Cyrus Mehta

Issues Ripe for Rulemaking: Some Modest Proposals

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By Gary Endelman and Cyrus D. Mehta

Immigration lawyers are used to interpreting complex immigration statutes in the absence of regulations. Indeed, there has evolved a “common law” within immigration practice based on governmental guidance memos and even letters written by government officials in response to an attorney’s query. Immigration lawyers often refer to a letter of Efren Hernandez or Jacqueline Bednarz from more than a decade ago as if they have the halo of an authoritative and binding decision. The problem is that unless the government actually promulgates a regulation under the Administrative Procedure Act, such memos and letters are hardly binding. Still, stakeholders, including the government agencies, have conveniently created an illusion that they are binding, and readily cite to them, even when they are not.  From an immigration attorney’s point of view, the stakes are too high for challenging their authority. It is strategically prudent to demonstrate how their client qualifies under such informal agency guidance, and seek a quick approval, rather than challenge their validity in long drawn litigation.

Agency interpretations advanced in “opinion letters” neither justify nor enjoy Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (contrasting interpretations in opinion letters with those “arrived at after…a formal adjudication or notice-and-comment rulemaking.”). Instead, “interpretations contained in less reliable formats such as opinion letter are ‘entitled to respect’ under Skidmore v. Swift., 323 U.S. 134, 140 (1944), but only if they have the ‘power to persuade.’” Christensen, 529 US at 587; see also Catskill Devel, LLC. V. Park Place Enter. Corp., 547 F.3d 115, 127 (2d Cir. 2008) (under Skidmore, agency viewpoint articulated in an opinion letter was “entitled to deference only to the extent that it ha(d) the power to persuade” the court).

Much of our legal reasoning rests upon a very uncertain foundation. One is reminded, for example, that all of the American Competitiveness in the 21st Century Act (AC 21) interpretations upon which we routinely rely are not the product of APA rulemaking but of agency memoranda or opinion letters. To the extent that these may benefit us or our clients, let us remember that they are not endowed with Chevron-style deference and can be ignored or overturned by subsequent court rulings.  We have seen this in the context of AC 21 adjustment of status portability. In a 2009 decision styledHerrera vv USCIS, No. 08-55493, 2009 U.S.App. LEXISs 14592 (2009), the Ninth Circuit held that the revocation of an I-140 petition under INA 204(j) without bothering to acknowledge or distinguish the facts of the case  sub judice  from the 2005 Aytes Memo on AC 21, which states that a withdrawal of an I-140 petition after 180 days did not undermine portability.See Cyrus D. Mehta, Ninth Circuit In Herrera v. USCIS Rules that Revocation of I-140 Petition Trumps Portability, https://blog.cyrusmehta.com/Print_Prev.aspx?Subldx=ocrus200979113434.

Several years ago, stunned lawyers learned to their utter dismay that even opinions of the legacy INS General Counsel could not be counted on. Matter of Izumi, A 76 426 873 (decided by Associate Commissioner, Examinations, July 13, 1998). The absence of  guidance is the lawyer’s worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is secondary and glossing over that which is truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator also is at sea. Uncertain what standards to employ, frustrated by a nagging suspicion that overly clever attempts by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst looks in vain for guidance that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is sure, almost anything can happen.  In the absence of borders, can order survive?

At the recently concluded CIS Second Annual Conference in Washington DC on October 18, 2012, Cyrus D. Mehta addressed key issues ripe for rulemaking involving unlawful presence, American Competitiveness in the 21st Century Act (known as “AC 21”), EB-5, Child Status Protection Act and more. A power point presentation, which is part of the conference record, lays out some areas that are in need of rule making as well as some areas that do not need new rulemaking. Of course, this presentation does not claim to cover every issue, but selects a narrow slice of issues, which can greatly benefit from rulemaking.  The need for rulemaking, in the opinion of the authors, can be broken into several components, as follows:

First, some areas are ripe for rulemaking especially when the law has been interpreted in a consistent and reasonable manner over several years through policy guidance memos.  Although there may be no compelling need for a rule, a rule affirming a guidance memo would create consistency and would guide all the agencies administering immigration law. One area that would benefit from such rulemaking is unlawful presence that triggers inadmissibility under INA 212(a)(9)(b)(B). There already exists a weighty USCIS May 6, 2009 Interoffice Memo providing guidance on unlawful presence, which has generally been accepted by the government and stake holders. Still, a   rule on unlawful presence  affirming this memo would bind CBP, where some offices have taken inconsistent position on Canadian overstays not being treated as if they are in duration of status (like students in D/S) and thus not accruing unlawful presence and triggering the 3 or 10 year bars. Such a rule could also potentially help to clarify the conundrum between maintenance of status and period of stay authorized by the attorney general (POSABAG)., as discussed in  this previous blog,  Cyrus D. Mehta, Victory in El Badrawi: Narrowing The Disconnect Between Status and Work Authorization, https://blog.cyrusmehta.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. It is incongruous to allow ICE to attempt to remove one from the US while that person has filed a timely application with USCIS to extend nonimmigrant status or is in the process of adjusting status to permanent residence.  The promulgation of a rule may also avoid differences in interpretations by US consulates, such as minors accruing unlawful presence for purposes of INA 212(a)(9)(C) bar when  minors do not accrue unlawful presence for purposes of the 3 and 10 year years under 212(a)(9)(B)(iii)(I).  Finally, such a  rule should affirm informal USCIS Chief Counsel Divine letter, July 14, 2006, holding that time spent for purposes of 3 or 10 year bars can be spent in the US, and not necessarily outside the US, See Cyrus D. Mehta,  Can One Spend The 3-And 10-Year Bars In The US? https://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus2008982149&Month=&From=Menu&Page=30&Year=All.

Second, some areas simply cry out for a rule because the absence of which renders the statute inoperable. A regulation long overdue   will assist a group of EB-5 investor applicants who have filed removal of their conditional resident applications more than a decade earlier. The 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215; PL 107-273 – which affect investors who filed I-526 applications between January 1, 1995 and August 31, 1999 and I-829 applications before November 2,2002 –  can only take effect upon the promulgation of a regulation.  Their I-829 applications still remain pending in 2012 due tot the absence of a  regulation. Even in the absence of such a long overdue regulation, EB-5s should at least be found eligible for naturalization as they have been conditional residents for over a decade.

Third, we can and should advocate for new or modified regulations, where there has been harshness and the impact to those seeking immigration benefits that may not necessarily reflect the plain meaning of the statute. Such regulations may also be in the spirit of the Obama administration’s policies concerning prosecutorial discretion. We make a few selected proposals that can greatly improve both efficiency and fairness:

