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.

 

 

Cyrus Mehta

Don’t Always Suck Up to Buy American Hire American

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President Trump’s Buy American Hire American Executive Order (BAHA) has little relevance in an economy where the unemployment rate is 4% and the Labor Department has reported that there is a record high of 7.3 million job openings.  BAHA has however been deployed to make life harder for legal immigrants who do their best to remain in status while pursuing lawful permanent residence. They also benefit the United States as their employers need them and follow the law in filing appropriate visa applications.   For example, H-1B visa renewals that were routinely approved previously are now being denied in the name of BAHA. The USCIS has recently released new H-1B data that reflects an increase in requests for evidence and denials in 2019, again pursuant to BAHA.

BAHA aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. BAHA highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries. BAHA, however, is merely an executive order. It should not take precedence over the Immigration and Nationality Act.  Still, the USCIS uses BAHA as justification to refuse otherwise approvable H-1B petitions. Some of these H-1B denials are absurd. The author recently heard that the USCIS denied a petition filed on behalf of a pathologist by an established pharmaceutical company.

Following BAHA, the State Department also swiftly made changes to the Foreign Affairs Manual regarding guiding consular officials in issuing nonimmigrant H, L, O, P and E visas. The changes relating to H and L visas are reproduced below as examples:

9 FAM 402.10-2 Overview of H Visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2 Overview of L visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

Based on these FAM changes, here have been several anecdotal reports of consular officers asking visa applicants as to how their employment will further BAHA by creating jobs for American workers or not depressing their wages. Some have been questioned whether their employers first tried to hire American workers even when such recruitment is not required under the specific visa. Such questioning is entirely inappropriate and not consistent with the law under which the visa petition was approved.

For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under BAHA, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. BAHA was not in existence when Congress created the L, E, H-1B or O visa provisions in the INA. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a) (15) (L) that the purpose of the L visa was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so. Even with H-1B visas, unless an employer is a dependent employer, there is no obligation on the part of the employer to recruit for US workers. Regarding wages too, if an employer is legitimately hiring a worker for an entry level position in an H-1B specialty occupation, the employer is under no obligation under the law to pay the highest level wage.

As a result of all visa applications being viewed through the prism of BAHA, attorneys feel the need to advise their clients to answer questions of consular officials relating to BAHA. Some attorney are also indicating in H-1B and other visa petitions (both nonimmigrant and immigrant) as to how the beneficiary will further BAHA. While it may be tempting for us as attorneys to invoke BAHA as if it is a deity with magical powers, it may also lead us down a rabbit hole. Apart from not being law and only an executive order, BAHA sets no standard for the attorney to guide the client. If the attorney indicates that the H-1B worker’s entry into the US will create more jobs, there is no metric to establish this. The only metric we have under current immigration law include specific labor market tests under the permanent labor certification program, the H-2A and H-2B programs and the H-1B program for dependent employers or willful violators. These rigid criteria have not been followed in other visa petitions such as an L-1 or an H-1B (for a non-dependent employer or an employer who is not a willful violator), and they do not need to.

If a client is asked inappropriately regarding whether the position will impact American workers or not, the client should be prepared to answer that the visa petition met all the criteria under the statutory and regulatory provisions, and was approved accordingly. There is no need for the client, or the attorney, to improvise on why the applicant’s employment in the US will result in more jobs for US workers.  Advancing the client’s cause under BAHA will lead to more questions from the adjudicating official, which could be arbitrary and cannot he held up to an objective legal standard.

This is not to say that an applicant should never make a BAHA argument in his or her favor. There may be some instances where the argument in favor of BAHA is clear cut or the official asks specific questions where an answer may be readily available.  The purpose of this blog is to caution against the talismanic invocation of BAHA, when there is no metric or standard, under which an adjudicating official can be held up to. BAHA has also been used most effectively to deny immigration benefits. If an official infuses the adjudication process with BAHA, resulting in a denial, it could be grounds for appeal. Even at the consular level, which is generally immune from administrative or judicial review, a denial of a visa application based on BAHA would potentially allow the applicant to seek an advisory opinion from the Visa Office if the denial was contrary to the statutory provision.  If the applicant already conceded that the official could ask for extraneous evidence under BAHA and provided it, it may be harder to appeal such a denial. Therefore, in the opinion of this author, it is best to not always suck up to BAHA.

 

David Isaacson

Not Sure Whether to Laugh or Cry: How the Border Patrol’s Harassment of an Oregon Comedian Shows Why It Should Not Be Checking Documents Within the United States

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In late January, Oregon comedian Mohanad Elshieky was briefly detained by the Border Patrol while traveling on a Greyhound bus in Spokane, Washington.  He recounted the incident on Twitter, and it was also reported by a number of news organizations.  In summary, the agents boarded the bus at the Spokane Intermodal Bus Station and began questioning passengers about their citizenship.  When Mr. Elshieky admitted to the Border Patrol agents that he was not a U.S. citizen but informed the agents that he had been granted asylum in the United States, the agents rejected the Employment Authorization Document (EAD) and driver’s license that he offered them, and asserted that he was “illegal”.  After questioning Mr. Elshieky for roughly 20 minutes outside the bus in freezing weather, and checking by phone with supervisors, the agents finally allowed Mr. Elshieky to reboard the bus and go on his way.

The Border Patrol, attempting to justify its action, appears to have sent the following statement to several news organizations, at least one of which reproduced it in full.  I reproduce the statement below in full as well to avoid any suggestion that I am taking language out of context:

“Agents from the U.S. Border Patrol’s Spokane Station encountered an individual on Sunday at the Spokane Intermodal Bus Station who was not in possession of the immigration documents required by law.

While performing transportation checks, agents made contact with Mohanad Elshieky. Mr. Elshieky stated he was from Libya and presented the agents with an Oregon driver’s license and an Employment Authorization Card (EAD). As with anyone who needs to have their immigration status verified, Mr. Elshieky was asked to exit the bus. After the approximately 20 minutes needed to verify his status, Mr. Elshieky was allowed to board the bus and continue his travels without delay.

According to 8 USC 1304(e), all immigrants 18 years and older are required to carry immigration documents showing they are in the United States legally. Neither an EAD nor a driver’s license is considered a valid document to satisfy this law. A valid I-94, which is given to all immigrants when legally entering the United States, or paperwork showing a person is currently in the asylum process, which is given to the asylee by the U.S. Citizenship and Immigration Services, would have worked to resolve this inquiry quickly.

