David Isaacson

THE WALKING DEAD: WHY COURTS OF APPEALS SHOULD NOT DEFER TO BIA OR ATTORNEY GENERAL PRECEDENT DECISIONS THAT HAVE ALREADY BEEN VACATED BY ANOTHER COURT OF APPEALS

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In my previous post Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, I raised the issue of whether the Court of Appeals for the Second Circuit in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), should have deferred as it did to the decision of the Board of Immigration Appeals (BIA) in Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), after the Court of Appeals for the Third Circuit had already vacated that decision in Bautista v. Attorney General, 744 F.3d 54 (3d Cir. 2014).  As I was reminded by Matthew L. Guadagno in the comments to that post, it is a conventionally accepted rule that “when a precedent decision of the Board is struck down by a circuit court, that precedent decision continues to be followed by the Board in all other circuits unless the Board renders a new decision.”  But one of the points I had been trying to make in Burning Down the House, although evidently not clearly enough, is that the federal courts should not give deference to the Board’s common practice in this regard.  This follow-up post attempts to clarify my thinking on the matter.

As I noted in Burning Down the House, it seems in some sense disrespectful of the Third Circuit’s decision vacating Matter of Bautista for the Second Circuit to have said, as it did, that “Matter of Bautista . . . governs Luna’s case.”  Arguably, there was no extant decision and judgment of the BIA in Matter of Bautista which could so govern, since it had already been vacated by a court of competent jurisdiction.  The precedential decision in Matter of Bautista, in an important sense, no longer existed by the time of the Second Circuit’s decision.  And while the BIA had reached the same result in its unpublished decision in Luna Torres’s case as in Matter of Bautista, the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), that “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference” (that is, deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).  Thus, the nonprecedential decision in Luna Torres’s case cannot, under Rotimi, have been what the Second Circuit was deferring to in its opinion.  Deference was evidently given to Matter of Bautista itself, and yet one might reasonably ask why the Second Circuit should have felt itself bound to defer to a precedential decision that had already been vacated by another Court of Appeals.

The general rule, as has been recognized by the Second Circuit and by other courts, is that “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013).  That is, “vacated opinions are not precedent.”  Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012).  Or, as the Ninth Circuit has put it more emphatically, “a decision that has been vacated has no precedential effect whatsoever.”  Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) (emphasis in original).  These opinions referred to the vacating of a federal court decision, not the vacating of a BIA decision, but logically the principle should apply to a vacated BIA decision as well.

To vacate, after all, has been defined as “to annul; to cancel or rescind; to render an act void; as, to vacate an entry of record, or a judgment.”  Matter of Bautista was annulled, was cancelled, was rescinded, by the Court of Appeals for the Third Circuit, in a case over which that Court properly had jurisdiction.  It was, one might say, dead, having been killed by a competent authority.  And yet, the Second Circuit in Luna Torres deferred to the BIA’s vacated decision in Matter of Bautista as a precedent nonetheless—perhaps because the argument was not made that it ought not do so.  One might refer to Matter of Bautista, under such circumstances, as a zombie precedent, one which has risen from the grave to walk the earth again even after being killed.

To be sure, a vacated decision can under some circumstances have “persuasive authority” even though it is not binding.  Brown v. Kelly, 609 F.3d 467, 477 (2d Cir. 2010).  The analog of such persuasive authority in the context of a BIA decision under review by a Court of Appeals, however, would be not Chevron deference, but the more limited form of deference given under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to an administrative opinion with the “power to persuade,” Skidmore, 323 U.S. at 140, which some Courts of Appeals have found applicable to non-precedential BIA decisions, as in Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014), Siwe v. Holder, 742 F.3d 603, 607 (5th Cir. 2014), and Latter-Singh v. Holder, 668 F.3d 1156, 1160 (9th Cir. 2012).  (The Second Circuit has reserved the question whether unpublished, non-precedent BIA opinions are even entitled to Skidmore deference, for example in Mei Juan Zheng v. Holder, 672 F.3d 178, 186 n.4 (2d Cir. 2012).) Even if a zombie precedent still walks the earth in some form, therefore, it should not have the same force and effect as a precedential opinion that has not been vacated, killed, by a Court of Appeals.

The somewhat obscure question of whether certain arson crimes constitute aggravated felonies is far from the only context in which zombie precedents play a significant role in immigration law.  The decision of former Attorney General Michael Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), for example, which altered the long-standing approach for determining whether certain convictions qualified as crimes involving moral turpitude, was vacated by the Court of Appeals for the Fifth Circuit in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014).  The American Bar Association has written a letter to Attorney General Eric Holder urging him to withdraw Matter of Silva-Trevino, but Attorney General Holder appears content to let the process play out in the Courts of Appeals.  (Now that Attorney General Holder has announced his impending resignation, we may eventually get to see whether his successor feels differently.)  So for the moment, under the BIA’s conventional practice, Matter of Silva-Trevino would continue to govern in the circuits whose Courts of Appeals have not yet specifically rejected it.  Although vacated by the Fifth Circuit, Matter of Silva-Trevino may continue its existence as a zombie precedent.  If the Second Circuit, in a future case, were to address an unpublished BIA opinion purporting to rely on Matter of Silva-Trevino, one might expect, based on the Second Circuit’s decision in Luna-Torres, that the Second Circuit would continue to defer to the rule of Matter of Silva-Trevino despite that precedent’s zombie status, rather than refusing under Rotimi to give Chevron deference to the unpublished opinion which had purported to rely on Matter of Silva-Trevino. One might also hope, however, that the Second Circuit would handle the matter differently, if an alternative possibility were brought to its attention.

There is indeed an alternative to respecting zombie precedents, which would still allow the BIA to perform its functions as an administrative agency entitled generally to Chevron deference, while giving more appropriate weight to the actions of a Court of Appeals that has overturned a precedent decision despite such deference.  As discussed in Burning Down the House, the Second Circuit could in Luna Torres have vacated the nonprecedential decision in Luna Torres’s case and remanded to the BIA for the issuance of a precedential decision, just as it had vacated the nonprecedential BIA decision in Rotimi and remanded for the issuance of a precedent decision.  The Court of Appeals would thereby have said to the BIA, in effect, that it should, in light of the Third Circuit’s decision in Bautista, issue a new precedential decision, Matter of Luna Torres.  The BIA could then have determined in this new decision not only whether it continued to stand by its reasoning from Matter of Bautista in light of the Third Circuit’s contrary reasoning, but whether it was troubled by the prospect of its ruling being valid only in some judicial circuits but not others, and whether it might therefore find it appropriate to acquiesce in the Third Circuit’s ruling in the interest of national uniformity.  It does not appear that this possibility was considered by the Second Circuit in Luna Torres.

It is not as though the BIA’s action, when presented with such a choice, would necessarily be foreordained.  Admittedly, the BIA has in some instances made a precedential choice to reaffirm the reasoning of a prior precedent even after its rejection by multiple circuits.  In Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), for example, the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding regarding the ineligibility of certain Lawful Permanent Residents for waivers of inadmissibility under INA §212(h) had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it. However, in some instances, the BIA has also been known to reverse course following rejection of its precedent by one or more Courts of Appeals.

In Matter of Silva, 16 I&N Dec. 26 (BIA 1976), for example, the BIA acquiesced in the Second Circuit’s decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), regarding the availability of relief under former INA §212(c) to certain lawful permanent residents who had not departed from the United States following a criminal conviction.  In so doing, the BIA declined to follow its own earlier contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971).

Similarly, in Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), which had barred Immigration Judges from evaluating the continuing validity of an I-140 petition following the exercise of portability under INA §204(j), after the rejection of Perez Vargas by several Courts of Appeals.  Matter of Perez Vargas had by that time been vacated by the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007), and thus was already what I have called a zombie precedent.  The conventional view would say that Courts of Appeals should have deferred to Matter of Perez-Vargas until Matter of Marcal Neto was decided; I would argue that after Perez-Vargas v. Gonzales was decided, unpublished decisions relying on Matter of Perez Vargas were no longer entitled to deference, since Matter of Perez Vargas itself no longer existed.  In the end, the BIA did decide to retreat from its zombie decision and adopt the view of the Court of Appeals for the Fourth Circuit (as well as other Courts of Appeals that had addressed the matter).

In some cases, the BIA might, after a Court of Appeals decision rejecting its analysis of an issue, find some third approach that incorporated the wisdom of the Court of Appeals decision without following it exactly.  In Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), for example, the BIA overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), in part following its rejection by some circuit Courts of Appeals.  The BIA in Matter of Alyazji did not entirely adopt the theory of those Courts of Appeals that an adjustment of status was simply not an “admission” for purposes of determining deportability under INA §237(a)(2)(A)(i) for conviction of a crime involving moral turpitude committed within five years after the date of admission.  The BIA in Alyazji accepted a similar result in most contexts and retreated from Shanu, however, by holding that the date of admission for purposes of INA §237(a)(2)(A)(i) deportability was “the date of the admission by virtue of which the alien was present in the United States when he committed his crime”—so that the clock would run from a prior admission as a nonimmigrant that had been followed by an adjustment of status, and would not restart anew from the adjustment of status, unless the person being adjudged deportable had adjusted status after entering the United States without inspection (and thus had no prior admission by virtue of which he was present in the United States at the time). Here as well, therefore, the BIA did not simply insist that it would adhere to a prior precedent decision until that precedent decision was rejected by every Court of Appeals or by the Supreme Court, in the way that the conventional view of what I have called zombie precedents seems to suggest.