  • Foreign equivalent degree determinations have caused hardship to employment-based beneficiaries of I-140 petitions, especially as they are inconsistent with the way H-1B foreign equivalent degrees are determined, and after the DOL has approved labor certification based on the employer’s good faith recruitment. The USCIS insists on a single source 4 year degree under an I-140 petition, and if the EB beneficiary has a degree  based on a three year foreign degree and post graduate diploma, it will not accept that as the equivalent of a US  4 year bachelor’s degree even if it was determined to be so for the H-1B visa. SeeCyrus D. Mehta, EDGE Says Indian 2-Year Master’s Degree Following A 4-Year Bachelor’s Is Not Equivalent To A US Master’s Degree, https://blog.cyrusmehta.com/2012/01/edge-says-indian-4-year-bachelors.html. Many EB beneficiaries who would otherwise be able to qualify under the EB-2 have to qualify under the EB-3. If the equivalency is not properly defined on the PERM labor certification, the I-140 gets denied. We recommend that the current definition of “foreign equivalent degree” under 8 CFR 204.5(k)(2) and 204.5(l)(2) be modified to parallel the H-1B definition of equivalent degree under 8 CFR 214.2(h)(4)(iii)(D).
  • With respect to the Child Status Protection Act (CSPA),  we propose the issuance of a regulation overruling Matter of Wang, 25 I&N Dec.28 (BIA 2009), now that two circuit courts, Khalid v.Holder,  655  F.3d  363 (5th Cir. 2011)  and  De Osorio v.Mayorkas, __ F.3d __(9th Cir. 2012)  have rejected it.  Aged out children who cannot get CSPA protection should have the former priority date convert to a new F2B petition filed by the LPR parent under INA 203(h)(3).  Such  a policy is consistent with prosecutorial discretionary polices of Obama administration, including deferred action for childhood arrivals. See Cyrus D. Mehta, Reinterpreting The Automatic Conversion Provision Of The CSPA To Help DREAM Kids, https://blog.cyrusmehta.com/2011/09/reinterpreting-automatic-conversion.html.
  • Given that the endless waits in the China and India EB-2 India, and that the  EB-3 wait is long as 60 years, we propose an amendment to 8 C.F.R. § 245(g)(1), See Gary Endelman and Cyrus D. Mehta, Re-Defining “Immediately Available” To Allow Early Filing Of An Adjustment Of Status Application, https://blog.cyrusmehta.com/2010_03_01_archive.html, shown here in bold italics, that would expand the definition of visa availability and allow an I-485 application to be filed prior to the priority date becoming current under the Visa bulletin:
    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.  
  • While INA 245 conditions adjustment of status on having a current priority date and meeting various conditions, there is no prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required. This could be done purely by act of regulation. For those who want a statutory basis, the USCIS can rely on its parole authority under INA 212(d)(5) to grant such interim benefits for “urgent humanitarian reasons” or “significant public benefit.” See Gary Endelman and Cyrus D. Mehta, Comprehensive Immigration Reform Through Executive Fiat, https://blog.cyrusmehta.com/2010/04/comprehensive-immigration-reform.html.  
  • Section 106(a) of AC 21 allows an H-1B visa holder on whose behalf a labor certification has been filed 365 days prior to the maximum time limit to obtain an H-1B extension beyond the six years. AC 21 Section 106(a) ought to also allow the spouse of an H-1B who is also in H-1B status to be able to go beyond the six year maximum without having his or her own labor certification. This used to be allowed but the Aytes Memo on AC 21 seems to suggest that only dependent H-4 spouses would get tthe benefit of such an extension. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC 21 Section 106(a).  The statue itself has more flexibility and speaks of “any application for labor certification…in a case in which the certification is required or used by the alien to obtain status under section 203(b) of such Act.” (emphasis added). Under this interpretation, the H-1B husband who does not have his own labor certification can still use his H-1B wife’s labor certification on a derivative basis to file for adjustment of status. This interpretation can be implemented by the USCIS through a regulation and such remediation would be faithful to the generous spirit of AC 21. It would help to soften the hardship caused by chronic visa backlogs with respect to China and India as well as worldwide EB-3. The current interpretation placed upon AC 21 Section 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China, not to mention worldwide EB-3, it is simply realistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain to preserve their eligibility for adjustment of status. All this can be done with the stroke of a pen. See Gary Endelman and Cyrus D. Mehta: Two H-1B Spouses And One Labor Certification: Both Spouses Should Be Able To Seek 7th Year H-1B Extensions Under AC 21, https://blog.cyrusmehta.com/2010/03/two-h-1b-spouses-and-one-labor.html. Of course, the issue of the spouse of an H-1B being limited for 6 years, who is also in H-1B status, can be obviated if USCIS goes ahead with its proposed regulation to allow H-4 spouses to work, but it has been allowed to languish and USCIS seems content to allow it to die. This proposed regulation also appears to limit the group of H-4 spouses who can potentially work, and we refer readers to our blog that advocates that H-4 spouses and children be granted employment authorization in the same way as L-2 or E spouses from the very moment an H-1B is admitted into the US. See Gary Endelman and Cyrus D. Mehta: Working: H-4 Spouses Get To Take A Leap Forward, But Is It A Giant One, https://blog.cyrusmehta.com/2012/02/working-h-4-spouses-get-to-take-step.html. 
  • There is nothing in the INA, which suggests that derivative family members be counted in addition to the principal applicant under the employment-based and family-based preference. This has been carefully outlined in our article, Gary Endelman and Cyrus D. Mehta, Why We Can’t Wait: How President Obama Can Erase Immigration Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm.  INA 203(d) only states that “[a] spouse or child….be entitled to the same status and the same order of consideration …if accompanying or following to join, the spouse or parent.” Hence, there is ambiguity in the plain language of INA 203(d) to allow a rule that will not count all family members in addition to the principal applicant. Thus, a principal applicant with four derivative family members (spouse + 3 children) should only take one visa number and not 4 visa numbers from the preference categories. This will greatly assist in reducing the endless backlogs in the FB and EB preferences, which were not intended by Congress when it last increased visa numbers through IMMACT90.  There is no regulation in 8 CFR instructing what INA 203(d) is supposed to be doing. We do not claim that derivative beneficiaries are exempt from numerical limits. They are subject to numerical limitations in the sense that the principal alien is subject by virtue of being subsumed within the numerical limits that applies to this principal aline. There is a difference between not being counted at all, for which we do not contend, and being counted as an integral family unit as opposed to individuals. We seek not an exemption from numerical limits but rather a different way of counting such limits. 

Finally, there are legal issues, where regulations have already been promulgated, that do not require modification through a new rule just because of a new sentiment. For example, since the economic downturn, there has been a tendency on the part of immigration officials to become self appointed guardians of our economy, and with misguided zeal, they endeavor to protect jobs of American workers by reinterpreting the law. The definition of the employer-employee relationship for H-1B purposes is quite clear under 8 CFR 214.2(h)(4)(ii), and attempts to modify it through the Neufeld Memo are  simply not necessary, See Cyrus D. Mehta, Halcyon Days In H-1B Visa Processing,  https://blog.cyrusmehta.com/2010/02/halcyon-days-in-h-1b-visa-processing.html.  The Neufeld Memo too has been treated as interpretive guidance and not binding in Broadgate v. USCIS, http://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2010cv00941/142518/15.  We propose that the Neufeld Memo be withdrawn. Similarly, the L-1B specialized knowledge definition under 8 CFR 214.2(l)(1)(ii)(D) reflects the intent of  the Immigration Act of 1990 (IMMACT90), and there is no need to muddy the waters by restricting the definition by resurrecting administrative decisions prior to IMMACT90 when the specialized knowledge definition was more restrictive, and included proprietary knowledge, which was eliminated after 1990.

What is blindingly transparent is that what we have now simply has broken down. Years pass after Congress enacts major immigration legislation and, time after time, implementing regulations are nowhere to be found. Is there anyone who knows anything about immigration practice who would not acknowledge a real and present need for rules that are clear, specific and accurate?  While the broad outlines of immigration policy are set by Congress what this policy means each day in real life is most often a matter of what the implementing regulations say. The job of Congress is to articulate a long- range vision while that of the Executive is to make short-term, tactical adjustments.

How the agency puts the law into practice often has more to do with its ultimate impact, of lack of one, than the black letter law itself. The gap between what Congress intended and what the regulation mandates can often be the distance between rhetoric and reality. The proposals we advance reflect our core belief that the American economy would benefit from a more cooperative relationship between regulators and those they regulate.  We urge that traditional notice and comment rulemaking be informed by a creative exchange about possible solutions to ultimate problems. Our hope is that the rulemaking process itself facilitates mutual education on the proposed rule’s practical effect so that honest strategies can emerge capable of resolving fundamental differences.

Those who believe as we do that immigration is good for America have their principles right. Our challenge as a nation is to translate these principles into practice. This is why we write. We do not expect that this will be easy but we ask our readers who shrink from the task to remember the story of the rebellious prince who ran away from the palace of his father the King. “Come back” said the King through his most trusted messenger, only to be told “I cannot.” Back came the royal reply: “Go as far as you can, and I will come to you the rest of the way.”
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Cyrus Mehta

YES HE CAN: A REPLY TO PROFESSORS DELAHUNTY AND YOO

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By Gary Endelman and Cyrus Mehta

 Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the laws be faithfully executed.”   That being so, can President Obama grant deferred action for childhood arrivals (DACA) whose presence here represents a violation of US law? Professors Robert Delahunty and John Yoo offer a scholarly and resounding “ No” to this question in their paper, The Obama Administration, the DREAM Act and the Take Care Clause(hereinafter cited as Delahanty & Yoo).  They argue that the President must enforce the removal provisions of the Immigration and Nationality Act. Absent either express or implied authority to the contrary, the Obama Administration has violated its constitutional duty.  No presidential prerogative exists that would sustain such non-enforcement nor has the President put forward a cogent excuse that would make his DACA decision constitutionally permissible.  Professors Delahunty and Yoo offer up George Washington’s famous reminder in his Proclamation of September 15, 1702 that “it is the particular duty of the Executive ‘to take care that the laws be faithfully executed.” Such a serious charge requires an answer. That is why we write.

