Cyrus Mehta

Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy

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U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.

 

 

 

 

 

 

Cyrus Mehta & Sophia Genovese

Threading the Needle: Challenging Trump’s Travel Ban Despite Trump v. Hawaii

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On June 26, 2018, the US Supreme Court in a 5-4 decision in Trump v. Hawaii upheld President Trump’s travel ban against seven countries, the majority of which are predominantly Muslim. Chief Justice John Roberts, in writing the majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.”

There has already been much criticism of this decision. 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 made reference to Korematsu v. United States, 323 U.S. 214 (1944) as a result of Justice Sonia Sotomayor referencing this decision in her powerful dissent. She found striking parallels between Korematsu and Trump’s travel ban. For example, they were both 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 majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel ban, it is not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

The irony here is that although the majority found that the motivation behind the executive order that resulted in the internment of Japanese-Americans was gravely wrong and has no place in law under our Constitution while Trump’s travel ban is facially neutral, the ban has resulted in the tragic and forced separation of families from the banned countries. It has also prevented the future entry of skilled people from these countries. For instance, if a US citizen sponsors a parent of Iranian nationality, that parent can never immigrate to the United States under the travel ban. The same prohibition would be applicable to a spouse who is an Iranian national who is the beneficiary of an approved I-130 petition filed by her US citizen spouse. While there are supposedly waivers for entry, as Justice Breyer in his separate dissent observed, the Government “is not applying the Proclamation as written,” where the Secretaries of State and Homeland Security have failed to issue guidance to consular officials on the issuance of waivers, and where only 430 waivers have been issued in total, representing “a miniscule percentage of those likely eligible for visas.” Justice Breyer points to a particularly egregious example of a travel ban waiver denial of a child with cerebral palsy from Yemen to demonstrate his point. Due to the war in Yemen, he explained, the young child could no longer access her medication for her disease, and was thus no longer able to move or speak and was going to die if she did not receive treatment soon. Despite this predicament and the young child’s clear eligibility for a waiver according to Presidential Proclamation 9645 (explaining that case-by-case waivers may be granted in circumstances involving, for example, “the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”), the consular official denied her waiver. After this story had been highlighted in an amicus brief before the Supreme Court, the family received an update from the consulate that they were eligible for waivers; however, instead of receiving visas, the case was put into administrative processing. It took several more months and international attention to get this child a waiver, indicating that these waivers are not being granted despite an individual’s clear eligibility for them, as outlined in the EO.

If waivers of those who are clearly eligible do not get approved, and one can find a pattern of wholesale denials that are consistent with Trump’s animus and hostility towards people from these banned nations, then it may be possible to assert that the motivations behind the denial of the waivers are based on improper stereotyping of certain nationalities that have no place under our Constitution, like the majority in Trump v. Hawaii found in Korematsu. Finding parallels behind the motivations that resulted in the forced internment of Japanese Americans to the wholesale denial of entry to people eligible for visas just because they happen to be nationals of predominantly Muslim countries could potentially result in further litigation that can overrule the ban, or at least force the Administration to actually implement its waiver process as outlined in the Proclamation. This will no longer be the facially neutral policy that the majority gave a pass to, rather the application of that policy through a sham waiver process will put more focus on the animus displayed by Trump towards Muslims. In other words, the failure to issue waivers, if shown to be a result of Trump’s animus towards Muslims, could be used as evidence to show that not only is the waiver process a sham, but could invalidate the entire EO in a future challenge.

It is at this juncture that Justice Kennedy’s tepid concurrence can provide the ammunition for future plaintiffs who challenge the waivers, and thus Trump’s travel ban. The following extract from Justice Kennedy’s concurrence is worth quoting in verbatim:

There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive…

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, dis­cretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their ac­tions, even in the sphere of foreign affairs. An anxious world must know that our Government remains commit­ted always to the liberties the Constitution seeks to pre­serve and protect, so that freedom extends outward, and lasts.

Thus, all hope is not lost for future plaintiffs adversely impacted by the travel ban. There might be a way to thread the needle by demonstrating that the actual application of the Executive Order, which the majority found facially neutral, is no longer so neutral if waivers are denied wholesale by government officials that are motivated by Trump’s original animus towards Muslims. It was this animus that resulted in the first two versions of the travel ban that were struck down by the lower courts of appeals, and which resulted in the third ban that was the subject of the Supreme Court’s decision in Trump v. Hawaii. It was also the same majority in Trump v. Hawaii that found Korematsu abhorrent but distinguished it from the supposedly facially neutral Executive Order of Trump. But plaintiffs can show that this very same EO is no longer neutral because the waivers are not accessible as misrepresented by the Government in Trump v. Hawaii. As explained above, there have been no official guidelines issued by the Secretaries of State and Homeland Security regarding how consular officials will adjudicate waivers, and whether those denied can seek further redress or review within the administrative system.  Such a failing to issue waivers or at least issue guidance to obtain these waivers again calls into question the ‘neutrality’ of the ban. Once the improper motivation can be shown, especially through the application of the waivers, litigants can again potentially challenge the ban.

As we’ve previously explained, while INA § 212(f) grants wide discretion to the President, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). Once plaintiffs find an opening by challenging the ban through the sham waiver process, other authorities that limit the power of the President can spring to life. For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court found that the power of the Executive is “subject to important constitutional limitations.” In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court stated that the President’s Article II powers are subject to review, and ruled that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention. In Boumediene v. Bush, 553 U.S. 723, 765 (2008), the Supreme Court declared that the political branches cannot “switch the Constitution on or off at will” and extended the right of habeas review to a non-citizen outside the US. Moreover, in INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court reaffirmed that Courts were empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.” And as was argued in the Ninth Circuit, even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

Finally, until Trump became President, no one realized that INA § 212(f) could be applied so broadly so as to eviscerate visa classifications created by Congress. Trump v. Hawaii will embolden Trump even further to restrict legal immigration without going through Congress. For instance, he may apply 212(f) to certain family preference categories and restrict the entry of foreign nationals who are the beneficiaries of approved I-130 petitions, by declaring that their entry will be detrimental to the interest of the United States. The same would be true if Trump hypothetically decided to restrict H-1B beneficiaries, say from India, because he believed that their entry into the US would be inconsistent with his Buy American Hire American Executive Order, and thus detrimental to the interest of the United States. It is at this point that a less pliant Congress may have to step up and limit the broad language under 212(f) so that a president like Trump with authoritarian impulses will not be able to trample upon the separation of powers doctrine.

As Trump v. Hawaii passes through the ages, the dissents of Justice Sotomayor and Justice Breyer will have more force than the majority opinion. A powerful dissent signals to another court that the majority got it wrong, similar to Justice Murphy’s dissent in Korematsu. A dissent also sends a signal to Congress that it can overrule a Supreme Court decision by changing the law. This is how Justice Ginsburg’s powerful dissent in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618 (2007), resulted in Congress enacting the Ledbetter Equal Pay Act. There is thus hope for the nation to redeem itself if a future Congress modifies INA § 212(f) thus effectively overruling Trump v. Hawaii.

 

 

Cyrus Mehta & Sophia Genovese

How Trump Administration Officials Can Be Found Criminally Culpable For Separating Children From Parents

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The Trump Administration has continued to perpetuate the falsehood that immigrants are criminals, despite overwhelming evidence that communities are safer when immigrants arrive. Trump’s recent spectacle to honor victims of crimes perpetrated by people who happened to be immigrants was designed to not just to spread hatred and fear of immigrants, but to counter criticism of his policies that have resulted in the cruel separation of children from parents. Trump cynically tried to show that Americans, whom he called “angel families,” have been permanently separated from their parents, thus attempting to deflect from the worldwide negative reaction he has received from the separation of immigrant families seeking asylum in the United States. While it is unfortunate that parents lost their children in crimes committed by immigrants, Trump has manipulated and exploited their unfortunate situation as justification for his inhumane policies.

The purpose of this blog is to continue to focus on the gross abuses that were perpetrated on children by the Trump Administration. These abuses were intentional and targeted against children from Central America that ought to make the architects criminally culpable. The separations did not arise from a policy that could not be avoided under law. Indeed, it was a deliberate policy to deter people from Central America from applying for asylum under US law by cruelly separating children, knowing that it would cause them trauma and permanent psychological harm.  Accordingly, the real criminals are not the immigrants. The real criminals are those in the administration who have separated families, subjected detained immigrants to inhumane and violent conditions, and who now seek to detain immigrant families indefinitely.  These officials may never be prosecuted under US law, but it is important to show how they can be held criminally culpable under international law so that they can be amenable to prosecution at some point of time in the future.