In a case where the zombie precedent was originally decided by an Attorney General, it seems even less likely that the BIA would continue to follow it in a precedential decision if informed by a Court of Appeals that it had that option.  Matter of Silva-Trevino was a departure by former Attorney General Michael Mukasey from many years of BIA precedent, and there is no apparent reason that the BIA, or current Attorney General Eric Holder, or his successor, should be so enamored of Silva-Trevino following its rejection by multiple Courts of Appeals as to insist on it in a new precedential decision.  A refusal by Courts of Appeals to defer to Matter of Silva-Trevino as a zombie precedent, unless its reasoning were reaffirmed in a precedent decision made free of the original decision’s binding force, might therefore hasten its demise substantially.

We know from fiction such as The Walking Dead and Night of the Living Dead that zombies are not, ordinarily, thought to be especially appealing or worthy beings.  For the reasons explained in this blog, zombie precedents should be given no more respect.  If the BIA wants courts to defer to the reasoning of a precedent decision that has already been given a proper burial by a Court of Appeals, the BIA should be required to afford that reasoning new life through a new precedent decision, which gives proper consideration to the contrary views of the Court of Appeals that vacated the original decision and explains why those contrary views have been disregarded.

Cyrus Mehta

EBOLA AND INADMISSIBILITY

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By Cyrus D. Mehta and David A. Isaacson

The United States has started Ebola screenings at 5 major airports.  Will these screenings really be effective, or are they being implemented by the administration to demonstrate that it is doing something to assuage public fears?  The administration has also been criticized by Republican leaders who are pushing to restrict, if not completely block off, air travel from West Africa. The tragic death of Thomas Duncan in Dallas from Ebola who had flown into the United States from Liberia has further exacerbated these fears. 

While the airport screenings would apply to all travelers from affected West African countries, including U.S. citizens, non-citizens would certainly be more vulnerable. The fears stemming from the Ebola epidemic are redolent of an earlier time when immigrants who travelled to the shores of the United States were processed at Ellis Island and excluded for a host of diseases, notably including the eye infection trachoma. A Marine General recently warned about hordes of Ebola infected immigrants running for the U.S. border, stoking similar fears today. Anti-immigrant groups are using Ebola, along with ISIS, to further their argument that immigrants are dangerous to the United States, and several Republican politicians including former Massachusetts Senator and current New Hampshire Senate candidate Scott Brown, North Carolina Senate candidate Thom Tillis, and Senator Rand Paul, have cited Ebola to support increased border security along the U.S.-Mexico border. 
Pursuant to section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA), aliens who are determined to have a communicable disease of public health significance are ineligible to receive visas and ineligible to be admitted in the United States. By regulation, under 42 CFR 34.2, the term “communicable disease of public health significance” includes “quarantinable communicable diseases as listed in a Presidential Executive Order,” a list which has included Ebola and other viral hemorrhagic fevers since President George W. Bush issued Executive Order 13295 in 2003. Under the authority of INA section 232, 8 U.S.C. 1222, aliens arriving in the United States may be subjected to detention and physical and mental examination to determine whether they are afflicted with a condition that would render them inadmissible, such as Ebola. 
Interestingly, however, under INA 232(b) and 42 CFR 34.8, an applicant for admission who was suspected of having Ebola and found inadmissible on that basis, who disputed the finding, could appeal to a board of medical officers. Presumably, even if one has been quarantined after showing signs of being infected but has recovered, he or she ought to be admitted into the United States.  And since INA §212(a)(1) is not among the grounds which can be a basis for expedited removal under INA §235, 8 U.S.C. §1225, this would presumably all take place, even for a nonimmigrant, in the context of regular removal proceedings before an Immigration Judge, unless DHS felt it could argue with a straight face that the nonimmigrant also fell under INA §212(a)(6)(C) or §212(a)(7) and was thus amenable to expedited removal.  The nonimmigrant might, for example, be said to have lied to a consular officer or DHS officer about their illness and thus become inadmissible under INA §212(a)(6)(C)(i). 
A Lawful Permanent Resident (LPR), on the other hand, at least if returning from a trip of less than 180 days and not having committed any crimes or taken any other actions which would otherwise cause them to be treated as an applicant for admission, would not be regarding as seeking admission to the United States, pursuant to INA section 101(a)(13)(C), 8 U.S.C. §1101(13)(C). That is, the LPR would be considered rather as if he or she had never left the United States at all, because under section 101(a)(13)(C), becoming medically inadmissible under section 212(a)(1) doesn’t cause an LPR to be regarded as seeking admission in the way that certain criminal conduct does. So the LPR would be allowed in, if perhaps under quarantine, not necessarily because he or she were admissible but because admissibility is irrelevant for someone who is not an applicant for admission. There does not appear to be any provision in INA section 237, regarding deportability, which would relate to those who become afflicted with contagious diseases after already having been admitted.
An LPR who had been out of the United States for more than 180 days could potentially be in a more troubling situation. Under INA §101(a)(13)(C)(ii), an LPR who “has been absent from the United States for a continuous period in excess of 180 days” is not entitled to the statutory protection against being regarding as seeking admission, so such an LPR could be found inadmissible under INA 212(a)(1)(A)(i) if infected with Ebola. And although a waiver of such inadmissibility is available pursuant to section 212(g)(1) of the INA, that section requires for a waiver of 212(a)(1)(A)(i) inadmissibility that the waiver applicant have a qualifying relative of one of various sorts, unless he or she is a VAWA self-petitioner.  So an LPR absent from the United States for more than 180 days who does not have a spouse, parent (if the LPR is unmarried), son, or daughter who is either a U.S. citizen, or an LPR, or someone who has been issued an immigrant visa, might not be allowed back into the United States after being infected with Ebola, having become an inadmissible applicant for admission and being ineligible for a 212(g)(1) waiver.  
We wonder whether such a loss of LPR status due to an infection would be constitutional, but we know that according to the Supreme Court, long-term absences from the United States can strip returning residents of some of their constitutional protections. The regrettable decision in Shaughnessy v. Mezei, 345 U.S. 2006 (1953), which upheld the refusal to admit a returning resident without a hearing and his resulting indefinite detention on Ellis Island, has never been overturned (though its practical effect with regard to the permissible length of detention under current statutes was limited by Clark v. Martinez, 543 U.S. 371 (2005)), and Mr. Mezei had lived in the U.S., apparently lawfully although before the INA of 1952 was enacted and the modern LPR status created, for many years before his 19-month absence. An LPR who is absent from the United States for more than 180 days and becomes infected with Ebola in the meantime may be at risk of becoming the modern Mezei. At the very least, however, the government should be held to the burden of showing such an LPR’s alleged medical inadmissibility by clear, convincing, and unequivocal evidence, as in Woodby v. INS, 385 U.S. 276 (1966), just as LPRs alleged to be inadmissible on other bases have been found entitled to the protection of the Woodby standard in such cases as Ward v. Holder, 733 F.3d 601 (6th Cir. 2013). (The BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011), has acknowledged that clear and convincing evidence is required to declare an LPR an applicant for admission under INA §101(a)(13)(C), although it reserved judgment on the question whether there is a difference for these purposes between clear and convincing evidence as mentioned in INA §240(c)(3)(A) and clear, unequivocal and convincing evidence as mentioned in Woodby.)

As a practical matter, it is unlikely that any non-citizen found to be infected with Ebola would be turned away on the next flight home, or even paroled into the US for a removal proceeding, as this would expose others to the Ebola virus.  He or she would be quarantined in a hospital and treated in the United States. If this person fully recovers, he or she should be found admissible.  Otherwise, this person will unfortunately under the current state of medical advances in the treatment of Ebola most likely not be alive.
While the United States should not be nonchalant about the spread of deadly infectious diseases such as Ebola, the question is whether screenings at airports are the right way to deal with the problem? Ebola can incubate in a person for up to 21 days before an infected person shows symptoms, as was the case with Mr. Duncan. It has recently come to light that Mr. Duncan’s treatment was less than satisfactory as he was discharged from the hospital when he had a high fever.  There are very few passengers who fly into the United States each day from the three countries that are at the epicenter of the Ebola epidemic – Liberia, Sierra Leone and Guinea. Blocking off flights from these countries, due to political grandstanding, will hurt these countries’ economies even further, and will have an adverse impact on trade and investment. This will further hinder their efforts to stem Ebola, and one way to stem an epidemic is to keep people working and normal. In addition, perceived fears about who has Ebola can result in racial profiling of people of certain nationalities, resulting in wrongful denial of visas or admission into the United States. 
As a recent editorial in the Washington Post aptly stated, “The answer to Ebola is fighting it there, at the source, not at the U.S. border. No one is protected when a public health emergency is used for political grandstanding.” Centers for Disease Control and Prevention Director Thomas Frieden sensibly told reporters, “Though we might wish we can seal ourselves off from the world, there are Americans who have the right of return and many other people that have the right to enter this country.”  As The Economist noted in its recent article on the topic that Dr. Frieden and Dr. Anthony Fauci, head of the infectious diseases component of the National Institutes of Health, have explained, “quarantining West Africa would be unwise.  It would weaken governments, trap Americans and spur travellers to move in roundabout ways that make them harder to track.” If the administration believes that screening those who arrive in the United States for Ebola symptoms may be a helpful component of a broader anti-Ebola strategy, it should not taken too far. We must also be careful not to exclude from the United States people who show no real signs of being infected, and accord those who do appear to have been infected full due process to either contest or overcome inadmissibility.