We agree with Professors Delahunty and Yoo that President Obama must enforce all provisions of the INA, including the removal sections contained in Section 235.  We do not agree, however, that DHS Secretary Napolitano’s June 15, 2012 memorandum, or ICE Director John Morton’s June 17, 2011 directive on prosecutorial discretion, instructed or encouraged ICE officers to violate federal law.  At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States.  Even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. Delahanty & Yoo n.21.   That is precisely why the Obama Administration has focused its removal efforts on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” Delahanty & Yoo n. 22,  citingLetter from Janet Napolitano, Secretary, Department of Homeland Security, to Senator Richard Dubin (D-Ill.)(Aug. 18, 2011). Far from refusing to enforce the law, President Obama is actually seeking to honor his constitutional obligation by creating a scheme that removes some while deferring the removal of others without granting anyone legal status, something only Congress can do.

Professors Delahanty and Yoo’s characterization of DACA relief as detached, even radical, suffers from a lack of an informed appreciation of the extent to which it has deep roots in existing immigration law. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. The extension of DACA relief is less a leap into the unknown arising out of a wild, lawless ideology divorced from a proper respect for the Take Care Clause than a sober reaffirmation of an existing tool for remediation in prior emergencies. Professor Delahanty and Yoo conveniently omits any mention of INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA Section 274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR 274a.12(c)(14), which grants employment authorization to one who has received deferred action, has been around for several decades. The only new thing about DACA is that the Secretary Napolitano’s guidance memorandum articulates limiting criteria without endowing deferred action grantees with any legal status, something reserved solely for the Congress. In fact, the Congress has also recognized “deferred action” in Section 202(c)(2) (B)(viii) of the REAL ID Act as a status sufficiently durable to allow the extension of driving license privileges.

Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007).  It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney,  470 US 821, 835 (1985). During the last Supreme Court term, Arizona v. United States, 132 S.Ct. 2492, 2499 (2012)  articulated the true reason why: “(a) principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…”

Professors Delahanty and Yoo do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly,  the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.  Surely the “body of experience” and the “informed judgment” that DHS brings to INA § 103 provide its interpretations with “ the power to persuade.”  Skidmore v. Swift& Co., 323 US 134,140(1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation  by all Presidents since Ronald Reagan has made “ the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv.L.Rev. 2245, 2246  (2001).Indeed, the very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v Brown & Williamson Tobacco Corp., 529 US 120, 159 ( 2000).  That is precisely what the President and DHS have done with respect to their power to enforce the immigration laws.

This is precisely why 100 law professors argued that the President had the discretionary authority to extend such relief, which Professors Delahunty and Yoo have acknowledged in their paper:

Through no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971

            Delahanty & Yoo n. 38.

It is also worth mentioning that while there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. We agree with Professors Delahunty and Yoo when they cite Youngstown Sheet, Delahunty & Yoo n 185. as a rejection of the idea that the President has “prerogative” power, but the President has not used any “prerogative power” with respect to DACA relief; he has indeed acted pursuant to Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635.  Professors Delahanty and Yoo look in vain for explicit authority in the INA that supports DACA relief, and delve into instances when Presidents have been able to use “prerogative” power, which they argue cannot be applied in the context of DACA. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229 (2001)

Even if arguendo discretion is too weak a foundation for DACA relief, the equitable merits of such remedial action should be strong enough to withstand constitutional scrutiny.  Indeed, as the Supreme Court’s  Arizona opinion recognized,  it is frequently the case that “ Discretion in the enforcement of immigration law embraces immediate human concerns.” Delahanty & Yoo, n. 222.  That is why Section 240A of the INA endows the Attorney General with discretion to cancel removal.  Contrary to what Professors Delahanty and Yoo argue, the exercise of executive compassion in the Dream Act context is not a constitutionally prohibited expression of misplaced sentiment floating without anchor in a sea of ambiguity but a natural out-growrth of prior initiatives when dealing with deferred action. Such initiative is entirely consistent with the Take Care Clause while scrupulously respectful of Congressional prerogatives to make new law. While Professors Delahanty and Yoo argue that equity in individual cases may be justified as an exception to the President’s duty under the Take Care Clause, they claim that the  DACA program is not a judgment in equity but more as a statement of law. We disagree. The President has made clear under DACA that each case merits an exercise of individual discretion. Each application has to be supported by voluminous evidence of not just an applicant’s eligibility, but also evidence as to why the applicant merits an exercise of favorable discretion.  Professors Delahanty and Yoo claim that equity divorced from reliance on another statute or treaty must be opposed as a breach of the President’s sworn oath. No such worry here need trouble them for the Administration not only acts in reliance on its well-settled authority under the INA but precisely and primarily to infuse such authority with relevance made ever more insistent by the lack of Congressional action.

Notwithstanding our rebuttal, the deep scholarship and sincere reservations voiced by Professors Delahanty and Yoo must not be cavalierly ignored nor summarily dismissed. Indeed, they are a powerful justification of the need for comprehensive immigration reform. Only Congress can solve this problem, even though we have shown that the President did have authority to roll out DACA.  The nation waits.

Cora-Ann Pestaina

PERM Audits Request Sworn Declarations Regarding Improper Payments

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Recently, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) published its factsheet with statistics on the PERM program for FY2012 covering the period from October 2011 to September 16, 2012. Of the 67,400 PERM applications received during that period, 45% were audited for review. While audit notifications discussing the employer’s use of an employee referral program, roving employees, or bearing requests for the resumes of all applicants are so frequently issued that they have almost become par for the course, the newest audit request came as quite the surprise. The latest audits now request declarations from the employer and the foreign worker, each signed under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification. Specifically, the audit request states:

Please provide declarations from the employer and the foreign worker, each signed by the respective individual under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification, including payment of the employer’s attorney’s fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application. Such payments include but are not limited to legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process.  Note that any payment of fees by the foreign worker or third party for the benefit of the employer constitutes a “receipt of payment” by the employer, despite the fact that such payments may have been made directly to a party other than the employer – e.g., the employer’s attorney, Department of State, etc.

If any such payments were made, please provide a list outlining the payment amount, who made the payment, to whom payment was made, dates, and the purpose of the payment.

If payments were received from a third party to whose benefit work to be performed in connection with the job opportunity would accrue, please provide documentation explaining both the business relationship between the employer and the third party and the benefit of the work performed, or to be performed, in accordance with the Department’s regulations at 20 CFR § 656.12(c).

If payments were made to the employer by the foreign worker as a result of an agreement/contract entered into prior to July 16, 2007, please provide documentation evidencing both that an agreement existed and that it was entered into prior to July 16, 2007. Examples include the contract, the agreement or a declaration signed by both the employer and the foreign worker under penalty of perjury, in the case of oral agreements.

The issue of payments for activity related to obtaining permanent labor certification first came up when the DOL published its final rule to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States” which took effect on July 16, 2007. See 72 Fed. Reg. 27,903-27,947 (May 17, 2007). The rule revised the regulations found at 20 CFR §656 and implemented substantial changes to the labor certification process, including prohibition on the sale, barter, or purchase of labor certification applications and a requirement that employers pay all attorney’s fees and costs associated with labor certification. The rule also made unenforceable any employer agreements requiring employees who leave within a certain time period to pay reimbursement costs associated with the labor certification. In passing this rule, the DOL rationalized that a prohibition against the transfer of labor certification costs from sponsoring employers to foreign national beneficiaries keeps legitimate business costs with the employer, minimizes improper financial involvement by aliens in the labor certification process, and strengthens the enforceability of the bona fide job opportunity requirement. All reasoned opposition to the rule prior to its promulgation fell on deaf ears.

On July 16, 2007, the DOL also issued a FAQ to clarify certain aspects of the rule. The FAQ explained that pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity (including recruitment activity and the use of legal services) related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign national beneficiary will benefit that party. The preamble to the rule provided the example of physicians who frequently have split appointments between a Veterans Affairs Medical Center (VAMC) and an affiliated institution of higher education. In these cases, although there is one “employer of record” who files the labor certification application, the university, as a legitimate third party, could reimburse the VAMC for costs associated with the labor certification.“Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor.  This includes the prohibition against the alien paying the employer’s attorneys’ fees in connection with the labor certification application.

The FAQ clarified that an employer, or attorney representing an employer, who entered into a contract where payments from the foreign national are either owned after July 16, 2007 or owed prior to July 16, 2007 but not paid until after that date, have the right to seek the payment provided the payment obligation accrued prior to July 16, 2007. The employer must answer YES to Question I.e.23 on the ETA Form 9089 which asks, “Has the employer received payment of any kind for the submission of this application?” Then, the employer must explain and provide supporting details in I.e.23-A which states, “If Yes, describe details of the payment including the amount, date and purpose of the payment.”

The FAQ also explained another exception to the rule which provides that “attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity.” The rule also did not prohibit the alien from paying fees associated with the subsequent visa petition (Form I-140) and the adjustment of status application (Form I-485).