For decades, the U.S. Border Patrol has been performing enforcement actions away from the immediate border in direct support of border enforcement efforts and as a means of preventing trafficking, smuggling and other criminal organizations from exploiting our public and private transportation infrastructure to travel to the interior of the United States. These operations serve as a vital component of the U.S. Border Patrol’s national security efforts.

Although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence. The Immigration and Nationality Act 287(a)(3) and 8 USC 1357 state that Immigration Officers, without a warrant, may “within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.” A reasonable distance is defined by 8 CFR 287 (a)(1) as 100 air miles from the border.”

The notion that there is a comprehensive registration scheme currently in operation, which registers all aliens and requires them to carry certain documents, has been contested in an article by Professor Nancy Morawetz and Natasha Fernandez-Silber that is very much worth reading, but for present purposes we can take it as given.  The more important point here is that the Border Patrol, even in its statements to the media, appears to be unaware of what that registration scheme actually says.

The provision of law cited by the Border Patrol for the proposition that “all immigrants 18 years and older are required to carry immigration documents showing they are in the United States legally”, 8 U.S.C. § 1304(e), states that “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d).”  The referenced subsection (d), in turn, states that

Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.

8 U.S.C. § 1304(d).  The statute makes clear that its structure will be fleshed out by regulations.

The regulation at 8 C.F.R. § 264.1 then sets out in detail what documents qualify as evidence of alien registration for purposes of the statute.  It states:

The following forms constitute evidence of registration:

Form No. and Class

I-94, Arrival-Departure Record—Aliens admitted as nonimmigrants; aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act; aliens whose claimed entry prior to July 1, 1924, cannot be verified, they having satisfactorily established residence in the United States since prior to July 1, 1924; and aliens granted permission to depart without the institution of deportation proceedings.

I-95, Crewmen’s Landing Permit—Crewmen arriving by vessel or aircraft.

I-184, Alien Crewman Landing Permit and Identification Card—Crewmen arriving by vessel.

I-185, Nonresident Alien Canadian Border Crossing Card—Citizens of Canada or British subjects residing in Canada.

I-186, Nonresident Alien Mexican Border Crossing Card—Citizens of Mexico residing in Mexico.

I-221, Order to Show Cause and Notice of Hearing—Aliens against whom deportation proceedings are being instituted.

I-221S, Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien—Aliens against whom deportation proceedings are being instituted.

I-551, Permanent Resident Card—Lawful permanent resident of the United States.

I-766, Employment Authorization Document.

Form I-862, Notice to Appear—Aliens against whom removal proceedings are being instituted.

Form I-863, Notice of Referral to Immigration Judge—Aliens against whom removal proceedings are being instituted.

Note to paragraph (b):

In addition to the forms noted in this paragraph (b), a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport constitutes evidence of registration.

8 C.F.R. § 264.1(b).  (Emphasis added.)

The regulation clearly lists an “I-766, Employment Authorization Document” as a form of “evidence of alien registration.”  This is in stark contrast to the Border Patrol spokesperson’s assertion that “Neither an EAD nor a driver’s license is considered a valid document to satisfy this law.”  In fact, an EAD is indeed considered a valid document to satisfy the law—although apparently not to satisfy the Border Patrol.

The Border Patrol spokesperson’s assertion that “A valid I-94, which is given to all immigrants when legally entering the United States, or paperwork showing a person is currently in the asylum process, which is given to the asylee by the U.S. Citizenship and Immigration Services, would have worked to resolve this inquiry quickly” fares little better on close examination.  Many nonimmigrants can indeed print a Form I-94 from the U.S. Customs and Border Protection (CBP) website, although paper Forms I-94 are no longer routinely issued upon entry into the United States, and one assumes that the Border Patrol did not expect Mr. Elshieky to have a printer with him.  But Mr. Elshieky’s I-94 issued upon entry to the United States, if he had had it with him, would have revealed only that he had once been a J-1 (exchange visitor) nonimmigrant, a status he no longer held—which would be of little use to the Border Patrol in their efforts to determine whether he was here legally now.  And some asylees, who initially entered without inspection but were subsequently granted asylum, would not have such an I-94 from their time of entry anyway.

What the Border Patrol spokesman presumably meant was that Mr. Elshieky should have been carrying a Form I-94 indicating his current asylum status, as opposed to his former J-1 status.  But while some asylees will indeed possess such a document, the regulations quoted above specify a Form I-94 as evidence of alien registration only for limited classes of people, and asylees are not among them:

I-94, Arrival-Departure Record—Aliens admitted as nonimmigrants; aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act; aliens whose claimed entry prior to July 1, 1924, cannot be verified, they having satisfactorily established residence in the United States since prior to July 1, 1924; and aliens granted permission to depart without the institution of deportation proceedings.

8 C.F.R. § 264.1(b).  Moreover, not all asylees will have a Form I-94.  It is supposed to be issued following a grant of asylum by an immigration court or by the Board of Immigration Appeals (BIA), but this is not done contemporaneously with the grant.  The Form I-94 is issued by U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security, while the immigration courts and BIA are part of the Executive Office for Immigration Review (EOIR) located within the Department of Justice, and the government lawyers who will have the asylee’s file at the moment of the grant are part of Immigration and Customs Enforcement (ICE).  The issuance of an I-94 by USCIS following a grant of asylum by an immigration judge or the BIA has, from this author’s personal experience, sometimes taken months, depending on how long it takes for the relevant file to be transferred.

As for the Border Patrol spokeman’s suggestion that Mr. Elshieky ought to have presented “paperwork showing a person is currently in the asylum process, which is given to the asylee by the U.S. Citizenship and Immigration Services,” this misses the mark on two levels.  First, such paperwork is not listed in 8 C.F.R. § 264.1(b) as evidence of alien registration.  And second, Mr. Elshieky was not, and never claimed to be, “currently in the asylum process”; he correctly informed the Border Patrol that he had already been granted asylum.

The bottom line, therefore, is that the Border Patrol got the law wrong.  I would respectfully suggest that this misunderstanding by the Border Patrol, including not only the agents on the ground but the agency’s own official spokesperson, is illustrative of a broader problem.