Cyrus Mehta

KERRY V. DIN: AN OPPORTUNITY FOR THE SUPREME COURT TO RECONSIDER THE DOCTRINE OF CONSULAR NON-REVIEWABILITY

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By Gary Endelman and Cyrus D. Mehta

The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country.

President Abraham Lincoln, Second Annual Message (December 1, 1862)

Not since the landmark case of Kleindienst v. Mandel, 408 U.S. 753 ( 1972) has the Supreme Court revisited the well-settled doctrine of consular nonreviewability. That may be about to change as the Supreme Court has agreed to hear Kerry v. Din, Docket No. 13-1402. The vehicle for this doctrinal review is not the complaint of the unadmitted alien but that of the American citizens  the abridgement of whose constitutional rights provides the standing  to find out what happened and why. Indeed, it is precisely when denial of a visa impinges upon the free and full exercise of such constitutional freedoms that the courts have recognized a meaningful but limited exception to consular non reviewability.  Bustamanate v. Mukasey, 531 F. 3d 1059 (9th Cir. 2013).

It so often happens that a spouse or parent of a US citizen is denied an immigrant visa at a US consulate on opaque grounds. Although the I-130 petition was carefully reviewed and approved, the consular officer can use any number of grounds under INA section 212 to deny an application for an immigrant visa, thus causing the permanent separation of the relative with the US citizen. Worse still, the consul need not cite the factual basis for the denial and can only refer to the statutory provision. Take for example the “Security and related grounds” of inadmissibility under INA section 212(a)(3), which provide:

(A) In general – Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in –

(i) Any activity

(I) To violate any law of the United States relating to espionage or sabotage or

(II) To violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,

(ii) any other unlawful activity; or

(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the government of the United States by force, violence, or other unlawful means is inadmissible

A consul can merely cite “section 212(a)(3)” when denying an applicant seeking an immigrant visa based on an I-130 petition filed by a US citizen relative. It is impossible to know whether this individual was denied the immigrant visa because the consul had reasonable grounds to believe that he or she was seeking to enter the United States to violate a law relating to espionage or prohibiting the export of some sensitive technology or some other unlawful activity. This individual in any event would find it difficult to contest the denial under the plenary power doctrine, which upholds the power of Congress to establish rules for the admission or exclusion of aliens. Given the absence of a factual basis, it would be even more difficult for this individual to challenge the denial even informally with a consular officer if no factual basis has been provided under section 212(a)(3). The absence of such disclosure seems in direct contradiction of the State Department regulation requiring consular officials in the event of an immigrant visa denial to “inform the applicant of the provision of law or implementing regulation under which administrative relief is available.” 22 C.F.R. section 42.81(b). It is worth noting that this minimum level of disclosure does not prevent a more complete explanation to the visa applicant or the US citizen petitioner.

As noted above, despite the existence of the doctrine of consular non-reviewability, a visa applicant may still seek review under limited circumstances when the denial implicates the constitutional rights of citizens. Under such circumstances, a consular officer must give a facially legitimate and bona fide reason for the denial. See Kleindienst v. Mandel, supra. The level of review in Kliendienst v. Mandel was highly constrained, and the Court refused to look behind the consular officer’s denial on the ground that Mandel espoused the doctrines of world communism. That in itself was sufficient under the facially legitimate and bona fide test. The US interest in Kliendienst v. Mandel that triggered this limited judicial review were the First Amendment rights of  US citizen professors who had invited Mandel to the United States to receive information and ideas from him.  The facts as recited by the consular officer need not necessarily be true, but, for consular non-reviewability to shield it from further challenge, they must be stated with sufficient specificity and the consul must have a good faith belief in their veracity.

Despite the highly constrained review of the facially legitimate and bona fide test, an Islamic scholar was able to demonstrate that the consul was unable to meet this test in denying him a nonimmigrant visa under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(B)(i)(1). See American Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009). There the Second Circuit acknowledged that there was little guidance regarding the application of the facially legitimate and bona fide standard, and described it as “the identification of both a properly construed statute that provides a ground of exclusion and the consular officer’s assurance that he or she ‘knows or has reason to believe’ that the visa applicant has done something fitting within the proscribed category constitutes a facially legitimate reason.” Id. at 126.

The limited exception to the consular non-reviewability doctrine has also been extended to citizen’s who have a protected liberty interest in marriage that entitles them to seek review of the denial of a spouse’s visa. See Bustamante v. Mukasey, supra. Though not mentioned by the Ninth Circuit, it is perhaps not too large of a doctrinal enlargement to argue that the protection of such a liberty interest flows naturally from the recognition by the Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967),  that the freedom to marry is a fundamental constitutional right. Surely, the opportunity to live together in marital union in the United States with their spouse is an integral exercise of such freedom by the US citizen visa petitioner. The same high value attached to immediate relative relationships should apply to visa applications by parents of US citizens. While the need to preserve the integrity of the marital union would not manifest itself under such slightly variant facts, the importance of facilitating the migration of older parents to live with their adult US citizen children should be given the same substantial deference. Nor should the wisdom of modifying the consular non-reviewability doctrine not enrich consideration of visa applications advanced by children, whether as immediate relatives, family first preference unmarried adult children or family third preference married adult sons or daughters of US citizens. A disciplined invocation of narrowly drawn statutory provisions and logical, if concise, factual summations brought in good faith are in the manifest interests of the consular corps and those it serves.

Indeed, when a consular denial recites a broad ground of inadmissibility that contains numerous categories of proscribed conduct such as in INA §212(a)(3)(B), the denial does not meet the facially legitimate and bona fide standard as all that the denial does is to cite a 1,000 word statute without providing a factual basis. See Din v. Kerry, 718 F.3d 856 (9th Cir. 2013). In Din v. Kerry, the applicant whose visa was denied, Mr. Berashk was an Afghan citizen who married Ms. Din, a US citizen. Mr. Berashk had previously worked for the Afghan Ministry of Social Welfare from 1992 to 2003, and the Afghan Ministry of Education from 2003 to present. Since the Taliban ruled Afghanistan for some of the period during his employment with the Afghan government, his visa was initially denied because of INA section 212(a), without citing anything more specific. After contacting the Consulate for clarification, Mr. Berashk was told that his visa was denied under the terrorism related inadmissibility grounds in INA section 212(a)(3)(B). This provision exceeds 1000 words. No factual basis was provided to support the denial.  Therefore, the Ninth Circuit held that the government had not offered a facially legitimate and bona fide reason for the visa denial. The government must cite to a ground narrow enough to allow us to determine that it has been “properly construed” under the test set forth in American Academy, supra.

The government appealed the Ninth Circuit’s decision to the Supreme Court. The Supreme Court granted certiorari on October 2, 2014. See Kerry v. Din, Docket No. 13-1402. We fail to understand why the government chose to appeal this decision, which essentially upheld the highly constrained review of the facially legitimate and bona fide test set forth in Kleindienst v. Mandel. The Ninth Circuit insisted on the consul providing some factual basis for the denial rather than merely citing a broad statutory provision, but it did not articulate a test beyond what was established in Kleindienst v. Mandel, and further explained in Academy of Religion. As the provisions of inadmissibility get more verbose in INA 212, the applicant who is being denied a visa ought to know the factual basis so that he or she can endeavor to overcome it by trying to submit rebuttal evidence. The dissenting opinion in Din v. Kerry broadly upheld plenary power, and the nation’s desire to keep out persons who are connected with terrorist activities. It held that the citation of the statute, however broad, constituted a facially legitimate and bona fide ground.  In a post 9/11 world, while there are obvious security concerns, the government cannot be allowed to loosely cite terrorism related grounds, without further explanation, that would lead to the permanent separation of a spouse from a US citizen.

It would be a set back if the Supreme Court reversed the limited review afforded to an applicant for a visa, especially when there is a legitimate US interest involved, by allowing the consul to broadly cite the statutory provision, or worse still, only INA section 212(a) as a basis for denial. While it is disappointing that the Obama administration chose to appeal the Ninth Circuit’s decision in Din v. Kerry, it is hoped that the Supreme Court affirm the limited ability for an individual to seek review of a visa denial that would affect a US interest, such as a spouse, a group of US citizen academics who would otherwise be denied the ability to hear and debate his or her views, or even a US employer who has sponsored a foreign worker for a work visa or for permanent residency. The liberty interest of a US citizen spouse who awaits marital reunion with keen anticipation should be deserving of the same minimal due process that an academic conference would trigger.  The issue is not the need to give due deference to consular visa denials but to put the consul to a minimal burden of proof where the reason for the denial is identified and the facts sustaining it are articulated with sufficient particularity to allow for intelligent review and reasonable challenge. Just as the Obama Administration wisely declined to defend DOMA even before the Supreme Court cast it aside, in wise recognition of its obvious constitutional infirmity, so a willingness to relax the doctrine of consular non-reviewability should inform the Administration’s posture in this litigation and future cases like it.   This may no longer be possible now that the Supreme Court has agreed to hear this case. Doubtless, however, this will not be the last time that the need for relaxation of the consular non-reviewability doctrine will present itself.  When this happens, we urge that the Administration then in power adopt a more enlightened attitude. A compassionate nation deserves no less.
(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)

Cyrus Mehta

WOULD THE RELIGIOUS FREEDOM GROUND OF INADMISSIBILITY STILL APPLY TO INDIAN PRIME MINISTER NARENDRA MODI?