Article 7 of the Rome Statute of the International Criminal Court defines “crimes against humanity” as

[A]ny of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  1. Murder;
  2. Extermination;
  3. Enslavement;
  4. Deportation or forcible transfer of population;
  5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  6. Torture;
  7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
  9. Enforced disappearance of persons;
  10. The crime of apartheid;
  11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(emphasis added).

The widespread and systematic separation of over 2,000 immigrant children from their families, the inhumane and torturous acts committed by the United States against them, and the ongoing incarceration of children potentially constitute crimes against humanity. The United States, especially Trump administration officials who established these children and toddler internment camps, ought to be prosecuted to the fullest to redress these egregious criminal acts.

The policy of family separation has been condemned by the Office of the United Nations High Commissioner for Human Rights, stating that the practice “amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child […] The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles.” High Commissioner Zeid bin Ra’ad al-Hussein further stated that such separation and incarceration of children constituted “government sanctioned child abuse.” The OHCHR statement also reminded that the United States is the only country in the world that has refused to ratify the Convention on the Rights of the Child (CRC), which specifies the civil, political, economic, social, health, and cultural rights of children, including Article 37, which provides, inter alia, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily.”

Amnesty International has taken the criticism one step further and has argued that the “policy of separating children from parents is nothing short of torture…The severe mental suffering that officials have intentionally inflicted on these families for coercive purposes means that these acts meet the definitions of torture under both US and international law.” Indeed, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, defines torture as

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The US has adopted this definition of torture in 18 U.S. Code § 2340. The severe psychological and physiological effects of the separation of immigrant families rises to the level of torture under international and US law, as well as constitutes a crime against humanity given its widespread application against immigrant families, where such separation is used as a punishment for, and as a deterrence to, seeking asylum in the United States. This separation of asylum-seeking families constitutes impermissible, severe deprivation of liberty. Moreover, if reports regarding the forced drugging of detained immigrant children prove to be true, in addition to well-documented historical abuses of detained immigrant children including the denial of medical care and physical and sexual abuse, they too would rise to the level of crimes against humanity as “other inhumane acts.” Moreover, this separation, mistreatment, and incarceration violates the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which the United States has also ratified. Under the Genocide Convention, “causing serious bodily or mental harm to members of the group” and “forcibly transferring children of the group to another group,” with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” constitutes genocide.

On June 20, 2018, Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly ending family separation. The EO maintains support for Sessions’ zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the duration of the family’s immigration proceedings. This EO thus remains in contravention of international norms and standards in regards to the prolonged detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days, and which now the government seeks to amend. Moreover, despite a recent announcement by the Department of Homeland Security and the Department of Health and Human Services of a policy to reunite these families (indicating that no such reunification policy existed prior to the taking children from families), this reunification may only occur at the end of the parents’ removal proceedings, which can take several months. The reversal of family separation does not erase the fact that the children were abused  by the Trump administration’s separation policies in the first place.

The solution to family separation is not family incarceration. Indeed, the punitive incarceration of children and their asylum-seeking families not only violates the CRC and the Torture Convention as described above, but also violates the 1951 Refugee Convention and its 1967 Protocol. Under Article 31(1) of the Refugee Convention, contracting States “shall not impose penalties” on asylum-seekers, even if they entered without inspection. As Human Rights First explains, “refugees and asylum-seekers should also not be subjected to punitive or penal detention conditions […] While administrative detention is permitted in limited circumstances, the term ‘penalty’ certainly includes imprisonment […] UNHCR’s Detention Guidelines emphasize that, consistent with Article 31, ‘[t]he use of prisons should be avoided.’” The Trump administration under this EO now seeks to indefinitely detain asylum-seeking families, which is undoubtedly being implemented to deter future families from seeking refuge in the United States, which is in direct violation of international law.

Prosecution against the United States is unlikely to occur at the International Criminal Court, as it has yet to ratify the Rome Statute. Even an investigation at the ICC is unlikely because under Article 17 of the Rome Statute, the ICC can only open up an investigation in States that are unwilling and unable to genuinely carry out an investigation or prosecution. Moreover, even if the ICC opened up an investigation into the United States’ alleged crimes, the US would not cooperate, making prosecution unlikely. Advocates in the United States have been successful in suing the government over these egregious practices in domestic courts, and it thus appears that we have not exhausted all local remedies yet. Advocates ought to begin to raise these international law violations in their suits, and US judges ought to meaningfully adjudicate these violations.

Another option for the United States to be held accountable would be for another country to prosecute officials of the Trump administration in their domestic courts. Although he died before ever being convicted for his crimes, Pinochet was arrested by police in London for charges brought in Spain to punish him for crimes against humanity in Chile under the principle of universal jurisdiction. A similar action could occur here, where another country, such as Canada or Mexico, could lodge an investigation into and ultimately indict Trump or one of his cabinet members, and another country could subsequently arrest those members upon travel. While it may be impossible to do so if Trump travels to these countries as head of state, the indictment could be executed after Trump or other officials leave office and travel to other countries.

International human rights organizations and the ICC are correctly criticized for explicitly targeting and prosecuting African leaders for their human rights abuses, who rightfully deserve such prosecution but who are not alone in committing these atrocities. Recently, however, the Stanford International Human Rights Clinic and the Global Legal Action Network sought to reverse this discriminatory trend at the ICC. In February 2017, the two groups filed a Communiqué to the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, arguing that Australia’s offshore migrant and refugee detention practices constitute crimes against humanity. As documented in the Communiqué, the Australian government has systemically blocked boat refugees from accessing its shores and have instead diverted them to detention facilities on the Nauru and Manus Islands, where they are denied access to Australia’s asylum procedures. Stanford and the GLAN provided evidence to the ICC of widespread human rights abuses committed against these asylum-seekers at these offshore detention facilities, and showed that such abuses were committed for the sole purpose of deterring others from seeking asylum in Australia.

To no one’s surprise, the ICC has yet to take up the investigation into Australia’s crimes against humanity. Despite this, the Stanford Communiqué acts as guidance for a future filing against the United States, especially with regards to inhumane treatment of asylum-seekers for the sole purpose of deterring future asylum-seekers. The key difference between the Australian case and a future action against the US is that the US is committing widespread human rights abuses against asylum-seekers on US territory (in addition to preventing asylum-seekers who have lawfully presented themselves at Ports of Entry from entering the US and thus preventing them from claiming asylum, which is yet another international human rights violation). The significance of this is that it explicitly implicates the US’s international responsibilities for the fair treatment of refugees under the Refugee Convention and its Protocol, which Australia has arguably skirted by preventing asylum-seekers from entering its waters.

Advocates are far more likely to be successful in adjudicating these human rights claims in domestic courts. Indeed, our robust courts have proved effective at preventing some of Trump’s most egregious policies. While violations of international law can be raised in a lawsuit to block an egregious policy, it would not result in criminal liability for the perpetrators. Advocates should begin to look into criminal prosecution avenues to hold these officials accountable. Advocates should be cautioned, however, that they can only raise those claims that arise under treaties to which the United States has ratified. As explained above, the ability to raise these human rights claims in domestic courts prevents suit at the ICC under Article 17 of the Rome Statute. However, should advocates exhaust all domestic remedies, an ICC investigation (which is unlikely to ever result in a prosecution) remains an option. Another option is to pursue action in the Inter-American Court for Human Rights, which has the authority to make recommendations to, but not punish, the violating State. And finally, other countries may also bring suit against the Trump administration in one of their courts under the principles of universal jurisdiction.

The United States is not immune from liability for its wrongdoings. No one, not even the president or his cabinet, are above the law. Advocates should continue to consider these global litigation strategies should domestic litigation fail to find Trump administration officials culpable.

 

Cyrus Mehta & Sophia Genovese

Stop the Horrific Practice of Separating Children from Parents

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The desperate sobbing of children who have been separated from their parents is horrific and shocking. As the children scream “Mami” and “Papa” over and over again, a Border Patrol agent booms above the crying: “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.”

