returning to a U.S. residence from a brief trip abroad, such nonimmigrants would appear to have a strong argument that the abbreviated and potentially error-prone procedures of expedited removal did not afford them sufficient due process.

The problem, as a practical matter, was that the legally ideal time to file such a habeas petition seemed to be while one was detained at the airport, and that presents obvious practical difficulties.  As I explained in 2011:

The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order.  Whether such a challenge might be possible following execution of an expedited removal order is a subject for further analysis, but it would at least be substantially more difficult.  Classically, a constitutionally protected habeas petition would as a general matter require the petitioner to be in custody at the time the petition was filed, and a petitioner who has already been removed is not in custody, at least in the simplest and most straightforward sense of that term.

CBP often allows those subject to expedited removal proceedings to contact a friend while they are detained, but discourages or prevents them from contacting attorneys, presumably on the basis that an applicant for admission lacks the right to legal representation during initial inspection.  (The chain of logic between the lack of right to representation and a prohibition on speaking to an attorney strikes this author as a bit strained, but that is an issue for another day.)  Therefore, it may be wise for any nonimmigrant who anticipates potential difficulties upon arrival to ensure that the friend or friends whom they would likely attempt to call if detained is in possession of the contact information for an appropriate immigration attorney.  If concerned that CBP might not allow any communication, or that a single attempt to call while detained by CBP might not reach anyone, a more cautious alternative would be to make a plan to check in with such a friend by phone immediately after one’s flight lands, before proceeding into the immigration inspection area and the perhaps broader area in which cellphone use is prohibited, and advise that an appropriate immigration attorney should be contacted if the arriving nonimmigrant is not heard from again within a preset amount of time.

Given how logistically complicated it would be, particularly for someone who had not expected problems, to arrange the filing of a habeas petition in the brief interval before being detained and put on a return flight, it is perhaps not surprising that no such habeas challenge to an expedited removal order by a returning resident nonimmigrant seems to have made it into court, at least so far as this author is aware.  (There have been a few unsuccessful challenges by other types of nonimmigrants not able to claim returning-resident status.)

A recent decision of the Court of Appeals for the Second Circuit, however, has shed some light on what I referred to in 2011 as a subject for further analysis, namely, whether a habeas petition could be filed after an expedited removal order had already been executed.  The issue arose indirectly in the recent appeal of Ravidath (Ravi) Ragbir, an immigrant-rights activist who brought a habeas petition to prevent his removal on the basis that ICE, in refusing to extend his previously-granted stay of removal, was retaliating against his Constitutionally protected speech critical of ICE activities. In its April 25, 2019 decision in Ragbir v. Homan, the Second Circuit allowed this claim to go forward pursuant to the Suspension Clause of the Constitution.

Because Ragbir’s First Amendment claim regarding the execution of an order of removal would otherwise have been statutorily barred under 8 U.S.C. 1252(g), the Second Circuit needed to address whether it was protected by the Suspension Clause, as in Boumediene.  The government asserted that this was not so because, among other things, Ragbir was purportedly not in custody, having been released from detention after being granted judicial stays of removal.  The Second Circuit disagreed:

If Ragbir were currently in the Government’s physical confinement or had already been deported, that Ragbir would be in custody is obvious.[29] But that he has not been deported is not for a lack of effort on the part of the Government, which detained Ragbir without notice in January 2018 and sent him to Florida, where he was detained for weeks in anticipation of deporting him. Much like in Hensley [v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)], that process was stopped only because Ragbir was released by a writ of habeas corpus issued by the district court in January 2018 (after which the Government told Ragbir to report again on February 10, 2018). Also like in Hensley, Ragbir must continue to report for ICE check-ins, and he remains in this country primarily due to judicial stays of removal, including the one entered by this Court. Moreover, the Government opposed a stay of removal in the district court pending this appeal, and at oral argument, the Government could not represent to this Court that—absent a stay entered by this Court and the stay previously entered in the District of New Jersey—ICE would not deport Ragbir pending resolution of this appeal.

Thus, that Ragbir faces imminent deportation, which necessarily involves a period of detention—and that he must comply, absent judicial intervention, with the Government’s orders “at any time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not in question. That effects a present, substantial curtailment of Ragbir’s liberty. See id.

The Second Circuit expanded on the first sentence of the above in footnote 29 to its decision:

As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239-40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted).

This discussion of the availability of habeas to a deported individual was a key portion of the Second Circuit’s reasoning, not merely dicta.  It was necessary to show that Ragbir would have access to habeas at what one might call both ends of the process, if he were in physical custody prior to deportation or if he had been already deported, in order to conclude that as a logical matter he ought not lose such access to habeas simply because the process had been, by court order, suspended in the middle.

Under the Second Circuit’s decision in Ragbir, then, individuals subjected to expedited-removal orders may pursue habeas petitions even following their removal.  Those returning nonimmigrants who arguably have due process rights, under Plasencia and Galluzzo, to a less summary process than expedited removal, should thus be able to vindicate those rights even if they are unable to contact an attorney until after they have already been removed.  As a practical matter, it may make sense to first reach out to CBP in an effort to get the expedited removal order set aside administratively, but the availability of litigation even after removal is an important development.  If CBP declines to administratively set aside an erroneous expedited removal order, that need not be the end of the story.  Rather, a long-term United States resident nonimmigrant who was refused permission to return to his or her home can seek redress in court.

Cyrus Mehta

Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students

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In September 2017, the State Department abruptly amended the Foreign Affairs Manual to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas.  A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility. I previously blogged on this development here and here,  I am blogging yet again because I am pleased to report on further recent changes,  which are more positive this time especially for foreign students.

In order to presume fraud or misrepresentation, the applicant must have engaged in conduct inconsistent with representations made to consular officers or DHS officers within 90 days of applying for a visa, admission or other immigration benefit. If the foreign national engaged in inconsistent conduct more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule”, the FAM is not codified law or regulation, but merely sub-regulatory guidance for consular officials abroad. Thus, I prefer to call it guidance rather than a rule.

The latest modification at 9 FAM 302.9-4(B)(3)(g)(2) cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

(i)Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv)Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The big change is in (iii) where the words “or F status, or any other” have been stricken. The omission of these few words provides welcome relief to students in F status who study in the US as well as other nonimmigrants in status prohibiting immigrant intent such as J status. A student who travels abroad for vacation, but has planned to get married to a US citizen shortly after the vacation, no longer needs to fear being found to have willfully misrepresented his  or her intentions at the time of admission. Although (iii) contemplates marriage to a US citizen and taking up residence in the United States thereafter, it could encompass other scenarios, such as a student filing an adjustment of status application, based on an approved  I-140 petition with a current priority date, after returning from a brief trip overseas.

This welcome change appears to acknowledge an inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held 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.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g.Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent).