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Indian Prime Minister Narendra Modi has been welcomed by the Indian diaspora without reservations in the United States. This is his first trip to the United States after his tourist/business was revoked on May 18, 2005 under Section 212(a)(2)(G) of the Immigration and Nationality Act (INA). Under INA Section 212(a)(2)(G), any alien who while serving as a foreign government official and who was responsible for or directly carried out particular violations of religious freedom is inadmissible. At that time, Mr. Modi was the Chief Minister of Gujarat state and was not eligible for the A-1 diplomatic visa. In May 2014, Mr. Modi’s Bharatiya Janata Party won an outright majority in the Indian Parliament, and as the party’s leader, he became India’s Prime Minister.

Mr. Modi, as India’s Prime Minister, has presently come to the United States under the A-1 visa, which is granted to diplomats, including heads of state. The A-1 visa overcomes grounds of inadmissibility pursuant to INA Section 102, including the religious freedom ground, but that is only when a person is admitted on the A-1 visa. If Mr. Modi ceases to be a head of state, and does not qualify for an A-1 visa as a diplomatic official under any other capacity, the Section 212(a)(2)(G) ground of inadmissibility may still apply with respect to a new tourist/business visa application that he may apply for, unless it is determined that the factual basis for the prior finding of inadmissibility have changed. The U.S. State Department may also reconsider a prior revocation of a visa, which it has not done so until now with respect to Mr. Modi’s revocation.

The article that I co-wrote with Elizabeth Reichard on March 25, 2005, appended below, discusses how the religious freedom ground of inadmissibility was applied to Mr. Modi. Following the publication of this 2005 article, however, in December 2010, a special investigative team (SIT) appointed by the Supreme Court of India found “no substantial incriminating evidence” that Chief Minister Modi had let the rioters rampage against the Muslims in February 2002. A local court in India subsequently upheld the closure of the SIT in December 2013, although appeals from victims to reopen proceedings remain pending.  The Gujarat High Court has continued to criticize Chief Minister Modi for “inaction and negligence” during the violence. House Resolution 417 passed in the US Congress in 2013 continues to support the visa ban. Questions still linger about Mr. Modi’s passive role during the riots.

So long as Mr. Modi enters on an A-1 visa, all grounds of inadmissibility will remain inapplicable. The President still has authority under INA Section 212(f) of any foreign national whom the President deems will be detrimental to the national interest, but it is readily obvious that this provision was not considered with respect to Mr. Modi’s present visit to the United States. Indeed, Mr. Modi is scheduled to have meetings with President Obama and other top US officials, and has also met with leading US industry executives. Mr. Modi also enjoys broad based support from many in the Indian-American community. The question is whether Section 212(a)(2)(G) will trigger if Mr. Modi applied for another nonimmigrant visa in the future? The United States has not officially declared that this inadmissibility ground will not be applied and has never reconsidered the prior revocation. A new visa application would have to be considered in light of the set of facts that apply at that time. The fact that Mr. Modi has been admitted on an A-1 visa to the United States does not in any way mean that the prior visa ban has been rescinded or will not apply in the future.

 

Published March 25, 2005 on  www.cyrusmehta.com  

RELIGIOUS FREEDOM INADMISSIBILITY GROUND INVOKED FOR THE FIRST TIME AGAINST NARENDRA MODI

by

Cyrus D. Mehta* & Elizabeth T. Reichard**

On March 18, 2005, the U.S. Department of State issued a decision to deny a visa to the democratically elected Chief Minister of Gujarat, India, Narendra Modi. Mr. Modi, an important figure in the Hindu nationalist Bharatiya Janata Party (BJP), is one of the most divisive politicians in India – loved by Hindu nationalists and despised by others who uphold India’s secular ideals. The decision to deny his visa was largely based on his alleged role in the riots that occurred in Gujarat between February and May of 2002. The riots were spawned after an attack by Muslims on a train in Godhra that resulted in the deaths of 58 Hindus.1 Hindu mobs responded to this attack through violent riots, resulting in the deaths of some 2,000 Muslims and the displacement of some 100,000 Muslims.2

It has been alleged that the riots were supported and possibly encouraged by Mr. Modi, his government and the police in Gujarat. Many have asserted that Mr. Modi personally instructed police officers to allow “peaceful” reactions to the train attack.3 As a result of this instruction, police officials told victims of the riots that they had not been instructed to help them.4 In spite of these allegations, however, Mr. Modi has never been indicted or convicted for his involvement or encouragement in the Gujarat riots. India’s National Human Rights Commission implicated Mr. Modi’s government, but not him specifically, holding that there “there was a comprehensive failure on the part of the State Government to control the persistent violation of the rights to life, liberty, equality and dignity of the State.5 It further indicated that the government’s response to the violence was “often abysmal or even non-existent, pointing to the gross negligence in certain instances or, worse still, as was widely believed, a complicity that was tacit if not explicit.”6 The Indian Supreme Court has also implicated Mr. Modi’s government by transferring criminal prosecutions of persons connected to the riots out of courts in Gujarat.

Still, even with these findings, Mr. Modi has never been officially charged for his role in the riots. The closest documents assigning him blame are the U.S. Department of State’s 2002 Report on Human Rights Practices and International Religious Freedom Report.7 Both reports specifically mention the allegations brought against Mr. Modi in the Gujarat riots, and it was these reports that could have served as the basis for the denial of Mr. Modi’s admission to the United States.

I. Analysis of Section 212(a)(2)(G) of the Immigration and Nationality Act (INA) 

Mr. Modi sought admission to the United States after having received an invitation as the keynote speaker for an event organized by the Asian-American Hotel Owners’ Association (AAHOA) as well as other meetings organized by the Indian-American community in the U.S. He hoped to enter the country on either a diplomatic visa or his already issued B1/B2 tourist/business visa. The diplomatic visa was denied because according to INA §101(a)(15)(A), such visas are granted to those coming to the U.S. for official government business. A speech for the AAHOA does not qualify as official government business. This decision has not been met with controversy. The decision to deny his B1/B2 visa is actually what has attracted so much publicity in recent days. This denial was based on §212(a)(2)(G) of the Immigration and Nationality Act (INA).

Section §212(a)(2)(G) of the INA, which was first enacted in 1998, has never been invoked against a public official prior to the decision to revoke Mr. Modi’s visa. It maintains that an individual is inadmissible to the United States if “while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedoms.” Violations of religious freedoms are defined by the International Religious Freedom Act, as any of the following acts committed on account of an individual’s religious belief or practice: “detention, interrogation, imposition of an onerous financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious conversion, beating, torture, mutilation, rape, enslavement, murder and execution.”8

Prior to December 17, 2004, there was a two year statute of limitations attached to this ground of inadmissibility. So, for example, had Narendra Modi sought admission to the U.S. in November 2004, he would not have been denied a visa under §212(a)(2)(G) because the alleged violations of religious freedom were committed more than two years prior to admission. The Office of Senator Patrick Leahy (D-Vermont), who introduced the amendment to remove the statute of limitation, prepared a section-by-section analysis of law.9 The analysis rationalized the removal of the statute of limitations because it was “not consistent with the strong stance of the United States to promote religious freedom throughout the world. Individuals who have commit[] particularly severe violations of religious freedom should be held accountable for their actions and should not be admissible to the United States regardless of when the conduct occurred.”10

Under this new broader statute, Mr. Modi was found inadmissible for being a government official responsible for violations of religious freedom. It is likely that the violations referred to are the murders, beatings and mass relocations of Muslims in Gujarat during the riots. The decision has been met with a tremendous amount backlash. Critics claim that the decision is baseless because Mr. Modi was never officially charged for violations of religious freedom. While it is true that Mr. Modi has never been officially charged for these acts; in the view of the authors, it was reasonable for the State Department to deny the visa because it was based on ample evidence against Mr. Modi. U.S. law allows the State Department to make a finding of inadmissibility based on a reasonable belief and without there being an actual conviction on the individual’s record. For example, a person can be found inadmissible if the consular officer knows or has reason to believe that the individual was a trafficker of controlled substances.11The consulate has no duty to provide due process for a visa applicant who desires entry to the U.S. It also is not required to conduct a “pseudo” hearing to determine if the act was actually committed. U.S. consulates all over the world deny thousands of visas every day, without giving the applicants due process rights or opportunities to contest the denials.

