Cyrus Mehta

THROUGH THE LOOKING GLASS: ADVENTURES WITH ARRABALLY AND YERRABELLY IN IMMIGRATION LAND

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By Gary Endelman and Cyrus D. Mehta

“Why, sometimes I’ve believed as many as six impossible things before breakfast.”

― Lewis Carroll, Alice in Wonderland

Arrabally and Yerrabelly are not characters in a children’s fantasy story book. They were the respondents in a decision of the Board of Immigration Appeals styled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which to immigration attorneys is like a fairy tale story come true. The decision is magical, and truly benefits foreign nationals who are subject to the 3 and 10 year bars even if they travel abroad.

Indeed, Arrabally and Yerrabelly, husband and wife respectively, were unlawfully present for more than 1 year. A departure after being unlawfully present from the US for one year renders the individual inadmissible for a period of 10 years. Specifically, § 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA) provides:

Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more , and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible

A companion provision, INA § 212(a)(9)(B)(i)(I) triggers a 3 year bar if the non-citizen is unlawfully present for more than 180 days and less than one year, and leaves the US prior to the commencement of removal proceedings.

The 3 and 10 year bars create a federal Catch-22. An individual who is unlawfully present cannot generally apply for lawful permanent residence in the US through adjustment of status unless he or she falls under limited exceptions. Such an individual who is ineligible to apply for a green card in the US must leave the US to process for an immigrant visa at an overseas consular post. But here’s the catch: If this person leaves the US he or she will trigger the bar and cannot return for 10 years. Thus, this person, even though approved for a green card, remains in immigration limbo.

Arrabally and Yerrabelly were unlawfully present too for more than 1 year, and would have triggered the 10 year bar had they “departed” the US. Fortunately, they were able to file Form I-485 applications for adjustment of status under an exception, INA § 245(i), after the employer’s I-140 petition got approved. § 245(i), which expired on April 30, 2001 but which could still grandfather someone if an immigrant petition or labor certification was filed on or before that date,  allows those who are out of status to  be able adjust status to permanent residence in the US. Due to a family emergency in India, they left the US under advance parole, which is a special travel dispensation one can obtain when one is a pending applicant for adjustment of status. At issue is their case was whether they effectuated a “departure” under advance parole and thus triggered the 10 year bar.

The DHS has always taken the position that leaving the United States under advance parole effectuates a departure and thus triggers the 10 year bar under § 212(a)(9)(B)(i)(II) if the individual is unlawfully present for one year.

The adjustment of status applications of Arrabally and Yerrabelly were denied on the basis that they were inadmissible for 10 years, and were subsequently placed in removal proceedings. The Immigration Judge affirmed the DHS’s finding, but the BIA like magic reversed on the ground that their leaving the US under advance parole did not result in a departure pursuant to § 212(a)(9)(B)(i)(II) thus rendering them inadmissible under the 10 year bar. The BIA reasoned that travel under a  grant of advance parole is different from a regular departure from the US, since the individual is given the assurance that he or she will be paroled back in the US to continue to seek the benefit of adjustment of status. Thus, traveling outside the US under advance parole does not trigger the 10 year bar. Although Matter of Arrabally and Yerrabelly interpreted the 10 year bar provision under § 212(a)(9)(B)(i)(I), its logic can apply equally to the 3 year bar under § 212(a)(9)(B)(i)(I).

The decision now allows foreign nationals like Arrabally and Yerabelly, who may have been unlawfully present to travel outside the US on advance parole while their adjustment of status applications are pending without fearing the 10 year bar. But the decision opens up other amazing possibilities too. If a person is unable to adjust status by virtue of being out of status, and cannot do so under the § 245(i) exception, another exception is by adjusting status as an immediate relative of a US citizen. The spouse, minor child or parent of a US citizen can adjust status in the US even if they have violated their status. However, this individual must still be able to demonstrate that he or she was “inspected and admitted or paroled” in the United States under INA § 245(a) as a pre-condition to file an adjustment of status application in the US.  Thus, a person who enters the US surreptitiously without inspection is ineligible to adjust status to permanent residence in the US despite being married to a US citizen. Such a person may still have to proceed overseas at a US consulate for immigrant visa processing, and will need to overcome the 10 year bar through a waiver.  This would not be necessary if such immediate relative could be granted “parole-in-place” which at this point of time is only granted to spouses of military personnel in active duty. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.”

Notwithstanding the lack of “parole in place” for all applicants,  in yet another ground breaking case, Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the BIA held that someone who presents herself at the border, but is waived through, is still inspected for purposes of adjustment eligibility. For example, a person who is a passenger in a car, and is waived through a border post at the Mexico-US border can still establish a lawful entry into the US. Matter of Quilantan can be further extended to someone who enters the US with a photo-switched fraudulent non-US passport. Such a person has also been inspected, albeit through a fraudulent identity. Foreign nationals in such situations, if they can prove that they were inspected, can qualify to apply for their green cards in the US through adjustment of status if they marry a US citizen or are the minor children or parents of US citizens.  They may however be subject to other grounds of inadmissibility, such as fraud or misrepresentation, but they can at least file those waivers with an I-485 application in the US. While it is true that in another feat of administrative innovation, the DHS has proposed that some can apply for the waiver of the 3 and 10 year bars in the US prior to their departure, this rule may not extend to applicants who are applying for an additional waiver, such as to overcome the fraud ground of inadmissibility.

Despite Matter of Quilantan, USCIS examiners during an adjustment of status interview require corroborating evidence of this admission, and may not accept only the sworn statement of the applicant regarding the manner of his or her entry into the US. They may want to actually see the photo-switched passport, which may no longer in the possession of the applicant.  Such a person may still be found ineligible to adjust status despite being inspected and admitted in the above manner under Matter of Quilantan. But if this person, after filing an adjustment of status application, left the US under advance  parole and returned to the US, he or she would be considered  “paroled” into the US and qualify for a new adjustment of status application as an immediate relative of a US citizen. If the first I-485 application is denied, he or she could file this second application where the “parole” would be a clearer basis for adjustment eligibility than the initial “waived through” or fraudulent admission.  Moreover, under Matter of Arrabally and Yerabelly, this individual would not have triggered the 10 year bar during travel under advance parole during the pendency of the first adjustment application. Travelling abroad under advance parole during the first adjustment application without triggering the 10 year bar could give an applicant a second bite at the apple in filing another adjustment application if the first one gets denied for lack of evidence of an admission. There is one caveat though. This is still an untested theory but the authors do not see why it could not be argued in the event of a denial of the first adjustment application, assuming it was filed in good faith and denied only because of lack of corroboration of the admission. Using Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

Matter of Arrabally and Yerrabelly can come to the rescue of DREAMers too. In our recent blog, DEFERRED ACTION: THE NEXT GENERATION, June 19, 2012, we proposed extending the holding of Matter of Arrabally and Yerrabelly to beneficiaries of deferred action. There are bound to be many who will be granted deferred action who will also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions.  As already explained, unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted and inspected, filing an application for adjustment of status to permanent residence will generally not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