The Border Patrol, according to its spokesperson’s statement, believes that “[a]lthough most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence.”  Whether or not this is correct as a description of the Border Patrol’s statutory and regulatory authority, it does not appear to be correct as a description of what they are qualified to do and should be doing.

Enforcement of U.S. immigration laws is, and historically has been, divided among multiple agency components.  Enforcement of the laws within the interior of the United States is performed by what is now ICE and used to be a component of the Immigration and Naturalization Service (INS) within the Department of Justice.  There has been recent debate about whether to abolish ICE and return that enforcement function to within the Department of Justice, an issue beyond the scope of this blog post, but the important point here is that there has always been a component of the government performing this function which was not the Border Patrol.  Even within U.S. Customs and Border Protection (CBP), of which the Border Patrol is a component, it is the Office of Field Operations (OFO), the officers in black uniforms whom one encounters at airports and other ports of entry, who have the primary responsibility for determining whether people arriving at the borders of the United States are admissible under our complex immigration laws—not the green-uniformed Border Patrol.  And when applicants seek immigration benefits from within the United States, or the government seeks to remove them from the United States, the relevant legal determinations are generally made either by USCIS, a descendant of the former INS, within the Department of Homeland Security, or by the immigration courts and BIA in EOIR within the Department of Justice.  All of these agency components have specialized training in the nuances of immigration law, and must have it in order to perform their functions.  The Border Patrol is not in the same position.

This author would respectfully suggest that the Border Patrol’s place in the overall immigration-enforcement scheme should be limited to determining whether people who are trying to cross the border, or have very recently done so and are still very near the border, have passed (or will pass) through a port of entry for inspection, or have crossed elsewhere to avoid inspection.  In the former case, when someone passes through a port of entry, CBP OFO can analyze the details of their situation.  In the latter case, the Border Patrol can hand over recent entrants without inspection to ICE (or perhaps in the future a revamped INS) and the immigration courts, and in certain cases to USCIS asylum officers for an analysis of a claimed fear of persecution.  But when someone is not a recent border-crosser in close proximity to the border, the Border Patrol is not the agency component qualified to determine whether they are properly maintaining some status in the United States or potentially ought to be processed for removal proceedings.

This is so whether or not someone in the interior of the United States is encountered less than 100 miles from the border, as was apparently the case here.  (The Spokane bus station is evidently 90-something miles from the U.S.-Canada border in a straight line, although Google Maps suggests that actually driving from there to the border would take roughly 108 miles.)  As the American Civil Liberties Union has pointed out, roughly two-thirds of the U.S. population lives within 100 miles of some U.S. border, if one includes the water boundaries of the United States.  Operating within that 100-mile zone does not equate to only patrolling the actual border and only seeking out people who appear to have recently crossed it.  Spokane, Washington, is not on the border with Canada, and I very much doubt that the Border Patrol agents who questioned Mohanad Elshieky really thought that he had just entered from Canada without inspection.

Checking documents within the United States to enforce the immigration laws in the interior of the United States is not the Border Patrol’s job, or at least should not be.  As the case of Mohanad Elshieky illustrates, forcing the square peg of the Border Patrol into the round hole of interior enforcement can produce deeply problematic results.  The Border Patrol should stick to patrolling the border, and leave interior enforcement and legal interpretation to better-qualified agency components.

Sophia Genovese

The Trump Administration’s Lawlessness at the Border: Stories from Tijuana

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Following the law should not be a radical idea. Yet the governments of the United States and Mexico somehow find advocacy for the codified rights of asylum seekers reprehensible.

I travelled to Tijuana in mid-January to provide pro bono assistance to asylum seekers trying to present themselves at the San Ysidro Port of Entry and lawfully claim asylum. I was hosted by the Border Rights Project of Al Otro Lado, an amazing non-profit organization that provides critical legal orientations and know-your-rights trainings to asylum seekers in Tijuana, as well as documents human rights abuses against asylum-seekers by the Mexican and US authorities. Given their zealous advocacy and pursuit of justice, Al Otro Lado has become public enemy #1 in the eyes of US Customs and Border Protection (CBP) and the Mexican Instituto Nacional de Migración (INM). But what Al Otro Lado and volunteers are fighting for, in part, is for the US and Mexican governments to follow the law – in particular, the right to seek asylum. They are met with shockingly hostile resistance.

Section 208 of the Immigration and Nationality Act (INA) provides,

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).

INA § 208 does not limit the number of asylum seekers allowed to present at a port of entry and claim asylum on any given day. It does not allow for a waitlist for entry, which forces asylum seekers to wait in Mexico until their numbers are called. Critically, INA § 208 does not limit asylum protections to only those who present at ports of entry. Somehow, the plain meaning of INA § 208 is lost on this administration; or, it simply does not care. Regardless of intent, this administration is flagrantly violating the law by preventing asylum seekers from lawfully claiming asylum and sentencing them to death in the process.

I have previously blogged about the various ways in which the Trump administration has eroded the rights of asylum seekers and has made it increasingly difficult for these folks to access justice once already in the US. The Trump administration has now taken aim at asylum seekers even before they reach the US in an attempt to prevent them from asserting their rights through its illegal metering tactics and the recent rollout of the Migrant Protection Protocol.

Illegal Turn Back Policy and the Metering of Asylum Seekers

Since at least the summer of 2016, CBP has consistently violated INA § 208 by turning back asylum seekers who lawfully present themselves at ports of entry and claim asylum. CBP officers regularly tell asylum seekers that “Donald Trump just signed new laws saying there is no asylum for anyone” or that they will be separated from their children if they claim asylum, and even coerce asylum-seekers into signing documents stating that they do not have a fear of returning to their home country. CBP has attempted to justify such unlawful conduct by claiming that there is not enough room to process all of the asylum seekers who present at a port of entry on any given day.

As a result of the illegal turn back policy, asylum-seekers are forced to remain in Mexico while they await the opportunity to access basic asylum procedures. In Tijuana and several other ports of entry, this has resulted in an unlawful metering list (referred to as la lista), where asylum seekers and their families take a number and wait to be called before they may access the port of entry. Although asylum-seekers themselves are the ones responsible for giving out numbers to newly arrived asylum-seekers, la lista is actually managed by Grupos Beta (the so-called ‘humanitarian division’ of the Mexican INM) at the direction of US CBP. Each morning, CBP officials convey to Mexican INM how many asylum seekers they will accept that day. Mexican INM then relays this information to the asylum seeker tasked with running la lista, who then relays the numbers to asylum seekers anxiously awaiting their opportunity to claim asylum. Asylum seekers whose numbers are called line up at El Chaparral border crossing, but are then transported via van to a different port of entry several miles away.