Pursuant to §656.20(a), an audit letter may be issued by the DOL if a labor certification is randomly selected for quality control purposes, or if, after reviewing the application, the certifying officer finds more information is needed before a determination can be made. Neither of these reasons justifies this new request for declarations. Questions I.e.23 and I.e.23-A on the ETA Form 9089 already address the issue. In response to an audit, the employer must submit a copy of the submitted ETA Form 9089 with original signatures in Section L (Alien Declaration),  Section M (Declaration of Preparer (if applicable)), and Section N (Employer Declaration) to affirm that the information listed is true and accurate. As clearly stated on the ETA Form 9089, each declaration must be signed under penalty of perjury.  In light of this, it is not clear why additional sworn declarations are now being requested. In any event, it is important to respond truthfully.

If the employer did not receive payments from the foreign national or a third party, the employer may submit a signed and notarized statement as follows:

[Employer name] did not receive payment of any kind from the [foreign national] or from a third party for any activity related to obtaining permanent labor certification. 

[Employer name] did not receive payment for the legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the labor certification application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

The foreign national may submit a signed and notarized statement as follows:

I did not pay [Employer name] any fees in relation to the filing of a labor certification application on my behalf.  

[Employer name] did not receive payment from me for the legal fees, administrative fees, advertising costs and/or any other costs or fees related to the filing of the application. Also, [Employer name] did not ask me for any wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

Only time will tell whether this new request will become another audit standard. It is essential that practitioners inform new clients and remind existing clients of the rule regarding payment of fees in connection with a labor certification. It is understandable why an employer would want to seek some type of protection, e.g. through employer agreements for reimbursements, against spending thousands of dollars to sponsor a foreign national only to have him leave the moment he obtains permanent residence. But employers must also be informed that the DOL, under §656.31(a), may deny any labor certification if the certifying officer finds the application contains false statements, is fraudulent or otherwise submitted in violation of the DOL’s regulations. Under §656.31(b) the DOL may, if it learns that an employer, attorney or agent is involved in possible fraud or willful misrepresentation, refer the matter to the Department of Homeland Security or other appropriate governmental authority and suspend processing of any labor certification involving the employer, attorney or agent until completion of any investigation. Under §656.31(f) the DOL may debar an employer for up to three years upon a determination that the employer has participated in or facilitated “the sale, barter or purchase of permanent labor applications or certifications, or any other action prohibited under §656.12” or “the willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification” or “a pattern or practice of failure to comply with the terms of the Form ETA 9089.” Finally, the DOL could, under §656.32, take steps to revoke an approved labor certification if it is later found that the certification was not justified.  It is obvious that the issue of improper payments is one that must always be taken very seriously.

Cyrus Mehta

Why the Average Traveler Can’t Be Expected to Recognize a Crime Involving Moral Turpitude

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By Myriam Jaidi

In a fascinating recent decision (courtesy of attorney Stephen Heller), the Office of Administrative Appeals determined that a visa waiver applicant is not expected to know the meaning of a “crime involving moral turpitude” (“CIMT”), with the welcome recognition that “the term ‘moral turpitude’ is not in common usage and it is unlikely that the average person is aware of its meaning and application in U.S. immigration law.” Amen to that. The case involved an individual who had initially been denied a waiver of inadmissibility for “willfully misrepresenting” on his Form I-94W (the Nonimmigrant Visa Waiver Arrival/Departure Record, which requested biographic information and answers to a series of unfortunate questions) that he had not been convicted of a CIMT. Although the AAO determined that the individual had in fact been convicted of a CIMT, it also found that he could not be expected to know that and should therefore not be found inadmissible for not stating it on the form.

Since 2008, instead of having to complete a Form I-94W, travelers from Visa Waiver countries to the United States must answer the same set of bizarre questions to obtain permission to travel to the United States via the Electronic System for Travel Authorization (“ESTA”). In his New York Times Op-Ed piece “How Not to Attract Tourists”, writer and airline pilot Mark Vanhoenacker perfectly captures the absurdity of many of the questions on the form quipping, “Naturally, no one with anything to hide will answer honestly.” I would add that with regard to the question “have you ever been arrested or convicted for an offense or crime involving moral turpitude . . . ” it is nearly impossible for the average person to answer at all.

Courts have long recognized that a CIMT is a “nebulous concept” and the determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue , and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law)or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things.

Take drug possession for example (though note that an arrest or conviction involving drugs will cause you a whole host of problems with trying to gain permission to enter or to remain in the United States outside the CIMT context, see here for an explanation). In its response to the question “How do I correct a mistake on my ESTA application”, ESTA includes “possession of narcotics” in its parenthetical summarizing CIMTs: “If you discover that you are not eligible to come to the U.S. under the visa waiver program because of a CIMT (such as fraud, or possession of narcotics) . . .” As an aside it is funny that the sentence starts with “if you discover” — how one is supposed to make such a discovery is not clear, especially given the extraordinary complexity of CIMTs and the disagreement among Circuit Courts with regard to how to determine whether something is a CIMT. Anyway, back to drug possession. The Board of Immigration Appeals has found that simple drug possession is not a CIMT, see, e.g., Matter of Abreu-Semino, 12 I & N Dec 775 (BIA 1968) – so tossing that general “possession of narcotics” in the parenthetical is inaccurate. On the other hand, drug possession with intent to sell or trafficking in narcotics has been found to be a CIMT. Another example of a CIMT given on the ESTA website is theft – but as noted in a previous blog by Cyrus Mehta, theft is not always a CIMT either!

Mr. Vanhoenacker’s assessment of the “uninviting” nature of the ESTA website rings true, especially with respect to individuals trying to get a sense of what a CIMT might be so that they can try to answer the question if they have been arrested or convicted of something (two other kettles of fish there on those two legal terms – “arrested” and “convicted”.). To be fair, ESTA’s website offers a help page providing guidance on various topics. Given there are 773 results accessible from the page, anyone trying to understand what a crime involving moral turpitude might be should search “CIMT” in the search box at the top of the page. This yields a much more manageable 4 results (though misses a fifth result and perhaps other questions where addressing CIMTs), but each result provides a slightly different summary of a CIMT, as noted above, and directs the reader to two different sections of the Foreign Affairs Manual(“FAM”) – the 8 pages of related statutory provisions in 9 FAM 40.21(a), rather than the apparently promised “list of crimes of moral turpitude”, and the other the 26 pages of 9 FAM 40.21(a) Notes providing further legal background on CIMTs, but researcher beware – the FAM is not precise with regard to CIMTs either, though it does provide a lot of information. It is unreasonable to expect the average person in a foreign country to analyze that information under the applicable United States law (9 FAM 40.21(a) N2.1 states “The presence of moral turpitude in a statutory offense is determined according to United States law”) and formulate an answer.

Obviously, the questions are there for various reasons including security, but including unanswerable questions like the one regarding CIMTs (not to mention the other absurd questions) in an automated questionnaire does not promote the security goal, as Mr. Vanhoenacker so aptly demonstrates. Any error could result in an unfair denial and significant inconvenience to a would-be traveler. If someone answers incorrectly by mistake and gets denied, his or her options are to email Customs and Border Protection, seek redress from the Department of Homeland Security’s Travel Redress Inquiry Program (DHS/TRIP), or to apply for a visa at a U.S. consulate. None of these options are likely to allow a traveler with ticket in hand to take her trip as planned.

If inquiries regarding criminal background must be included in the ESTA system, a better model might be to include a more simple question like this one from the Form N-400, Application for Naturalization: “Have you ever been convicted of a crime or offense,” include a drop down box to allow an explanation, and have applications ticked “yes” automatically sent to CBP for quick review without requiring the person to email or seek redress. This may make the system a touch more inviting and comprehensible.

Cyrus Mehta

THE TAXMAN COMETH: WHEN TAKING A FOREIGN EARNED INCOME EXCLUSION ON YOUR TAX RETURN CAN HURT YOUR ABILITY TO NATURALIZE

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By Gary Endelman and Cyrus D. Mehta

Maintaining continuity of residence is paramount if one wants to naturalize and become a US citizen. For an in depth discussion, we refer you to our  prior blog Naturalization In A Flat World and Gary Endelman’s recent article, The Enigma of Disruption: What Continuity of Residence In Naturalization Really Means, 17 Bender’s Immigration Bulletin 1437, August 1, 2012. Even though a naturalization applicant meets all the eligibility criteria, an examiner can still deny an application for failure to maintain the continuous residence requirement. Tax issues can further trip up the applicant, especially when one is trying to shield foreign earned income from US taxation, which this blog will focus on.

But before we do so, we provide the basic eligibility criteria for naturalization.