The practice of separating families at the border is not only cruel and unconscionable, but it is in direct violation of the United States’ obligations under international and US law. As has been argued by the American Civil Liberties Union (ACLU) in its most recent lawsuit against the government, Ms. L v. ICE, this practice of forcibly separating families violates “the Constitution’s due process clause, federal law protecting asylum seekers, and of the government’s own directive to keep families intact.” The Texas Civil Rights Project, the Women’s Refugee Commission, the University of Texas School of Law Immigration Clinic, and Garcia & Garcia Attorneys at Law, P.L.L.C., have filed an Emergency Request for Precautionary Measures with the Inter-American Commission on Human Rights (“IACHR”), arguing that the United States is “violating internationally-recognized human rights and well-established Inter-American standards, including the rights to family, to seek asylum and protection, to minimum due process, among others.”

For those parents seeking asylum in particular, it is permissible under the Immigration and Nationality Act to apply for asylum even if you entered the US without inspection. Supporters of the zero-tolerance policy have decried that these asylum-seekers and migrants should “get in line” or “do it the right way” by applying at Ports of Entry (POEs). However, even when asylum-seekers present themselves at POEs, they are often prevented from making an asylum claim and are turned away. This is in direct violation of International Refugee law, where countries are required to refrain from “expel[ling] or return[ing]  (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Others ‘lucky’ enough to get through to credible fear interviews are systemically found to not possess such a fear and are swiftly removed from the United States despite being eligible for asylum. Attorney General Sessions has now made this even more difficult after he overturned Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and in a footnote gratuitously asserts that few claims based on domestic violence or gang based persecution would satisfy the legal standard to determine whether a foreign national has a credible fear of persecution. And now these individuals seeking asylum, both at the POEs and who have entered without inspection, are being violent separated from their families before they can even attempt to adjudicate their claims.

The Trump Administration understands that what they are doing is shameful, and has deployed every public relations stunt in the book to try and distract the public from what is really going on. From blaming Democrats and the Obama Administration for the existence of a supposed law that mandates this violent separation, to claiming that a separation policy does not exist, to then defending such a policy – it is difficult to keep up. No matter which way you paint it, though, the policy is disgraceful and unlawful, and the Trump Administration has the power to stop its enforcement.

There is no law that requires the separation of immigrant families. The Administration has made the explicit decision to prosecute parents who enter the United States without inspection and to separate them from their children in the process. The government has appeared to bunker down on INA § 275 and 8 USC § 1325, which allow for the prosecution of the misdemeanor violation of illegal entry. Under Session’s so-called zero-tolerance policy, every person who crosses the border illegally is now being prosecuted under INA § 275.  The rationale is that those being prosecuted must be separated from their children during the pendency of the trial. Despite supposedly only separating those families who enter without inspection, there are also a number of cases where immigrant families are being separated after lawfully presenting themselves at POEs. Indeed, in  Ms. L v. ICE, supra, the federal judge presiding over the case determined that the plaintiff-parents had asserted sufficient facts and legal basis to establish that separation from their children while they are contesting their removal and without a determination they are unfit or present a danger to their children violates due process under the Fifth Amendment.

This Administration has made the choice to immediately subject asylum-seekers to prosecution prior to adjudicating their asylum eligibility. The UN and human rights advocates have rightfully called this practice unlawful. But more than that, the combination of being punished for fleeing violence and being violently separated from one’s children takes an ineffable mental toll and prevents them from effectively adjudicating their asylum claims, with one recent story of a father taking his own life under the stress of this policy and others discussing the developmental consequences of this separation to children. Once an asylum-seeker finally gets to adjudicate their asylum claim, after weeks or months of separation from their children, they are often so broken down that they cannot effectively argue their claims. If they do not have access to counsel, their chances of obtaining relief – despite clear eligibility – are next to none.  What also makes this practice so egregious is that the underlying motive of the Trump administration is to use the children as political fodder so that Trump can get what he desires in an immigration bill, including his wall and a reduction in legal immigration.  The whole crisis has been manufactured by Trump himself and he has the power to stop it right now.   Indeed, the separation of children as young as eight months old is so horrific that it is important to start viewing them as crimes against humanity, punishable under an international tribunal, rather than a shift in policy.

If you’re like us, and believe that this separation is wrong, we urge you to put pressure on your Congressperson to propose/support emergency legislation to stop the Trump Administration from cruelly separating children from the parents. Call the congressional switchboard at (202) 224-3121. There’s a Senate bill (S. 3036 – Keep Families Together Act) and a House bill (H.R. 5950 – the HELP Separated Children Act), which you can ask your Senators and Representatives to support. If your member is conservative and not likely to support any of these bills, then at least have the member speak out in order to urge the President to reverse the policy.  This violent policy of separating families at the border is not in line with the law and is not in line with American values. The United States has historically taken in hundreds of thousands of refugees from Eastern Europe, the Soviet Union, Haiti, Cuba and Vietnam, among many other countries. We can easily take in people fleeing persecution and violence in Central America once they qualify for asylum under our laws.  The Trump Administration and its supporters ought to take a good, long look in the mirror and ask themselves whether they in good conscience believe that separating children from their families is in-line with those values.

Update: The solution to family separation is not family incarceration.

On June 20, 2018, President Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly resolving the issue of the separation of immigrant families. The EO maintains support for the zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the immigration proceedings themselves. This EO is in contravention of international norms and standards in regards to the detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days. Although the Flores settlement only applies to children, past practice (admittedly, inconsistent practice) has been to release the whole family after 20 days to ensure family unity. The EO directs the Attorney General to file suit in the Central District of California to modify the Flores settlement to allow for indefinite detention of children.

The struggle to end mass incarceration of families is not over, and the new EO should not be seen as a victory. Practitioners should continue to litigate these detention practices in the courts and allies should continue to advocate for the eradication of this egregious practice. Nor should President Trump gloat and claim victory. He along with his cabinet members  and advisors who masterminded a gulag for children, toddlers and infants – with the goal of using them  as political fodder – have inflicted irreparable damage on them and should ultimately pay the price.

 

 

 

Cyrus Mehta

Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B Visa or Labor Certification Denial?

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There is a clear prohibition to the foreign national beneficiary paying attorney fees and costs associated with labor certification. Similarly, fees and costs associated with the preparation of an H-1B petition and Labor Condition Application are considered unauthorized deductions from the beneficiary’s wage. These prohibitions are set forth in regulations of the Department of Labor that require the employer to bear such fees and expenses. Do these prohibitions extend to situations where the beneficiary seeks federal court review of a denial of an H-1B petition or labor certification application without the employer under the Administrative Procedures Act and pays the fees and costs of such litigation? Should not the Administrative Procedures Act trump DOL regulations that hinder the ability of a beneficiary to initiate and seek review by a federal court of an erroneous denial?

When a beneficiary sues without a petitioner, he or she must assert standing as well as whether the beneficiary’s claim fell within the zone of interests that the statute was supposed to protect. Under Article III of the Constitution, the plaintiff must have suffered an injury in fact that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff also has the ability to sue when his or her claim is within the “zone of interests” a statute or regulation protects. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

For example, in the H-1B context, Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016) held that H‐1B petition beneficiaries have standing because approval gives them “the right to live and work in the United States, and imposes obligations such as complying with “extensive regulations” on their conduct; they also have the potential for future employment with a new petitioner. Still, there is no guarantee that every court will recognize that a beneficiary has standing in a lawsuit challenging the denial of a nonimmigrant petition. In Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348 (D.D.C. 2016), the court decided that H-2A sheepherders lack standing because congressional intent was to protect U.S. workers.

With respect to labor certifications, in  Ramirez v. Reich, 156 F.3d 1273 (D.C Cir. 1998) the DC Circuit Court of Appeals recognized the foreign national’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, in Gladysz v. Donovan, 595 F. Supp. 50 (N.D. Ill. 1984)  where the non-citizen sought judicial review after the employer’s labor certification had been denied, the court held that the beneficiary was in the zone of interests, but the labor certification denial was upheld as it was not arbitrary and capricious.