Since the publication of our blog, the USCIS has issued extensive guidelines for consideration of Deferred Action for Childhood Arrival (DACA) in the form of Frequently Asked Questions (FAQ), which will take effect on August 15, 2012.  We were pleasantly surprised to find in the FAQ that those granted deferred action beneficiaries can apply for advance parole.  It is yet unclear whether one who has been granted deferred action and who has accrued unlawful presence and travels under advance parole can take advantage of Arrabally and Yerrabelly and the current FAQ does not suggest it.  At this point, a DACA applicant should assume that Arrabally and Yerrabelly will not apply, and an individual who has accrued over one-year of unlawful presence and leaves even under advance parole could face the 10-year bar.    Still, there is no reason for Arrabally and Yerabelly’s magic to not apply in this case too. Here too, the individual will be leaving the US under advance parole, which under Matter of Arrabally and Yerabelly, did not effectuate the departure under INA § 212(a)(9)(B)(i)(II). This is something worth advocating for with the USCIS as the DACA program unfolds. Obviously, USCIS will tread carefully as it is already facing criticism from opponents of the program, including members of Congress. Yet, applying Matter of Arrabally and Yerrabelly to young people who have been granted a fresh lease of life would be a logical extension.  The FAQ also indicates that the USCIS will only grant advance parole if one is travelling for humanitarian purposes, education purposes or employment purposes. Again, the FAQ does not expand on what humanitarian, education or employment purposes mean.  A deferred action beneficiary with an approved I-130 or I-140, which has become current for green card processing, can conceivably apply for advance parole based on humanitarian purposes to apply for immigrant visa at the consular post overseas.   His or her departure under advance parole, if Matter of Arrabally and Yerrabelly applies, will not trigger the 10 year bar. If this person successfully comes back on an  immigrant visa to be granted permanent residence upon admission, query whether the holding will still apply.  After all, the BIA in Arrabally and Yerrabelly contemplated a return as a parolee and not as a permanent resident.  Yet, again, just as the BIA performed magic when interpreting “departure” to not apply to those leaving the US under advadnce parole, there is no reason for the USCIS to not stretch it to a scenario where the deferred action beneficiary will leave on advance parole, thus not triggering the 10 year bar, in order to return to the US as an immigrant.  This is clearly not the current position of the USCIS as articulated in its FAQ.  The purpose of our blog is to advance interpretations that would be favorable for DREAMers down the road.

On the other hand, Matter of Arrabally and Yerrabelly can be more readily applied to those who otherwise would not be able to adjust status if they made an entry without inspection but were immediate relatives of US citizens. Such people would not need to process an immigrant visa at a US consulate overseas if they could adjust status.  Unlike an adjustment of status applicant, a DACA applicant can file an application for deferred action even if he or she entered without inspection. If later, this applicant, now granted deferred action, married a US citizen, he or she could leave under advance parole and not trigger the 10 year bar. At the same time, he or she would have also been paroled back into the US, making him or her eligible to adjust status, which prior to the parole would not have been possible. This fact pattern clearly falls under the four corners of Matter of Arrabally and Yerrabelly as opposed to someone proceeding overseas under advance parole and returning as a permanent resident. Yet, we reiterate, at this point, it is not at all clear whether Matter of Arrabally and Yerrabelly will apply to deferred action beneficiaries who travel abroad, and they should seek the advice of competent legal counsel before they wish to apply for advance parole in order to travel.

While DACA is clearly not designed to create a pathway to permanent residence, Matter of Arrabally and Yerrabelly can facilitate this indirectly through independent I-130 or I-140 petitions that were filed on behalf of the deferred action beneficiary. Although only Congress can change the law, the President can find new ways to expand the relief available under current law. Our proposal would relieve the Administration from the burdens of extending deferred action every two years (assuming the program lasts for that long) once the beneficiary is granted permanent residence. After all, until Congress acts to reform our broken immigration system, it behooves us to be wildly creative, even to the extent of imagining that fairy tales might become reality, like what the BIA achieved in Matter of Arrabelly and Yerrabelly. Indeed, precisely because DACA is a remedial initiative, it deserves and should be granted the most generous administration infused with the central goal of remaining true to the reasons that inspired its creation. For this to happen, we turn to the wisdom of Albert Einstein:

When I examine myself and my methods of thought, I come to the conclusion that the gift of fantasy has meant more to me than any talent for abstract, positive thinking
All we have to do is dream!
Cyrus Mehta

Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?

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Advising a client on how to answer Kafkaesque questions on immigration forms regarding potential past criminality can pose a dilemma for the ethically-minded immigration attorney and the processes raises a multitude of complex issues cutting across various areas of law.

For example, the Form N-400, Application for Naturalization, asks broadly “Have you ever committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Some states criminalize “fornication” (sexual intercourse between unmarried persons) despite this type of law’s dubious constitutionality. New York criminalizes adultery no matter how long ago a person separated from the spouse. Does an immigration attorney have to plumb a client’s sexual past to answer the question on the N-400 application? Must the lawyer then also report the client’s other past potential offenses such as speeding?

The question on the I-485 application asks more narrowly if one has knowingly “committed any crime of moral turpitude [“CIMT”] or drug-related offense” which did not result in arrest. Given the heavy litigation in this area, only a lawyer with experience could recognize a CIMT. Under the categorical approach, which requires consideration of the minimal conduct implicated by a penal law, even if one has engaged in “theft,” a temporary taking of another’s belongings (rather than a permanent one) may not be morally turpitudinous. See e.g. Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007). Regarding a “drug-related offense,” if your client smoked pot at a concert during college, how do you assess whether the act was a crime within that jurisdiction back then? In a complex penal law system, requiring the prosecutor to determine the applicable law and demonstrating each element of guilt beyond a reasonable doubt, without a lab test can the client know beyond a reasonable doubt that the substance was pot and not say oregano?

ABA Model Rule 3.3(a)(1) states that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of a material fact or law previously made to the tribunal by the lawyer…” Criminal penalties may attach to a lawyer who knowingly falsely prepares an application for a client. See 18 USC 1001, 18 USC 1546 or 18 USC 371. Whether a lawyer can be accused of unethical or criminal conduct without knowing that a crime occurred is unclear; an overzealous prosecutor or bar investigator might pursue it.

The question of knowingly committing a crime for which one has never been arrested derives from INA § 212(a)(2), which makes inadmissible one who admits having committed certain crimes. Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible; he or she can be equally snared for having admitted to the commission of a crime. Yet, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.

The requirements established by the BIA to corral the unwieldy question suggests that it defies a straightforward answer. Even in what seems an obvious admission of crime – your client arrives to sign the form and reports having just killed someone, might she have committed an act of self-defense if she was in a city with a Stand Your Ground law?

This is a revised version of an article that originally appeared in AILA’s Immigration Practice News (June 2012). Copyright © 2012, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s Immigration Practice News, (June 2012), available from AILA Publications, http://agora.aila.org.

The author thanks his associate, Myriam Jaidi, for assistance on this article.

Cora-Ann Pestaina

The H-1B Process Gets Even Harder: DOL Proposes Dramatic Changes to the LCA Form

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I still think longingly of the days when certification of a Labor Condition Application (“LCA”) could be obtained within seconds. Three years ago, the Department of Labor (DOL) mandated that all LCA filings must be filed through its iCERT portal (http://icert.doleta.gov/) and that each application form, also changed to request additional, new information, would be manually reviewed prior to certification. This change increased the official LCA processing time from a few seconds to 7 business days. Human error and other systemic problems at the onset of the change resulted in filings taking three weeks or longer to process which led to late filings on H-1B petitions, a public outcry and US Citizenship and Immigration Services (USCIS) temporarily allowing employers to file H-1B petitions without certified LCAs! The new iCERT system forced H-1B employers to change their approach to filing H-1B petitions. The LCA process is about to change again.

As a background, an employer seeking to employ a temporary foreign worker in H-1B, H-1B1 or E-3 nonimmigrant status must, as the first step in the petition process, file an LCA with the DOL and receive certification. The LCA is completed on electronic Form 9035 through the DOL’s iCERT system. The LCA collects information about the occupation and there are special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. An employer is permitted to file the LCA no more than six months before the initial date of intended employment.

The DOL now seeks to once again revise the scope of the information collected on the LCA citing, in its LCA supporting statement, a desire to improve its integrity review and ensure the accuracy and completeness of the information. On July 9, 2012, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. In a process that is likely to take several months, the changes must be approved by the federal Office of Management and Budget before they can be implemented.

Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the nonimmigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit US workers; and requiring the employer to list the address where the employee’s public access file is kept.

Some of the changes are even more significant.

Identification of Intended Beneficiaries

The current LCA does not require any information identifying the intended beneficiaries. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed.

In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws which collectively cover virtually all private, State and local government employment, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.