An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

What precisely is continuous residence?  INA § 101(a)(33) defines residence as follows: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”  But that only tells us what residence means, not continuous residence. The regulation, on the other hand, at 8 C.F.R. §316.5(c)(1)(i) tells us what is not continuous residence. It says that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back to back lengthy trips although each one was less than 180 days.

If an applicant is out of the US for more than 180 days but less than one year, it will cause a disruption of continuity of residence but there is still hope. 8 C.F.R. § 316.5(c)(1)(i) provides examples of the types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence. Specifically, the regulation provides the following examples that an applicant can submit to rebut an allegation of disruption of continuity of residence:

(A) The applicant did not terminate his or her employment in the US;

(B) The applicant’s immediate family remained in the US;

(C) The applicant retained full access to his or her US abode; or

(D) The applicant did not obtain employment while abroad.

While one is already treading on thin ice while trying to demonstrate continuous residence, shielding foreign-earned income from US taxation can create yet another chink in one’s armor when trying to rebut an allegation of disruption of continuity of residence. Many accountants may not know this, but tread with caution if you wish to naturalize and are planning to shield foreign earned income from US taxation that can protect you up to $92,900.

There are two different ways in which one can file for earned foreign income exclusion through filing IRS Form 2555. One way is by claiming to be a bona fide resident of a foreign country for an entire tax year or by declaring physical presence there for a minimum of 330 days over 12 consecutive months. The filing of Form 2555 may be viewed as further evidence of failing to satisfy the continuous residence for naturalization. One potential point for advocacy is that the filing of an IRS 2555 based on spending 330 days outside the US is more benign than claiming you were a bona fide resident of a foreign country.  The former is a mechanical application of the earned income exclusion, and if the applicant can independently establish eligibility for naturalization despite being out for 330 days, we do not see why an IRS 2555 filed on the 330 days exemption should adversely impact the applicant.   Even the USCIS Adjudicator Field Manual in Chapter 74 clearly makes a distinction between the bona fide resident exemption and the physical presence exemption, and supports our argument.

Of course, the cautious immigration lawyer may suggest to the client to simply pay foreign tax and deduct rather than protect one’s foreign income up to $92,900.    This may work where you need to pay a foreign tax that is comparable to the US tax rate, but in some countries like Hong Kong or Dubai, the tax rate is much lower or next to nothing. Or you can be working for a UN or international organization where you are totally exempt from taxes. Under such circumstances, the $92,900 deduction would benefit the applicant and may outweigh the marginal risk in the event of an abandonment claim or naturalization denial.

But this may not be the end of the argument in favor of shielding foreign earned income based on the 330 days out of the US exemption. Look at “Home on the Range: Establishing Continuous Residence and Physical Presence for Naturalization Purposes” by Julie G. Muniz and Lyndsey Yoshino,   Immigration Practice Pointers 2012-2013 Ed. (AILA) where they point out that one of the requirements for IRS 2555 is to have a tax home in a foreign country.  This is in addition to meeting either bona fide residence test or physical presence test. This is what Muniz and Yoshino say:

“Even if an LPR can meet the physical presence test… the “tax home” requirement could be fatal to continuous residence. If an LPR has a tax home in the United States, she is precluded from claiming the foreign earned income credit. However, if she claims the credit, she is implicitly indicating that she has interrupted her continuous residence, as it could appear inconsistent to both allege a foreign tax home and claim continuity of residence.”

Under IRS definitions, your tax home is generally your regular place of business or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. If your abode is in the US, then it is not possible to claim a tax home overseas.

Although the Muniz & Yoshino article makes a good point about cautioning against claiming a tax home overseas, it can be argued that maintaining a “tax home” in a foreign country ought not to be conflated each time with the  establishment of  a bona fide residence in that country. If that is the case, any tax home in a foreign country, as the AILA article claims, is inconsistent with maintaining continuous residence in the US. For instance, even if one is out for more than 180 days but less than one year, due to a work assignment overseas, the applicant would have in any event broken continuity of residence regardless of the overseas tax home, but can still rebut the presumption under 8 CFR §316.5(c)(1)(i)(A)–(D). The tax home overseas should not in itself be an aggravating factor. What indeed could be more perilous is when one takes a foreign earned income exclusion based on foreign residence rather than physical presence, as also indicated in the Adjudicator’s Field Manual at 74 (g)(9)(B):

If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] The applicant applying for naturalization after openly declaring residence in a foreign country on an official United States Government form will most likely be unable to fulfill the residence requirement for naturalization (see 8 CFR 316(c)(2)).

If the legal permanent resident declared himself or herself to be physically present in a foreign country on IRS Form 2555, it only means that the applicant met the IRS’s physical presence test to have a proportion of his or her income excluded form United States taxes. The applicant has not declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] Eligibility for naturalization purposes may be affected if the applicant fails to establish that he or she meets the physical presence requirements or fails to establish that the absence of more than six months but less than one a year did not result in abandonment of LPR status. If the applicant applying for naturalization has sufficient physical presence in the United States for naturalization purposes or can establish that his or her LPR status was not abandoned, then the applicant can still be eligible for naturalization (see Part 3 of the Form N-400).

Think of IRS 2555 as a warning sign whose presence on your tax return will trigger a red flag when applying for naturalization during the period when the applicant needs to maintain continuous residence. This does not mean that it will always be fatal if one tries to shield foreign income from US taxation. Any tax election should only be made by permanent resident aliens after consultation with competent immigration counsel.  All those who hold “green card” status should make certain that they understand what their tax obligations are and should refer to the IRS publication concerning the tax treatment for US citizens and resident aliens abroad. Always look for the presence of those factors with the potential to demonstrate that the applicant has never disrupted continuous residence.  Our blog points out how you can defend yourself if you have based the Form 2555 filing on physical presence overseas rather than a foreign residence. Do not be discouraged if you find this hard to understand. So did Albert Einstein who famously remarked that “This is too difficult for a mathematician. It takes a philosopher.”

Cyrus Mehta

STEM GREEN CARD V. GREEN CARD LOTTERY

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By Cyrus D. Mehta

There is a raging debate presently in the halls of Congress. Almost all of our elected representatives, no matter whether they are Democrat or Republican, are in favor of providing an easier pathway for foreign students who have graduated with an advanced degree from a US university in a STEM (Science, Technology, Engineering or Math) field. In an age of polarization and gridlock in Congress – added by controversy over the expansion of immigration benefits to foreign nationals when unemployment is high – there is amazing bipartisan support for STEM foreign students. Indeed, 150 university presidents and chancellors have also appealed for green cards for STEM graduates.

Still, a Republican sponsored STEM Jobs Act, HR 6429, failed to pass the House on Thursday, September 20, 2012 with a two third majority. It was sponsored by Lamar Smith (R-TX), who otherwise generally favors bills that restrict immigration.   It was rejected 257-158 mainly on party lines that would have provided 55,000 green cards to foreign students graduating in STEM fields. First dibs would have gone to foreign students with doctorates in STEM fields from a US university, and the remaining would have gone to foreign students who have graduated with master’s degrees. These students would still need an employer to sponsor them, and they would need to agree to work for 5 years for that employer. The employer would also need to obtain a labor certification to demonstrate that there are insufficient American workers available for the job.
So why did it fail? The catch was that the STEM Jobs Act would have eliminated the diversity green card lottery, which provides 55,000 green cards for people born in countries with low sending immigration rates to the US. 5,000 of these 55,000 can be deducted for cancellation of removal grantees under the Nicaraguan Adjustment and Central American Relief Act (NACARA). The elimination of the green card lottery was opposed mainly by Democrats, and Zoe Lofgren (D-CA), the ranking member of the House Judiciary Subcommittee on Immigration Policy, proposed a similar bill, but preserving the green card lottery.  
The reason why the STEM Jobs Act needed a 2/3 super majority is because it was being considered while the normal rules were under suspension. The rules are suspended generally for non-controversial bills but this bill was hardly that. It was a clever political ploy by the Republicans to force this bill without consideration of the Lofgren alternative under the normal House rules, which preserved the green card lottery, so that they could go back to their constituents and claim that they did favor an important immigration bill, which the Democrats did not pass.
In my opinion, I like STEM green cards to co-exist with the green card lottery, which provides an option for anyone anywhere in the world to come to American to make it. While most other immigration benefits require a family member or employer as a sponsor, unless you are a rich investor under the EB-5, the green card lottery is not tethered to any sponsor. While it is important for the US to attract STEM students to innovate and pioneer new technologies here, it is equally important to attract others who can also become successful and contribute to the US with their optimism and industry. Today’s halal vendor serving delicious falafel from his street cart, who came through the green card lottery, can tomorrow own a chain of restaurants employing others, and still delighting Americans with a unique ethnic cuisine. We need innovators with STEM degrees as well as folks who can enrich the fabric of America with their cuisine and other endeavors.  Moreover, not all lottery winners are unskilled or uneducated. The green card lottery could also attract educated people and those who have already succeeded in business.
Indeed, the green card lottery is reminiscent of what America used to be without a formal immigration program. Immigrants who came to America through the centuries were like the plucky green card lottery winners of today. They took a chance and came to the shores of America. They were not scientists or the equivalent of STEM graduates of their day. Yet, America’s greatness was built on the hard work and boundless optimism of these ordinary people.
Even though the STEM Jobs Act failed, it shows that there can be bi-partisan consensus. The bill was not perfect, and would not have improved the broken immigration system. For example, unused STEM green cards would not have been re-allocated to the backlogged employment-based or family immigration preferences, where some are waiting endlessly for decades before they can get a green card. Perhaps, in the future, if Republicans do not like the green card lottery, they can settle for an increase in the employment and family-based categories instead as a compromise with the Democrats.    But despite its failure to get passed, at least the STEM Jobs Act is a down payment for future bipartisan efforts on immigration. This effort also shows that immigration can be reformed in increments rather than comprehensively, although the latter would be more desirable in a perfect world.  For example, Senator Schumer (D-NY) has offered his own BRAINS Act, which would similarly grant green cards to 55,000 STEM students and preserve the green card lottery, and he has also invited Lamar Smith back to the negotiating table! 
Cyrus Mehta