II. Factual Basis for Inadmissibility Finding 

Critics of the decision should note that any finding of inadmissibility under this ground cannot be made in haste. According to the Foreign Affairs Manual, consular officers must seek an advisory opinion if they “reasonably believe” the applicant was responsible for severe violations of religious freedom.12  The advisory opinion will be drafted by the country desk and any relevant offices at the State Department, assessing whether the individual in question was responsible for the violations. In other words, a visa denial on this basis involves a great deal of research and takes into account multiple factors. It is not based upon an actual conviction or admission, but rather an in depth assessment of the situation, resulting in a reasonable belief that the action was committed.

In this case, such a reasonable belief existed. According to Len Scensy, Deputy Director, Office of Public Diplomacy, State Department Bureau of South Asian Affairs, the decision was made after looking at the law, the findings of the Indian Human Rights Commission, and the U.S. State Department Reports. Mr. Scensy in an interview with News India Times, indicated that these reports “say the same thing.” They are consistent with each other and take into consideration the overwhelming number of allegations against Modi. Therefore, it is safe to assume that it was reasonable to believe that Mr. Modi was responsible for the violations of religious freedom against Muslims in Gujarat. Mr. Modi was explicitly implicated in U.S. reports on the riots and while the Indian Human Rights Commission never explicitly named him, it did indicate that his government had tacit complicity if not explicit involvement in the violence.13

III. Consequences of the Decision 

The decision to deny Mr. Modi a visa is not without its consequences. This was the first time §212(a)(2)(G) has been invoked by the State Department, and it is likely that it will use it again against other government officials, former and present, who seek entry to the U.S. So, for example, in the case of India, former Congress party officials implicated in the killings of Sikhs after Indira Gandhi’s assassination in 1984 may find themselves inadmissible to the United States on this ground.

A decision under §212(a)(2)(G) is final and there is no room for appeal in a U.S. Court. Government officials found subject to this ground may find themselves permanently inadmissible to the U.S. The only possibility they have for admission is a discretionary waiver, granted by the Secretary of the Department of Homeland Security, under §212(d)(3). Such a waiver, however, may cause these officials further difficulties as the Secretary can prescribe conditions to the admission. For example, he/she may require an admission to the crimes committed. Such an admission is clearly deadly as it would open the floodgates to both criminal and civil liability under domestic and international law.

________________________________________

Cyrus D. Mehta’s current profile can be found at https://blog.cyrusmehta.com/Sub.aspx?MainIdx=ocyrus200591701543&SubIdx=ocyrus200591721646) and 

Elizabeth T. Reichard’s current profile can be found at http://www.fragomen.com/ourprofessionals/reichard-elizabeth/.  (The old profiles as existed in the original article have been deleted). 

1U.S. DEPT. OF STATE, INTERNATIONAL RELIGIOUS FREEDOM REPORT: INDIA (2002); U.S. DEPT. OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: INDIA (2002).

2 Id. 

3 Id 

4 Id.

5 National Human Rights Commission, Order on Gujarat, *64 (31 May 2002).

6 Id. at 24.

7 Supra note 1.

8 22 USC §6402.

9 Office of Sen. Patrick Leahy, Anti-Atrocity Alien Deportation Act of 2003: Section-By-Section Analysis, available at  http://leahy.senate.gov/press/200303/032603b.html.

10The December 17, 2004 amendment also removed a provision which made the spouse and children of a government official inadmissible under this ground.

11 INA §212(a)(2)(C)(ii).

12 9 FAM 40.26 N2.1.

13 Supra  note 5, at 24.

Cyrus Mehta

Impact of EB-5 Retrogression on the Regional Center Loan Model

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In light of the retrogression in the employment-based fifth preference (EB-5) for China, which is predicted to occur as early as May 2015, the delays will once again impede much needed investment into the United States, which in turn will also dampen job creation. The negative effects of priority date retrogression in family and employment-based preferences have already had an adverse impact on families, who are unable to unite, and employers, who cannot employ a much needed worker even after the labor market has been unsuccessfully tested for qualified US workers. Due to retrogression, children may be less likely to be able to seek the protection of the Child Status Protection Act from aging out.

The China EB-5 retrogression will result in other unique problems not experienced in other immigrant visa preference categories. Most EB-5 regional center investments are based on a loan rather than an equity model. EB-5 investors invest into the new commercial enterprise (NCE) of a regional center. The NCE in turn invests in a project or a business, known as the job creating enterprise (JCE). The JCE is a project that will result in at least 10 indirect jobs per EB-5 investor, such as a hotel or assisted living home or some other business operation. The NCE’s investment in the JCE can either be through an equity investment or a loan. The loan model is more favored than the equity model in EB-5 projects. Although a direct loan by an EB-5 investor is disallowed, as the investment is not at risk if the loan is guaranteed to be paid back, the EB-5 investor makes an equity investment in the NCE as a limited partner, which in turn loans the investors’ aggregated funds to the JCE. Thus, the EB-5 investor still has an equity interest in the NCE, while the NCE makes a loan to the JCE. The loan model has been permitted by the USCIS as the EB-5 investor is really buying an equity interest in the NCE while the NCE makes a loan of the aggregated investors’ capital to the JCE.

When the NCE makes a loan to the JCE, there is an agreement for the JCE to pay back the loan to the NCE. If the time frame is 5 years or more, this period would cover the point of time when the investor obtains conditional residence, and two years later, when the investor applies for removal of conditional residence. With the EB-5 quota retrogression, these two events will be stretched out even further in time, and it is likely that by the time that the investor applies for removal of conditional residence, it may be beyond five years from the date of the initial adjudication of the Form I-526 application. Would the USCIS now take the position that the investment is no longer at risk if the JCE pays back the loan to the NCE before the investor has removed the conditions on residence? If retrogression becomes even more severe, like the India and China EB-2 for example, the JCE may have paid the loan back at the time that the investor makes the initial application for conditional residence.

Although the USCIS has not yet addressed this issue, it can be argued that the JCE is paying back the loan to the NCE, and not to the investor, and this did not alter the investment, which was always at risk. The investor is not being paid back on a guaranteed basis, and this arrangement is distinguishable from the facts in Matter of Izummi, 22 I&N Dec. 169 (AAO, July 13, 1998). There, the investors were promised that the NCE would repurchase their interests at a fixed price after six years, and such an investment was not considered “at risk.”  Here, the JCE is paying back the loan to the NCE, and the decision to repay the investor is entirely in the discretion of the general partner of the NCE. The investor is clearly not the beneficiary of the repayment of the loan; rather it is the NCE. The NCE can use the repaid loan for other purposes rather than repay the investors.

In light of the crushing backlogs in the EB-2 and EB-3 preferences, Gary Endelman and this author have proposed various ameliorative solutions through administrative fixes, including not counting derivatives separately from the principal beneficiary, and these should apply with equal force to prospective EB-5 backlogs too. The Obama administration has been actively considered administrative fixes in the face of Congressional inaction to expand visa numbers and reform the broken immigration system, and it is urged that the administration also broadly interpret the “at risk” element of the investment so as to relieve EB-5 investors from uncertainty if the loan of the JCE is paid back to the NCE. Even if the JCE has paid back the loan to the NCE, the investor’s investment was always at risk at the time of the project’s inception, and at the time of filing the initial I-526 application. It is this point of time that ought to be considered when adjudicating EB-5 applications, in the case of potential crushing EB-5 China retrogression, and the administration has ample flexibility to maintain that the capital was “at risk” despite the JCE repaying the loan to the NCE prior to the investor either obtaining conditional residence or filing an application to remove conditional residence. After all, the requirement that the capital be “at risk” is found in the regulation and not the INA at 8 CFR 204.6(j)(2), and it only applies at the point of filing the I-526 application. Moreover, in a similar context where the EB-5 financing replaces bridge financing, the jobs were created at the point of bridge financing and not when the EB-5 capital replaced bridge financing. According to the May 2013 EB-5 Policy Memo, the use of bridge financing is permitted and is given credit for purposes of job creation so long as replacement financing, even if it was not EB-5 financing,  was  contemplated. Therefore, in the context of bridge financing, the length of time when the investment remains at risk, or when the investment creates the requisite number of jobs is irrelevant. What should really count is that the investment was “at risk” at some point of time and that investment did result in job creation at some point in time, although it can be legitimately argued that the investment still remains at risk even if the loan has been repaid to the NCE and not to the investor.   Similarly, the requirement that the investment have been sustained under INA 216A(d)(1)(A)(ii) throughout the conditional residency period be broadly construed so long as the repaid loan is still in the NCE and the investor has not been repaid.