Such inherent dual intent as established in Matter of Hosseinpour is also applicable to one who enters the United States in B status too, but the B nonimmigrant still seems vulnerable to a charge of fraud or misrepresentation based on conduct inconsistent with what was represented to the consular or DHS officer. Still, there are other positive and sensible changes in the FAM that apply to all nonimmigrants, especially in the  preceding section at 9 FAM 302.9-4(B)(3)(g)(1). For ease of reference, the entire section is reproduced below with the changes reflected in Red Italics.

(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

  1. (U) In General:
    1. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    2. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    3. (U) The fact that an alien’s subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien’s intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States, please see paragraph (2) below.

(U) Note: The case notes must reflect that, when applying for admission into the U.S. or for a visa, the alien stated either orally or in writing to a consular or immigration officer that the purpose of travel was consistent with the nonimmigrant visa class sought.  (For example: “The officer finds that the applicant told the officer at the port of entry that his purpose of travel was consistent with the visa class held.”)

 

The heading of 9 FAM 302.9-4(B)(3)(g)(1) now reads “Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status” thus suggesting more discretion and leeway before a consular officer jumps to the conclusion that the application misrepresented his or her intention.  Notwithstanding the 90 day period, so long as one initially entered the United States with the intention that was consistent with the visa status, such as to visit the US for tourism, in B-2 status, but then genuinely changed one’s mind and got married to a US citizen within 90 days, the presumption of misrepresentation can be rebutted if it can be demonstration that the intent at the time of admission was consistent with the B-2 status. The guidance goes onto further state that even if the conduct was inconsistent to what was previously represented to the consular or DHS officer,  there should not be an automatic presumption of fraud or misrepresentation. Consular officers are not permitted to go along with a hunch or mere suspicion, the FAM cautions. Rather, consular officers must adopt the reason to believe standard: “To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).”  “Probable cause” is generally associated with a reasonable ground to believe that the accused is guilty, see e.g. Ludecke v. United States Marshall, 15 F.3d 496 (5th Cir. 1994).   Thus, the implementation of “probable cause” gives more room for an applicant to rebut an accusation of misrepresentation.

Finally, the insertion of  “engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status” appears to be in harmony with prong (iv) of 9 FAM 302.9-4(B)(3)(g)(2). Prong (iv) says the same thing: “Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.” As I had suggested in the prior prior blog, the applicant should only be penalized if he or she engaged in activities without applying for a change of status or adjustment of status. Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30thday, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the prong (iv) criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. Also, since the salutary change for students in the FAM guidance is for consular officers, a Customs and Border Protection (CBP) officer at the airport may not be guided by it, and may not even know about it. Thus, a foreign student who has resided in the United States for several years coming back from a brief weekend trip from Canada could still be suspected for misrepresenting his or her intentions as a nonimmigrant if there is a plan to marry a US citizen and adjust status in the US.

It is hoped that the change in the FAM guidance benefitting foreign nonimmigrant students will guide USCIS and CBP too. It makes little sense to penalize a bona fide foreign student who plans to marry and adjust status just because of a short vacation overseas. The inherent dual intent wisely recognized by the Board of Immigration Appeals in all nonimmigrant visa categories in Matter of Hosseinpour ought to be part of guiding policy for all the agencies administering the Immigration and Nationality Act. One who enters the United States as a nonimmigrant to pursue the objectives of the visa, but who also desires to immigrate, should not be viewed in the same way as one who commits blatant fraud. Nonimmigrants should be allowed to follow their destiny as it naturally unfolds in the United States without having to worry about being accused of engaging in inconsistent actions within 90 days of their admission.

Cyrus Mehta

AG Barr Cannot Ignore the Constitution: The AG’s Latest Attack on Asylum Seekers in Matter of M-S-

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By: Sophia Genovese*

The Attorney General cannot selectively choose when to apply the rule of law. Yet when it comes to immigrants, the government feels emboldened to ignore the constitutional protections that are afforded to immigrants.

In his most recent self-certification, Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), the Attorney General unilaterally decided that asylum seekers who entered without inspection and who have been found to have a credible fear of persecution or torture are ineligible for release from detention on bond. Notably, in footnote 1, AG Barr proclaims “[t]his opinion does not address whether detaining transferred aliens for the duration of their removal proceedings poses a constitutional problem, a question that Attorney General Sessions did not certify and that is the subject of ongoing litigation.” 27 I&N Dec. at 509. In addition, because the ruling affects a “sizeable population” of asylum seekers, and also because it would have a significant impact on detention operations, the Attorney General ordered his ruling to take effect 90 days after his order, which falls on July 15, 2019. Id. at note 8.

Matter of M-S- overruled Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that an asylum seeker who is initially placed in expedited removal proceedings under INA § 235(b)(1)(A), but who then is placed in INA § 240 proceedings after a positive credible fear determination, is eligible for a bond hearing before an Immigration Judge. Matter of X-K- did not apply to “arriving aliens,” i.e. those individuals who presented at a port of entry and claimed asylum; instead, it applied to the class of foreign nationals who have entered without inspection and who have been present for fewer than 14 days within 100 miles of the border. In Matter of X-K-, the Board found that Immigration Judges have custody jurisdiction over foreign nationals in INA § 240 proceedings, “with specifically designated exceptions” as outlined in 8 C.F.R. § 1003.19(h)(2)(i). 23 I&N Dec. at 731. Because 8 C.F.R. § 1003.19(h)(2)(i) does not exclude asylum seekers who are placed in INA § 240 proceedings after a positive credible fear determination, the BIA concluded that Immigration Judges have jurisdiction over their bond proceedings.

The main bone of contention in Matter of M-S- is one of statutory interpretation. In Matter of X-K-, the Board explained that, “the Act provides for the mandatory detention of aliens who are being processed under section 235(b)(1) proceedings ‘pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.’” 23 I&N Dec. at 734. The BIA reasoned that because the regulations are silent on the bond eligibility of asylum seekers after there has been a final credible fear determination, authority over custody re-determinations vests with the Immigration Judge since the asylum seekers are placed INA § 240 proceedings and because they do not fit under any of the exceptions outlined in 8 C.F.R. § 1003.19(h)(2)(i).

The AG in Matter of M-S-, in contrast, looks to INA § 235(b)(1)(B)(ii), which states that, if it is determined that an asylum seeker possesses a credible fear of persecution “the alien shall be detained for further consideration of the application for asylum.” 27 I&N Dec. at 510. The AG reasons that the plain language of the Act provides for the mandatory detention of asylum seekers, but that they remain eligible for release on humanitarian parole under INA § 212(d)(5)(A). Id.

Although the BIA does not opine on constitutional matters, it cannot issue unconstitutional rulings. The Attorney General’s ruling in Matter of M-S- runs afoul of the Fifth Amendment of the US Constitution. Although asylum seekers will still be eligible for release on humanitarian parole under INA § 212(d)(5)(A), the standards are far different than bond eligibility where the asylum seeker must demonstrate that their parole is for urgent humanitarian reasons or significant public benefit. This is distinct from, and far more limited than, parole eligibility for arriving aliens under ICE Directive 11002.1, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture.” As a reminder, under Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), the BIA interpreted INA § 236(a) to require an asylum seeker to establish that he or she does not present a danger to others, is not a threat to the national security, and is not a flight risk in order to be released on bond. As a result of Matter of M-S-, far fewer asylum seekers will be able to obtain release from detention.