The DOL makes some valid points.  The majority of employers do not need to complete an LCA for more than 10 workers at a time. iCERT indeed saves most of the information and it may not be overly burdensome to complete multiple LCAs.  However, since employers are required to make LCAs available for public inspection, privacy and identity theft concerns are easily justifiable. The DOL ought to address this.

In addition, what the DOL has not addressed is the flexibility that will be lost because employers will no longer be able to use an existing, certified LCA to file a nonimmigrant petition for a new hire. The new identification requirement may be hard on large employers who file numerous H-1B petitions. The current annual cap on the H-1B category is 65,000. Each year, on April 1, USCIS begins accepting cap-subject H-1B petitions for employment to commence in the new fiscal year, on October 1. Employers typically scramble to prepare and file cap-subject H-1B petitions before the cap closes. For large employers, especially those with branches abroad, it is may be difficult to come up with a list, in March or April, as to who will be transferred to the US to work in October. These hiring decisions are ongoing and employers rely on the flexibility of the LCA which allows them to quickly file an H-1B petition using an existing, certified LCA provided it lists the correct information such as visa category, job classification, etc. This way, employers are not always forced to spend 7 business days waiting for the LCA to be certified and watching existing H-1B visa numbers dwindle.

What about that H-1B worker who just received notice from his current employer and has luckily found a new employer willing to file an H-1B on their behalf? How significant would it be if the new employer is able to use an existing, certified LCA and file an H-1B transfer petition before that worker falls out of status? What the DOL describes as a “relatively quick turnaround on LCA approval” can seem interminable in the case of an emergency. The DOL must bear in mind that no matter the emergency, it provides no expedite procedures for the LCA. Flexibility is therefore very important.

Interestingly, the new LCA would require listing the beneficiaries’ PERM application numbers. At this time, the possible acceptable responses to this question are not clear. But, since the PERM application is filed by the employer, a new employer of an H-1B transfer might not have this information. But this requirement suggests that the DOL may begin to cross reference the job opportunities in the nonimmigrant and immigrant cases as well as match the wages in both the cases.

Limiting the LCA to only 10 workers

Currently, a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions.

The DOL now seeks to limit the number of workers to 10 per LCA explaining that it has found enforcement of LCA obligations difficult when an LCA is for 50 or 100 job opportunities and it would be a significant expenditure to build an electronic form to accept more than 10 names.

The issue, as discussed above, may not be with the limit of 10 names, but with naming requirement itself and the limitations that come from that.

Worksite Identification

The current LCA form requires the employer to identify the place(s) of intended employment. This entails listing the complete address and county where the beneficiary will work. The proposed new LCA will require significant additional detail.

The employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.

In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems.

Again, the employer’s flexibility may be taken away. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA. See 20 C.F.R. §655.731(a)(2) which states that the wage on an LCA is valid for the area of intended employment. If each LCA has to list the end client information, will the employer be required to complete a new LCA each time it moves an employee even if it is within the intended area of employment?

Also, in cases where the employer is filing a change of status petition on behalf of the beneficiary or the beneficiary is abroad and will obtain an H-1B visa to enter the US, until the beneficiary is lawfully present in the United States in valid H-1B status and is thereby authorized to accept employment in the United States, the employer cannot hold him out as an employee.  See 8 C.F.R § 274a.1(c) and (f). Therefore, the employer may not be able to obtain that end client agreement prior to preparing the LCA.

Business immigration practitioners may already know that cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. In light of that, the proposed changes to the LCA form are not surprising and seem to stem from some concern on the part of the DOL, with regard to LCA compliance and the bona fides of the offer of employment. Following the request for end client information on the proposed form is the irrelevant and possibly offending question, “Is this a bona fide job opportunity?” The DOL’s makes no effort to hide its blatant mistrust of the employer who places its employee at an end client site.

In recent times, the US government has taken small steps to attract foreign workers and to show that they are an asset rather than a liability. The changes to the LCA will again add more burdens on the employer by eliminating flexibility. On March 12, 2012, the USCIS issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition. The DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for US companies to attract global talent.  In addition to the proposed changes to the LCA, there is proposed legislation in the form of HR 3012 (following the compromise between Senators Grassley and Schumer) that will grant the DOL draconian powers in denying LCAs based on undefined indicators of suspected fraud and thus hold up the processing of H-1B petitions.    Are the proposed changes to the LCA form taking two steps back?

Cyrus Mehta

HR 3012: A Good Bill Saddled With a Bad Amendment

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By Myriam Jaidi

As Cyrus Mehta noted in his December 7, 2011 blogpost regarding H.R. 3012, “How Fair is the Fairness for High-Skilled Immigrants Act?”, although not a perfect bill, H.R. 3012 passed the House in November 2011 by a landslide. The bill, as passed by the House, would eliminate the employment-based per country cap entirely by 2015 and raise the family-sponsored per-country cap from 7% to 15%. The passage of this bill by a margin of 389-15 signaled the strong bipartisan concern with the significant inequities in the immigrant visa system with regard to individuals from certain countries, especially individuals from India and China sponsored for employment-based immigrant visas. Although the country limits addressed by H.R. 3012 were originally enacted for all countries, these limits have resulted in mind-boggling wait times for people from India and China. For example, for Indians in the employment-based third preference (EB-3) category, some have estimated the wait times could be up to 70 years!

The landslide, bi-partisan passage of H.R. 3012 in the House was also proof positive that Congress, despite the gridlock and often seething partisanship, is in fact deeply concerned with repairing our country’s dysfunctional and unfair immigration system, especially in at a time when economic and global realities require the United States to reform the system to facilitate our ability to compete more effectively in the global economy. Both our “home-grown” and imported talent will mutually benefit from more reasonable access to visas for highly-skilled immigrant (and nonimmigrant) workers, as many U.S. business leaders such as Bill Gates have attested (see pages 12 to 14 of his testimony). Further proof of that fact is the strong support of entrepreneurs, both foreign and domestic, by the Obama Administration, as demonstrated by the Start-Up America and Entrepreneurs in Residence initiatives.

Then along came Senator Grassley’s hold on the bill in December 2011. After extensive negotiations, on July 11, 2012, Senator Grassley lifted his hold. To remove the hold, senators in favor of the original bill reached what may well be a sort of “Faustian bargain” with Senator Grassley. In order to agree to lift the hold on the bill, Senator Grassley demanded provisions that could severely hamper the already difficult H-1B nonimmigrant visa process and, in tandem with that, hamper U.S. businesses and their ability to compete in the global economy.

So, what’s the big deal? This is what Senator Grassley had to say about the amendment he proposed:

[T]here is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H–1B visa program.

I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers.

Sounds fine, right? Protect American workers, combat fraud, what’s wrong with that? There is of course nothing wrong with protecting American workers and preventing fraud. Supporters of the amendment seem to frame their support in the same way that people who criticize the Constitutional protections against unreasonable searches and seizures and self-incrimination frame those criticisms: if companies are not doing anything wrong, they have nothing to fear, right, from a search, seizure or questioning?

Senator Grassley’s description of his proposed amendment is something of a gross oversimplification. First of all, the amendment covers issues already addressed by existing law so query whether the amendment will serve any constructive purpose. The Immigration and Nationality Act (“INA”) and implementing regulations, as well as the related rules promulgated by the Department of Labor (“DOL”) addressing the process of obtaining approval of a labor condition application (“LCA”), the necessary first step of the H-1B sponsorship process, already include extensive protections for American workers and provisions to search out and punish fraud, if it does occur. Just to name a few examples, the existing rules require notice to “U.S. workers” (which, pursuant to the DOL regulations at 20 C.F.R. § 655.715, include citizens or nationals of the United States as well as green card holders, refugees, asylees, or “an immigrant otherwise authorized (by the INA or by DHS) to be employed in the United States” – it is unclear who Senator Grassley’s term “American workers” includes), provide minimums for offered salaries to ensure that such salaries do not undercut the salaries of U.S. workers, and where employers are “H-1B dependent”, the rules require, if such employers offer a salary of less than $60,000 per year, that they attest, and when called upon to do so, demonstrate, that they have made good faith efforts to recruit U.S. workers for the offered position (see 20 C.F.R. § 655.738-655.739)). Penalties for violations of the rules are already included in the statute and governing regulations (see INA § 212(n)(2)(C)).