The ethical risks in representing a client have been further exacerbated by the prospect of EB-5 quota retrogression. There is also more cause for conflicts of interest if the same attorney who represents the NCE and/or project also represents the EB-5 investor, given that the repayment of the loan, which will benefit the JCE, may adversely affect the investor if the investment is no longer considered “at risk” or continue to be “sustained.” There is no prohibition under ABA Model Rule 1.7 for an attorney to take on multiple clients where there is a potential conflict of interest, if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;  the representation is not prohibited by law;  the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and  each affected client gives informed consent, confirmed in writing. The attorney representing both the investor and the NCE/JCE has to be mindful about the conditions pursuant to Rule 1.7 when undertaking or continuing the joint representation. In the event that the attorney faces an irreconcilable conflict, it may be incumbent upon the attorney from withdrawing representation of both clients. In some situations, an attorney may be able to represent one client and withdraw from the other one when the conflict was not foreseeable and was “thrust upon” the attorney. See e.g. New York City Bar Formal Opinion 2005-05.  NYC Bar Op. 2005-5, which also discusses how other jurisdictions have dealt with “thrust upon” conflicts,  characterizes such a conflict  between two clients that 1) did not exist at the time either representation commenced, but arose only during the ongoing representation of both clients, where 2) the conflict was not reasonably foreseeable at the outset of the representation, 3) the conflict arose through no fault of the lawyer, and 4) the conflict is of a type that is capable of being waived. NYC Bar Op. 200505 further requires the lawyer to apply a balancing test in deciding whether to withdraw from the representation of one client and continue representation, with the other client. The opinion requires the lawyer to factor in whether there would be any prejudice that will be caused to the client due to confidences being placed at risk, and whether representation of one client over the other would give an unfair advantage to the client. A lawyer may wish to carefully use the “thrust upon” conflict doctrine if the conflict regarding the repayment of the loan was not foreseen prior to the announcement of the EB-5 quota retrogression, and the lawyer needs to decide whether to withdraw from representing both parties or one party.

Finally, the immigration attorney when performing due diligence of an EB-5 regional center and project needs to also factor in the timing of the repayment of the loan and the delays caused by EB-5 retrogression. While most immigration attorneys should provide only immigration related due diligence rather than investment advice,  investment advice may wittingly or unwittingly be factored  into  the  general advice the attorney  may provide when assessing the viability of an EB-5 project on behalf of an investor client. While it is always advisable for an immigration attorney to limit his or her representation to immigration advice,  and refer the investment advice out to another qualified professional who is a registered investment adviser or broker dealer, Section 202(a)(11) the Investment Advisers Act of 1940 does indeed carve out an exception for attorneys, accountants, engineers and teachers so long as the investment advice provided is incidental to their profession. According to an advisory by the Stroock law firm, the factors that will be considered are whether the professional holds himself or herself out as an investment adviser, whether the advice is reasonably related to the professional services, and whether the charge for advisory services is based on the same factors that determine the professional’s usual charge.

Cyrus Mehta

THE FAMILY THAT IS COUNTED TOGETHER STAYS TOGETHER: HOW TO ELIMINATE IMMIGRANT VISA BACKLOGS

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By Gary Endelman and Cyrus D. Mehta

There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps.  That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped.  That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past.

We proposed this idea in our 2010 article The Tyranny of Priority Dates  long before it achieved the intellectual acceptance in many quarters that it now enjoys. We are pleased to now find that President Obama is considering this proposal as part of the package of administrative reform measures he will unveil before the end of this year. That this is so suggests the broad possibilities for change when the vigorous and disciplined exercise of executive initiative allows genuine progress to overcome the paralysis of political stalemate.

We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d). Let us examine what INA §203(d) says:

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

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

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

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


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

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

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

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

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

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

Our proposal falls squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. Since the Congress will not expand the immigrant quotas themselves, unless we are willing to watch the slow death of the priority date system in silence, the President must act on his own. Doing so will double or triple the number of available green cards without the creation of a single new visa. The waiting lines will vanish or be drastically reduced.  As Rabbi Hillel asked in Ethics of the Fathers, if not now, when?

(Guest writer Gary Endelman is the Senior Counsel at Fosterquan)

Cyrus Mehta

THE POLICY IMPLICATIONS ARISING FROM THE BLANKET RECUSAL ORDER OF AN IMMIGRATION JUDGE

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By Parisa Karaahmet and Cyrus D. Mehta

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.

Andrew Jackson 

The recent lawsuit filed against the Department of Justice by an Iranian American immigration judge, raises interesting questions regarding the use of a blanket recusal order by the Agency in the absence of a fact-specific analysis or showing of actual bias on the part of the Immigration Judge, See  Tabaddor v Holder, et al.  Immigration Judge Ashley Tabaddor filed suit in US District Court for the Central District of California last month, alleging, among other things, discrimination, retaliation and violations of her constitutional right to free speech under the first amendment. The suit was in response to the Executive Office of Immigration Review’s (EOIR) blanket recusal order issued to her in 2012 following Judge Tabaddor’s participation in a White House sponsored forum on Iranian Americans. The complaint states that Judge Tabaddor initially received permission to attend the White House roundtable discussion, to which she was invited ostensibly because of her status as a prominent member of the Iranian American community.  Consistent with EOIR policy, Judge Tabaddor was advised that she could attend the event in a personal capacity only, with the additional  recommendation that she recuse herself from all cases involving Iranian nationals to avoid the appearance of impropriety following the event.  The complaint alleges that upon her return from the White House event, Judge Tabaddor sought clarification regarding the recommendation, which was then elevated to a recusal order.  She has complied with the recusal order to date, albeit, under protest.

How common are blanket recusal orders by the EOIR?  Although there may have been other less publicized instances of EOIR requiring a Judge to recuse himself or herself from a specific case, the use of a blanket recusal order would appear to be rare indeed.  A good starting point in understanding the history and use of blanket recusal orders is to look to EOIR’s internal guidance on this  issue.   EOIR’s March 22, 2005 memorandum to Immigration Judges on Procedures for Issuing Recusal Orders in Immigration Proceedings cautions them to tread carefully in deciding whether recusal is appropriate. Judges are advised to review the overall circumstances of a matter, employing a “reasonable person” standard in deciding whether recusal is warranted in a particular case.  “A judge should recuse him or herself when it would appear to a reasonable person, knowing all the relevant facts, that a judge’s impartiality might reasonably be questioned.”  Citing Liteky v. US, 510 US. 540 (1994); Liljeberg v. Health Servs. Acqusition Corp, 486 U.S. 847 (1988); US v Winston, 613 F.2d. 221 (9th Cir. 1980); Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975).

The memorandum cites certain situations enumerated in 28 USC § 455(b) where recusal would be mandated.  These circumstances are largely fact-specific but can be summarized under two situations. First, where the Judge would appear to have an existing or prior relationship to one of the parties that is personal in nature, including financial or familial. Second, where the adjudicator has a personal bias, prejudice or knowledge of the evidentiary facts related to the underlying proceeding.  Absent these specific circumstances, the general tone of the memorandum encourages Immigration Judges to consider carefully, on a reasoned, objective and fact-specific basis, whether recusal is a necessary and equitable action warranted under the circumstances.  The memorandum stresses that a Judge has an obligation not to recuse him or herself arbitrarily and must therefore base his or her decision to do so on “compelling evidence” indicating that his or her judgment would be compromised, “rather than mere allegations or conclusory facts.” Citing U.S. v. Balistrieri, 779 F.2d 1191, 1220 (7th Cir. 1985); Sexson v. Servaas, 830 F. Supp. 475, 477 (S.D. Ind. 1993); Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir. 1989).

EOIR’s directive to carefully consider the grounds of recusal to ensure that they are based in fact and not on innuendo or inference is supported by the relevant case law. For example, in Matter of Exame, 18 I&N Dec. 303 (BIA 1982), the Board recognized that a respondent is not denied a fair hearing when a Judge has a “point of view about a question of law or policy.”  Id. at 306.  Specifically, the Board noted that in order to warrant a recusal order a Judge must have a personal bias arising out of an “extrajudicial” source which would inform his or her opinion on the merits of the particular proceeding.  Id.

Moreover, several notable decisions issued by Federal District Court Judges following recusal hearings seem to support the Board’s position.  In particular, a spirited 1988 opinion from Judge William M. Acker, Jr., addressing allegations of bias made by the government on appeal, stresses that innuendo of bias made by a party is alone insufficient for a Judge to recuse himself.  In re Possible Recusal of William M. Acker, Jr. in Government’s Cases, 696 F. Supp. 591, 597 (D.N.A. 1988).  Similarly, a more recent decision by Judge Paul D. Borman in the Eastern District of Michigan maintains that a Judge’s prior activities have to be specifically connected to the matter under consideration in order to make a credible argument regarding his or her bias.  U.S. v. Odeh, Case No. 13-cr-20772 (Jul. 31 2014). In that decision, a Palestinian-American defendant accused of fraud in her naturalization application moved for Judge Borman’s recusal because of his strong support for Israel.     After reviewing the case law, Judge Borman concluded that “[l]ike every one of [his] colleagues on the bench, [he has] a history and heritage, but neither interferes with [his] ability to administer impartial justice to [the Defendant] or to the Government.”  Id. at 9. Judge Borman’s remarks should be understood in light of the reasonable person standard that governs EOIR and federal recusal case law. Although Judge Borman later recused himself after he realized that he had tangential financial ties to the supermarket in Israel that was allegedly bombed by the criminal defendant (the facts of which were not disclosed in her naturalization application) his prior ruling against recusal is a good example of why a judge should not be biased even if he or she has political affiliations and interests. Therefore, the prevailing view appears to be that if  a judge has no specific close familial or financial relationship to the parties in a case, and there is no demonstrated personal  bias relating to the evidentiary facts, recusal would be unwarranted, nothwithstanding the judge’s political views or support for particular causes.