Padilla v. ICE

After then-Attorney General Sessions referred Matter of M-S- to himself, but before AG Barr rendered his decision, the United States District Court for the Western District of Washington issued a preliminary injunction in Padilla v. US Immigration & Customs Enf’t, No. C18-928 MJP (W.D. Wash. Apr. 5, 2019). The Honorable Marsha J. Pechman ordered that by May 5, 2019, the EOIR must conduct bond hearings for class members (defined as all detained asylum seekers who entered the US without inspection, were initially placed in expedited removal proceedings, and who were determined to have a credible fear of persecution) within seven days, and place the burden of proof on DHS in those bond proceedings to demonstrate why they should not be released on bond, among other holdings. In so ordering injunctive relief, Judge Pechman found that Padilla and class members were likely to succeed on the merits, that they would suffer irreparable harm in the absence of the injunction, that a balance of equities favored the moving party, and that the injunction was in the public interest. Id. at 4.

Judge Pechman relied on Zadvydas v. Davis, 533 U.S. 678 (2001) and Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2019) in analyzing Padilla’s likelihood of success on the merits. In particular, she noted that “it has been long recognized that immigration detainees have a constitutionally-protected interest in their freedom” and that “freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Padilla at 6. Judge Pechman rejected the government’s arguments that the class was not entitled to due process under Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953), finding that Shaughnessy only applied to “excludable” immigrants. Id. Rather, she relied on United States v. Raya-Vaca, 771 F.3d 1995 (9th Cir. 2014) and Zadvydas in finding that “once an individual has entered the country, [she or] he is entitled to the protection of the Due Process Clause […] including their right to be free from indeterminate civil detention.” Padilla at 7.

Where Do We Go From Here?

Going forward, practitioners should first keep in mind the effective dates of both Padilla v. ICE and Matter of M-S-. The Padilla injunction takes effect on May 5, 2019, and accordingly, practitioners should fully argue their bond motions under such authority. Matter of M-S- does not take effect until July 15, 2019. However, practitioners should be prepared to remind Immigration Judges that basing their bond denials on Matter of M-S-, or ‘the spirit of Matter of M-S-,’ is inappropriate. Indeed, several practitioners have already reported that Immigration Judges have cited to Matter of M-S- as reason for bond denial, despite the fact that it would have been appropriate for the IJs to find that they do not have jurisdiction over such motions in light of the decision.

Second, even after July 15th (if there has not already been an emergency stay of the implementation of Matter of M-S- by then), practitioners should argue that Padilla supersedes Matter of M-S-. The Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) held that where there is an ambiguity in the law, courts should generally defer to the decisions of an executive agency charged with administering it. In so doing, courts must interpret the statute and the intent of Congress before engaging in deference. In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that a prior court’s construction of a statute that is in conflict with an agency’s ruling can only supersede the agency’s ruling if the statute in question is unambiguous. Additionally, under Murray v. Schooner Charming Betsy 6 U.S. 64 (1804), the Supreme Court held that statutes should be construed where possible to avoid conflict with international law.

Practitioners should seek to explain that Padilla is a nationwide injunction, and accordingly has greater judicial weight than a BIA case where this situation is distinguishable from Brand X. Moreover, in Matter of X-K-, although the BIA believed that there was a regulatory gap in jurisdiction over custody redetermination, it found that there was legislative history that suggested Immigration Judges do indeed have authority over bond proceedings. 23 I&N Dec. at 734; see also H.R. Conf. Rep. No. 104-828, at 209 (1996). One may also argue that INA § 235(b)(1)(A)(iii) unambiguously does not apply to asylum seekers who are not arriving aliens, as it refers to “certain other aliens,” and once they are placed in INA § 240 proceedings, they should eligible for bond. Furthermore, under Charming Betsy, one can argue that the detention of asylum seekers in the Padilla class runs afoul of international law, and deference to Matter of M-S- should not be given. See, e.g., Article 31 of the 1951 Refugee Convention (“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees…”); Articles 3 and 9 if Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights (dealing with the fundamental rights to liberty). Practitioners should continue to ponder and challenge Chevron and even Skidmore deference to the Attorney General’s self-certified cases. In so doing, they may find the late Supreme Court Justice Antonin Scalia’s reasoning in his concurring opinion for Crandon v. United States, a criminal case, to be instructive:

[W]e have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference [… Prosecutors have an incentive] to err in the direction of inclusion rather than exclusion—assuming, to be on the safe side, that the statute may cover more than is entirely apparent […] Thus, to give persuasive effect to the Government’s expansive advice-giving interpretation […] would [replace] the doctrine of lenity with a doctrine of severity.

494 U.S. 152, 177-788 (1990).

Lastly, practitioners should continue to argue in their bond motions (and subsequent appeals) that Matter of M-S- violates the Fifth Amendment. Specifically, practitioners can argue that due process requires “adequate procedural protections” to ensure that the government’s justification for physical confinement “outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690–91; see also, Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010). Practitioners should also raise due process concerns where immigration detention has proven to be a major barrier to access to counsel, and where medical and mental healthcare in detention are subpar, which can have a substantial impact on one’s ability to prevail in their immigration proceedings (note, though, that practitioners may also want to seek humanitarian parole if their clients do have any sort of medical hardship in addition to seeking release on bond). Practitioners should be prepared to defend against the government’s assertions that Jennings v. Rodriguez, 583 U.S. __ (2018) allows for the indefinite detention of asylum seekers and that they are not eligible for release. Practitioners may wish to point out that Jennings v. Rodriguez is actually on remand for the Ninth Circuit to consider the plaintiff’s constitutional challenge to indefinite detention, which the Supreme Court did not address, and may also wish to point out that the case deals with a separate class of foreign nationals.

There is no shortage of battles to fight under Trump’s regime. However, practitioners should continue to come together and zealously fight these egregious and unlawful policies. Practitioners are encouraged to check with their local immigration law chapters and litigious nonprofits to ensure that each and every one of our clients is advocated for. If we have learned anything over the past several years, it is that immigration advocates, backed by the power  of the courts, will continue to uphold the law by ensuring that we provide safety and refuge to those fleeing persecution.

 

*Guest author Sophia Genovese is a Direct Services Attorney for the Southeast Immigrant Freedom Initiative (SIFI), a project of the Southern Poverty Law Center. Sophia works exclusively with immigrants and asylum seekers detained at the Irwin County Detention Center in rural Georgia. There, she represents immigrants in their bond and parole proceedings, as well as in their merits cases. Sophia previously worked as an Associate at Cyrus D. Mehta & Partners PLLC, where she gained critical insights into immigration law.