So what does Senator Grassley’s amendment do? The amendment changes, but does not clarify, the trigger for DOL review of an application from “only for completeness and obvious inaccuracies” to “for completeness, clear indicators of fraud or misrepresentation of material fact.” The amendment does not define what might constitute “clear indicators of fraud or misrepresentation of material fact,” although these may be similar to the ones some authors have observed that USCIS followed (and may still) as indicators of fraud in H-1B cases: companies grossing under $10 million per year, companies with less than 25 employees, companies established less than 10 years ago, etc. Grassley’s amendment to the bill also changes the investigation process by removing the need for “reasonable cause” to conduct an investigation based upon a complaint, which continues to be the basis on which an investigation may be commenced. Thus, any complaint, reasonable or not, received by the DOL about an employer could serve as the basis for an investigation.

What does this mean for the process? It could bring the process of getting an LCA approved to a standstill and therefore limit or even prove fatal to an employer’s ability to hire a highly skilled foreign worker on an H-1B nonimmigrant visa. First, let us consider cap-subject cases. Each fiscal year, only 65,000 H-1B visas are available and time is usually of the essence because the H-1B cap “opens” on April 1, for an October 1 start date for cases subject to the cap, and in many years, the cap was often reached on or soon after that April 1 date, so there is great competition for these visas and having them ready to file on time is crucial. Currently, the process of getting an LCA approved takes about 7 business days. During this period, the DOL checks for obvious inaccuracies, checks the existence of the employer, salary details, and whether the employer has made the appropriate attestations, among other details. This 7-day period is a built-in delay of the process. Under the current laws, an investigation may be conducted for a period of up to 60 days (see INA § 212(n)(2)(G)(viii)). Under the proposed amendment, there appears to be no time limitation on the length of time an investigation may continue.

Without any sense of how long an investigation may take, and given the uncertainty of the trigger, an employer who is certain it wants to hire an individual for an October 1 start date, cannot build in more than 6 months of precautionary time for what could amount to a random investigation, because the current process does not allow an LCA to be prepared and submitted to the DOL for processing more than 6 months prior to the intended start date of the H-1B visa. For cases that are not cap subject, such as a company hiring an individual who already holds H-1B status, the risk is losing a highly-skilled prospective employee who may be desperately needed because of uncertain delay in the very first step of the process. The portability process created by the American Competitiveness in the 21st Century Act (“AC21”), which allows a change to a new employer immediately after that employer files an H-1B petition, cannot do anything for an employer looking to transfer someone’s H-1B to their company if they cannot get the H-1B petition filed because the LCA process is held up by investigation. Viewed in this light, this amendment to a well-meaning bill would obstruct the flexibility promoted by AC21, the intent of which was to promote the United States’ ability to compete in the 21st Century!

Senator Grassley’s amendment also allows the DOL to conduct “surveys of the degree to which employers comply” with Grassley’s new LCA regime. Exactly how such surveys would be conducted, who would be involved, and how long they might take is unstated. Under Senator Grassley’s amendment, the DOL may also conduct annual compliance audits of any H-1B employer. Of course, compliance audits are already a part of the existing rules. However, the new twist is that the DOL must conduct such annual compliance audits of “each employer with more than 100 full-time equivalent employees who are employed in the United States if more than 15 percent of the number of such full-time employees are H-1B nonimmigrants . . . .” Although there is a four-year period between allowed compliance audits for employers who pass muster, the amendment also provides for publication of the DOL’s findings. Given the current anti-immigrant climate and the tendency of many people to blame foreign workers for the lack of available jobs, publishing results even of companies who are completely in compliance could lead to backlash against the companies, or could lead companies to avoid hiring foreign workers in the United States, and perhaps moving operations overseas or to Blueseed to avoid exposure.

Removing per-country limits on employment-based immigrant visas and increasing the limits on family-based immigrant visas are obviously laudable goals, but query what risks Senator Grassley’s amendment poses. The reality appears to be that the amendment will not serve its stated ends but rather will serve to obstruct access to highly-skilled foreign workers and undermine U.S. businesses and their ability to compete in the global economy. Perhaps it would be best if H.R. 3012 were passed – without Senator Grassley’s amendment.

Cyrus Mehta

The Ties that Bind: Can Family Unity Co-Exist with Maintenance of Lawful Permanent Resident Status?

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By Gary Endelman and Cyrus D. Mehta

While many covet lawful permanent resident (LPR) status in the US, popularly known as the green card, since it allows them to freely live and work in the US, it can also become a burden if one remains absent from the US, which can result in the loss of this status. This happened in Lateef v. Holder, where the petitioner, a Pakistani national, argued that despite multiple long absences from the United States, she did not intend to abandon her status, which also served as the foundation for her husband’s and child’s entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA’s finding that she had abandoned her LPR status. The court also noted that the petitioner, at the end of a long and exhausting international flight, fearful of losing her LPR status, had lied in one instance to border officials about the date of her last visit to the United States.

Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner’s daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.

The main lesson learned from Lateef v. Holder is that waiting outside the US with your loved ones, until they can immigrate to the US, can result in abandonment of your green card. Due to the tremendous backlogs in the family-based immigration system, it can take years before an LPR can sponsor a spouse or child to the US, thus compelling the LPR to be absent from the US until such time that the family members are issued immigrant visas. The case highlights the tensions between a global world involving frequent travel, and where families live apart in different countries, and an insular immigration system.

Lateef, a native of Pakistan, became a LPR in 1991 along with her parents and brothers. She initially went back to Pakistan to complete her final 2 years of medical school, and then returned to the US and remained for over 2 years. After Lateef married her husband in Pakistan in June 1995, she spent most of her time in Pakistan until February 2001, when she was charged with inadmissibility based on abandonment of her LPR status. Between 1995 and 2001, she returned periodically to the US to take her medical exams. Her husband was also denied a visitor visa during this time. She also gave birth to a daughter in Pakistan. Although, according to the majority her daughter was granted LPR status “as a child born during a temporary visit abroad” to an LPR under 8 C.F.R. § 211.1(b)(1), Judge Stranch’s dissenting opinion disputes this fact. Due to an error by the INS at the port of entry, according to Judge Stranch, the daughter was not granted LPR status under this special dispensation. Lateef had to file a separate I-130 petition on behalf of her daughter, which resulted in the daughter having to wait in Pakistan for many years. Lateef’s daughter developed behavioral problems whenever she came to the US to take medical exams. She was thus forced to return to Pakistan, and she last left the US in November 1999 due to her daughter’s continuing behavioral problems, where she remained there for a year and three months. Her husband and children (by then she also had a son) were granted immigrant visas in November 2000, but she stayed in Pakistan until 2001 to attend weddings.

When Lateef last arrived in the US in February 2001 after being out since November 1999, she falsely told the officer that she was last in the US in July 2000. Upon being confronted, she changed her story that she was last in the US in April 2000, which was also untrue. When being further confronted with documents found in the family’s luggage, she confessed that she was out since November 1999 and that she had previously lied to immigration officials.

Before we draw further lessons from Lateef v. Holder, we give you a primer on the law of abandonment of LPR status. For a more extensive review on this subject, we refer you to our article, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.”If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

Singh v. Reno is worth further elaboration as the facts in this case are somewhat analogous to Lateef v. Holder. Singh obtained lawful permanent residence through the special agricultural worker program on December 1, 1990. From that date till the initiation of the proceedings on July 8, 1993, Singh spent less than one-third of his time in the US. In fact, he spent time with his wife and daughter in the United Kingdom who were waiting for their family-based immigrant visa petition to materialize. During the time Singh spend in the US, he worked sporadically for a restaurant in California, and lived in temporary housing provided by the employer. Singh also applied for a visitor visa at the US consulate in London and entered the US four times on that visa after he obtained permanent residency in the UK. The Ninth Circuit held that Singh’s long visits to the UK did not qualify as a temporary visit, even though he was never out of the US for more than a year, and upheld the Board’s decision affirming his abandonment of LPR.