AFTER THE OCTOBER 2012 VISA BULLETIN, A DECADE LONG WAIT UNDER THE FAMILY FOURTH PREFERENCE IS A PIECE OF CAKE

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I write this blog with some sarcasm. The family fourth preference (F-4), which allows US citizens to sponsor their siblings for a green card, is horrendously backlogged. It takes over 10 years for a brother or sister of a US citizen to obtain a green card. If the sibling was born in the Philippines, the wait could well be over 25 years. So, why is it a piece of cake?
After the State Department released its Visa Bulletin for October 2012,   the F-4 at least for the worldwide category appears to be more advantageous in terms of waiting time than say the employment-based third preference (EB-3) for India, which is applicable to jobs that require bachelor’s degrees or at least two years of training or experience. The EB-3 for India is so backlogged that it could take a US employer 70 years before the Indian worker it sponsors gets a green card.
What was also disappointing with the October 2012 Visa Bulletin was that the employment-based second preference (EB-2), after being unavailable all summer, emerged in October with a cutoff date of September 1, 2004. This means that employers who filed labor certifications on behalf of foreign national workers with advanced degrees on or before September 1, 2004, can apply for their green cards today.  This does not bode too well because in April 2012 the cutoff date for the India EB-2 was May 1, 2010.  It should have emerged in October at the same cut off level, not back at September 1, 2004. Perhaps, the reason for this giant leap back in time is because many in the EB-3 with priority dates going back to 2004 and earlier are upgrading into the EB-2.  Noted immigration attorney Carl Shusterman has quite correctly called the October 2012 Visa Bulletin a disaster.
But jokes aside, the F-4 is actually a good hedge against the broken legal immigration system in the United States. If you have a brother or sister with kids who are 6 or 7 today, file the I-130 petition and then forget about it. Treat it like a long term stock in a new startup that will increase in value in the years to come.  By the time the green card comes through for your sibling, his or her kids would be 17 and 18, old enough to start college in the US as green card holders rather than  on an F-1 student visa. Note that spouses and children can derivatively get their green cards with the principal beneficiary.  If these kids were born in India, think of the benefit this would give them after they graduate from college and get a coveted job in the US – and let’s hope by then that the US economy would have turned around through some breakthrough technology that would result in an abundance of jobs!  Assuming that the EB-3 was as backlogged in 2023 as it is today, because Congress continued to remain in permanent gridlock, those kids would have to wait about 70 years to get their green card under the EB-3. Instead, the F-4 that you filed with a great deal of foresight today would benefit your nephews and nieces by the time they come of age and are ready to pursue their hopes and dreams in the USA.
What if the kids are no longer children by the time your sibling gets the green card under the F-4? What if they have already turned 21 or more as a child is one who is under 21 under the Immigration and Nationality Act? These are all good and relevant concerns. Fortunately, some of these kids may be able to freeze their age under the Child Status Protection Act. If the child is 23 years old at the time the date on the I-130 petition becomes current, then under INA § 203(h)(1) it is possible to subtract from that age the time that the I-130 petition took to get approved from the time it was filed. For example, if the USCIS took two and a half years to approve the I-130 petition from the date it was filed, then you can subtract 2.5 years from the child’s age, and if the age is reduced so that it falls below 21, then the child can still immigrate with the parent. Thus, it is actually to your advantage if the I-130 petition takes a long time to get approved as that much more time can then get subtracted from the age of a child who may have turned over 21 on the date of visa availability. Fortunately, the processing time at the Vermont Service Center for an F-4 today is just short of 2 years. Processing times will be longer if the USCIS issues a request for more evidence before approving the I-130 petition.  So don’t get too anxious if the I-130 under the F-4 does not get approved so quickly. This time will prove to be precious to reduce the age of a child who is over 21 a decade or more from today, when the visa becomes available under the F-4.
If we had a better immigration system, I would not waste time extolling the so called virtues of the F-4. But when so many preference categories have gone out of whack – 70 years for the India EB-3 and the EB-2 seems to also be going the same way– then we must grasp at straws and the F-4 is certainly one until Congress is able to bring sensible reforms to our immigration system.
David Isaacson

OPPOSITION TO CORRUPTION AS A POLITICAL OPINION SUPPORTING A GRANT OF ASYLUM: RUQIANG YU V. HOLDER AND ITS PREDECESSORS

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By David A. Isaacson

On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder, No. 11-2546-ag, reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S. immigration law.  According to Ruqiang Yu, this may be the case even if an asylum applicant has failed to prove that similar corruption exists elsewhere in his or her native country beyond the specific context in which he or she opposed it.

Ruqiang Yu was initially denied asylum by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) despite their acceptance of his testimony that he had been mistreated after opposing corruption at the state-owned factory where he worked in China.  As the Court described the facts: 

The IJ found that Yu credibly testified that, while an employee and a team leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the wages of workers on his team and that, when Yu’s efforts to aid the workers and to bring the corruption to the attention of government officials was discovered, he was jailed and later fired.
Ruqiang Yu, slip op. at 2.  Despite these findings, the BIA “concluded that Yu failed to establish that his actions ‘constitute[d] a political challenge directed against a governing institution’ since he was objecting to ‘aberrational’ corruption by individuals.”  Id.at 5.  “Yu’s actions, the BIA reasoned, were “a personal dispute against his individual employers for misusing funds he believed should have gone toward the unpaid wages of the laborers on whose behalf he sought to intervene.”  Id.
The BIA and the IJ in Ruqiang Yu appear to have acknowledged that under Second Circuit case law, “opposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecution.”  Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).  As the Second Circuit had said in case law to which it appears that the BIA was referring in its decision when it set out the criteria that Mr. Yu purportedly had not met:
In considering whether opposition to corruption constitutes a political opinion, “[t]he important questions … are whether the applicant’s actions were ‘directed toward a governing institution, or only against individuals whose corruptionwas aberrational,’ ” and “whether the persecutor was attempting to suppress a challenge to the governing institution, as opposed to isolated, aberrational acts of greed or malfeasance.”
Before the Second Circuit’s decision in Ruqiang Yu, but after the Second Circuit’s decisions in Castroand Yueqing Zhang, the BIA had also recognized in a published opinion that “in some circumstances, opposition to state corruption may provide evidence of an alien’s political opinion or give a persecutor reason to impute such beliefs to an alien.”  Matter of N-M-, 25 I&N Dec. 526Matter of N-M-, 25 I&N Dec. 526, 528 (BIA 2011).  In Matter of N-M-, the BIA cited the Second Circuit’s Zhang decision, but found that at least with regard to asylum applications subject to the REAL ID Act because they were filed after May 11, 2005, more than retaliation for opposing acts of corruption linked in some way to a political system was required:
Since the passage of the REAL ID Act, a showing of retaliatory harm for exposing acts of corruption, coupled with evidence that the corruption is in some way linked to a political system, would appear insufficient to demonstrate that a victim’s anticorruption beliefs are “one central reason” for retaliation against him. Instead, an alien must persuade the trier of fact not just that the alleged persecutor was motivated in some measure by the alien’s actual or imputed political belief, but that the protected trait was “one central reason” for the persecution.
Matter of N-M-, 25 I&N Dec. at 532.  