If the foreign national seeks review of the denied labor certification in federal court, would the DOL still expect the employer to bear the fees of the litigation pursuant to 20 CFR § 656.12(b)? It can be argued that 20 CFR § 656.12(b) should be limited to activity related to obtaining labor certification and not while appealing a denial to federal court where the employer has dropped out as a plaintiff.  If that is not the case, the DOL would be obliterating the alien’s ability to seek review in federal court assuming that the employer still had a job offer open for the alien. 20 CFR § 656.12(b) barring the alien from paying the attorney’s fee ought to also be challenged by the foreign national who has standing to seek review of the denied labor certification in federal court. Based on the above, it is both necessary and proper  to avoid any interpretation of  § 656.12(b) that conflicts with the beneficiary’s right under the APA from seeking judicial review in federal court, a right that Congress has not taken away. It can be argued that DOL cannot condition or restrict the full and complete exercise of the foreign national’s APA rights in any way. That being the case, the courts should be properly reluctant to impose by judicial fiat that which is not already found in the law with unmistakable clarity. See National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)(“Chevron’s premise is that it is for the agencies, not courts, to fill statutory gaps”). Here, when we look at INA § 212(a)(5)(A) there is nothing for DOL to add. The statute is clear and unambiguous. If Congress wants to prevent the alien from going into court under the APA to challenge the denial of a labor certification, then Congress knows how to do it. If DOL wanted to stipulate that an employer always had to go to BALCA or forget about the APA, it could have said too.

Neither Congress nor the DOL has done so despite the fact that the INA has been amended many times and DOL has reinvented the labor certification process more than once. Their silence speaks volumes.  There is no need for DOL to clarify what Congress has made crystal clear. That being the case, it is even more transparent that a federal court must honor the intent of Congress and stay its hand against any temptation to take the APA arrow out of a beneficiary’s quiver. The silence of those most directly responsible for the creation and administration of the labor certification process suggests, indeed commands, that the foreign national’s rights under the APA not only be respected but nurtured and encouraged

The situation is somewhat analogous to the purported regulatory limitations period for federal court review of a naturalization denial, which the Tenth Circuit rejected in Nagahi v. INS, 219 F.3d 1166 (10th Cir. 2000).

The Tenth Circuit said of the INA’s broad grant of authority to the Attorney General to make rules that “while this delegation is a broad grant of authority, it does not extend to creating limits upon judicial review.”  Nagahi, 219 F.3d at 1170.  The Secretary of Labor has, if anything, less broad authority, and what authority the Secretary does have also does not extend to creating limits on judicial review, even indirect ones.

The regulation should not strictly apply to a situation where the attorney is representing the foreign national only and not the employer, which could happen if the alien is the only plaintiff in the APA action that we are contemplating.  20 CFR § 656.12(b)-(c) states:

(b) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer’s attorneys’ fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person’s or entity’s established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.

(c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person’s or entity’s established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency’s procedures, and may be grounds for denial under § 656.32, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.

In this scenario, the employer is not seeking or receiving any payment.  The only sentence which that fact does not take out of the picture immediately is the one stating that “an alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer.”

But even when the employer is the plaintiff, along with the beneficiary, or both the employer and the beneficiary are plaintiffs, it can be argued with equal force that the prohibition against the foreign national paying the fees in a DOL regulation cannot override a claim under the APA that falls within the “zone of interests” that the statute was intended to protect. The beneficiary is paying attorney fees not to obtain labor certification but to seek redress against the DOL for erroneously denying his or her labor certification.

The same analysis can extend to prohibition of payments by the foreign national in the H-1B context. The relevant regulation involves the definition of authorized deduction at 20 CFR § 655.731(c)(9)(ii), which states in relevant part:

[T]he deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition).

Unlike 20 CFR § 656.12(b)-(c), there is no absolute prohibition towards payment of attorney fees and costs relating to the preparation and filing of an LCA and H-1B petition. They are treated as business expenses and have the effect of deducting the beneficiary’s wage. If the beneficiary’s wage falls below the required wage, it would result in violation.  A similar analysis would apply as in the PERM labor certification context.  If the lawsuit is being filed by the employee only, then it does not make sense to describe it as among the “H-1B program functions which are required to be performed by the employer”, because almost by definition, an employee-only APA action cannot be something required to be done by the employer. Even if the lawsuit is being filed by the employer on behalf of the employee, and the employee pays, it can be forcefully argued that the prohibition against this sort of unauthorized deduction is limited to the preparation and filing of an LCA and H-1B petition, and not when the fee is paid to challenge an arbitrary and capricious denial of an H-1B petition in federal court.

An action in federal court is authorized under the APA and should be distinguished from an administrative challenge of a denial to the Board of Alien Labor Certification Appeals or the Appeals Administrative Unit. Those challenges are not governed by the APA but by agency regulations, which insist that only the employer or petitioner may seek administrative review. The APA, on the other hand, allows the plaintiff, which may include both the petitioner and the foreign national beneficiary, to show that the claim falls within the “zone of interests” that the statute was intended to protect and the plaintiff has suffered injuries “proximately caused” by the alleged statutory violation. See Lexmark supra.  Even in the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). While there has never been a prohibition against beneficiaries paying fees and costs associated with I-140s, and so the welcome development under Matter of V-S-G is not relevant to this discussion regarding fees, the DOL may still argue that it has latitude to prohibit payment of fees by the beneficiary whose employer is seeking administrative review at BALCA or the AAO of a denied labor certification or H-1B petition. However, this supposed latitude arguably diminishes or evaporates in the context of an APA action is filed in federal court where the beneficiary’s zone of interests that the statute was intended to project have been violated.

Under the Trump administration, there have been an increasing number of H-1B denials of petitions that were routinely approved previously. The stakes are extremely high for such beneficiaries who are caught in the crippling employment-based preference backlogs, and need to seek H-1B extensions well beyond the six year limitation. A denial of a routine H-1B extension can have a devastating impact on the beneficiary and the family. A beneficiary caught in this predicament may have no choice but to resort to suing the agency in federal court. An employer may be gun shy to sue or pay for the litigation, and thus the beneficiary would need to take the initiative and pay the fees and costs associated with such litigation. While we have not yet seen an increase in labor certification denials, they do happen and the stakes are equally high, if not higher, for the foreign national beneficiary who would need to seek redress in federal court. DOL regulations prohibiting payment of fees and costs associated with the preparation of applications should logically not apply to lawsuits in federal court against government agencies to challenge their denials. This is an issue of first impression, and if the DOL continues to assert that fees and costs paid by the foreign national relating to such litigation are prohibited, those rules – especially 20 CFR § 656.12(b)-(c) and 20 CFR §655.731(c)(9)(ii) – ought to also be challenged alongside the lawsuit to set aside a wrongful denial.

(The author thanks David Isaacson for his invaluable input).

 

 

Cyrus Mehta

State Department’s Change To Public Charge Guidance In Foreign Affairs Manual Will Result in Many More Visa Refusals

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The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, if and when it does become a rule, foreign nationals who rely on government benefits will be more at risk of being found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the Trump administration’s proposed regulatory change is winding its way through bureaucratic channels, the State Department’s Foreign Affairs Manual (FAM), which is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad, has already made it easier to find visa applicants inadmissible under the public charge ground. The State Department can freely change the FAM at its choosing without even providing notice to the public or an opportunity to comment.

Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills.

Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government. See INA 213A(a)(1)(B).

The State Department at 9 FAM 302.8-2 (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new 9 FAM 3012.8-2(B)(2) provides:

  1. In General:
    1. In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s:
      1. Age;
      2. Health;
      3. Family status;
      4. Assets, resources, and financial status; and
      5. Education and skills.
    2. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.
    3. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.

Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM,  available at https://web.archive.org/web/20170119231252/https://fam.state.gov/FAM/09FAM/09FAM030208.html, which was just before the start of the Trump administration

The old 9 FAM 302.8-2(B)(3)(a.)(2) stated:

2. These factors, and any other factors thought relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.  As noted in 9 FAM 302.8-2(B)(2), a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.

See also the old 9 FAM 302.8-2(B)(2)(c):

 Effect of Form I-864 on Public Charge Determinations:  A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to overcome the INA 212(a)(4) requirements.  In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor – the affidavit is enforceable regardless of the sponsor’s actual intent and should not be considered by you, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.  If you have concerns about whether a particular Form I-864 may be “fraudulent”, you should contact CA/FPP for guidance.

Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). Pursuant to the old FAM guidance, the credibility of an offer of support from a person who met the definition of a sponsor and who had verifiable resources was not a factor. A DOS official at the Federal Bar Association’s Immigration Conference on May 18 and 19, 2018 in Memphis, TN confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations. By way of an example, according to the DOS official, if a co-sponsor has already executed other I-864s in the past, then that will be viewed as an adverse factor. (See Lily Axelrod’s excellent summary of the proceedings of the FBA immigration conference on the Cool Immigration Lawyers page on Facebook).