In a scathing dissent, Judge Reinhardt criticized the majority for failing to consider that Singh’s motive for spending time abroad was due to the wait for his wife and daughter to gain immigration status. Moreover, the dissenting judge disagreed with the majority that the wife and spouse were free to reside in the US while waiting for their immigration status.

Another important case is Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), which in turn drew from Singh v. Reno. Although the facts in Hana v. Gonzales, are similar to Singh, the Sixth Circuit found that Hana, an Iraqi national, did not abandon her status. On May 22, 1992, Hana was granted LPR status upon which she immediately filed immigrant visa petitions for her husband and four children. A few weeks later, on July 19, 1992, Hana returned to Iraq, and to her job as an inspector at the Central Bank of Iraq under the Saddam Hussein regime. Hana was compelled to return to Iraq to work because she was afraid that the government would hurt her family. Upon obtaining a reentry permit, Hana spent in the next two years in Iraq with her family and to care for her terminally ill mother in law. Two weeks prior to the expiration of her re-entry permit in December 1996, Hana returned to the US but was detained and charged with inadmissibility as an immigrant without a valid visa. Hana admitted that she had never paid income tax in the US and had no property in this country, but had initially entered with $10,000 in jewelry and money, which she gave to her brother so that she could ultimately purchase a home and car, and provide for her children when they arrived in the US.

While ruling in Hana’s favor, the Sixth Circuit emphasized that it must take into account the totality of the alien’s circumstances in addition to the two-part test established in Singh v. Reno to determine what constitutes a temporary visit abroad. Thus, while Hana did not possess family, property or job in the US, the Court held that she still had an intent to return to the US upon the materialization of her family members’ immigration visa petitions. It appears that the Sixth Circuit was influenced by Hana’s decision to remain in Iraq with her family to ensure that they were not harmed by a brutal regime’s henchmen and for caring for her terminally ill mother-in-law. The Sixth Circuit distinguished Singh v. Reno, by observing that Singh’s family, even though not free to reside in the US, could freely travel between the two countries which were relatively safe democratic nations, although the Court acknowledged that Singh was a “close case.” Clearly, Hana is a better decision as it recognizes an LPR’s need to remain with family overseas, and is also more understanding of the realities of the backlogs in family-based immigration, along with the difficulty that sponsored family members may have in obtaining visitor visas to the United States as well as the political and economic realities that might hinder one’s ability to return to the US quickly.

Lateef v. Holder is also from the Sixth Circuit, and Lateef sought to show that her case was similar to Hana, but the majority thought otherwise. Unlike the Hana petitioner, who was forced to remain in Iraq to protect her family from a brutal dictatorship, the Lateef court thought that Pakistan was a free country that allowed its people to travel. Also compare Hana’s intent to return to the US upon the immigration of her relatives, which the Sixth Circuit paid attention to despite her lack of other ties, with the refusal of the Sixth Circuit to pay similar deference to Lateef’s intent as a controlling factor. It appears that the Sixth Circuit thought that Lateef’s case was more like Singh who could freely travel between two democratic countries, the United Kingdom and the US, even though they had relatives who were waiting in the preference system for immigrant visas. While this is a refreshing observation on Pakistan, we know anecdotally that Pakistani nationals do not otherwise fare too well in our immigration system. Their applications for routine immigration benefits get scrutinized more than others through the prism of national security, and they are more amenable to be placed in removal proceedings notwithstanding the new DHS prosecutorial discretion policy set forth in the Morton Memo of June 17, 2011. It is true that Lateef did not have a reentry permit, unlike Hana, when she returned to the US in February 2011 and even lied about the last time she came back to the US. This may have cut against her, but the misrepresentation would not have been material, and thus an additional ground of inadmissibility, if she had not abandoned her LPR status. Also, a reentry permit is not an essential prerequisite for maintaining LPR status. In yet another decision involving a Pakistani national, Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003), the petitioner, after obtaining LPR status, left for Pakistan to marry and spent the majority of the next several years with her husband and children in Pakistan. Even though Moin had a sick child who died after barely one year and had a reentry permit, the fact that she spent most of the time in Pakistan without an intent to return within a relatively short period caused the Fifth Circuit to affirm the abandonment of her LPR status. The Fifth Circuit observed that “a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.” Indeed, this lesson is one that is poorly understood by LPRs who see the re-entry permit as offering the absolute assurance of retention. The Lateef court, in finding that the petitioner had abandoned LPR status was more influenced by Moin and Singh than Hana.

Still Judge Stranch’s dissent in Lateef has considerable moral force like Judge Reinhardt’s dissent in Singh. Green card holders should not be deprived of their status primarily because they reside abroad with family members whom they have sponsored under our creaky immigration system. In Lateef, it appears that there was also an error with respect to her infant daughter being expeditiously granted LPR status at the airport under the special dispensation in 8 C.F.R. § 211.1(b)(1). Her daughter thus was forced to stay in Pakistan until the regular immigrant visa processing for a few years, and Lateef needed to be with her daughter in Pakistan due to continuing behavioral problems. Even though the court opined that Lateef and her family were free to travel, her husband was denied a tourist visa. This is often the case when a family member is being sponsored for a green card, and the tourist visa is routinely denied on the ground that the family member is wrongly suspected of being an intending immigrant and planning to overstay the visa. Moreover, the court seemed to be impressed by the fact that Hana brought $10,000 worth of valuables and cash with her to purchase a home and a car in the US when she finally would come and reside in the US. But the court glaringly missed the investment in time that Lateef was spending taking medical exams in the US that would qualify her to practice as a physician and establish a career in the US. It is clear that Lateef was expending her own human capital in the US even though she did not bring physical assets to the US like Hana, which appeared rather modest. On the other hand, Lateef’s investment of time in obtaining a medical license to practice in the US was impressive.

The unfortunate holding in Lateef v. Holder again compels us to offer our proposal that, if adopted, will change the law on preservation of LPR status in a really big way: green card holders, like US citizens, should not be presumed to abandon their status without a tangible manifestation or expression of informed consent. The significance of LPR status would be greatly enhanced if a presumption existed in favor of retention of status, notwithstanding the commission of certain acts that might suggest a contrary intent. US citizens now enjoy this same presumption and there is no reason why resident aliens should not as well. It is neither sound nor sensible to assume that naturalized Americans have a stronger or more meaningful attachment to this country than lawful permanent residents; indeed, there are numerous anecdotal reasons to commend the opposite conclusion. Extended absence from the US, without more, should never serve as the basis for abandonment; in a global economy, where an LPR may have to reside abroad with family members until their immigration process is completed or where international relocations are the price of career advancement or even job retention, the law should and must provide that no LPR can be stripped of their green card on the basis of abandonment unless he or she clearly states an unmistakable intention to give it up. No inference from proven conduct would be possible absent clear evidence that such was the desired and intended consequence. Application of this presumption would properly reflect the profound importance of lawful resident alien status while serving as symbolic recognition of the vast contributions that such permanent residents have made to their adopted home. How is the nation well served when we presume that a citizen does not intend the consequences of a potentially expatriating act while denying the LPR his or her right to rely upon the very same presumption? What reason is there to believe that a US citizen is more invested in keeping citizenship than an LPR in preserving the green card? Do we seek to punish the lawful permanent resident for retaining original loyalties and not taking that one, final, fateful step signifying that they have truly become one of us, making our cause their own?