It is important to note that unaccompanied minors are not allowed on la lista, thus leaving them to languish in Tijuana where they are at severe risk of exploitation and violence. Although not officially confirmed, one can infer that CBP does not wish to accept UACs because they are entitled to additional protections under the law. One can also infer that CBP conveys this desire to the Mexican INM who then conveys this to the list-keepers to not allow UACs on la lista. As a result, UACs are systemically blocked from accessing US asylum procedures, and are forced to age out while in Mexico before they are allowed to present at the port of entry. Once in the US, they will be treated as adults and entitled to fewer protections, despite their heightened vulnerability.

Illegal Metering in Practice: A Typical Morning at El Chaparral

Each morning at 7:00am, Al Otro Lado staff and volunteers arrive at El Chaparral to welcome newly arrived asylum seekers and to let them know that we are here to help them navigate the confusing US asylum process. We let them know about the organization’s daily Know Your Rights trainings and legal clinics, medical assistance, and free food and water.

The second half of the morning, Al Otro Lado volunteers turn their attention to asylum seekers whose numbers are called off of la lista and who will be allowed to present at the port of entry and claim asylum. During my stay in Tijuana, CBP allowed in anywhere from 15 to 60 people on any given morning – a shockingly low number given that San Ysidro port of entry is one of the largest and busiest land border crossings in the world which processes over 70,000 vehicles and 20,000 pedestrians per day. For about an hour before the asylum seekers are transported to the port of entry, volunteers scramble to provide last minute Credible Fear Interview (CFI) preparation for those asylum seekers whose numbers are called. We also told folks to dress in their warmest layer on the bottom because they are only permitted one layer of clothing once they are processed by CBP. All other clothing will be confiscated. This is despite the fact that asylum seekers are held for weeks on end in freezing hieleras. We also told the asylum seekers to write the phone numbers of friends or family in the US on their bodies because all of their documents will be taken from them. We told mothers with their children that we could not guarantee that they wouldn’t be separated. One mother had a teenage daughter with autism. She wanted to know what would happen to her if they were separated. We couldn’t provide her with any guarantee that the US government would comply with the law and provide her daughter with the heightened care she was entitled to. Around 9:30am, the first vans took off to the port of entry. Volunteers were hopeful that each asylum seeker would be okay, but we will never know for sure what happens to them once they are processed by CBP.

The US government’s metering practices and endorsement of la lista are unlawful. Under both US and international law, when someone expresses a fear of returning to their country of origin, the US is obligated to provide that person with an opportunity to seek protection. The US is in flagrant violation of their international and domestic obligations by refusing admission to asylum seekers who lawfully present at ports of entry, whether they turn back those asylum seekers who make it to the port of entry, through their endorsement of la lista, or the wholesale ban on admission of UACs.

Given their on-the-ground knowledge of what the US and Mexican governments are perpetrating, Al Otro Lado, the Center for Constitutional Rights, and the American Immigration Council filed suit to challenge the US government’s unlawful metering practice in Al Otro Lado, Inc., et al. v. Kirstjen Nielsen, et al. The complaint explains that CBP has utilized various tactics to deny asylum seekers access to protection through “misrepresentations, threats and intimidation, verbal abuse and physical force, and coercion.” Id. at 1. It argues that such tactics have deprived asylum seekers of their “statutory and regulatory rights to apply for asylum, violated their due process rights under the Fifth Amendment […], and violated the United States’ obligations under international law to uphold the principle of non-refoulement.” Id. at 2. In particular, CBP has violated its statutory duty to inspect all noncitizens who arrive at ports of entry under INA § 235(a)(3), which provides “all aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.” INA § 235(a)(3) is not discretionary; thus, when CBP refuses to refer an asylum seeker to a CFI or to place them in proceedings, they are in violation of INA § 235(a)(3), as well as in violation of the Due Process Clause of the Fifth Amendment for failure to comply with mandatory asylum procedures. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of Al Otro Lado’s claims to go forward.

What Happens Next?

Against this backdrop, the Trump Administration has also recently carried out its inaccurately named Migrant Protection Protocols (MPP), which will force asylum seekers to remain in Mexico while they adjudicate their claims in immigration court. Under the plan, asylum seekers will be given a Notice to Appear (NTA) for an immigration hearing and returned to Mexico while awaiting their hearing. However, the NTA may or may not actually list an actual court date, forcing asylum seekers to constantly check the EOIR hotline to know when their hearing will actually be. When the court date arrives, the onus is on asylum seekers to arrive at the port of entry in order to be escorted to their immigration hearing. UACs (if they can actually access the port of entry), Mexican nationals, and other undefined vulnerable individuals will not be subject to the MPP.

Under the Policy Memorandum, in order to not be returned to Mexico, one must show that he or she “would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion […] or would more likely than not be tortured.” As a reminder, in order to demonstrate a credible fear of persecution, one must only show a significant possibility of eligibility for asylum. 8 CFR § 208.30(e)(2). To be eligible for asylum, one must only show that there is a one-in-ten probability of being persecuted in order to demonstrate that such fear is “well-founded.” INS v. Cardoza-Fonseca, 480 US 421, 431 (1987) (“That the fear must be ‘well-founded’ does not alter the obvious focus on the individual’s subjective beliefs, nor does it transform the standard into a “more likely than not” one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place”). When individuals are ineligible for asylum, they can alternatively show eligibility for withholding of removal or protection under the Convention Against Torture (CAT), by initially demonstrating a reasonable fear of being tortured. 8 CFR § 208.31(c).  Withholding of removal and protection under CAT require the applicant demonstrate that “it is more likely than not” that he or she will suffer harm upon return. 8 CFR § 208.17 (Deferral of removal under the Convention Against Torture); see also 8 CFR § 208.16(b)(2) (Withholding of removal). Thus, under the MPP, an applicant is subject to a higher standard of proof than they would be subject to in regular credible or reasonable fear interviews, a higher standard of proof than they would be subject to in asylum proceedings, and the same standard of proof if they were in withholding proceedings. Critically, in its Policy Memorandum, USCIS explicitly states that it is “unable to provide access to counsel during the assessments” because of supposed capacity issues and the need for “efficient processing.” Such a high burden and denial of access to counsel makes it entirely certain that asylum-seekers will be forced to remain in Mexico pending their hearings.