The BIA in Matter of N-M- described three factors that an IJ could use to determine whether actual or imputed political opinion was a central reason for retaliation against one who had expressed an anticorruption belief.  The first is “whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs”   such as whether the “alien denounced corruption in public or at work, published articles criticizing governmental corruption, or organized fellow victims of government extortion against this behavior.”  Matter of N-M-, 25 I&N Dec. at 532.  The second factor is “any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs,” such as “statements indicating that the persecutor viewed the alien as a political threat or subversive and was motivated as such.”  Id.  The third factor described by BIA in Matter of N-M-, citing the Second Circuit’s decision in Castro, looks to whether corruption was pervasive in an asylum applicant’s country:

An Immigration Judge should also consider evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials. Where the alien threatens to expose the corrupt acts of rogue officials acting without the support of the governing regime, it seems less likely that the act would be perceived as politically motivated or politically threatening. However, if corruption is entrenched in the ruling party, a challenge to the corrupt practices of this party may be more likely to represent a challenge to the political position of the ruling party, and not just the financial standing or reputation of a small group of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) . . . .  Whether the governing regime, and not just the corrupt individuals, retaliates against an alien for expressing anticorruption beliefs is relevant to this inquiry.
Matter of N-M-, 25 I&N Dec. at 533.
The Second Circuit in Ruqiang Yu concluded that the BIA had applied an erroneous legal standard in determining whether the corruption opposed by an asylum applicant was “aberrational” for purposes of the test that the Second Circuit itself had set out in Yuequing Zhang and Castro.  As the Second Circuit reminded the BIA: “Because the form and nature of political opposition can vary widely, the assessment of when opposition to corruption becomes an expression of a political opinion involves a context-specific, case-by-case determination.”  Ruqiang Yu, slip op. at 7.  For several reasons, the Second Circuit did not find the BIA to have performed such a determination properly in Yu’s case:
First, we note that the BIA’s factual conclusion that Yu opposed “aberrational” corruption is not supported by the record. Conduct is “aberrational” if it is “a deviation or departure from what is normal, usual, or expected” or something that is “abnormal, diverging from the norm.” Oxford English Dictionary (June 2012, online ed.) (defining “aberration”). Yu’s application indicated that “quite a few . . . workers in other groups did not get paid for a few months,” and that he personally escorted ten of them to confront factory officials. These facts indicate that the non-payment of wages was apparently recurring, not aberrational.
Second, the appropriate inquiry does not focus simply on the number of corrupt acts, but on an assessment of the overall climate and context in which the opposition takes place. Where opposition to corruption transcends self-protection and represents a challenge to state-sanctioned modes of official behavior, a petitioner may be eligible for asylum. . . .
The fact that the protests organized by Yu challenged corruption at a single workplace does not render the corruption categorically aberrational without regard to the nature of Yu’s conduct.  In several ways, Yu’s conduct is typical of political protest (and may have been perceived as such by the authorities). Thus, the record indicates that Yu had no personal, financial motive to oppose the corruption, undertook to vindicate the rights of numerous other persons as against an institution of the state (a state-owned factory), and suffered retaliation by an organ of the state – the police.
Id. at 7-8. 
The single-workplace issue, the Second Circuit noted, was “sharply presented” because Yu had “failed to present . . . evidence of more broad-based corruption at state-owned factories in his native land.”  Id. at 8 n.2.  Nonetheless, the IJ and BIA erred by not “assess[ing] Yu’s claim in its full factual context” to determine whether Yu’s activities were “a challenge to the legitimacy of the government’s entrenched modes of conduct”, or whether the authorities had imputed a political opinion to him (which could be a basis for an asylum claim even if he did not hold such an opinion).  Id. at 8-10. 
One should not lose sight even after Ruqiang Yu of the importance of submitting evidence of systemic, country-wide corruption in an asylum applicant’s home country, if possible.  This author recently represented a client whose application for asylum was granted by the New York Asylum Office based on past persecution and a fear of future persecution relating to his opposition to corruption at a Russian state-owned enterprise (and who has agreed that this limited information about his case can be made public).  In that case, we submitted voluminous evidence of widespread corruption in Russia.  We would do the same today: even within the Second Circuit and even after Ruqiang Yu, it is still highly advisable if at all possible to submit such background evidence regarding the prevalence of corruption in the country of feared persecution, because it will assist greatly in showing that the applicant’s claim relates to “a challenge to the governing institution” under Yueqing Zhang and Castro.  Outside the Second Circuit, evidence of pervasive corruption throughout the country of feared persecution is even more important, under the BIA’s reasoning in Matter of N-M-.  

However, Ruqiang Yu teaches that at least within the Second Circuit (and perhaps elsewhere if the BIA or other Courts of Appeals accept the Second Circuit’s reasoning), some claims of asylum based on opposition to corruption may be viable even if evidence regarding country-wide corruption is for some reason unavailable.  In cases where reliable background evidence regarding the corruption in a particular country or region simply cannot be obtained despite vigorous efforts, applicants and attorneys need not despair.

Cyrus Mehta

THEY STILL HAVE THEIR DREAM: LAWSUIT AGAINST DREAMERS WILL GO NOWHERE

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By Gary Endelman and Cyrus D. Mehta

“The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King
As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by disgruntled ICE agents further reveals the misguided hate against a most vulnerable and sympathetic immigrant population in the US – young  people who entered the US before they turned 16, and who are not in a lawful status through no fault of their own.

The lawsuit, Crane v. Napolitano, has been filed by 10 ICE agents in a federal court in Texas who are being represented by Kris Kobach – the architect of the anti-immigrant state laws of Arizona and Alabama. It is being bank rolled by NumbersUSA, an anti-immigrant organization, which has been called a hate group. Even the head of the AFL-CIO has slammed the plaintiffs as not representing legitimate union grievances (as 9 out of the 10 plaintiffs belong to the ICE Union) but as “working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.”

The lawsuit alleges that the recent prosecutorial discretion policies enunciated in the Memo by ICE Director John Morton  and DACA command ICE officers to violate federal law. In essence, ICE officers, according to plaintiffs,  are required to remove non-citizens who are not here legally while DACA prohibits an officer from doing just that, which among other things, requires the individual to have entered the US under the age of 16;  been continuously residing in the US from June 15, 2007 until June 15, 2012, and was present on June 15, 2012;  is currently in school, has graduated from high school or obtained a GED or has been honorably discharged from the Armed Forces or the Coast Guard;  and is not above the age of 30. Also, the qualified individual should not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety.

The lawsuit invokes provisions from the 1996 Immigration Act. The complaint alleges as follows:  “8 U.S.C. § 1225(a)(1) [INA § 235(a)(1)] requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3) [INA § 235(a)(3)] which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A)  [INA § 235(b)(2)(A)] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a [INA § 240] are removal proceedings in the United States immigration courts.”

Deferred action is neither recent nor radical. Widows of US citizens have been granted this benefit. Battered immigrants  have also known its sheltering arms.  Never has the size of a vulnerable population been a valid reason to say no. Knowing this, the extension of such relief to DACA applicants is less a leap into the unknown justified by some wild, lawless ideology than a sober reaffirmation of an existing tool for remediation in prior emergencies. Moreover, many EWIs are also eligible for adjustment of status under special provisions of the law, but they are not routinely detained under INA § 235(b)(2)(A).  While they may be entitled to admission beyond a clear doubt, such a determination is not been made upon the mere filing of the adjustment application. Moreover, this argument is clearly not applicable to individuals who enter the US on a valid visa and overstay, which is the case with many DACA applicants.

Also, Kobach’s lawsuit conveniently omits to mention INA § 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the Act, which in turn implies that the DHS can decide when to and when not to remove an alien. He also fails to mention INA 274A(h)(3)(B), which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed . . . by the Attorney General.” After all, 8 CFR 274a.12(c)(14),  which authorizes the grant of employment authorization to one who has been granted deferred action, has been around for several decades. The only new thing about DACA is that the guidance memorandum set forth criteria for the grant of deferred action, and work authorization under 8 CFR 274a.12(c)(14).Congress too has recognized “deferred action” in § 202(c)(2)(B)(viii) of the REAL ID Act as a status,  which can allow an alien to receive a driver’s license.  This stands in marked contrast to the stated refusal of the Republican gubernatorial quartet noted supra to allow issuance of state driver’s licenses. Texas Governor Perry apparently does not realize that current Texas law already allows deferred action beneficiaries who have an employment authorization document to get a one-year Texas license.