So long as the green card holder has not violated our laws, or otherwise subjected themselves to justifiable removal, no public interest is advanced when the law refuses to shield permanent residents from involuntary loss of status. Our liberties are not made more secure, our federal coffers do not swell with more tax dollars, our enemies are not chastened nor our friends reassured from such an anomalous state of affairs. The genius of the American constitutional arrangement, that which has provided it with the equipoise so prized in times of crisis, lies in its ability to give all those affected by its operation a stake in society. As Professor Alexander M. Bickel taught us in Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), the value of citizenship is most authentically reaffirmed when the rights of citizens are least exalted above all others. No one, LPRs included, should have to choose between loyalty to family and retention of status. The true meaning of America lies elsewhere. F. Scott Fitzgerald in The Crack-Up (1933) points the way:

France was a land, England a people but America was somehow different… It had about it still the quality of an idea…It was, above all else, a willingness of the heart.
David Isaacson

WHAT THE THIRD CIRCUIT MISSED IN VERA, PART TWO: A PRACTICAL EXAMPLE OF WHY ACCEPTING UNREFUTED BUT UNSUPPORTED GOVERNMENT ASSERTIONS IS PROBLEMATIC

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In a previous post on this blog, “The Prejudice Caused By Summary Removal After Visa Waiver Admission: What the Third Circuit Missed in Vera and Bradley”, I discussed the case of Vera v. Attorney General of the U.S., in which the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration judge, even though the government could not produce proof that she had actually waived her right to such a hearing. The Third Circuit in Vera relied on a presumption that the waiver must have been properly executed since this was required by statute in order for Ms. Vera to be admitted under the VWP, and also on the argument, first accepted by the Third Circuit in the case of Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. 2010), that there was no prejudice to Ms. Vera from any lack of a knowing and voluntary waiver because the summary removal that she now faced was the same consequence that she would have faced if she had refused to sign the waiver.

As explained in my previous blog post, the assertion of lack of prejudice that formed an important part of the Third Circuit’s initial decision in Vera was based on an error. It has now become apparent that the presumption of a proper waiver in the Third Circuit’s decision was also based on an error, one that helps illustrate why courts in the immigration context should be reluctant to indulge unproven executive-branch assertions about how something must have happened. The Third Circuit has now had to vacate its decision in Vera, because the government discovered that Ms. Vera actually was not admitted under the VWP at all!

As discussed in a June 11 post on AILA’s Slip Opinion blog, following the Third Circuiit’s March 1 decision in her case, Ms. Vera secured pro bono counsel to represent her in a petition for rehearing en banc before the Third Circuit, and they in conjunction with the New York State Youth Leadership Council succeeded in getting her released from immigration detention in April after she had been detained for nine months. Then, as reported on May 21, 2012 by Ms. Vera’s new pro bono counsel at the Heartland Alliance’s National Immigrant Justice Center (NIJC) , to whom congratulations are due, the Department of Homeland Security (DHS) cancelled the removal order against Ms. Vera after belatedly realizing that Ms. Vera had not been admitted under the VWP, and the Office for Immigration Litigation (OIL) (federal court lawyers who represent DHS), filed a motion to throw out Vera’s immigration case. On May 25, 2012, at the urging of Ms. Vera’s new NIJC counsel, Ms. Vera was granted deferred action in the exercise of prosecutorial discretion. And in an order issued on June 13, 2012, the Third Circuit vacated its earlier decision in Vera and dismissed the case, because there was no longer any final order of removal and thus nothing for the Third Circuit to review.

In its June 13, 2012 order vacating its earlier decision, the Third Circuit stated: “The Court notes that it based its decision on the incorrect representation of the Department of Homeland Security that petitioner was admitted to the United States under the Visa Waiver Program and further notes that petitioner did not challenge this representation.” The original March 1, 2012 decision had acknowledged that Ms. Vera “did not concede expressly that she entered the United States under the VWP” but concluded that the government’s assertions, plus Ms. Vera’s failure to contend otherwise, left the Court “satisfied” that such was the case:

In her opening brief in this Court, Vera did not concede expressly that she entered the United States pursuant to the VWP. But the government in its answering brief pointed out that Vera stated that she was admitted under the VWP in the Record of Sworn Statement that she executed when Immigration and Custom Enforcement officers took her into custody and that her father, in an affidavit submitted on her behalf, made the same representation. Though she had the opportunity in her reply brief to contest the government’s representation of the contents of those documents she did not do so nor does she deny now that she entered the United States under the auspices of the VWP. Moreover, she does not contend that she entered the United States on any basis other than under the VWP. In these circumstances, we are satisfied that she entered pursuant to the VWP. We also point out that there is no indication in the briefs or the record on the petition before us that she ever has left this country since the time of her entry.

Vera v. Att’y Gen., 11-3157 (3d Cir. March 1, 2012), slip op. at 4 n.3. That is, the Third Circuit concluded from the government’s unchallenged descriptions of prior statements made by Ms. Vera and her father that Ms. Vera must have been admitted under the VWP, despite the lack of any documentation showing this to be true. This despite the fact that Ms. Vera was describing events that had happened more than 10 years ago, in September of 2000, when she was only 12 years old. Although hindsight is, to be sure, 20-20, it is problematic to expect someone to have definitive knowledge of what specific immigration-law provision she entered under many years ago during her childhood, and it is not that much better to rely on the recollection even of an adult layman regarding the legal details of an immigration-related event that occurred more than a decade ago.

One of the reasons that at our firm, and I suspect at most other firms practicing in the area of immigration law, prospective clients are asked to bring to the initial consultation any and all documents that may shed light on their immigration history, is that the vague recollection of a layperson regarding what formal program he or she may have entered under some time ago, and what may have happened since, is not particularly likely to be reliable when it is not backed up by documentation. Immigration law is incredibly complex. In softcover book form, the Immigration and Nationality Act alone is nearly four hundred pages long, and the related Title 8 of the Code of Federal Regulations is more than one thousand pages in length. There are also other federal regulations that relate to immigration law, various administrative handbooks of different agencies (such as the State Department’s Foreign Affairs Manual, or the Adjudicator’s Field Manual and Inspector’s Field Manual of U.S. Citizenship and Immigration Services and Customs and Border Protection respectively), and other government policy memoranda that will also sometimes need to be reviewed in order to determine precisely what has happened in a particular case. Moreover, not only the regulations and handbooks but the Immigration and Nationality Act itself can change frequently over time. The current version of the Visa Waiver Program, for example, was created by the Visa Waiver Permanent Program Act in October 2000, as explained by a 2004 Congressional Research Service report (see page 9)– that is, the current version of the VWP was created by statute after Ms. Vera’s September 2000 entry into the United States.

Because of the complicated nature of the immigration system as it exists today, and because of the equally convoluted history underlying today’s version of the immigration system, a non-lawyer who has gone through the immigration process will often mistake one status or legal mechanism for another. In this field, fallible memory is often no substitute for actual paperwork. That is particularly so when one is trying to reconstruct events that happened more than a decade ago. While it is sometimes the case that one must rely on human memory because no paperwork was issued at the time of a particular admission (such as when a car is “waved through” at a border post, which is still an admission for purposes of adjustment of status as explained by the Board of Immigration Appeals in Matter of Quilantan), that is different from relying on memory when government paperwork should exist according to the government’s theory of the case, but the government simply cannot find it.

The path taken by Ms. Vera’s case demonstrates why it is problematic to assume the truth of facts not explicitly conceded by a particular noncitizen, in the absence of records showing the truth of those facts, simply because those facts appear most consistent with the orderly functioning of the immigration system and the noncitizen is not sure of their falsity. While it is perhaps understandable that the Court of Appeals for the Third Circuit chose to rely on facts confidently asserted by the government and seemingly not disputed by Ms. Vera or her then-counsel prior to the Court’s original decision, the ultimate outcome of the case demonstrates that government assertions about someone’s immigration status are not necessarily true just because the subject of the assertions cannot with assurance recognize them as false.