David Isaacson

Are the Canadian and U.S. Refugee/Asylum Processes Really “Similar Enough”? How the New Refugee Bar in Bill C-97 Is Based on a Misunderstanding of U.S. Asylum Law

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In a development decried by several refugee-serving and civil rights organizations, the Canadian government’s proposed budget bill, Bill C-97, contains within it an amendment to the Immigration and Refugee Protection Act (IRPA) that would, as described by the bill’s official summary, “introduce a new ground of ineligibility for refugee protection if a claimant has previously made a claim for refugee protection in another country.”  More specifically, according to the new paragraph c.1 that would be added to subsection 101(1) of IRPA by section 306 of Bill C-97, a refugee claimant would be ineligible to have their case referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) for a full hearing if

“the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws”.

Instead, such claimants would be relegated to a Pre-Removal Risk Assessment (PRRA), a primarily paper-based process which is known to have a significantly lower approval rate than RPD hearings.

There are a few countries with which Canada has such an information-sharing agreement, including the United States, United Kingdom, Australia and New Zealand.  The primary purpose of new paragraph 101(1)(c.1), however, appears to be to bar refugee claims in Canada by those who have already made claims in the United States, or so an official government spokesperson has told the media:

“Mathieu Genest, a spokesman for Immigration Minister Ahmed Hussen, said the change’s primary effect is expected to be on people whose refugee claims have been rejected in the United States and who then try again in Canada. . . . .  The provision is based on the belief that Canada’s refugee system is similar enough to that of the U.S. that anyone rejected there is likely to be rejected here as well, Genest said.”

Although many refugee claimants arriving from the United States at a land port of entry are already barred by the Safe Third Country Agreement (STCA) – which is currently the subject of a challenge in the Federal Court of Canada – the STCA has exceptions for certain persons with relatives already in Canada and others.  It also does not apply to claims made by persons already inside Canada, a substantial number of which have recently been made after irregular entries into Canada away from an official port of entry that the government may be trying to discourage through this new legislation.  Thus, even with respect to the United States, the new bar would go beyond the STCA.

The “belief” expressed by Mr. Genest regarding the degree of similarity of the U.S. and Canadian asylum and refugee systems, however, is misguided.  The systems in fact have significant differences.  If the Canadian government is relying on the notion that anyone rejected in the U.S. asylum and refugee system is likely to be rejected in the Canadian one, that is a compelling reason (in addition to other reasons beyond the scope of this blog post) to follow the above-mentioned refugee and human rights organizations and “urge, in the strongest possible terms, that the government withdraw this measure from the Budget Implementation Act.”

For one thing, under U.S. asylum law, an asylum application can be denied solely because it was not made sufficiently soon after the applicant’s arrival in the United States.  Pursuant to INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), the right to seek asylum generally does not apply “unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.”  There are limited exceptions for changed and extraordinary circumstances under 8 U.S.C. § 1158(a)(2)(D), but if not qualifying under those, an asylum applicant will be relegated to seeking withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), or under the Convention Against Torture.  Besides allowing removal to other countries and not providing a route to permanent status, however, withholding of removal requires a higher standard of proof than asylum: one must show a clear probability of persecution for withholding, that is, show that persecution is more likely than not, while asylum requires only a well-founded fear of persecution.  The difference was made clear more than 30 years ago by the U.S. Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).  (At that time, there was no one-year time limit, but asylum and withholding of what was then deportation were still importantly distinct in that withholding was mandatory if the higher burden of proof was met, while asylum was and remains a discretionary benefit, as the Supreme Court explained.)

Under Canadian law, on the other hand, while a delay in applying for refugee status may be seen as evidence of lack of subjective fear, it does not lead to a categorical bar.  As the Federal Court reiterated less than two years in Kivalo v. Canada (Minister of Citizenship and Immigration), 2016 FC 728:

“Justice Zinn provided a helpful summary of the law regarding delay in claiming protection in Gurung v Canada (Minister of Citizenship and Immigration), 2010 FC 1097, [2010] FCJ No 1368 (QL), noting at para 21 that delay may be a valid factor to consider, but delay does not automatically result in a finding of lack of subjective fear. The circumstances and explanations for the delay must be considered.”

Indeed, it was already “well settled law” over a decade ago, according to Juan v. Canada (Minister of Citizenship and Immigration), 2006 FC 809, that although “a delay in seeking refugee status may be a relevant factor when assessing a claimant’s credibility . . . .  delay in claiming protection cannot, in and of itself, justify the rejection of a claim to Refugee status or to protection.”

Thus, a claimant who can show a well-founded fear of persecution, a realistic chance, but cannot meet the more-likely-than-not burden of withholding of removal, and who has delayed in seeking protection, may be rejected under United States law when he would have been accepted under Canadian law.

Moreover, unless an error of law has been made, a denial under the one-year bar is not judicially reviewable under the United States.  Pursuant to INA § 208(a)(3), 8 U.S.C. § 1158(a)(3), “No court shall have jurisdiction to review a determination of the Attorney General under paragraph (2).”  While the exception under 8 U.S.C. § 1252(a)(2)(D) allowing judicial review of “constitutional claims or questions of law” is an important one, it does not alter the fact that with respect to factual determinations, there will be no independent review to determine whether an administrative decision may have been unreasonable.  In the Canadian system, on the other hand, even aspects of the refugee determination as to which administrative decision-makers are given deference by the courts will be reviewed for reasonableness, because as explained in Dunsmuir v. New Brunswick, 2008 SCC 9, “The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies.  This power is constitutionally protected.”  This difference is yet a further dissimilarity between the U.S. and Canadian systems.

Nor is the lack of judicial review of one-year deadline issues the only important procedural difference in the treatment of refugee and asylum claims under Canadian and U.S. law.  Members of the IRB generally and the RPD in particular “are independent decision makers at an independent administrative tribunal operating at arm’s length from government.”  “The Immigration and Refugee Board of Canada is an independent tribunal established by the Parliament of Canada.”  The Immigration Judges and Board of Immigration Appeals (BIA) who process many asylum applications in the United States, on the other hand, rather infamously do not meet that description.  Under 8 C.F.R. 1003.1(h)(1)(i), their decisions are subject to review by the Attorney General, a political appointee, to whom they are subordinate.  There has been much discussion of proposals to establish an independent “Article I Court” to address U.S. immigration cases, but at the moment the Immigration Judges and BIA are situated firmly within the Executive Branch under Article II of the U.S. Constitution, rather than being at arm’s length from the government.  Where certain types of asylum claims are deemed politically inconvenient, they may for this reason face rejection under U.S. law where they would not under Canadian law.