The I-864 has always been thought of as a binding contract between the sponsor and the government, and thus discrediting an I-864 that is otherwise non-fraudulent seems to undermine the contractual nature of the I-864. Even if a sponsor has executed other I-864s in the past, that should not result in an adverse credibility determination if the sponsor has sufficient documented income to meet 125% of the federal poverty guidelines based on his or her household size. Under the new FAM provisions, deeming a properly executed I-864 as overcoming public charge will no longer be the case.

Indeed, the change to the public charge definition in the FAM is causing additional havoc to otherwise eligible applicants for immigrant visas. Those who already got approved I-601A provisional waivers to overcome the 3 or 10 year bars under INA 212(a)(9)(B)(i) and have proceeded overseas to process their immigrant visas are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4). If the visa applicant is found inadmissible for another ground other than under INA 212(a)(9)(B)(i), the I-601A waiver is revoked and the applicant has to file a new I-601 to again overcome the 3 or 10 year inadmissibility bars under INA 212(a)(9)(B)(i) even if the applicant is able to overcome the public charge ground by providing additional evidence. This can cause a delay of at least a year and result in uncertainty until the new I-601 is approved. One suggested way to ameliorate this unnecessary hardship is to issue an INA 221(g) letter requesting evidence to overcome the public charge ground rather than a flat out refusal under INA 212(a)(4).

The new FAM assessment of public charge also appears to run contrary to 8 CFR 213a.2(c)(2)(iv), which provides:

Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

While it may be permissible under 8 CFR 213a.2(c)(2)(iv), to find public charge inadmissibility despite a proper affidavit of support, it has to be based on “evidence of specific facts” that “support a reasonable inference that the alien is likely . . . to become a public charge.” The new FAM guidance on the other hand considers a non-fraudulent I-864 only as a positive factor in the totality of circumstances, which includes the foreign national’s age, health, family status, assets, resources and financial status and education and skills.

Applicants should no longer assume when they process an immigrant visa at a US consulate that an I-864 will be deemed to overcome a public charge finding. The visa applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable. Nothing should be taken for granted under the Trump administration, whose avowed objective is to restrict legal immigration to the United States. Until the administration can get its way in Congress by restricting immigration to only a select few under a Merits-Based immigration system, it will try every other way to restrict immigration, including expanding the definition of public charge.

David Isaacson

Those Who Cannot Remember the Past: How Matter of Castro-Tum Ignores the Lessons of Matter of Avetisyan

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Attorney General Jefferson B. Sessions III recently ruled in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), that immigration judges cannot under most circumstances “administratively close” cases before them (other than in a few instances where this is specifically authorized by regulation or court-approved settlement), even though the practice has been followed for many years.  Administrative closure had previously allowed immigration judges to avoid spending time on cases that were awaiting action by another agency or were otherwise lower-priority, but Attorney General Sessions has generally removed this option.  Instead, he has insisted that Immigration Judges must either resolve cases before them promptly, or grant a continuance “for a fixed period” where justified.  Matter of Castro-Tum, 27 I&N Dec. at 289.

The Attorney General’s decision in Castro-Tum has been the subject of a great deal of justified criticism from various sources, including AILA Secretary Jeremy McKinney, the American Immigration Council, the National Immigrant Justice Center, retired Immigration Judge Paul Wickham Schmidt, and Judge Ashley Tabbador, the president of the National Association of Immigration Judges.  All of that criticism is worthy of review.  In this blog, however, I want to focus on something which struck me about Castro-Tum that has not been addressed as much in the public criticism to date: the degree to which it ignored the rationale of the leading case it overturned.  By ignoring the reasons that justified the expansion of administrative closure in the first place, Attorney General Sessions has set the table for a potentially substantial increase in the immigration courts’ backlog of cases that may defeat whatever goal he believed the abolition of administrative closure would accomplish.

As Attorney General Sessions recognized in Castro-Tum, the use of administrative closure expanded when, in its 2012 decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the Board of Immigration Appeals held that cases could be administratively closed over the objection of one of the parties.  Notably absent from the Attorney General’s decision in Castro-Tum, however, is any discussion of the facts in Avetisyan that had led the BIA to come to this conclusion.

The respondent in Matter of Avetisyan had a U.S. citizen husband, who had naturalized during the first half of 2007 (after a January 29 hearing and prior to a June 14 one), and had previously filed an I-130 petition with USCIS to sponsor her for lawful permanent residence as his spouse.  This would have been the basis for the respondent to seek adjustment of status before the Immigration Judge, had the petition been approved.  As of September 2007, the respondent and her husband had been interviewed and had evidently provided all documents requested of them, but were waiting for USCIS to make a final decision on the petition.

Despite “five additional continuances” granted by the Immigration Judge, however, the I-130 petition at issue in Avetisyan was not adjudicated by USCIS.  “During the December 11, 2007, hearing, counsel for the DHS indicated that she did not have the file and that it was possibly with the visa petition unit.  On April 15, 2008, counsel for the DHS explained that the file was being transferred back and forth for each hearing before the Immigration Judge.”  Matter of Avetisyan, 25 I&N Dec. at 689–690.  That is, it appeared to be the repeated immigration court hearings themselves that were preventing the I-130 petition from being adjudicated: in preparation for each hearing, the file was being shifted from the USCIS unit which would have adjudicated the petition, to the attorneys representing DHS in the immigration court.  The Immigration Judge in Avetisyan, affirmed by the BIA, sought to avoid this conundrum by administratively closing the case, so that the I-130 petition could be adjudicated without the file being diverted to a DHS attorney in preparation for yet another hearing.  The case could then have been restored to the Immigration Court’s calendar once the I-130 petition had been adjudicated.

The Attorney General’s decision in Matter of Castro-Tum does not address this fact pattern at all, and does not suggest what an Immigration Judge or the Board ought to do under circumstances similar to those at issue in Matter of Avetisyan.  Continuances for a fixed period of time would not solve the problem if each continued hearing caused the file to be pulled away from USCIS petition adjudicators, just as appears to have occurred five times in Avetisyan before the Immigration Judge called a halt to the absurdity.  The cycle of continuances and file movement could literally go on indefinitely.

The alternative which this author suspects Attorney General Sessions might prefer, ordering the respondent removed because USCIS had not yet finished adjudicating a petition on his or her behalf, would be even more absurd, and unlikely to survive review in an appropriate Court of Appeals.  USCIS, after all, is a branch of DHS, the very agency which takes the prosecutor’s role before the Immigration Court to argue that someone should be removed.  In opposing a continuance under the sort of circumstances at issue in Avetisyan, DHS would be in the position of asking that someone be removed from the United States because they, DHS, had not yet deigned to adjudicate a petition filed on that person’s behalf.  Even in Avetisyan itself, DHS did not dare go that far (instead requesting a further continuance).  The possibility brings to this author’s mind Leo Rosten’s classic definition of chutzpah, relayed in the ABA Journal as “a person charged with killing his parents who pleads for mercy because he’s now an orphan.”

In a different context relating to motions to reopen, the Court of Appeals for the Second Circuit, in Melnitsenko v. Mukasey, rejected “the imposition of a mechanism by which the DHS, an adversarial party in the proceeding, may unilaterally block [that relief] for any or no reason, with no effective review by the BIA.”  The same objection would apply if DHS, a party to the removal proceedings, could seek to block relief and effect removal simply by delaying adjudication of an I-130 petition indefinitely.  But in the Avetisyan scenario, absent administrative closure, it may be that the only other option besides allowing this sort of deeply problematic unilateral blockade by DHS would be an indefinite cycle of continuances.

Philosopher George Santayana wrote in The Life of Reason that “Those who cannot remember the past are condemned to repeat it.”  Notwithstanding his expressed desire in Matter of Castro-Tum for more expeditious adjudication of immigration court cases, Attorney General Sessions may have put himself in the position described by Santayana.  He has abolished the tool used in Matter of Avetisyan to avoid an indefinite delay, without addressing, or seemingly remembering, the scenario which had caused that tool to be necessary in Avetisyan.  He may thereby have condemned himself, and the immigration court system, to repeat the sort of indefinite delays that gave rise to Avetisyan in the first place.

Sophia Genovese

Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas will Eviscerate Due Process

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The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the EOIR, formally announced these metrics, which require IJs to complete at least 700 cases per year, have a remand rate of less than fifteen percent, and meet half of the additional benchmarks listed in the evaluation plan, which can be found here. As pointed out by the Association of the Bar of the City of New York, “this quota translates into each judge hearing testimony and rendering decisions almost three cases per day, five days per week, 52 weeks per year.” According to several retired IJs and Former Board of Immigration Appeals (BIA) Members, such quotas raise serious due process concerns and will result in a system that is less focused on justice and appearing “more like an assembly line.”