Immigration law is sufficiently complex that it is easy for laypeople and even government bodies to make mistakes. One important way to guard against a mistaken reconstruction of significant details of a case’s history is to insist that the government prove its allegations are true, rather than merely assuming them to be true because an immigrant is unable to state with certainty that those allegations are false. Particularly when the right to a full and fair hearing regarding one’s potential removal is at stake, the better approach, as the Court of Appeals for the Second Circuit held in Galluzzo v. Holder, 633 F.3d 111, 115 (2d Cir. 2011), quoting from Johnson v. Zerbst, 304 U.S. 458, 464 (1938), is to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” If the government cannot produce documentation proving that a particular person actually entered under the VWP and actually signed a valid waiver of her right to contest removal, then the government should not be permitted to remove that person without a hearing.

Cyrus Mehta

Dreaming in Arizona: Can Prosecutorial Discretion Co-Exist With Show Me Your Papers?

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By Gary Endelman and Cyrus D. Mehta

In our blog, From Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v. Arizona?, we speculated whether the federal government’s ability to decide not to remove certain non-citizens from the US would be its trump card in Arizona v. USA, 567 U.S ___ (2012). A few days prior to Arizona v. USA, the Obama administration announced deferred action for young persons via a June 15, 2012 memorandum, which will prevent the deportation of over a million people who fell out of status of no fault of their own while Arizona’s SB 1070 aims at driving away these very people through an attrition policy. These young people who will benefit under administrative deferred action would have otherwise been eligible under the DREAM Act, which narrowly failed to pass Congress in December 2010.

We were almost correct. In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB 1070 on the grounds that they were preempted by federal law such as criminalizing the failure to carry registration documents (section 3), criminalizing an alien’s ability to apply for or perform work (section 5(c)), and authorizing state officers to arrest a person based on probable cause that he or she has committed a removable offense (section 6). On the other hand, the Supreme Court, 8-0, narrowly upheld section 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.”

Before we analyze the Court’s narrow upholding of section 2(B) and how it would impact the federal government’s prosecutorial discretion policies, the following extract from Justice Kennedy’s majority opinion acknowledging the federal government’s ability to exercise prosecutorial discretion is worth noting:

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.

It is indeed unfortunate that despite noting the role of the federal government in formulating immigration policy, the Court did not, at least for the moment, invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873 (1975) (Mexican ancestry on its own cannot be an articulable fact to stop a person). The Court was obviously mindful of concerns relating to racial profiling, but the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and the other provisions of SB 1070. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law as the other invalidated provisions did. All that 2(B) does is to allow Arizona police officers to determine if someone was unlawfully present in the context of a lawful stop by inquiring about that person’s status with the federal Department of Homeland Security, and such communication and exchange of information has not been foreclosed by Congress.

The question is whether 2(B) will interfere with the federal government’s dramatic new prosecutorial initiative to not deport over a million young undocumented people if they met certain criteria. The June 15 memorandum on deferred action directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

Even though the new deferred action policy has not been implemented, the memorandum instructs ICE and CBP to refrain from placing qualified persons in removal proceedings or from removing them from the US. How does this very explicit instruction to ICE and CBP officials square with Arizona’s section 2(B)?  While Justice Scalia, who fiercely dissented and blasted the Obama administration from the bench, saw no need for preemption of any of Arizona’s provisions based on the federal government’s ability to exercise prosecutorial discretion, the majority, fortunately, were more mindful of this factor. Suppose a young DREAMer who prima facie qualifies under the deferred action program was stopped for jaywalking in Tuscon, and the Arizona police officer had a reasonable suspicion that her presence was unlawful, would it be reasonable for the police officer to detain this person even though she would not ordinarily be detained for the offense of jay walking? Even if the Arizona officer could query ICE about her status, how long would it take for ICE to respond? Moreover, even though she may qualify for the deferred action program, how would ICE be able to tell if there is no record of her application at all? DHS has yet to even create an application process, but it has instructed its officers from immediately refraining placing such persons in removal proceedings or removing them from the US. Even once an application is lodged, it may take weeks or months before the DHS is able to grant deferred action. While this person should not be apprehended by the federal government under its deferred action policy, Arizona could potentially hold her.

But not for long.The majority explicitly held that 2(B) should be read to avoid the hold of a person solely to verify his or her immigration status. The Court noted in connection with the jaywalker hypothetical, “The state courts may conclude that unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” Slip Op. at 22 (citation omitted). Even in a case where a person is held in state custody for a non-immigration offense, the Court cautioned that the delay in obtaining verification from the federal government should not be a reason to prolong that person’s detention. The Court also suggested that 2(B) ought to be “read as an instruction to initiate a status check every time someone is arrested…rather than a command to hold the person until the check is complete no matter the circumstances. Slip Op. at 23. This temporal limitation harkens back to the Court’s rationale for justifying warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce:

The intrusion is modest. The Government tells us that a stop by a roving patrol “usually consumes no more than a minute.” Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;”[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.  422 US at 880.

Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided.

As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that theAdministration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.

It does not require a crystal ball to imagine that 2(B), if enforced,  will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action.  This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.

The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption.  When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated.   It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.

Cyrus Mehta

Deferred Action: The Next Generation

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By Gary Endelman and Cyrus D. Mehta

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to  allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”  But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matter of Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using  Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5).  For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.”  This would only be the case, however, where the adjustment applicant is  married to a US citizen, or is the minor child or parent of a US citizen,  and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status.   Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment.  We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b).  Still,  the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of  triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection.  But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted  nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently,  all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”

Cyrus Mehta

Matter Of O. Vazquez: BIA Issues Precedential Decision on “Sought to Acquire” Under the Child Status Protection Act

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In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the first precedential decision on this issue, the Board of Immigration Appeals has clarified the “sought to acquire” provision under the Child Status Protection Act (CSPA).  The CSPA artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline. Thus, the meaning of the term “sought to acquire” permanent residency has been hotly litigated in recent times. Does it encompass only a filing of an application or can it encompass something less than a filing of an application for immigration status?

 According to the BIA in Matter of O. Vazquez, an alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Immigration and Nationality Act (“Act”) by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control. The BIA further elaborated that the “sought to acquire” requirement could still be met if the applicant filed an adjustment application, but was rejected for technical reasons, such as the absence of a signature. With respect to a showing of extraordinary circumstances, the BIA indicated that an applicant could show that he or she paid an attorney to prepare an application prior to the one year deadline, but the attorney then failed to take the ministerial step of actually filing the application, thus effectively depriving the aged out child from the protection of the CSPA for no fault of its own.

While the BIA did provide examples of “sought to acquire” just short of a filing; unfortunately, the BIA’s interpretation in Matter of O. Vazquez is more restrictive than its earlier interpretations in unpublished decisions discussed in a prior blog, BIA Continues To Reaffirm Broad “Sought To Acquire” Standard Under CSPA.  The BIA stopped short of holding that the term can encompass other actions not associated with the filing of an adjustment application, such as seeking the advice of an attorney or other similar sorts of efforts. In Matter of O. Vazquez, the “aged out” child argued that he sought to acquire permanent residency by consulting a notario organization within one year of the visa availability. The BIA held that such an action did not fall under the “sought to acquire” definition. Given that the CSPA is a remedial statute to ameliorate the hardships caused to children who age out, the facts in this case were also sympathetic as the alien was wrongly advised by an organization not authorized to practice law in the first place, and thus deprived of the chance to be protected under the CSPA.

As a background, INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability. It is the interpretation of the term “sought to acquire” that was the subject of the Board’s holding in Matter of O. Vazquez.

The BIA unfortunately arrived at this more restrictive interpretation by agreeing with DHS’s position that the reason for Congress not including the term “filed” is because § 203(h) applies to the Department of Homeland Security (DHS) and Department of State (DOS), both of which adjudicate requests for immigration status. The DHS adjudicates applications for adjustment of status from within the US while the DOS adjudicates applications for immigrant visas from outside the US. Under DOS immigrant visa processes, one generally does not “file” an immigrant visa application, DS-230, but rather, the DOS regulations use the word “submit” or “submission” rather than “file” when referring to a DS-230 visa application. See 22 C.F.R. § 42.63 and 22 C.F.R. § 42.63(c). The “filing” of an application in DOS occurs after it is submitted and much later in the process, the BIA noted. See 22 CFR § 42.67(b). According to the BIA, it was due to the difference in the usage of terms in the DOS and DHS regulations that Congress compelled Congress to use the term “sought to acquire” permanent residency rather than to allow for broader actions such as consulting with a notario organization, as was done in Matter of O. Vasquez, to satisfy the “sought to acquire” definition.