The subordination of the BIA and Immigration Courts to the Attorney General is not merely a theoretical issue.  Former Attorney General Jeff Sessions rendered several precedent decisions, required to be followed by the BIA and Immigration Judges and without analogy in Canadian refugee law, which sought to restrict available bases for asylum and the procedures to be followed in adjudicating asylum claims.  In Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), for example, Attorney General Sessions sought to restrict eligibility for asylum by victims of domestic violence (although as discussed in a blog post by my partner Cyrus D. Mehta, some such claims may still be possible), and in Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), Attorney General Sessions overturned a BIA decision that had made clear asylum-seekers generally had the right to a full evidentiary hearing.  Immigration Judges were also instructed to adhere to a case-completion quota that has been criticized as giving rise to an “assembly line” version of (in)justice.

An asylum claimant asserting persecution relating to domestic violence, or raising a complex claim the merits of which are not apparent prior to an evidentiary hearing, may thus also be denied asylum in the United States even if they would be granted refugee status in Canada.  Victims of domestic violence may still claim protection in Canada, as in Kauhonina v. Canada (Minister of Citizenship and Immigration), 2018 FC 1300, and Jeanty v. Canada (Minister of Citizenship and Immigration), 2019 FC 453. And while the RPD may favorably resolve some less complex claims upon review of the file without a hearing, the reverse is not true: “where a member determines that a claim cannot be accepted through the file-review process, the claimant will have an opportunity to their case at a hearing.”

The Attorney General’s supervisory role in the process, and the related lack of independence of Immigration Judges and the BIA compared to the IRB, is not the only important procedural difference between the U.S. asylum process and Canadian refugee-claim process that could lead to different outcomes.  There is also an important difference in the nature of the administrative appellate review provided by the Refugee Appeal Division (RAD) of the IRB as opposed to the review provided by the BIA.

When the RAD reviews a decision of the RPD, it generally, under the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, reviews the decision for correctness.  There is an exception, set out in paragraph 70 of Huruglica, for certain instances in which “the RPD enjoy[ed] a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears.”  But in general, the RPD’s decision may be overturned if the RAD panel believes it not to be correct, even in cases involving the credibility of testimony.  The BIA, on the other hand, pursuant to 8 C.F.R. 1003.1(d)(3)(i), “will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.”

This distinction is particularly significant because of the dramatic disparities between the rates at which different U.S. Immigration Judges grant asylum.  Records compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, for example, show that asylum grant rates over the same 5-year period can range from as high as 97% to as low as less than 3%. Another TRAC report covering a slightly different five-year period found that even within the same immigration courts, in Newark and in San Francisco, the asylum grant rates of different Immigration Judges ranged from less than 3% up to as high as 89% (in Newark) or 91% (in San Francisco).  When an unusually skeptical Immigration Judge makes an unfavorable finding of fact, even if it relates to country conditions background materials or some other area where credibility of oral testimony is not at issue, the BIA will not intervene unless clear error can be shown.

Where the decision of an overly-skeptical RPD member is subject to RAD review, on the other hand, the RAD’s review for correctness can catch factual errors that fall short of being clearly erroneous.  RAD review is not available for all refugee claims, and for example claims made at a Canada-U.S. port of entry under an exception to the STCA are not entitled to RAD review pursuant to section 110(2)(d) of IRPA, but an applicant who is outside the coverage of the STCA by virtue of having crossed into Canada away from a port of entry before making a claim would be entitled to RAD review, and indeed such applicants often have their cases reviewed by the RAD.  This is another reason why such a claimant, even if denied asylum in the United States, might obtain refugee status in Canada, were it not for the new bar to be added by Bill C-97.

For all of these reasons, it is simply not true that “Canada’s refugee system is similar enough to that of the U.S. that anyone rejected there is likely to be rejected here as well.”  The Bill C-97 amendment to IRPA based on this false premise should itself be rejected.

Cyrus Mehta

The Nuts and Bolts of Complying with the H-1B Notice Requirements

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A US employer has to meet several requirements when filing an H-1B visa petition on behalf of the foreign national employee. One important requirement is for the employer to notify affected US workers regarding its intent to hire a foreign worker in H-1B nonimmigrant status. The notification requirement is considered to be an important protection for US workers as it informs them of the terms of the employment of the nonimmigrant H-1B worker, including the wage being offered, and the right of the US worker to examine documents justifying the wage, as well as the ability of the US worker to file complaints if they believe that violations have occurred.

The Wage and Hour Division of the Department of Labor has issued useful guidance regarding H-1B notice requirements by electronic posting in a Field Assistance Bulletin dated March 15, 2019 (FAB).  The WHD has seen a rise in the use of electronic notification by employers who file H-1B petitions. Employers have the option to notify US workers either through a hard copy notice or through electronic means. In the case of large employers, especially consulting companies who place thousands of H-1B workers at third party worksites of their clients, they have been using their own public website to meet the notification obligation. The FAB clarifies that use of a public website is permissible provided “all affected workers, including those employed by a third party, have access to, and are aware of, the electronic notification.”

212(n)(1)(C) of the Immigration and Nationality Act (INA) provides the legal basis for employers to provide notification to affected US workers of its intent to hire H-1B nonimmigrant workers. This notification obligation is triggered prior to the employer filing the Labor Condition Application (LCA). It is only after the LCA is certified that an employer may file the Form I-129 petition to classify the foreign worker for an H-1B visa or H-1B status. The DOL is required to certify the LCA within 7 days unless the information provided therein is inaccurate or incomplete. The notice must be given on or within 30 days before the date the LCA is filed with the DOL. It is important to first post and then electronically file the LCA in order to ensure perfect compliance.

20 CFR 655.734 provides further guidance on the employer’s notification obligation. Employers may comply with their notification obligation by posting either a hard copy notice or by electronic notification. Where there is a collective bargaining representative for the occupational classification in which H-1B nonimmigrants will be employed, the employer must provide the notice to the collective bargaining representative on or 30 days before the date the LCA is filed with the DOL.

Regarding who affected workers are, the FAB states:

“Affected workers are those at the same place of employment and in the same occupational classification in which H-1B workers will be or are employed. See 65 FR 80110; 80161. Affected workers need not be employed by the H-1B petitioner to qualify as such: the H-1B petitioner’s notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third party company. Id.”

The FAB then goes onto discuss hard copy and electronic notification requirements.

Hard Copy Posting Requirements

These requirements are set forth in 20 CFR 655.734(a)(1)(ii). The petitioning employer must post notice in at least two conspicuous places at the place of employment so that affected workers can easily see and read the posted notices. The notice shall indicate that H-1B nonimmigrants are sought; the number of such nonimmigrants the employer is seeking; the occupational classification; the wages offered; the period of employment; the locations at which the H-1B nonimmigrant will be employed, and that the LCA is available for public inspection at the employer’s principal place of business or at the worksite. The notice shall also include the following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”

There are additional requirements for H-1B dependent employers or willful violators who are not using exempt workers, which are also set forth in the regulation.