There are a number of issues with the EOIR case completion quotas. First, these quotas may force IJs to breach their ethical obligations. Specifically, the new completion quotas are tied to the financial incentives of IJs, where the performance evaluations affect IJs’ job security and eligibility for raises. IJs are not given life appointments and can be easily removed from the bench by the Attorney General if he finds them to not be meeting these performance thresholds. Thus, IJs may be encouraged to render hasty decisions in order to satisfy these case completion quotas and receive a good review (and thus a raise) instead of making decisions based on what is proper for the cases in front of them. Having such a financial incentive in the completion of a case arguably forces an IJ to violate 5 C.F.R. §§ 2635.401 to 2635.403,[i] which prohibits IJs from participating in proceedings where he or she has a financial interest. Additionally, IJs must be impartial in their decision-making under 5 C.F.R. § 2635.101(b)(8). It is hard for an IJ to remain impartial when pressured with impossible case completion standards especially when a case is meritorious but an IJ may not grant a continuance for legitimate reasons.

The case completion quotas also violate 8 C.F.R. § 1003.10(b), which provides: “In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgement and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” For example, an attorney may have been only recently retained by an asylum-seeker, and may request a continuance in order to gather and assemble evidence that is vital for the asylum-seeker’s claim. Under ordinary circumstances, an IJ would likely grant such a continuance as it would be considered proper under INA § 240(b)(4)(B) which affords a “reasonable opportunity…to present evidence” on one’s behalf. However, under the quota system, an IJ may feel pressure to deny the motion for continuance and may ultimately deny the asylum claim because the asylum-seeker was not afforded sufficient time to present their case. Such an outcome clearly violates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B) where the IJ is stripped of their independent decision-making authority where they feel pressured to quickly close out a case despite compelling reasons to grant a continuance, and where the asylum-seeker is not afforded a reasonable opportunity to be heard.

Another example is an individual placed in removal proceedings who is the intending beneficiary of a pending I-130 with USCIS. Typically, USCIS takes several months to adjudicate an I-130, and thus, attorneys for respondents file motions for continuance with the IJ until the USCIS has rendered a decision which will determine the respondent’s eligibility for relief from removal. Under the new case quota system, IJs will be less inclined to grant such continuances. This hypothetical similarly implicates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B), as described above. Moreover, the IJ’s denial of the continuance here would violate Matter of Hashmi, 24 I&N Dec. 785, 793-94 (BIA 2009) where the Board held that compliance with a IJ’s case completion goals “is not a proper factor in deciding a continuance request” where there is an meritorious pending I-130. We’ve previously blogged about AG Sessions’ stripping of judicial independence through his self-referral of  Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018), which can be found here.

The case completion quotas will also lead to an unprecedented number of BIA and federal court appeals. This would needlessly increase the BIA’s backlog and indeed affect the dockets of the federal court systems, resulting in the tremendous waste of taxpayer’s dollars where a proper decision could have been rendered at the IJ level. In addition, the number of remanded cases may exceed fifteen percent, and thus, the IJ would again fail to meet the performance metrics in their performance evaluation.

There is no denying that the Immigration Courts face tremendous pressure to address the ballooning backlog of cases. As of this writing, there are 692,298 pending cases in Immigration Courts across the country, with only approximately 330 judges to hear them. Advocates during the Obama-era consistently advocated for the appointment of more IJs to address the backlog. However, in the Trump-era, advocate are now skeptical of such a move where it is clear that this Administration seeks to deport as many people as possible. Indeed, the Department of Justice, headed by Jeff Sessions, has celebrated deportations under the Trump Administration. Such an emphasis on deportation, as opposed to fair adjudication of claims, undermines the independence and impartiality of IJs. The implementation of the DOJ/EOIR case completion quotas will undoubtedly lead to a rise in unfair hearings and erroneous deportations, which is exactly what this Administration wants. The appointment of Trump-supporting IJs will only exacerbate the problem.

For many years, the NAIJ has advocated for the creation of an Article I Immigration Court that is independent of the political whims of the Department of Justice. Under the current Administration, and in light of the newly imposed DOJ/EOIR performance quota metrics, these calls have never been more relevant. The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws. The case completion quotas will undoubtedly undermine the integrity of our immigration system and should be vigorously challenged by IJs and practitioners.

[i] The author acknowledges that 5 CFR § 2635.402 directly implicates 18 U.S.C. 208(a), a criminal statute. This author suggests that the EOIR case completion quotas may jeopardize an IJ’s ethical obligations where their financial interests are directly and predictably impacted by blind adherence to such arbitrary quotas. Criminal liability for these actions, however, goes beyond the scope of this article.

Cyrus Mehta & Sophia Genovese

Reinterpreting the 90 Day Misrepresentation Provision in the Foreign Affairs Manual

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As we previously blogged, the State Department abruptly amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

To reiterate, the updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule ”, the FAM is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

    1. Engaging in unauthorized employment;
    2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
    3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
    4. Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

A literal reading of the four criteria seem to suggest that the inconsistent activity resulting in a presumption of misrepresentation must have occurred in the absence of filing an application for change of status or adjustment of status that would otherwise authorize such an activity.  The way the FAM provision literally reads is contrary to how this has previously been understood, which is that if a foreign national filed an adjustment or change of status application within 90 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions upon initial entry. Prior to the introduction of the new FAM provision, it was similarly understood that filing a change of status or adjustment of status application within 30 days created a rebuttable presumption of fraud or willful misrepresentation. If such an application was filed more than 60 days later, there would be no such presumption.

Let’s carefully start our analysis with the fourth criterion under 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv):

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

Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30th day, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the fourth criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. According to the way 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) literally reads, which a DOS official confirmed recently at a conference,  the 90 day guidance is not implicated if the foreign national files a change of status or adjustment of status application even within 90 days and then seeks to engage in conduct consistent with the new status. The guidance is implicated, rather, if the foreign national engages in conduct that is inconsistent with their present status such as working while in B-2 status without first filing and obtaining a change of status that would authorize such work activity. In other words, filing a change or adjustment of status application within 90 days of entry ought not create a presumption of willful misrepresentation for a consular officer especially if it was approved by the USCIS.

This interpretation, while at first blush appears not to square with the third criterion,  9 FAM 302.9-4(B)(3)(g)(2)(b)(iii) (“A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”)  may be harmonized if it is read in conjunction with the fourth criterion at 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv)(“Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment”).

This nuanced reading may run contrary to the way the presumption of misrepresentation has always been understood, which has meant that a nonimmigrant who entered on a B-2 visa, married a US citizen and applied for adjustment of status within 90 days would presumptively be found to have made a misrepresentation at the time of entry. Such a reading may not be universally accepted and obviously should not be relied upon until it gains more acceptance by all the agencies. It may never gain acceptance since the same language in current 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) existed under the old version of the 30-60 day rule too and was never interpreted in this way previously.   The USCIS has questioned adjustment applicants regarding their intention at the time of admission when they filed soon after entry into the US. Also, when one files a change of status from B-2 to F-1, the USCIS often questions when the applicant contacted the school from the time of admission in order to gage the applicant’s true intention and whether it was contrary to the purpose under the B-2 visa. Still, the literal reading ought to be invoked as a defense to those who have been accused of misrepresentation, but never engaged in inconsistent activity prior to filing an application for change of status or adjustment of status.

This reading also makes perfect policy sense. It makes little sense to penalize a student who has been living lawfully for years in F-1 status, and who after travelling abroad on a brief vacation marries his fiancée and files an adjustment of status application within 90 days. Under a literal reading of the FAM guidance, the presumption of fraud or misrepresentation is not implicated, although under the way it has been traditionally understood, it would be because the student unfortunately took this vacation abroad prior to his marriage and the filing of the adjustment application within 90 days. Moreover, the literal reading does not totally eviscerate the presumption of fraud or misrepresentation. The 90 day guidance would still apply to those who violate immigration laws. Thus, a person who enters as a tourist and starts working within 90 days without filing for a change of status to a nonimmigrant work visa status would implicate the rule when she next visits the US Consulate for a new visa. The prior activity would have resulted in a rebuttable presumption of fraud or misrepresentation, and she may be found inadmissible under INA § 212(a)(6)(C)(i). However, if this same person, like the violinist in our prior example, followed the law and started working only after the O-1B request for a change of status was approved, the 90 day rule ought not be implicated.