While it is too early to judge the merits of Judge Tabaddor’s case, her complaint raises important questions about EOIR policy with respect to an adjudicator’s impartiality and the careful balance between an appearance of bias and actual bias.    The United States District Court for the Central District of California has not yet ruled on this or any other contention made in the complaint.  It, therefore, remains to be seen whether Judge Tabaddor’s suit will have a lasting impact on EOIR policy with respect to recusal.

Even while we wait for an outcome on this law suit, the authors wonder whether such a blanket recusal reveals a lack of independence of Immigration Judges.  The EOIR is already part of the Department of Justice, and under the direction of the Attorney General. Immigration Judges are thus employees of the DOJ.  Quite apart from the facts in Judge Tabaddor’s case, will an Immigration Judge feel secure if his or her decisions are contrary to the Administration’s policy?  For instance, the Administration has created “rocket dockets” to expeditiously hold removal proceedings against child migrants and their families who recently came from Central American countries. If an Immigration Judge issues rulings or sets procedures that run contrary to the Administration’s efforts to quickly deport such respondents, will such an Immigration Judge feel insecure? The following extract from the Supreme Court’s decision in  Bridges v. Wixon, is worth noting: “Although deportation is not technically a criminal proceeding, it visits a great hardship on the individual, and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times, a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.” 326 U.S. 135 (1945).  In light of these important rights at stake in removal proceedings, it is imperative that the DOJ make every effort to ensure that Immigration Judges can issue rulings concerning the lives of immigrants in a totally impartial setting.
(Guest author Parisa Karaahmet is a Partner at Fragomen. The views expressed herein are not intended to represent those of the organizations that Ms. Karaahmet or Mr. Mehta have been part of in the past and presently)

Cyrus Mehta

DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

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While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates.  
We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. We have also learned that the EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose
Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization.

We acknowledge that INA § 245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

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

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.

Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.
Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, https://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.
The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.

David Isaacson

BURNING DOWN THE HOUSE: THE SECOND AND THIRD CIRCUITS SPLIT ON WHETHER ARSON NOT RELATING TO INTERSTATE COMMERCE IS AN AGGRAVATED FELONY

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The lyrics of the Talking Heads song “Burning Down the House” do not mention whether the house in question was involved in commerce.  According to Jones v. United States, 529 U.S. 848 (2000), however, arson of “an owner-occupied residence not used for any commercial purpose” does not qualify as a violation of 18 U.S.C. §844(i), which makes it a crime to “maliciously damage[] or destroy[] . . . by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce.”  Under INA §101(a)(43)(E)(i), 8 U.S.C. §1101(a)(43)(E)(i), a conviction for an offense “described in” 18 U.S.C. §844(i) is an aggravated felony for immigration purposes.  The Courts of Appeals for the Second and Third Circuits have recently come to differing conclusions regarding whether an arson conviction under a state law that does not require such involvement in commerce, and thus would cover burning down a house, qualifies as such an aggravated felony.

In Bautista v. Attorney General, 744 F.3d 54 (3d Cir. 2014), the Third Circuit, whose jurisdiction includes New Jersey, Pennsylvania, and Delaware, ruled that conviction for attempted arson under New York State law lacking such a commerce requirement “cannot qualify as an aggravated felony because it lacks the jurisdictional element of § 844(i), which the Supreme Court has found to be a critical and substantive element of that arson offense.” Bautista, slip op. at 1-2.  Robert Bautista, a lawful permanent resident of the United States since 1984, had been convicted of attempted arson in the third degree under N.Y. Penal Law §110 and 150.10, and sentenced to five years of probation (and had also been convicted of uttering a forged instrument under New Jersey law, for which he was sentenced to one year of probation).  After being placed in removal proceedings upon his return from a trip abroad, he applied for cancellation of removal for permanent residents under INA 240A(a), 8 U.S.C. §1229b(a), but his application was pretermitted by the Immigration Judge on the ground that the attempted arson conviction was an aggravated felony.  The BIA agreed with this finding in a precedential decision, Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), but the Third Circuit disagreed and vacated that decision.

As the Third Circuit explained, it was clear that the New York arson statute and the federal statute at §844(i) differed with respect to the interstate-or-foreign-commerce requirement but had very similar elements in other respects.

Bautista does not dispute that the New York statute and the federal statute contain three identical, substantive elements: 1) damaging a building or vehicle, 2) intentionally, 3) by using fire or explosives. The Government does not dispute that the jurisdictional element of § 844(i), requiring that the object of arson be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,” is not contained in the New York statute.

Bautista, 744 F.3d at 60, slip op. at 12.

The Government argued that the jurisdictional element of §844(i) should not count for purposes of the aggravated felony analysis because it was not “substantive”.  The Third Circuit, however, held (in a 2-1 split panel decision) that this element, like the other elements of §844(i), must be present in order for a conviction to qualify under the categorical approach as “described in” §844(i) for purposes of the aggravated felony designation of §101(a)(43)(E)(i). If Congress had wanted to include all generic arson as an aggravated felony, the Third Circuit reasoned, Congress could simply have referenced arson as a generic offense in the statute.  Referencing the federal statute instead evinced a deliberate choice to require the jurisdictional element.  As the majority wrote:

We cannot undermine the categorical approach and Congress’s deliberate choice to include § 844(i), rather than generic arson, in § 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to § 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony “described in” § 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. We are loath to suggest that Congress would use a federal statute, like § 844(i), to “describe” offenses outside the parameter of that very federal statute without an unequivocal indication that it was doing something so counterintuitive.

Bautista, 744 F.3d at 66, slip op at 24.  “The bottom line,” the Third Circuit concluded, “is that § 844(i) does not describe generic arson or common law arson, but arson that involves interstate commerce.”  Therefore, the Third Circuit held that Bautista’s conviction for attempted arson in the third degree under New York law did not constitute an aggravated felony.

Last week, however, the Court of Appeals for the Second Circuit, which includes New York, Connecticut, and Vermont, came to a different conclusion.  In its opinion in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), the Second Circuit deferred to what it found to be the BIA’s reasonable interpretation of the INA.  The Second Circuit did not find the BIA’s conclusion regarding the meaning of INA §101(a)(43)(E)(i) to “follow[] inexorably from the INA’s text and structure.” Luna Torres, slip op. at 13.  However, “[c]onsidering the language of clause 1101(a)(43)(E)(i) and its place in paragraph 1101(a)(43) and the INA as a whole,” the Second Circuit “conclude[d] that the statute is ambiguous as to whether a state crime must contain a federal jurisdictional element in order to constitute an aggravated felony.”  Id. at 11. The Second Circuit therefore determined that the BIA’s interpretation of the statute, in which the BIA had found that such a jurisdictional element need not be included in order for a statute to qualify as an aggravated felony, was entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Finding the BIA’s interpretation at least a reasonable one, the Second Circuit deferred to it and denied the petition for review.

One issue that was not addressed in Luna Torres (and may not have been raised) is whether, at the time the Second Circuit made its decision, there was any precedential BIA opinion to defer to.  The BIA’s decision in Matter of Bautista, after all, had already been vacated by the Third Circuit prior to the Second Circuit’s decision.  It seems in some sense disrespectful of that action by the Third Circuit to say, as the Second Circuit did in a section of its opinion addressing and rejecting a retroactivity argument, that “Matter of Bautista . . . governs Luna’s case.”  Arguably, there was no extant decision and judgment of the BIA in Matter of Bautista which could so govern, since it had already been vacated by a court.  The decision in Matter of Bautista, in an important sense, no longer existed by the time of the Second Circuit’s decision.

Moreover, while the BIA had reached the same result in its unpublished decision in Luna Torres’s case as in Matter of Bautista, the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), that “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference.”  Thus the nonprecedential decision in Luna Torres’s case, by itself, cannot be what the Second Circuit was deferring to in its opinion.  Deference was evidently given to Matter of Bautista itself, and yet one might reasonably ask why the Second Circuit should have felt itself bound to defer to a precedential decision that had been vacated by a Court of Appeals and no longer existed.  It might have made more sense for the Second Circuit to vacate the nonprecedential decision in Luna Torres’s case and remand to the BIA as it had vacated the nonprecedential BIA decision in Rotimi and remanded, saying to the BIA, in effect, that it should, in light of the Third Circuit’s decision in Bautista, issue a new precedential decision, Matter of Luna Torres.  The BIA could then have determined not only whether it continued to stand by its reasoning from Matter of Bautista in light of the Third Circuit’s contrary decision, but whether it was troubled by the prospect of its ruling being valid only in some judicial circuits but not others, and would find it appropriate to acquiesce in the Third Circuit’s ruling in the interest of national uniformity. It does not appear that this possibility was considered by the Second Circuit.

Of course, since the Second Circuit found INA §101(a)(43)(E)(i) to be ambiguous and deferred to the BIA’s decision only as a matter of Chevron deference, the BIA could still reconsider Matter of Bautista in the next appropriate case to come before it, and change course to follow the Third Circuit’s Bautista decision.  For the moment, however, if a noncitizen is convicted of burning down a house, whether an arson conviction for that burning is found to be an aggravated felony may depend on whether the noncitizen is placed into removal proceedings in New York or Connecticut, on the one hand, or in New Jersey or Pennsylvania, on the other.