When the US was previously considering a safe third country agreement with Mexico (where an asylum seeker would be denied the ability to seek refuge in the US if they first travelled through Mexico), I explained the numerous reasons why Mexico is not a safe third country and how such an agreement would violate the United States’ obligations of non-refoulement. These same arguments are applicable to the MPP because the plan will continue to put asylum seekers in grave danger while awaiting refuge in the US. In particular, as reported by Human Rights First and Amnesty International, asylum seekers are in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. If they are women, children, indigenous, LGBT, or a member of any other minority group, they are especially vulnerable. Forcing asylum seekers to remain in Mexico while they await their court date is also arguably a violation of non-refoulement, which requires that no State, including the US, “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened.” Given the numerous reports of violence against asylum seekers in Mexico, it is clear that their life and freedom would be threatened.

The numerous assaults on asylum seekers by the Trump administration must be met with sharp rebuke by immigration advocates. Driven by xenophobia, Trump’s anti-asylum policies are not only morally objectionable, but expressly unlawful under US and international law. Although it will continue to be an uphill battle over the next few years, advocates must continue to support the incredible work of organizations like Al Otro Lado, who continue to be on the frontlines of the battle at the border. 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.

 

Cyrus Mehta

To Leave Or Not To Leave: The Devastating Impact of USCIS’s Unlawful Presence Policy on Foreign Students

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The new USCIS Policy on Unlawful Presence for F, J and M Nonimmigrants took effect on August 9, 2018. This policy has had the effect of rendering nonimmigrants in F, J and M status, mainly students, unlawfully present upon being found to have violated their status.

Under the new policy, unlawful presence started accruing on August 9, 2018 based upon a prior finding of a violation of status. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).

February 5, 2019, will be the 180th day from August 9, 2018 according to a web based date calculator. If the USCIS has determined that the foreign student violated status at some point in the past, even prior to August 9, 2018, this individual who does not depart on or before February 5, 2019, will face a 3-year bar from re-entering the US. In order to play safe, the individual should leave the US even before February 5 to avoid risks with flight delays or a difference of opinion with a consular official regarding the exact date and time of departure from the US. Those who violated their status after August 9, 2018 should start counting the 180 days from  the date of the status violation, which will now be after February 5, 2019.

Individuals have been found to have been in violation of their status for a number of reasons, and at times the reason may not be so readily obvious. The determination is often even erroneous, but since August 9, 2018,  the student would have begun to accrue unlawful presence and will face a 3 -year bar upon departure from the US after February 5, 2019.  It is one thing when a student drops out of school and engages in unauthorized unemployment. This is an obvious violation of F-1 status. One instance of a less obvious violation is when an  F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by USCIS to have violated F-1 status and thus ineligible to be granted a change of status in the US.  8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however,  “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002.

This supposed finding of a status violation is erroneous as 8 CFR § 214.2(f)(10)(i) clearly contemplates a student to be authorized to receive more than 1 year of CPT. The school authorizes it, and this authorization is entered in the student’s SEVIS, which in turn is administered by ICE. If ICE authorizes more than 12 months of CPT, it is clearly erroneous and contradictory on the part of the USCIS to find that the student violated status.

Still, if one’s change of status request from F-1 to H-1B has already been denied, this student should leave the US by February 5, 2019. A departure after February 5, 2019, would likely result in a 3 year bar to reentry to the US. If an applicant for change of status has received a Request for Evidence (RFE) accusing him or her for not maintaining status for exceeding one year of practical training, then the dilemma to leave or not to leave becomes more acute. Not all allegations of violation of status based on being issued more than 1 year of CPT result in denials. Many have been able to overcome this finding in the RFE and successfully obtain a change of status from F-1 to H-1B. Thus, one who decides to remain in the US must carefully evaluate the risk in the likelihood of success or failure in overcoming an RFE of this sort. As there is some risk that the request for change of status may be denied, the student may feel that it is safer to leave the US by February 5 rather than take a chance and overcome the objection. If the student cannot overcome the objection, and leaves after February 5, the 3 year bar would have triggered.  However, this is a decision that each individual must make with his or her immigration attorney.

Others face different challenges. A student in F-1 Optional Practical Training may have been thought to have been unemployed for more than 90 days. Such an individual who is unemployed for more than 90 days ceases to be in F-1 OPT status (and if in STEM OPT more than 150 days). See 8 CFR 214.2(f)(10)(ii)(E).  However, whether one is employed or unemployed may not be so readily obvious. The individual may be treated as an employee by the employer listed on the I-20, but the employer may not have paid her because there was no work during the 90 day period. But the student could have still been viewed as an employee by the employer. Again, one who faces an allegation of not maintaining status due to unemployment for more than 90 days has to make a risk assessment whether to stay in the US beyond February 5, 2019 or whether to leave by February 5.

Those who have found to have violated their status can salvage the situation by leaving the US by February 5, 2019. They still have time to do this. They can return again on another visa, such as the H-1B visa. If one wants to return again in F-1 status, and on the existing F-1 visa, care should be taken as the student may start accruing a new period of unlawful presence if he or she was not properly admitted into the US. If the student received a new I-20 to correct the violation prior to departure, then arguably the student would have been properly admitted and may not start accruing unlawful presence again.  However, after February 5, those who were found to have violated their status prior to August 9, 2018 will be trapped. If they leave after February 5, 2019, they will face a 3-year bar. If they leave after August 9, 2019, and if the violation occurred on or prior to August 8, 2018,  they will face a 10-year bar. The USCIS unlawful policy memo’s devastating impact on foreign students has already begun to unfold, and will become more acute after February 5.

The only silver lining in the horizon is a lawsuit, Guildford College et al v. Nielson,  that has been filed to challenge the unlawful presence policy. The plaintiffs have also subsequently moved for a preliminary injunction on December 14, 2018 to take effect on February 4, 2019. If the preliminary injunction is granted by February 4, 2019, students who have been accused of violating their status, especially those contesting erroneous allegations, can breathe easy for now as they do not have to make plans to depart by February 5.