Furthermore, a person would not be able to get away when there is obvious evidence of a misrepresentation at the time of applying for a visa or upon admission. For example, if a person applies for a business visa supported by documentation to further a business purpose in the US, and upon entry, does not conduct any business activities whatsoever but instead seeks admission at a school and applies for change of status to F-1, that person would most likely be found inadmissible for misrepresenting that there was a business purpose to visit the US when there was none. A literal reading would only likely eliminate a presumption of misrepresentation where the person otherwise came to the US pursuant to the stated purpose and then applied for a change of status to perform another activity within 90 days.

The literal reading of the 90-day provision in the FAM also supports the dual intent doctrine. Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States upon the occurrence of certain conditions is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1). Thus, persons should not be penalized if they wish to enter the US to engage in activities that may be inconsistent with their initial visa provided they pursued activities consistent with the initial purpose and then successfully file change of status or adjustment of status applications that would permit them to pursue those other activities.

While our blog by no means should serve as a green light for people to file applications to change status or adjust status within 90 days, its purpose is to at least create awareness of another way of reading the 90 day provision that makes perfect sense as it encourages lawful conduct and awareness of a potential defense to those who are found inadmissible when they filed applications within 90 days to seek permission to engage in activities that may have not been consistent with their original visa.

 

Michelle S. Velasco

Beware The Gap: USCIS’s Policy Changes Cause Headaches and Confusion for F-1 Change of Status Applicants

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There’s never any good news coming from USCIS these days.  The agency’s treatment of applicants changing status to F-1 is another prime example of a confusing policy change that has no basis in law and regulation, and which severely hurts the U.S.’s ability to hold on to talented students.  To fully grasp the ridiculousness of modern day USCIS, we should take a trip back through relevant policy interpretations dating back to legacy INS.  We can start in April 2012 when the administration under President George W. Bush, frightened by the September 11, 2001 terrorist attacks, published an interim rule in the Federal Register.  You can see from the preamble to the interim rule exactly the kind of xenophobic policy the administration was trying to implement, which has only gotten worse today:

The terrorist attacks of September 11, 2001 highlight the need of the Service to maintain greater control over the ability of an alien to change nonimmigrant status once the alien has been admitted to the United States. This interim rule will allow the Service to fully review any request from a B nonimmigrant to change nonimmigrant status to that of full-time student before allowing the alien to enroll in a Service-approved school. The elimination of the ability of a B nonimmigrant to begin classes before receiving the Service’s approval of the change of nonimmigrant status is also consistent with the Act’s requirement in section 101(a)(15)(B) that a B nonimmigrant not be a person coming to the United States for the purpose of study.

The interim rule was effective upon publication, and was announced in a Memo from Johnny N. Williams, the Executive Associate Commissioner of the Office of Field Operations (Williams, Ex. Assoc. Comm. Field Operations, Requiring Change of Status from B to F-1 or M-1 Nonimmigrant Prior to Pursuing a Course of Study, HQISD 70/6.2.2 (Apr. 12, 2002)).  The new rule required a B-1/B-2 visitor to first obtain a change of status to F or M status before starting school.  If a visitor had already started school, the change of status application would be denied.  The rule became effective April 12, 2002 and the policy was codified in 8 CFR §214.2(b)(7).  Going further, the change of status application needed to be timely filed before the B-1/B-2 status expires and within 30 days of the start of school.  The latter requirement seems to stem from USCIS’s interpretation of 8 CFR §214.2(f)(5)(i), part of which states:

An F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.  The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study.

Then, a case brought before the Maryland District Court in 2011 challenged USCIS’s interpretation of this regulation.  In Youseffi v. Renaud, 794 F.Supp.2d 585 (D. Md. Mar. 11, 2011), the Plaintiff Narges Youssefi entered the U.S. in B-2 status and was granted a B-2 extension through December 27, 2007.  After receiving a request from her employer back in Iran that she stay in the U.S. and take classes to improve her English language skills, Ms. Youssefi decided to apply to take English classes, acquired an I-20, and listed November 3, 2008 as the start date for her classes on the Form I-20.  She timely filed a change of status application from B-2 to F-1 on June 25, 2008.  USCIS denied her application, reasoning that she had failed to maintain her current nonimmigrant status up to 30 days before the start of classes and was therefore ineligible for a change of status.  The Plaintiff appealed the case all the way up to district court.  The court in Youseffi grappled with USCIS’s interpretation of 8 USC §1258, 8 CFR §248.1(b), and 8 CFR §214.2(f)(5)(i) that a B-2 to F-1 change of status applicant must maintain active B-2 status up to the 30 days before the school program start date, and not just until the change of status application is filed.  First and foremost, the court found that the statutory language at INA §248 is inherently ambiguous, as it “implies that the USCIS may not grant a change of status to someone who has failed to ‘maintain’ his or her nonimmigrant status, but it does not define what it means to ‘maintain’ status.  It is unclear from the statute whether a nonimmigrant must continue to maintain her status only until she petitions for a change in classification, or whether she must continue to maintain it until USCIS grants her new nonimmigrant status.”  Youseffi v. Renaud, 794 F.Supp.2d 585, at 593.  But then the court looked at 8 CFR §248.1(b) where it found language that clarified the ambiguity in favor of the applicant:

Section 248.1(b) states that “a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service ….” 8 C.F.R. § 248.1(b). Under the plain language of the regulation, an applicant may be eligible for a change of status even if she failed to file before her previously authorized status expired. The ultimate decision of whether to excuse the applicant’s lapse lies within “the discretion” of the USCIS.

Id.  (Emphasis added).  The court concluded that 8 CFR §248.1 allows USCIS to use its discretion to excuse applicants who apply for a change of status and whose prior status remained valid at the time of filing but later expired.  Id.  The court went on to review this same regulation against 8 CFR §214.2(f)(5)(i), and found that the latter regulation is silent on situations like in Youseffi where the applicant’s prior status expired more than 30 days prior to the program start date.  It then remanded the case to USCIS which the court found could excuse a change of status applicant who filed while the prior status is valid but which later expired.

Since Youseffi, however, no higher federal court has addressed USCIS’s interpretation of these regulations.  And in the last few years, USCIS’s views have moved further away from a reasonable plain meaning understanding of the statute and regulations.

Case in point, a few years ago, immigration attorneys began reporting USCIS denials of applications to change status from B-2 to F-1 where the applicant had timely filed while his prior status was valid, the program start date indicated on the Form I-20 was within 30 days of the expiration of the underlying status, but then because of lengthy processing times at USCIS service centers, the school’s Designated School Official (DSO) had to defer the program date in SEVIS.  The effective result was that although it was still within 30 days of the initial start date listed on the Form I-20, the applicant’s prior status had expired more than 30 days before the new program start date.  There were so many incidents of this that the American Immigration Lawyers Association (AILA) was prompted to send a letter to Leon Rodriguez, then-Director of USCIS and the agency’s Chief Counsel, Ur Mendoza Jaddou.  The letter, dated December 15, 2016 (and available here for AILA members), explained how USCIS was erroneously denying these applications by misinterpreting 8 CFR §248.1(b), 8 CFR §214.2(f)(5)(i), and Form I-539 instructions to require B-2 to F-1 change of status applicants to maintain their B-2 statuses up to 30 days before a new program start date even though the original start date was only deferred because of USCIS’s own extremely lengthy processing times.  AILA’s letter again reasoned that USCIS’s interpretation of these regulations went far beyond what they state, and that in fact nowhere in the regulations does it state that change of status applicants have to maintain their prior status so that they remain in that prior status until 30 days before the program start date.  AILA pointed to the fact that even the court in Youseffi cited Unification Church v. Attorney Gen. of the U.S., 581 F.2d 870, 877 (D.C. Cir. 1978) (stating, in dicta, that it “appears to be the position taken” in 8 CFR §248.1 that “an applicant nonimmigrant must continue to maintain his ‘status’ only until he petitions for a change in classification,” not “until his petition is granted”); and Salehpour v. INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“The plain regulatory language [of section 248.1] allows an applicant to file for change of classification up to the last day of his prior authorized stay.”).  Moreover, USCIS practice had been to routinely approve these types of change of status applications, and the I-539 instructions even stated that a change of status applicant “must maintain [his] current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or [the] requested change of status may not be granted.”  (Emphasis added).  The I-539 instructions clearly state that USICS is to rely on the date listed on the I-20 when adjudicating the application, and not a deferred start date that’s listed by the DSO on SEVIS.  AILA then argued that “bridge petitions” that the applicant would file to extend the B-2 even while the change of status to F-1 is pending are not only cost prohibitive, they cause confusion to applicants, force USCIS to adjudicate unnecessary applications, which in turn lengthen already long processing times, and additionally creates issues around the “intent” of the applicant who already filed to change a status from temporary visitor to temporary student and then has to file an extension of a temporary visitor status.  Moreover, at the time of the letter, AILA’s members found that USCIS’s bridge petition requirement for B-2 to F-1 change of status applicants was inconsistently applied, where some B-2 extension applications were denied because it went against B-2 intent, or returned because they were not required.