A copy of the LCA that is posted at two conspicuous locations also fulfills the notice requirement.  Note, though, that the most recent version of ETA 9035 requires the employer to indicate the business name and address of the entity, if the H-1B worker will be assigned to a third party site. Thus, the information contained in the LCA, if it is used to fulfill the notice requirement, goes beyond what is required in the regulation. 20 CFR 655.734(a)(1)(ii) only requires notification of the “location(s) at which the H-1B nonimmigrants will be employed” and not the business name and address of the entity.

The FAB states that an employer will not be in compliance of its notice obligation if it posts the “hard copy notification, for example, in a custodial closet or little visited basement.” 20 CFR 655.734(a)(1)(ii)(A)(2) suggests that appropriate locations for posting could be in immediate proximity to wage and hour notices or occupational safety and health notices. Still, if the intention of the notice is for workers in the same occupational classification to see them, then the notices could conceivably be posted conspicuously in the place where say software engineers in a large company congregate, such as in their pantry or recreational area. It would, however,  be prudent for the employer to post the hard copy in the vicinity of other notices that the employer is obligated to post under law as that would maximize the ability of affected workers to read it.

The employer who intends to employ H-1B workers at third party worksites also has an obligation to post at the third party site even if that place is not owned by the petitioner. The FAB suggests that the hard copy posting must be placed in a location available to all affected employees. “For example, if the H-1B petitioner posts at a third-party worksite, but in a physical location accessible only to its own employees (such as a private employee lounge or office) affected workers employed by the third-party have not been notified and the employer has not complied with this provision.”

There have been instances of entities that receive H-1B workers who do not cooperate with the posting requirement. The H-1B petitioner, unfortunately, is still liable for violating the notification requirement even if the third party entity refuses to post the notice. See Administrator v. Sirsal, Inc. and Vijay Gunturu, 11-LCA-1 (ALJ July 27, 2012).  There is no legal basis for penalizing the third party that refuses to cooperate.  Some petitioners in a good faith attempt to comply, when the third party refuses to post,  have the H-1B worker post the notice on his or her cubicle, but this  attempt, even if sincere,  may still not be in compliance if the posting is not visible to all affected workers in the occupational classification at the third party worksite.

The notice shall be posted on or within 30 days before the date LCA is filed, and shall remain posted for a total of 10 days.

Electronic Notification

In cases where the third party entity refuses to cooperate, electronic notification may be a way for the employer to be in compliance, especially those who place large number of H-1B workers at many worksites throughout the country. Electronic notification is as effective as hard copy notification under 20 CFR 655.734(a)(1)(ii)(B). The employer, according to the FAB, “must make the notification readily available, as a practical matter, to all affected employees.” Thus, the affected worker must be capable of accessing the electronic notification. The employer may e mail or actively circulate electronic messages such as through an employer newsletter.

Such notification shall be given on or within 30 days before the date the LCA is filed, and shall be available to the affected employees for a total of 10 days, except that if employees are provided individual, direct notice (as by e-mail), notification only need to be given once during the required time period. The notification must contain the same language as a hard copy posting.

With respect to notification to affected workers employed at a third party worksite, when the petitioner places its employees there, electronic notification must be given to “both employees of the H-1B petitioner and employees of another person or entity which owns or operates the place of employment.” 20 CFR 655.734(a)(ii)(B). The FAB still warns that some electronic resources used by H-1B petitioners may not be accessible to affected workers at a third party. Even if employees of the third party site can visit the electronic resource, “if they do not know to visit the electronic resource, the notification is not readily accessible, to affected workers employed by the third party.” And if affected employees have access to the electronic notice, but they cannot determine which notice is applicable to their worksite, the notice is insufficient and the employer will not be in compliance.

Electronic Notification on Public Websites

H-1B petitioners may provide electronic notification on their public websites, so long as the affected workers at the third-party worksite are aware of the notice and are able to determine which notice is applicable to their worksite. A number of large employers post the LCAs on their website and indicate the work locations.

Take for example PwC. PwC’s website has a link to Careers. From the Careers page, one scrolls down to Labor Condition Applications, which in turn takes you to a link to the work location such as San Antonio, TX, which opens up the actual LCA for that location.

Similarly, with respect to Cognizant, one has to go to Careers, and then scroll quite a way down to LCA Notices, which then links to a location, which further links to the LCA notice rather than the actual LCA.

Both PwC and Cognizant are compliant relating to a website posting as the affected workers are able to determine which electronic notice applies to their worksite. However, the FAB indicates that employers may need to do more than just posting the links with the work locations on their websites, and may have to make affected workers aware that the petitioner has posted on its website. This is not to suggest that these companies are not taking additional steps to notify affected workers, but the point being made is that posting the worksite by any employer on its public website may not be enough.  The FAB suggests posting a link to the electronic notice for a particular third-party employer’s intranet site or emailing the link to all affected employees at that worksite. The FAB also suggests that the H-1B petitioner complies, after electronic notification, by posting a hard copy message in a conspicuous site or directing affected workers to the website where the notice is posted for that particular website.

According to Roman Zelichenko, CEO and Co-Founder of LaborLess, the “DOL has allowed for some flexibility.” In the penultimate paragraph, the FAB states that, “an H-1B petitioner may provide this notification using whatever method, or combination of methods, it deems most prudent for its businesses.”  Zelichenko, whose company automates LCA posting for employers and attorneys, adds: “And this makes sense – small companies who hire H-1B workers through a consulting company or staffing firm might use Slack, Microsoft Teams, etc. to communicate with their staff, making that potentially the “most prudent” means of notifying their employees of an LCA posting. For other employers, the easiest way to comply would be to post a notice where they traditionally posted hard copy LCAs, except now it would direct employees to a URL. Ultimately, the memo’s language allows companies to decide for themselves how best to comply, while outlining the basic guidelines those companies should follow if they want to remain compliant.”

Even if an H-1B employer posts electronically, the DOL may still find that the employer is non-compliant if affected workers are not notified about the existence of the electronic posting. The guidance thus suggests that “[a]n H-1B petitioner may default to posting of a hard copy if it cannot ensure that all affected employers have ready access, as a practical matter, to the electronic notice.” The lesson to be learned from this is that electronic notification may not be the ultimate solution, especially to get around a recalcitrant third party entity that refuses to cooperate, and H-1B employers may still have to resort to a paper posting to ensure that all affected workers  have been notified.  And if the third party refuses to post, the H-1B employer is caught in a classic Catch -22!

 

 

Cyrus Mehta

The Best Way for Trump to Offer “Love and Sympathy” is to Repeal the Muslim Ban

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In the aftermath of the killing of 49 people who were peacefully praying in two mosques in Christchurch by a white supremacist, it is worth reflecting on Trump’s travel ban  again.

Trump’s travel ban, also known as the Muslim ban, and all of his other immigration policies, are based on promoting white nationalism. It is thus little surprise that Trump did not firmly denounce white nationalism and did not view it as a worrying trend in the world and instead  blamed a small group of people “with very, very serious problems.” He did not show any revulsion for the suspected killer, Brenton Harrison Tarrant, even though in his manifesto Tarrant praised Trump “as a symbol of renewed white identity and common purpose.”