Update – January 28, 2019: The court in Guildford College v. Nielson granted a temporary restraining order in favor of the two individual plaintiffs who would otherwise be impacted by the unlawful presence policy. This is a positive development.  Thus far, the the TRO only positively impacts the two plaintiffs and does not apply globally to all students who may be adversely impacted by the policy.  The court has granted a date on March 26, 2019 on the motion for preliminary hearing. If plaintiffs win on the merits at this hearing, that relief should provided global protection.

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

Cyrus Mehta

Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders

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On Friday, January 11, 2019, many were intrigued by President Trump’s tweet assuring H-1B visas that they should expect a potential path to citizenship. This is what he tweeted:

“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”

There is no direct path to citizenship for H-1B visa holders. They first have to obtain permanent residence, and must then wait for at least 5 years, in most cases, before they become eligible for naturalization.

Trump’s appointee, USCIS Director Cissna, has made life extremely difficult for H-1B visa holders, and thus this tweet was seen like rubbing salt on an open wound. In recent times, even routine requests for extensions of H-1B status for occupations, which should have traditionally been recognized for H-1B classification, have been denied. These arbitrary denials by no means bring simplicity and certainty in the life of an H-1B visa holder, leave alone providing a path to citizenship. To add further insult to injury, the Trump administration is proposing a rule that would rescind the grant of work authorization to H-4 spouses.

Indeed, the goal of the Trump administration, inspired by restrictionists like Steve Miller, is to restrict legal immigration to the United States. This is to appeal to Trump’s base that feel threatened by immigrants of all stripes, whether they are legal, undocumented or refugee.

Some thought that Trump was referring to a proposed rule that would allow employers to preregister for the H-1B lottery, and would be skewed in favor of those with advanced degrees, but this rule too does nothing for existing H-1B visa holders and also does nothing to put them on the path to citizenship.

But if Trump really wants, he can make his tweet become reality without the need to even go through Congress. It has become de riguer for presidential administrations to bring about seismic policy shifts in immigration through executive actions such as President Obama’s DACA or Trump’s travel ban. Even if frowned upon, bypassing Congress to provide benefits to foreign nationals like Obama did is far more preferable than Trump’s travel ban that potentially prevents mothers from banned countries to see their dying child in the United States.

Trump could immediately order Director Cissna to adjudicate H-1B visas in the way that Congress intended, with the goal of approving rather than denying the visa, bringing about much needed simplicity and certainty to both employers and H-1B visa holders. This used to be the case, where the supporting letter for an H-1B petition seldom exceeded a page or two. Presently, employers must brief an H-1B visa petition as if they are filing a brief in federal court. This is quite unnecessary for a routine work visa application.

If H-1B processing resumes in a fair and rational manner, most nationals not born in India and China should be able to obtain permanent residency relatively quickly upon being sponsored by their employers through the labor certification process. Unfortunately, the situation is different for people born in India and China. Due to the per country limits in the employment preferences, they have to wait for several decades even after the employer’s labor certification has been approved. One study predicts that the wait time could be 151 years for Indian born beneficiaries in the employment based second preference.

The outrageous waiting times are due to the excess demand and limited supply of visas, further compounded by the per country cap, set by Congress each year. On first brush, only Congress can change this and not Trump. As Congress is divided, such changes for H-1B visa holders are unlikely for now. There have been proposals in Congress to eliminate the per country caps, which have yet to pass.  However, if he wanted to and had the guts, Trump could change the way we count dependents that would dramatically decrease, and ultimately eliminate the backlogs, thus providing a pathway for citizenship to H-1B visa holders.

Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012,  I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa numbers under the family and employment preferences.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states:

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

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

If Trump wanted to give meaning to his tweet so as to truly assure H-1B visa holders, even if he may not have known what he was saying,  he does have room under INA 203(d) to order the State Department and USCIS to count both the principal beneficiary and the family members as one. This will greatly reduce the backlogs and put H-1B visa holders, born in India and China, on a path to permanent residency and citizenship.

In Wang v. Pompeo a group of EB-5 investor arguments made the same argument that the State Department was counting visa numbers incorrectly. Their request for preliminary injunction was recently denied, although the case has to yet be decided on the merits. Still, this is a setback as the judge did not accept the plaintiff’s argument that the administration was counting visas incorrectly under INA 203(d). Even if plaintiffs were denied the preliminary injunction, the Trump administration could cease opposing the plaintiffs in this litigation and start counting the principal and derivative beneficiaries as one unit. There is sufficient ambiguity in INA 203(d) for the administration to count in this new way, and a government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.

Admittedly, hoping that Trump would put H-1B visa holders on a pathway to citizenship is really a pipe dream.  So long as restricitonists like Stephen Miller continue to make the United States hostile to immigrants, there is no chance that Trump’s tweet would ever become reality. If he really wanted to carry out his proposal, it might anger his base. He may have to also fire Miller.  But if Trump ever wants to follow through on his tweet, this blog shows him a way to do so.

 

 

 

Cyrus Mehta

Top 10 Most Viewed Posts Published On The Insightful Immigration Blog In 2018

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Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs that were published in 2018.  While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.  In 2018, the Trump Administration continued its assault on immigration to the United States including restricting the right to apply for asylum as well as restricting the ability of an employer to obtain a routine H-1B visa for a skilled worker.  We covered many of these efforts to undermine our immigration system, which included the proposed public charge rule, the horrific practice of separating children from parents,  the new unlawful presence policy for foreign students, how to challenge H-1B denials as well as combat efforts to limit due process in our immigration courts, among many other burning issues.

Our blogs, a labor of love, critically reflect on  these developments and also endeavor to educate readers as well as provide food  for thought to overcome Trump’s restrictions.  Many of our blogs are also written solely for the purpose of providing timely commentary on cases, policy memos and other developments.  We strongly believe that it is important to inform people in the hope that they effectively advocate and litigate against restrictive or unfair immigration policies to ensure that the noble idea of America as a nation of immigrants never ever gets undermined.

We do hope that 2019 bodes better for immigration, and wish all of our supporters and well-wishers a very happy New Year notwithstanding the challenges that lie ahead!