Seemingly in answer to all the complaints from stakeholders about the inconsistent application of the bridge application requirement, USCIS decided in April 2017 to formalize the new policy.  USCIS updated its website to formally require B-1/B-2 to F-1 or M-1 change of status applicants whose status will expire more than 30 days before the initial F-1 or M-1 program start date, or whose program start dates had to be deferred because of USCIS processing times, to file a second Form I539 requesting an extension of the B-1/B-2 status and pay a separate fee for that application.  By the way, if the change of status application takes so long that the first extension time runs out, the applicant must file another extension of status application with another fee, and keep going until the original change of status has been approved.

Then, to cause even more confusion, and in a completely unhinged and callous move, USCIS decided to apply this “new” policy to pending B-1/B-2 change of status applications that were filed before USCIS posted its guidance.  How do we know?  Because USCIS issued Requests for Evidence (RFEs) to these applicants!  In these RFEs, USCIS states that the applicant’s underlying B-1/B-2 statuses had expired and that the F-1/M-1 start date had been deferred to a date more than 30 days after the B-1/B-2 status expired.  And by virtue of the new policy, which again was posted after the change of status application had been filed, USCIS requests evidence through the RFE that either the applicant submitted the additional Form I-539 application to extend her B-1/B-2 status, or if the applicant had not (and let’s again recall that the policy was adopted after the application was filed, and there is no indication on the USCIS website that it would apply retroactively to pending applications), that the applicant file the new I-539 now and ask USCIS to excuse the late filing pursuant to 8 CFR §214.1(c)(4).

Let’s recap what we have so far.  USCIS decided in April 2017 that it will require B-1/B-2 extension of status applications filed even if an application to change status is already pending, and is applying this policy to already filed change of status applications, and all without issuing a formal policy memorandum or undergoing a normal notice and comment period.  USCIS merely posted new “guidance” on its website, provides no statutory or regulatory basis for this change, and does not explain what happens to the B-1/B-2 extension of status applications once they are filed.

The result of USCI’s failure (or perhaps refusal) to undergo a formal notice and comment period for a sweeping policy change is that applicants and other stakeholders are simply not well informed about USCIS’s requirements, usually to detrimental and often disastrous results.  What had started off as USCIS’s formalization of its policy toward B-1/B-2 to F-1/M-2 change of status applicants has recently expanded to affect all other nonimmigrants who want to change status in order to remain in the U.S. to study.  USCIS’s original website posting of the new “guidance” referred exclusively to B-1/B-2 status holders changing status to F-1 or M-1 (the original website post has been preserved by AILA, and can be viewed here by members).  A careful review of the most recent USCIS website discussing this policy, which was most recently updated in February 2018, shows that the policy has been extended to every nonimmigrant whose status will expire more than 30 days before the F-1 and M-1 program start date.  There is no specific mention of B-1/B-2 status holders.  The full relevant language from the website is pasted here:

What if I Have a Gap in Status?

If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”). For most people, you will need to file a separate Form I-539 to request to extend your current status or change to another nonimmigrant status, in addition to your other Form I-539 application to change to student status. If you do not file this separate request prior to the expiration of your status, USCIS will deny your Form I-539 request to change to F-1 or M-1 status. Please continue to check the USCIS processing times while your Form I-539 change of status request is pending to determine if you need to file a request to extend or change your nonimmigrant status.

  • Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before yournew program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.

Because extending or changing nonimmigrant status to bridge the gap and changing to F-1 or M-1 status are two distinct benefits, you must pay a separate filing fee for each request. See the User Fee Statute, 31 U.S.C. § 9701.

How does this expanded policy look in practice?  Let’s say that an H-4 child of an H-1B worker is going to age out because she is turning 21.  Meanwhile her parents intend to maintain their H-1B and H-4 statuses, extending them in 3-year increments, so that they can remain long-term in the U.S. until the H-1B parent’s I-140 priority date is current and they can adjust status to lawful permanent residents.  It bears noting that the reason why our H-4 applicant’s parents are still in H-1B and H-4 statuses and need to extend them in 3-year increments under §104(c) of the American Competitiveness in the 21st Century Act is because they are caught in the never-ending green card backlogs under the employment-based second (EB-2) or employment-based third (EB-3) preferences and by virtue of being born in India or China.  Otherwise, the parents, along with our H-4 applicant who was their minor child, would have long ago obtained their green cards and the H-4 student would not have had to go through this ordeal.  Our H-4 student has already been enrolled in college and has been otherwise maintaining her valid H-4 status.  Following prior USCIS guidance and the guidance of her DSO, she decides to timely file a change of status application to F-1 so that she does not have to interrupt her studies by applying for an F-1 abroad and then returning to the U.S.  As most stakeholders know, I-539 applications for a change of status notoriously take a long time for USCIS to process.  So she waits, even after her H-4 has expired, thinking that she is in a “period of stay authorized by the Attorney General” as she had timely filed her change of status application.  And then bam!  She is hit with a denial.  Why?  Because she did not maintain her status or seek a change of status to another nonimmigrant category so that she could be “in status” within 30 days of the program start date indicated on the I-20.  Yes, folks.  USCIS now requires even H-4 nonimmigrants applying to change status to F-1 to apply to change status to B-1/B-2 in order to stay “in status” until 30 days within the program start date.  And USCIS does not even bother with issuing RFEs requesting proof that the applicant has maintained status until within 30 days of the program start date.  The Service will simply issue a denial and it’s up to the applicant now to determine whether she can stay in the U.S. as her unlawful presence started tolling when the denial was issued, and whether it is even possible to appeal this nonsensical decision.

What is particularly irksome about USCIS’s policy changes is that the usual notice and comment period would have, even if brief, provided some notice to stakeholders.  But here, USCIS simply changed a bit of language on its website and everyone is expected to know the new requirements, abide by them, and live with harsh results for failing to follow them.  Empirically, we are aware that school DSOs were not given any notice or guidance by USCIS on this new policy and its expansion to other nonimmigrant categories.  Thus, our lowly applicant who relied on the advice of the DSO would not have known to request a change of status to B-2 to bridge the gap until her change of status to F-1 is approved.  She is instead punished with a harsh denial, the inability to continue her studies, and potentially having to leave the U.S. in order to apply for an F-1 abroad which comes with its own set of issues, not the least of which could be questions over the applicant’s nonimmigrant intent and problems with demonstrating ties to her home country if she has been living in the U.S in H-4 status since she was a young child.

There is already a brain drain occurring in the U.S. thanks to the Trump administration’s xenophobic policies combined with the EB-2 and EB-3 backlogs.  Fewer students want to come to study in the U.S.  It’s harder for companies to hire highly educated and skilled foreign workers.  The backlogs in the EB-2 and EB-3 preferences are also causing skilled immigrants from India to leave the U.S. for countries like Canada in total desperation.  Foreign born entrepreneurs are facing difficult challenges starting their businesses here in the U.S.  One prime reason that people have upended their lives to come to the U.S. is to pursue the “American dream” for their children – to give them a chance to obtain excellent education and take advantage of the economic, social, and cultural opportunities in the U.S.  This dream turns into a nightmare when the child on the H-4 visa ages out and is unable to seamlessly change status to F-1.  No immigrant parent wants his child to be in a worse off situation than him because of our Byzantine immigration system.  And now we will see even fewer nonimmigrants try to attend school because of USCIS’s new, cumbersome, and costly policy discussed in this blog.  Worse, if USCIS continues to issue new policy changes without a notice and comment period, we will likely see more confusion, more heartbreak, and more completely nonsensical and costly requirements all without the barest minimum in explanation from our government.  Beware the gap, indeed.