Cora-Ann Pestaina

BALCA EN BANC ON WHETHER THE ADDITIONAL RECRUITMENT STEPS FOR PROFESSIONAL OCCUPATIONS MUST COMPLY WITH 656.17(f)

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BALCA (Board of Alien Labor Certification Appeals) has been examining the issue of whether a  Certifying Officer (CO) may deny an Application for Permanent Employment Certification (ETA Form 9089) for a professional occupation if one of the additional recruitment steps does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f). In an en banc decision, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), BALCA held that the additional forms of recruitment do not have to comply with 20 C.F.R. § 656.17(f).

The filing of a labor certification with the Department of Labor (DOL) is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. If the application is for a professional occupation, the employer must conduct the recruitment steps within 6 months of filing the ETA Form 9089. Two of the steps, a job order and two print advertisements, are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process as provided in § 656.18. Then, under 656.17(e)(1)(ii), the employer must also select three additional recruitment steps from the alternatives listed in paragraphs 656.17(e)(1)(ii)(A)-(J).

Section 656.17(f) lists the advertising requirements for advertisements placed in newspapers of general circulation or in professional journals. These requirements are that these ads must name the employer; direct applicants to report or send resumes, as appropriate for the occupation, to the employer; provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; not contain a wage rate lower than the prevailing wage rate; not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. The regulations do not address what content must be included in advertisements placed as additional recruitment steps.

In a previous blog, I briefly discussed BALCA’s decision in Matter of Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010) that the regulations at 656.17(f) govern all forms of advertisements including the additional recruitment steps. In that case, BALCA held that the advertisements must have the purpose and effect of appraising US workers of the job opportunity and in order for this to happen, the additional recruitment steps must contain sufficient information about the position.

In Symantec Corporation, 2011-PER-01856 (Feb. 11, 2014) the question was raised again. In this case, the employer filed an ETA Form 9089 for the position of “Financial Programmer Analyst.” The application was audited and the employer timely responded to the audit. The CO then denied the application because the employer’s advertisement placed on a job search website, as one of the three additional forms of recruitment required for professional occupations, contained a travel requirement not included in the ETA Form 9089 in violation of 656.17(f)(6) in that it contained job requirements or duties which exceeded the job requirements or duties listed on the ETA Form 9089.

The employer filed a request for reconsideration and argued that the requirements of 656.17(f), upon which the CO relied in issuing the denial, are limited to advertisements placed in newspapers and professional journals, and do not apply to additional recruitment steps found in section 656.17(e)(1)(ii). The employer also cited the Preamble to the regulations, which states that the additional recruitment steps need only advertise the occupation involved in the application, and not the specific job opportunity. The employer also argued that its website advertisement was for multiple positions and the travel requirement expressed by the phrase “may be required to be available at various, unanticipated sites throughout the United States” did not create a travel requirement for all of the multiple open positions listed in the advertisement. The employer stressed that the use of the term “may” indicated that travel “might or might not be part of the job.”

The CO denied the employer’s request for reconsideration and forwarded the case to BALCA arguing that US workers could consider the phrase travel “may be required” to be a term and condition of employment which could have deterred them from applying for the position.  A BALCA panel of three administrative law judges decided the case. They acknowledged Credit Suisse but noted that it was not an en banc decision and that BALCA, while it recognized, from a policy standpoint, that applying the content requirements to additional recruitment steps would further ensure that the job opportunity is open and available to US workers, does not have the authority to read into the regulations an additional requirement not stated therein. BALCA reversed the CO’s denial of the ETA Form 9089 and held that based on the plain language of the regulations and the regulatory history, the advertising content requirements of 656.17(f) do not apply to the additional recruitment steps.

Unwilling to accept this, the CO petitioned for en banc review arguing that the panel’s holding conflicted with BALCA precedent and that en banc review was necessary to maintain uniformity in the Board’s decisions. BALCA granted the CO’s petition, vacated the panel’s decision, ordered a rehearing en banc, and permitted the parties to file supplemental briefs. BALCA en banc considered the specific question of whether advertisements placed to fulfill the additional recruitment steps must also comply with the detailed content requirements listed in 656.17(f).

BALCA en banc pointed out that the regulations explicitly identify three situations in which an employer must comply with the advertising requirements in 656.17(f):  (1) when an employer places an advertisement in a newspaper of general circulation or a professional journal in fulfillment of the mandatory recruitment for applications involving professional occupations, 656.17(e)(1)(i)(B)(3); (2) when an employer places an advertisement in a newspaper of general circulation in fulfillment of the mandatory recruitment for applications involving nonprofessional occupations, 20 C.F.R. § 656.17(e)(2)(ii)(D); and (3), when an employer posts a Notice of Filing announcing its intent to file an ETA Form 9089 under the basic labor certification process, § 656.10(d)(4). BALCA noted that in all three situations the regulations at 656.17(f) were cross-referenced and that no such cross reference exists in the regulations governing additional recruitment for professional occupations suggesting that the DOL did not intend to impose the content requirements on all types of advertisements.

BALCA en banc also referenced the Preamble to the PERM regulations. When the DOL proposed amending the labor market test to include three additional forms of recruitment, it received a number of comments opposing the proposal. Commenters were concerned that additional recruitment steps would be costly and unduly burdensome.  The DOL responded to these concerns and pointed out that the additional recruitment steps represent real world alternatives and only require employers to advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. The Board pointed out that this clearly shows that the DOL was seeking to alleviate the burden of requiring three additional recruitment steps. BALCA en banc expressly disagreed with the conclusion in Credit Suisse and found that unambiguous regulations must be interpreted in a manner that is consistent with the common understanding of the terms used.

BALCA en banc further pointed out that if the CO does not believe that the existing recruitment regulations provide for an adequate test of the labor market then the recruitment regulations may be amended through a new notice and comment rulemaking process. But the CO may not disregard the plain language of the regulations for policy or other considerations. The en banc panel reversed the CO’s denial decision and directed the certification of Symantec’s ETA Form 9089.

For PERM practitioners, what is the practical take away lesson from Symantec? Does the fact that 656.17(f) does not apply to the additional forms of recruitment mean that these additional forms of recruitment can indeed contain job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089? Can the three additional forms of recruitment contain requirements that are more restrictive than the minimum requirements listed on the ETA Form 9089? In footnote No. 4 to its decision in Symantec BALCA en banc mentioned that the CO, in his argument, relied on East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc) where the Board concluded that an advertisement placed in fulfillment of an additional recruitment step must not include requirements not listed on the Form 9089, and stated that this conclusion is not binding upon the Symantec en banc Board as the issue was not raised or briefed by the parties, or necessary to the resolution of the appeal, and the Board did not analyze the scope of 656.17(f) in any depth. This could be seen as somewhat confusing to PERM practitioners. How can BALCA hold that 656.17(f) does not apply to the additional recruitment steps but then fail to address the East Tennessee en banc decision stating that the additional recruitment steps must abide by 656.17(e)? Which en banc decision governs?

I think that PERM practitioners ought not to read too much into Symantec’s footnote No. 4. The en banc panel in Symantec points out that recruitment must be conducted in good faith and that the Board believed that the employer had indeed done this. The Board paid much attention to the fact that the employer’s additional recruitment was for multiple positions with varying requirements and that the employer had indicated the word “may” at the start of each sentence thereby indicating that not all of the requirements applied to each of the multiple positions. The Board stated that the CO does not have to certify an application if he has reason to believe that the employer’s recruitment efforts were not sufficient to warrant certification and the CO may instead exercise his broad discretion to order supervised recruitment under 20 C.F.R. §656.21. Accordingly, pursuant to the en banc decision in Symantec, while the three additional forms of recruitment do not have to comply with 656.17(f) and may be significantly broader or perhaps substantially briefer than the mandatory advertisements and the Notice of Filing, there nevertheless cannot be any information listed on these additional advertisements that is not included on the ETA Form 9089 as this would indicate bad faith on the part of the employer and possibly trigger supervised recruitment.

Viewing Symantec more broadly, BALCA clearly articulated that 656.17(f) was unambiguous, thus precluding the DOL from interpreting the regulation more broadly and insisting that the additional recruitment steps also conform to the requirement for the mandatory advertisements and the Notice of Filing. Pursuant to Auer v. Robbins, 519 U.S. 452 (1997), courts are required to give deference to an agency’s interpretation of its own ambiguous regulation unless such an interpretation is clearly erroneous. By holding that 656.17(f)’s plan language is unambiguous, the DOL will not be able to take cover under Auer by interpreting its regulations willy-nilly to the detriment of employers who recruit in good faith based on the plain language of a regulation but are then snared by the DOL’s different interpretation of its regulation. Auer was similarly criticized by Justice Scalia in his dissent in Decker v. Northwest Environmental Defense Center.   If the DOL desires that the additional recruitment steps conform to the requirements for the mandatory advertisements and Notice of Filing, then it ought to amend the regulation through notice and comment so that it clearly imposes such a requirement.