  1. USCIS Denying Change of Status for F-1 Students with Over 12 months of Curricular Practical Training
  2. USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants in Great Jeopardy
  3. Guidance to the Perplexed After USCIS Sneaks In Ban on Third-Party Placements of STEM OPT Workers 
  4. Potential Adjustment of Status Options After the Termination of TPS 
  5. USCIS Improperly Blurs Distinction Between Violation of Status and Unlawful Presence for F, J and M Nonimmigrants
  6. Analyzing the Definition of a Specialty Occupation under INA 214(i) to Challenge H-1B Visa Denials
  7. No Win Immigration Policy: Denying H-1B Extensions to Skilled Workers from India so that They Self-deport 
  8. Fearlessly Challenging H-1B Visa Denials Through Litigation 
  9. Beware the Gap: USCIS’s Policy Changes Cause Headaches and Confusion for F-1 Change of Status Applicants
  10. Suspension of Premium Processing: Another Attack on the H-1B Program 

 

Cyrus Mehta

The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference

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When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary.

As background, an individual can obtain permanent residence in the US under the employment-based first preference (EB-1) by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field, in professional or major trade publications or other media.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that  the new Kazarian decision reversed, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Unfortunately after the initial victory, Kazarian, as interpreted by the USCIS, has resulted in a two part test. In the first part of the test, the USCIS has to determine whether the individual has met three of the 10 criteria to establish extraordinary ability. However, that is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now – and the focus of this article is to suggest ways to confront it and still win petitions for persons of extraordinary ability or outstanding professors and researchers.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum”), USCIS implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (vi), the Service seized on the following dicta in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and

(2) …[W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d at 1121.

Under this two part test, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h) (3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this extra evidentiary factor into consideration, namely, the lack of reaction in the research community, during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS can still do under the “final merits determination.”

Post Kazarian decisions have generally affirmed the two-part test and final merits determination analysis notwithstanding the holding in a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234.  Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. Moreover, even while courts have adopted the final merits analysis, they seem to also be upholding the USCIS’s conflation of the step one analysis with the step two analysis.

Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) is a decision that explicitly follows the Policy Memorandum, ignored the burden shifting approach as set forth in Buletini and conflated the two steps.  Although the petitioner in Rijal, a Nepali documentary film maker, submitted a UNICEF prize, the USCIS concluded that it did not meet the evidentiary criterion of “lesser nationally or internationally recognized prizes or awards of excellence”   as it was awarded more than 4 years ago and did not provide evidence of the alien’s sustained acclaim. While the court criticized the USICS for failing to consider this evidence under 8 CFR §204.5(h)(3)(i) and for similar errors under other evidentiary criteria, it nevertheless held that the petitioner did not suffer prejudice from these errors as “it made those errors with an eye toward the ultimate merits determination.” Rijal at 1347.  Based on a holistic determination of the petitioner’s evidence, the court held that the USCIS appropriately found that the petitioner did not demonstrate sustained national or international acclaim. It is clear that the court in Rijal affirmed the two step test set forth in the Policy Memorandum even though the suggestion of a “final merits determination” was mere dicta in Kazarian. However, instead of remanding the case because of the USCIS’s faulty step one analysis in rejecting the evidence, the Rijal court held these errors to be harmless under the step two final merits determination.

Noroozi and Assadi v. Napolitano is another decision, albeit unpublished, from the Southern District of New York that has agreed with the Kazarian two-step analysis, but also seemed to agree with the USCIS’s conflation of the two. Petitioner Noroozi represented Iran in table tennis at the 2008 Olympics in Beijing. Although neither Noroozi nor the Iranian table tennis team won any medal at the Olympics, the USICS initially approved the EB-1 petition, but then subsequently revoked it. A second EB-1 petition was filed, which was denied on the ground that Noroorzi only met two of the criteria, but not three. The court agreed with the USCIS that there was no evidence to substantiate that he played a “leading or critical role” for his team and nor did the “published material” about him pass muster since it focused more on the team and only briefly mentioned Noroozi. Although the failure to meet the evidentiary criteria could have ended the analysis, the court also discussed how Noroozi did not merit a favorable judgment under the second part “final merits determination.”  Since Noroozi ranked 284th in the world in table tennis, and finished 65th place in table tennis in the 2008 Olympics, the court noted that this would oblige the USCIS to hypothetically grant EB-1 petitions to the 283 higher ranked table tennis players, and also to the 283 higher ranked players in other sports, assuming they were non-US citizens, as well as to the 64 table tennis players who outperformed Noroozi in the 2008 Olympics. The court’s “final merits determination” in Noroozi is troubling as the EB-1 was never intended only for the number one player in a sporting field, and this decision should be contrasted with a pre-Kazarian decision involving an ice hockey player in the National Hockey League whose team won the Stanley Cup, but was not an all-stars or one of the highest paid players, but was still found to be qualified under EB-1. See Muni v. INS, 891 F. Supp. 440 (N.D. Ill 1995).  The “final merits determination” permits USCIS to set subjective baselines with respect to rankings of   players in sports even if they would potentially qualify under the ten evidentiary criteria as Muni did after he sought reversal of the denial of his EB-1 petition in federal court. Interestingly, in Noroozi, the attorney also became a plaintiff along with the petitioner on the ground that the USCIS denied the EB-1 petition based on the petitioner’s association with the attorney who had been unfairly singled out in a DOS cable. That strategy too failed since the court rejected that there was any bad faith on the part of the USCIS in denying Noroozi’s EB-1 petition.

Various unpublished AAO decisions [See e.g. AILA InfoNet Document Nos. 12062752 and 12062753]   suggest that the government’s final merits determination will consider evidence whether or not the petitioner has demonstrated : 1) a “level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the[ir] field of endeavor,” 8 CFR § 204.5(h)(2); and 2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” § INA 203(b)(1)(A); 8 CFR § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.   While it makes sense to preserve the argument in the record that the final merits determination is inapplicable and to propose the burden shifting approach under Buletini instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis given that it has been blessed in post-Kazarian decisions.  The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria. For instance, if a petitioner has met 3 out of 10 evidentiary criteria, the agile practitioner may be able to argue that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination. Moreover, under the final merits determination, a petitioner may be able to point to other evidence that may not categorically fall under the 10 evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s stellar academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then the practitioner must not rest on these laurels and take pains to highlight this for the final merits determination. Finally, the practitioner must always remind the USICS that the final merits determination is governed by the preponderance of evidence standard, as suggested in the Policy Memorandum too, which requires only 51% certainty.