There is a direct conflict between these Governors and the provisions of the Real ID act that, as of January 1, 2013, will sanction issuance of state driver’s license to deferred action grantees, This has been brought out vividly in Nightmare in Arizona: Governor Brewer’s Nonsensical And Mean-Spirited Executive Order Against Dreamers, and is a classic example of conflict pre-emption that is constitutionally impermissible under Arizona v. United States, 132 S. Ct. 2492, 183  L.Ed.2d  351 (2012). Whatever state executives may think, when confronted with the expressed intent of Congress in the Real ID Act, their opposition to deferred action having state driver’s licenses must give way. State law cannot “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,  312 U.S. 52, 67 (1941). We suggest that the enemies of Dream Act relief tread softly and with great care. Gary Endelman & Cynthia Lange, The Perils of Preemption: Immigration and the Federalist Paradox, 13 Bender’s Immigr. Bull. 1217 (Oct. 1, 2008).

We refer our readers to the excellent Immigration Impact blog on why Kobach and the plaintiffs will likely lose. One compelling argument that the blog makes is that the court will dismiss for lack of jurisdiction since a federal case cannot be made out of a difference of opinion between government employees and their superiors. The blog’s author Ben Winograd draws this apt analogy: “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees—or Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It’s just not how the legal system works.”

We propose further suggestions why the law suit may have no merit. We now revive the argument that we made in The Tyranny of Priority Dates that the courts will most likely give deference to the administration’s interpretation of INA provisions in the event that it grants benefits, such as work authorization, through executive action. Indeed, in the recent past, another restrictionist group filed a similar law suit against an administrative measure, which failed. In Programmers Guild v. Chertoff,  08-cv-2666 (D.N.J. 2008), the Programmers Guild sued DHS challenging the regulation extending Optional Practical Training from 12 months to 29 months for STEM (Science, Technology, Engineering and Math) students. The plaintiffs in seeking a preliminary injunction argued that DHS had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron,  the agency’s interpretation will also trump a judicial decision interpreting the same statute. The court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff,  338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with  “ the power to persuade.” Skidmore  v. Swift  & Co., 323 U.S. 134, 140 (1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001).  Kobach and his clients might profitably peruse Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429 (2006) if they really want to know why they are wrong.  Writing for the Brand X majority, Justice Thomas noted that, in Chevron itself, the Supreme Court deferred to the reversal by the Reagan EPA in 1981 as to the meaning of “statutory source” in the 1977 Clean Air Act amendments. Id. at 440, n. 66.   If  Kobach does not know if the DHS has the power to act, or what the constitutional wellsprings of the DACA memoranda are, we suggest that the Supreme Court does. The very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 159 (2000).  That is precisely what the DHS has done. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive Branch to grant employment authorization  to whomever it wants. Deferred action has also been around for decades, and Congress has been aware of this administrative benefit, which it recognized when enacting the Real ID Act. Until now, Chevron, and Brand X in particular, have been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own – at least in this law suit challenging DACA.

It is also worth mentioning that while the lawsuit may argue that there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Nativist lawyers look in vain for explicit authority in the INA that supports DACA relief. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229(2001)

Finally, one cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA. They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself. This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion. We think this is a losing proposition. In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials as an initial matter, must decide whether it makes sense to pursue removal at all.”  Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.  Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;   inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971). The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make due. It has served us pretty well so far.

Cyrus Mehta

NIGHTMARE IN ARIZONA: GOVERNOR BREWER’S NONSENSICAL AND MEAN-SPIRITED EXECUTIVE ORDER AGAINST DREAMERS

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On August 15, 2012, the day that the Consideration of Deferred Action For Childhood Arrivals programs (DACA) took effect, thousands of young undocumented people lined up at legal assistance clinics with hope and joy. They got to know whether they were eligible to file an application under DACA, and by filing an application, their deportation would be deferred and they would also obtain employment authorization.

It was extremely gratifying to be an immigration attorney that day volunteering at a DACA legal assistance clinic organized by the New York Immigration Coalition, among others. I could see in the twinkle in the eyes of each potential youth applicant when told that he or she could file under DACA. That twinkle revealed a whole new world of opportunity opening up. The sky seemed to be the limit, which before the June 15, 2012 announcement was simply unimaginable.

I could not help broadcast this tweet, @cyrusmehta.com:

To see hope and joy in the faces of 100s lining up at pro bono #DACA clinic of #NYIC+ #AILA NY makes being an #immigration attorney gratifying

As I was basking in the glow of that day and returning home on the New York subway, I saw on my Twitter feed that Governor Brewer of Arizona passed a mean spirited and hateful executive order that evening. According to the executive order, since deferred action does not confer lawful status or lawful presence, the alien granted employment authorization under DACA continues to be unlawfully present, and thus cannot avail of benefits in Arizona, including a driver’s license. I love Twitter because I can instantly express my thoughts, and hopefully there is an audience. These were my new tweets, quite different from the prior exuberant one, in reaction to the horror of Brewer’s executive order:

Brewer’s executive order is unlawful & wicked – there are many who are allowed to remain without lawful status. When is she being sued? #DACA

Brewer’s mean spirited exec order against granting #DACA applicants AZ driver’s licenses will help Obama in elections, http://bit.ly/N4LE8E

I write this blog to expand on my impetuous tweets of last evening.

First, deferred action has existed for several decades. Many have been granted deferred action, including John Lennon. Prior the announcement of DACA, non-citizens who have demonstrated extenuating circumstances, such as medical emergencies or who have lost parents, have been granted deferred action. In recent times, battered spouses, crime victims and widows/ers of US citizens have also been granted deferred action. There are other non-ctiizens who may not have lawful status but are allowed to remain in the US. These include people who are presently in removal proceedings. Even those who have been ordered removed, such as through the grant of withholding of removal (based on persecution in their home countries), can remain in the US and obtain work authorization. Moreover, due to a quirky split in jurisdiction involving arriving aliens between Immigration Court and USCIS, arriving aliens cannot file defensive adjustment applications in Immigration Court, but have to file them with the USCIS while an Immigration Judge can still order them removed. If the adjustment application is approved, they can become lawful permanent residents despite the removal order. How will Brewer’s executive order be able to differentiate between each of these categories of people who have been allowed to remain in the US?

Second, the grant of deferred action stops the accrual of unlawful presence. However, unlawful presence is different from unlawful status. Governor Brewer’s executive order does not seem to understand the difference. Unlawful presence is relevant, according to the USCIS DACA guidance, only with respect to determining whether one is inadmissible under the 3 and 10 year bars. Unlawful presence has nothing to do with status or the ability to remain in the US. There are situations when one may not be in lawful status and yet not be accruing unlawful presence since they are in a “period of stay authorized by the Attorney General.” A classic example is someone who entered lawfully as a tourist, fell in love with a US citizen and married him. She filed an adjustment of status application based on the US citizen spouse’s green card sponsorship. She is allowed to remain in the US while waiting for the green card, although her underlying tourist visa has expired. Such a person may not be in lawful status but is in a “period of stay authorized by the Attorney General” and is also not accruing unlawful presence. Governor Brewer’s executive order does not seem to have grasped any of these distinctions.

Third, in Arizona v. USA, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion. As noted in a prior blog I wrote with Gary Endelman, Justice Kennedy writing for the majority in that decision noted:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Arizona v. USA, supra, Slip Op. at pages 4-5.

Although the Supreme Court struck down all of the other provisions of Arizona’s SB 1070, it narrowly upheld 2(B), the “show me your papers” law, which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” The Supreme Court upheld the provision, for now, since it had not taken effect, but cautioned that a person’s detention under an Arizona provision cannot be prolonged because the state cannot readily determine this person’s immigration status.

Governor Brewer, through her executive order, has perhaps unwittingly opened up another challenge to 2(B). By not recognizing that a grant of deferred action to remain lawfully and work in the US, it will be disregarded by Arizona’s law enforcement personnel, such as by the notorious Sheriff Joe, and his troopers, when he stops a non-citizen for jay walking and suspects that a person is unlawfully present in the US. Even if this DREAMer shows Sherrif Joe an employment authorization that was issued through a DACA filing, it could be disregarded and the person’s detention could be needlessly prolonged even though the federal government has allowed this person to lawfully remain in the US and no longer considers him unlawfully present for purposes of the 3 or 10 year bar.

Finally, it remains to be seen whether Brewer’s executive order will be politically viable. The GOP may see more Latino voters flee by the November elections, and the future of the party without support from Hispanics and minorities looks grim. Moreover, the granting of status to undocumented youth under the proposed DREAM Act, with promise to do well and contribute to the US, has broad support among the American people. Governor Brewer will likely find herself on the wrong side of history, only to be relegated forever in its garbage heap.