Still, it can be argued that the discussion in Matter of O. Vazquez of the use of the word “filing” in DOS regulations, and the multi-step DOS process more generally, does seem to leave room for the possibility that something other than submission of a DS-230 can qualify as seeking to acquire permanent residence for CSPA purposes.  Matter of O. Vazquez holds that “it is reasonable to expect the proper filing of an application, when it comes to DHS cases, as a way to unquestionably satisfy the ‘sought to acquire’ element of the Act.”  25 I&N Dec. at 820.  This holding is limited by its terms to “DHS cases”, in which the formal application process is in the ordinary case more unified into a single step of filing an application form (or that single filing step plus an interview).  The taking of any substantial step in the multistage DOS immigrant-visa process, such as the payment of the immigrant visa fee, as we pointed out in State Department Takes Broader View Of “Sought To Acquire” Provision Under CSPA, or the making of a written request that a particular derivative child be added to a consular case, should arguably still be sufficient to meet the “sought to acquire” requirement even under Matter of O. Vasquez.

Another aspect worth exploring further may be footnote 3 of the decision, on page 821.  The BIA analogizes its “extraordinary circumstances” standard to that applicable to termination-of-registration cases under INA 203(g).  In practice,  DOS has not applied the 203(g) standard as strictly as, say, some IJs apply the asylum one-year “extraordinary circumstances” standard.  If that is so, the linkage of the new Matter of O. Vazquez CSPA sought-to-acquire standard to the 203(g) standard may be significant: the Matter of O. Vazquez standard for extraordinary circumstances is apparently supposed to be interpreted no more strictly than 203(g).

In the view of this author, Congress probably intended the “sought to acquire” requirement to apply more broadly than interpreted in Matter of O. Vazquez. In a prior unpublished decision In re Jose Jesus Murillo, A099 252 007 (October 6, 2010), the BIA interpreted the legislative history behind the CSPA as being expansive, which is worth reproducing here:

The congressional. intent in enacting the CSPA was to “bring families together” (Rep. Sensenbrenner, 148 Congo Rec. H4989-01, H49991, July 22, 2002) and to “provide relief to children who lose out when INS takes too long to process their adjustment of status applications”(Rep. Gekas, id. at R4992); see also, Rep. Jackson-Lee, “where we can correct situations to bring families together, this is extremely important.’.’ ld. atH4991. In enacting the CSPA, Congress expressed its concern that alien children “through no fault of their own, lose the opportunity to obtain immediate relative status.” H.R. Rep. 107-45, H.R. Rep. No.4 5, I 07th Cong., 1st Sess. 2001, reprinted in 2002 U.S.C.C.A.N. 640, 641 (Apr. 20, 2001). Indeed, the United States Court of Appeals for the Ninth Circuit has held that the CSPA should “be construed so as to provide expansive relief to children of United State citizens and permanent residents.” Padash v. INS,358 F.3d 1161, 1172 (9th Cir. 2004).

However, since Matter of O. Vazquez is a precedential decision, we will need to now live and work with it when dealing with instances under which our clients have “sought to acquire” permanent residency in order to protect their age under the CSPA.

(The author thanks David A. Isaacson for his thoughtful input)

 

Cyrus Mehta

“CULTURALLY UNIQUE” DEFINITION UNDER P-3 VISA CAN INCLUDE HYBRID OR FUSION ART FORMS OF MORE THAN ONE CULTURE OR REGION

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U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012) addressing the term “culturally unique” and its significance in adjudicating P-3 visa petitions for performing artists and entertainers. This decision is significant in light of a growing trend where the culturally unique artistic tradition of one country or ethnicity is influenced by artistic traditions from elsewhere. For instance, musicians trained in Indian classical music have incorporated Western jazz and rock influences. The most famous example of such a fusion band was Shakti, which incorporated South Indian Carnatic music and jazz elements, featuring guitarist John McLaughlin, South Indian violinist L. Shankar and Zakir Hussain on tabla and T.H Vikku Vinayakram on the ghatam (an earthen pot). Examples of hybrid groups abound all over the world, and a contemporary example is Afro Celt Sound Systems, which is a hybrid of African and Celt music. Afrobeat is another classic example of a fusion genre that originally fused American funk music with African rhythms, and its main exponent has been Fela Kuti. Until this decision, there was a risk that such groups would not be considered to be “culturally unique” as they did not incorporate the music which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

The Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. USCIS noted that “due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review.”

The AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. USCIS said that the regulatory definition of “culturally unique” requires the agency to make a case-by-case factual determination. The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The petitioner had sought classification of the beneficiaries as P-3 entertainers for a period of approximately six weeks. The beneficiaries were musicians in the group known as Orquesta Kef. The ensemble of seven musicians from Argentina had been performing together for between four and eight years, according to a letter dated September 2009, and performed music that blended klezmer (Jewish music of Eastern Europe) with Latin and South American influences. The group’s biography stated that the band had developed “its own and unique musical style” based on “the millenary force of tradition and the powerful emotion of the Jewish culture, mixed in with Latin American sounds.” The petitioner also provided a letter from an associate professor at the University of Southern California’s Annenberg School for Communication supporting the band’s claim to cultural uniqueness, among other submitted expert opinion letters and published materials.

The decision noted that Congress did not define the term “culturally unique” and the former Immigration and Naturalization Service (now USCIS) defined it in regulations as “a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.” See 8 C.F.R. § 214.2(p)(3)(2012).

In her decision denying the petition, the director stated that a hybrid or fusion style of music “cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”

The AAO said that the director’s reasoning was not supported by the record, noting:

[T]he fact that the regulatory definition allows its application to an unspecified “group of persons” makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of “culture” is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion. Of course, the petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture. To determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record.

The AAO pointed out that the director’s decision failed to note that the beneficiary group was a klezmer band and “seemed to struggle to identify the nature of the group’s musical performance, focusing instead on the group’s musical influences. Here, the evidence establishes that the beneficiaries’ music is, first and foremost, Jewish klezmer music that has been uniquely fused with traditional Argentine musical styles.” The AAO said it found particularly persuasive an expert opinion explaining that klezmer music, “while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures.” The AAO also noted the fact that the beneficiaries were South Americans born to Eastern European immigrants and therefore were influenced by both cultures to create something new and unique to their experience. All the opinion letters submitted also recognized the existence of a distinct Jewish Argentine culture and identity that was expressed in the beneficiary group’s music. Furthermore, the AAO noted, the published articles submitted recognized a musical movement in Argentina that fuses Argentine styles with influences from Jewish music and other Eastern European styles, and the articles and opinion letters placed the beneficiary group at the forefront of this trend.

Accordingly, the AAO found that the petitioner had established by a preponderance of the evidence that the modern South American klezmer music performed by the beneficiary group was representative of the Jewish culture of the beneficiaries’ home country of Argentina and that the group’s musical performance therefore fell within the regulatory definition of “culturally unique.” The AAO added that the petitioner had submitted an itinerary showing that the beneficiary group would be performing at Jewish cultural centers and temples during its U.S. tour, which provided further evidence that the performances would be culturally unique events.

Matter of Skirball Cultural Center remarkably recognizes the significance of crossover cultural trends and that “the idea of culture is not static,” which is increasing in our globalized world, where people have access to music from anywhere on an iPhone and have learned to enjoy fusion and hybrid forms. The favorable impact of this decision can extend to other art forms such as dance and drama too. Thanks to this decision, audiences in America need not fear of being deprived of hearing their favorite fusion bands live!