In more recent cases, the USCIS has continued to conflate the step one with the step two analysis by rejecting that the petitioner met the evidentiary criteria and thus  bypassing the step two final merits determination altogether. A petitioner may seek review under the Administrative Procedure Act asking a federal court to find that the USCIS decision was arbitrary and capricious by conflating the two steps. Therefore, if we in any event have to deal with Kazarian, one strategy is to force USCIS to adopt the two steps if it only denied the case under step one.   Thus, in Eguchi v. Kelly, another unpublished decision, the USCIS denied an EB-1 petition of a Brazilian bullfighter. Eguchi submitted evidence that he won Brazil’s PBR Rookie of the Year in 2008. USCIS rejected the award on the ground that “such an award by its very nature is limited to neophytes, excluding more experienced bull riders. And therefore, such an honor does not measure your standing or selection from among those who are well established in the field or show your extraordinary ability under this criterion.”  The court disagreed since USCIS was conflating the step two final merits determination when the regulation only required Eguchi to submit evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor, which he did. Eguchi also submitted articles from various publications, including Yahoo! Sports, ESPN, and PBR’s website. The articles acknowledge Eguchi’s high rankings, victories, and earnings in PBR events. USCIS concluded that Eguchi submitted no evidence that PBR’s website is a major trade publication. The court held that it was self-evident that the website of the world’s premier professional bull riding association is a major publication for professional bull riding. The court also cited Muni v. INS., supra, at 444 which concluded that the petitioner did not need to show that National Hockey League’s (“NHL’s”) own magazine was major trade publication. Eguchi submitted evidence that he had earned over $700,000 in PBR events and ranked 44th on the association’s all-time money list—a ranking of the top earners in PBR history. He also submitted a history of PBR, which states that “[m]ore than 1,200 bull riders from the U.S., Australia, Brazil, Canada, and Mexico hold PBR memberships. But USCIS disputed this evidence on the ground that Eguchi’s earnings did not compare with the top 3 earners, whose earning have grossed between 3.9 and 5.15 million dollars, thus failing to establish that he is one of that small percentage who have risen to the very top of their endeavor. The court again smacked down USCIS that it impermissibly conflated step 1 with step 2.  At step one, according to the court, Eguchi was not obligated to prove that his salary illustrates that he is one of a small percentage who have risen to the very top of the field of endeavor and enjoy sustained national or international acclaim. Rather, Eguchi need only provide documentation showing that he has commanded a high salary or other significantly high remuneration for services, in relation to others in the field. According to the court, USCIS only focused on the top 2 or 3 earners in the sport but ignored the earnings of 1,200 PBR members.

Although the court in Eguchi v. Kelly found the USCIS’s denial to be arbitrary and capricious, and remanded, this author is unaware of the outcome of this case after it got remanded. It remains to be seen whether USCIS in similar cases will find a way to deny the petition again under the step two final merits determination analysis after a court has remanded based on the faulty analysis under step one. However, it still at least behooves the practitioner have a court hold the USCIS to the two step analysis rather than let USCIS conveniently deny the petition under step one. This is precisely what happened in Visinscaia v. Beers, 4 F. Supp. 3d 126 (D.D.C. December 16, 2013) involving an EB-1 petition for a ballroom dancer from Moldova. The court agreed with the USCIS that the petitioner failed to provide evidence that she influenced the field with her dance techniques, although it seemed that the USCIS conflated step two with step one. The court also agreed with USCIS that the petitioner had not played a leading role in a dance club in Moldova, which petitioner claimed had a distinguished reputation in Moldova, but USCIS countered that the club’s reputation did not extend beyond the borders of Moldova. Here too, the USCIS conflated step two with step one, which the Court endorsed. Finally, the USCIS interpreted the artistic exhibitions criterion as only including “visual arts”, where “tangible pieces of art … were on display” and not dance performances. This was a strained interpretation of the regulation, but the court still gave deference to the agency’s interpretation. Finally, the court also agreed with the rejection of the USCIS’s strained interpretation that “lesser national and international awards” must involve winning more than one such award, and the petitioner in that case only won one world championship in the World Dance Sport Federation Junior II Ten category.

Petitioners must at least try to get USICS to accept that the petitioner meets 3 out of the 10 criteria, and then fight USCIS under step 2 final merits determination. If the USCIS can knock out the petitioner under step 1, the game is over. The author highly recommends the reader to Recent Trends in EB 1 Extraordinary Ability and Outstanding Professor/Researcher Green Card Petitions by Dan Berger, Emma Binder, Philip Katz, David Wilks, and Stephen Yale‑Loehr. This insightful article surveys recent decisions of the AAO in the EB-1 extraordinary ability and Outstanding Professor/Researcher arena. It provides useful guidance regarding what kinds of evidence will be accepted under the 10 evidentiary criteria. Under the outstanding contributions of major significance evidentiary criterion, the authors point to AAO decisions that suggest that the contribution must have “measurably” expanded the scholarship such as in the case of an insect researcher whose discovery of ninety‑six new species of jumping spiders represented “10% of the overall documented information regarding certain spider families.” With respect to the authorship of scholarly articles prong, the authors have analyzed decisions where the “AAO is critical of inconsistent and declining publication records. According to the AAO, a publication rate that has declined in the past five years or so may indicate a lack of sustained acclaim, even if the individual published prolifically in prior years.”

Still, this begs the question that Kazarian sought to clarify, which is that the evidence submitted by the petitioner need not inherently be extraordinary under step one. That has to be determined in the step two final merits determination analysis. But, unfortunately, the Kazarian two step analysis is fundamentally flawed for it will continue to confuse and confound USCIS adjudicators and courts where the merits determination is often made under step one, and if it is not, the evidence is rejected under step two. If only one can convince a federal court to adopt the clearer standard in Buletini v. INS, the two step analysis under Kazarian will continue to roil EB-1 extraordinary ability adjudications.

A prior version of this blog, How Extraordinary Must One Be to Qualify as a Person of Extraordinary Ability, was published on The Insightful Immigration Blog on July 5, 2013, https://blog.cyrusmehta.com/2013/07/how-much-more-extraordinary-does-one.html