When Trump was a candidate he said “I think Islam hates us.” He also lied about Muslims across the river in New Jersey celebrating after the September 11 attacks. As a candidate, Trump audaciously called for a “total and complete shutdown for Muslims entering the United States.” It was this animus towards Islam that played to Trump’s electoral base that served as the backdrop for Trump’s executive orders banning people from mostly Muslim countries when he took office. The first two executive orders were struck down by courts. A modified third executive order was fashioned to survive court scrutiny, which was upheld by the Supreme Court in Trump v. Hawaii even though two lower courts of appeal struck it down as unconstitutional. The ban has empowered extremists and Islamophobes worldwide.

This may also be the reason why Trump did not specifically express empathy with Muslims in his tweet expressing condolence after the Christchurch massacres, which he tweeted shortly after an interview with Brietbart News where he suggested that his supporters would resort to violence:

My warmest sympathy and best wishes goes out to the people of New Zealand after the horrible massacre in the Mosques. 49 innocent people have so senselessly died, with so many more seriously injured. The U.S. stands by New Zealand for anything we can do. God bless all!

Neither does Trump condemn the killer in this tweet. He insensitively says “best wishes” as if it is a wedding and ends with “God bless all.” One can see white supremacists taking some comfort in this equivocal message. Recall his other infamous equivocal message when he defended neo Nazis in Charlottesville by stating that there are “very fine people on both sides.”  Compare Trump’s statements with those of New Zealand’s premier Jacinda Ardern’s expressing great solidarity with Muslims while wearing a dupatta. She also advised Trump to offer Muslim communities “sympathy and love” when he asked her what the United States could do to help New Zealand.

While nobody is expecting Trump to visit a mosque in Muslim dress, the best way for him to take up Ardern’s offer of “sympathy and love” is to repeal the Muslim ban. It does not matter that the Supreme Court in Trump v. Hawaii upheld the travel ban by a narrow 5-4 majority. The ban has contributed to global Islamophobia, which in turn inspires supremacists like the New Zealand killer to massacre peaceful Muslims during Friday prayer time. There has already been much criticism of the Supreme Court’s decision in Trump v. Hawaii. Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of the executive order to be neutral on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution. Still, ironically, the majority overruled Korematsu v. United States, 323 U.S. 214 (1944), which upheld the forced internment of citizens of Japanese-American origin during World War II,  as having no place in the US Constitution. Yet in her powerful dissent, Justice Sotomayor found striking parallels between Korematsu and Trump’s ban. For example, both executive orders were based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy. The Supreme Court’s decision in Trump v. Hawaii is destined to be viewed in the same way as Korematsu – a shameful low point in Supreme Court history.

The Muslim ban views every national of a banned country as  suspect and as someone who possesses a grave threat to the United States even if this person is a grandmother or a baby. While it is true that nationals of banned countries can seek waivers, such waivers are seldom granted and have been viewed as a farce. The ban separates a foreign national spouse of the banned country from uniting with the US citizen spouse. The ban also prevents a banned country national from studying in a US university, taking up employment as a skilled professional on an H-1B visa or attending an academic conference as a visitor. While one is hard pressed to conclude whether the ban  furthers the national security interests of this nation, it definitely inspires white supremacists, who like the Christchurch killer believe that white people will be replaced by Muslims, blacks and Jews who will eventually subordinate them. In his manifesto, the killer referred to himself as a “regular white man” and that he was carrying out this attack to “directly reduce immigration rates to European lands by intimidating and physically removing the invaders themselves.” This is so similar to Trump’s rhetoric where he refers to the “caravan” of Central American migrants as invaders to justify the Wall, which is lapped up by white nationalists. Trump also falsely claimed when speaking about the dangers of the caravan that prayer rugs were found at the border to keep his base happy but also playing to their basest instincts. How could Trump denounce white nationalism when asked about it in the aftermath of Christchurch when he has the support of white nationalists and his immigration policy promotes white nationalism? White nationalism can only be eradicated if Trump is first universally condemned for inspiring it.

Can Trump rise up to the challenge and repeal the travel ban, and reverse so many other of his harsh immigration policies that do nothing to further America’s interests? It is the millions of immigrants who came to America since its inception for a better life that have contributed to the nation’s greatness. Trump has nothing to make America great by undermining the notion of America as a nation of immigrants. Instead, his immigration policies have been deployed to please his mostly white voter base who are insecure that immigrants are invading their country. His base does not represent the majority of Americans who have a positive view of immigrants. Trump’s slogan “Make America Great Again” is code for making America white again. Trump likes to cast himself as an incredible leader who has achieved more than any other president in his first two years, but that claim merely exists as fantasy in his mind. A leader can do better than catering to people’s vilest and basest fears, as Trump has done so far.  A leader must inspire Americans to embrace immigrants who, like sugar dissolving in a bowl of full of milk, have sweetened the nation with their enterprise, talents and culture.

Trump’s travel ban is a mere executive order that can be withdrawn with the stroke of a pen. If he does so, it would be a powerful symbolic gesture for expressing solidarity with Muslims after the horrific Christchurch massacres and a blow to the cause of white supremacists and Islamophobes.  If Trump cannot rise to the occasion and view white nationalism as a rising global threat, he will deservedly be viewed no better than a vile white supremacist even though he rose to become president of the United States,  and consigned to history’s garbage bin.

Cyrus Mehta

Advancing a “Social Group Plus” Claim After Matter of A-B-

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In Matter of A-B–, 27 I&N Dec. 227 (A.G. 2018), former Attorney General Jeff Sessions overruled a prior Board of Immigration Appeals (BIA) precedent, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which held  that victims of domestic violence can qualify for asylum based on their particular social group (PSG) of “married women in Guatemala who are unable to leave their relationship.” Although victims of domestic violence has been recognized as a particular social group in US asylum law as well as in the asylum laws of other countries like the United Kingdom,  Canada and New Zealand,  Sessions set aside Matter of A-R-C-G resulting in a setback for persons fleeing domestic violence.

There is much commentary revealing how the reasoning of Matter of A-B was dicta. The application of Matter of A-B has been successfully challenged in the context of credible fear claims in Grace v. Whitaker.  Therefore, despite Matter of A-B, an applicant must still assert membership in a particular social group when fleeing domestic violence. In Matter of M-E-V-G-, 26 I&N 227 (BIA 2014), the Board acknowledged that whether a particular social group exists is a case-by-case determination and the AG’s decision should not be read to foreclose alternative particular social group formulations for victims of domestic violence where the facts of the case support it. Matter of M-E-V-G-, 26 I&N 227, 242 (BIA 2014); Matter of A-B-, 27 I&N Dec. 227, 319 (AG 2018) (noting that this decision is consistent with Matter of M-E-V-G-).  It may however be prudent for an applicant fleeing domestic violence to assert other grounds of asylum in addition to membership in a particular social group.

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2).

The agile immigration law practitioner must endeavor to invoke grounds in addition to particular social group when representing an asylum claimant fleeing domestic violence such as race, religion, nationality or political opinion. This is what I refer to as a “social group plus” claim.   Often times, the additional ground can be blended and intertwined with the particular social group ground that would only strengthen this ground, and enable the client’s claim to be readily distinguished from Matter of A-B.

 Religion and Ethnicity

It may be worth exploring whether an applicant can claim asylum on account of race, religion or nationality. Many applicants may belong to ethnic backgrounds or religions whose members may face discrimination in the country. Hence, a victim of domestic violence who belongs to a religion or ethnic group that is disfavored may find it more difficult to seek the help of the authorities when seeking protection from domestic violence perpetrated by a private actor. Establishing this fact, based on the claimant being part of a disfavored group, will enable such a claim from overcoming the elevated concern of “private actor harm” in Matter of A-B. There are several decisions that have acknowledged persecution claims based on religion, ethnicity or both. In one decision, the Board held that the respondent faced anti-Semitic persecution on account of the respondent’s Jewish nationality. Even if ethnicity is not part of the grounds for asylum, an ethnic group may fall under the “nationality” ground.   It can thus be argued that ethnicity or religion can also constitute “nationality”, such as Jewish nationality in the Ukraine, Armenian in Russia or Parsi Zoroastrian in a Muslim majority country. The following decisions support such an argument:

  • Pan v. Holder, 777 F.3d 540 (2d Cir. 2015) (Korean ethnicity and evangelical Christian religion).
  • Shi v. AG, 707 F.3d 1231 (11th 2013)(Christian religion in China).
  • Bracic v. Holder, 603 F.3d 1027 (8th 2010) (Muslim religion and Albanian ethnicity).
  • Matter of O-Z and I-Z-, 22 I&N Dec. 23 (BIA 1998) (Jewish nationality).
  • Ahmed v. Keisler, 504 F.3d 1183 (2007) (Bihari in Bangladesh was a disfavored group and respondent likely to be targeted as a result).

Moreover, as family qualifies as a social group under Matter of  L-E-A, 29 I&N Dec. 40 (BIA 2017), an applicant can also distinguish ethnicity or religion of the family that stands out in the country or because it may be a vulnerable minority group. This can overcome the nexus barrier in L-E-A. Although former Acting Attorney General Whitaker referred L-E-A to himself, L-E-A is still good law at present. There is also a long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

Imputed Political Opinion

Imputed political opinion can also be developed in a domestic violence asylum case when the abusive spouse is politically powerful and uses the state apparatus to persecute defiant or feminist spouse or spouses who defy their husband’s authority under an honor code such as Kanun in Albania.  Long before there was any precedent decision, in 1996,   I successfully represented a respondent claiming asylum who escaped domestic violence abuse perpetrated by her husband who was a powerful police officer in Bangladesh. He did not allow her to work or start her own business, and thus she was persecuted for expressing herself, which went against the mores of her family and society. She was unable to seek protection as her husband was a powerful police officer.   Around the same time, in another case where I had no involvement,  an Immigration Judge granted asylum to Bangladeshi woman who had been beaten by family on account of her role in the Jatiyo Mahila Party and because of her efforts to lead an independent life. Matter of Sonia Sharmin (A73 556 033, IJ New York, NY, Sept 30, 1996). In Fatin v. INS, 12 F.3d 1233 (3d Cir 1993), Judge Alito writing for the majority agreed that gender was an immutable characteristic and thus satisfying the particular social group definition, and in addition, the respondent’s feminism or opposition to male dominance constituted political opinion. In a post Matter of A-B– decision, an Immigration Judge in San Francisco granted asylum to a woman from Mexico who suffered abuse from both her mother and her husband  on account of both particular social group and her feminist political opinion.

There is also a nexus between gangs and the government in the Northern Triangle countries. Gangs may control the government, and in some cases they have become the “de facto government” controlling significant areas of the country. This factor too can give rise to an alternative ground for asylum under political opinion.

Consider the following cases in advancing imputed political opinion in addition to membership in a particular social group for an asylum claimant fleeing domestic violence:

  • Al-Saher v. INS, 268 F.3d 1143 (9th 2001) (political opinion encompassed more than electoral politics or formal political ideology or action).
  • Sangha v. INS, 103 F.3d 1482 (9th 1997) (political opinion can be an actual opinion held by the applicant or an opinion imputed to him/her by persecutor).
  • Ahmed v. Keisler, supra (Bihari in Bangladesh who wants to be sent to Pakistan can show imputed political opinion in addition to membership in particular social group).
  • Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) (membership in union can constitute social group, but if union is also opposed to the government in economic dispute, can impute political opinion to its member).

Matter of A-B was a cowardly decision based on Session’s personal bias. He abused his authority as Attorney General to overturn an established precedent decision that has provided protection to thousands of victims of domestic violence in the United States. Although Sessions is no longer Attorney General, this is his dark legacy that must not be allowed to undermine the rights of mainly women fleeing domestic violence. Immigration practitioners must use every strategy to both overcome and take down Matter of A-B.

 

Cyrus Mehta

Trump Administration Imposes Another Unnecessary Obstacle: USCIS to Issue New Version of Form I-539 and New I-539A on March 8

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U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.

Form I-539 is used for a variety of application types, including:

  • Certain nonimmigrant applications for an extension of stay
  • Certain nonimmigrant applications for a change of status
  • Reinstatement for F-1 and M-1 students

USCIS has expanded the scope of information to be gathered and will change the filing and adjudication requirements. The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 instructions.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

USCIS said it will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

The biometric requirement is bound to slow down the process especially when the dependents are accompanying the principal through a premium processing request. The USCIS has always taken the position that premium processing only applies to the principal filing the Form I-129, and processing the I-539 and I-765 is only a courtesy. The new biometric requirement will most likely deprive the dependent of any premium processing. It also seems odd to subject dependents to biometrics, but not the principal beneficiary. Even dependent infants will be subject to biometrics. Besides being cruel, it also adds another layer of uncertainty in the life of a foreign national worker who may also be subject to a denial of the renewal of his or her Form I-129 request.

The new biometric requirement poses yet another obstacle to foreign nationals who are legally in the US and wish to play by the rules. It is completely unnecessary to subject dependents to biometrics when the principal is not. Not only will it deprive dependents from taking advantage of premium processing, but it will lead to further delays with respect to spouses who are seeking to obtain or renew work authorization as H-4 or L-2 dependents.  The Trump Administration is also on the verge of promulgating a new regulation that will rescind work authorization for H-4 spouses. The biometric requirement will delay the H-4 spouses ability to obtain another renewal before the H-4 regulation takes effect. It only adds insult to injury and rubs salt in the wound of those waiting in the never ending green card backlogs.