Blog | The Insightful Immigration Blog

SOME PRELIMINARY REACTIONS TO THE DISTRICT COURT DECISION REFUSING TO ENJOIN PORTIONS OF ALABAMA’S IMMIGRATION LAW

October 3, 2011/0 Comments/in Blog, uncategorized/by David Isaacson

Chief U.S. District Judge Sharon Blackburn of the U.S. District Court for the Northern District of Alabama recently issued a memorandum opinion preliminarily enjoining the enforcement of certain portions of Alabama’s new immigration law but upholding other portions. This decision has already attracted substantial criticism, with the New York Times describing it as “dismal”. Additional useful background regarding the decision is available from Immigration Impact. As a follow-up to my previous article on our firm’s website regarding constitutional and practical problems with the Alabama law, it seemed appropriate to examine how Judge Blackburn’s decision does and does not address some of these problems.

Some of the most absurd portions of the statute were struck down, so there is some good news. Judge Blackburn did enjoin the portion of the Alabama statute that barred lawfully admitted refugees, and others such as those with Temporary Protected Status, from attending public universities. She enjoined the portion of the statute that attempted to make it illegal to rent housing to the unlawfully present, by deeming it “harboring”, and she also enjoined the portion of the statute that attempted to criminalize work and the solicitation of employment by an “unauthorized alien”. In addition, she enjoined portions of the statute that would have forbidden companies from deducting wages paid to unauthorized workers as a business expense, and allowed other workers to sue those companies.

Some deeply problematic provisions of the statute were left standing, however. One provision, similar to a provision of Arizona’s much-criticized SB 1070, criminalizes failure to register or carry an alien registration document, in violation of federal law, when committed by “an alien unlawfully present in the United States.” As explained in this author’s previous article on our firm’s website regarding the Arizona law, the application forms used by certain battered women and crime victims to petition for relief under the Violence Against Women Act or for a “U-visa” do not constitute applications for alien registration under the governing regulations. Thus, certain such battered women and crime victims may arguably be in violation of the federal statutes regarding alien registration, but as a matter of prosecutorial discretion, it is exceedingly unlikely that the federal government would ever pursue such people for those technical violations. While Alabama may have somewhat reduced the set of truly absurd potential violations of its statute by covering only those who are “unlawfully present” rather than Arizona’s reference to “a person who maintains authorization from the federal government to remain in the United States” — since battered women actually granted deferred action will not qualify as unlawfully present even though they likely also do not qualify as maintaining authorization to remain in the United States — the statute could still be applied by Alabama to applicants for VAWA or U-visa relief who have not yet been granted relief. This is merely an example of why it is a bad idea, as a matter of our constitutional structure, to allow a state to meddle in a field so comprehensively occupied by the federal government. Alabama’s attempt to reserve the right to pursue such technical violations of the alien registration statutes, even in cases where the federal government does not wish to, should have been held pre-empted.

Another problematic provision that was left standing by Judge Blackburn’s opinion again closely resembles one of the provisions of Arizona’s SB 1070. According to Section 12(e) of Alabama’s law, police officers must attempt to ascertain the citizenship and immigration status of any person they detain, if “reasonable suspicion exists that a person is an alien who is unlawfully present in the United States” and unless “the determination may hinder or obstruct an investigation.” Along the lines of Arizona’s SB 1070, Alabama’s statute prohibits law enforcement officers from considering “race, color, or national origin . . . except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901.” As with the Arizona law, the logical implication is that to the extent consideration of race, color or national original may be constitutional under whichever of the United States Constitution or the state constitution is more permissive on the subject, the law enforcement officials and agencies of Arizona are invited to engage in it. In addition, the statute’s list of documents which a person can present and thus be “presumed not to be an alien who is unlawfully present in the United States” includes a “foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States” but does not include any option for an expired visa and a document from DHS showing an unexpired period of authorized stay. If the “stamp or notation” indicates that the bearer’s period of admission and authorized stay is unexpired, it is not at all clear why it should matter if the bearer’s U.S. visa is expired or not. There is no logical reason to subject anyone who obtains an extension of stay or change of status with a validity period beyond the expiration date of their visa to more extensive detention while their status is electronically verified with DHS, if their DHS-issued Form I-94 clearly shows that their status is still valid. This legal illogic gives still more weight to the complaint made by the federal government that DHS may now be overwhelmed by requests for information and that substantial burdens may be placed by Arizona’s law on lawfully present immigrants (and nonimmigrants). By meddling in areas which its legislators quite apparently did not fully understand, Alabama has created a system in which nonimmigrants who have been granted a change of status or extension of stay beyond the validity of their initial visa, as well as asylees and those having Temporary Protected Status, may be detained and an inquiry made to DHS because such persons lack “an unexpired United States Visa.” This, too, should have been held preempted and was not.

Judge Blackburn’s memorandum opinion also refused to preliminarily enjoin sections of the Alabama law that render unenforceable any contract entered into by an unlawfully present alien, with certain limited exceptions, and forbid unlawfully present aliens to enter into certain business transactions with the state and its subdivisions, such as obtaining a driver’s license or business license. The difficulty with these sections is that, as explained in my previous article on our firm’s website, unlawful presence, insofar as it is a defined term, does not correspond neatly to a set of people that it would have made any sense to subject to such prohibitions. Alabama appears to have forbidden from getting a driver’s license, or entering into enforceable contracts, many people with pending applications for adjustment of status or cancellation of removal filed for the first time in removal proceedings, who are considered unlawfully present but who may become lawful permanent residents if their applications succeed. Moreover, Alabama has forbidden many people who are specifically authorized to be employed in the United States from getting driver’s licenses or entering into binding contracts in connection with that employment (unless perhaps the employment contracts fall within the terms of the statute’s exception for “a contract authorized by federal law”, which seems a gray area at best), since an applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). (Indeed, even some people who have been ordered removed may be authorized to accept employment while challenging that order in various ways or awaiting removal, as explained in a previous blog piece by this author.) Once again, by meddling in an area of law that is the responsibility of the federal government and that its legislators apparently did not fully understand, Alabama has created the possibility for truly absurd outcomes.

Finally, Judge Blackburn refused to preliminarily enjoin the section of the Alabama law that attempts to require students enrolling in public school to provide documents regarding their citizenship and immigration status. While it is conceivable that the section’s apparent lack of a penalty provision might save it from unconstitutionality, there is some tension, to the extent that the statute may be an effort to coerce unlawfully present children not to attend Alabama public schools, between this provision and the Supreme Court’s decision in Plyler v. Doe, 457 U.S. 202 (1982), forbidding a state to prevent children from attending public schools based on their immigration status. It has been reported that upon the coming into effect of this portion of the statute after Judge Blackburn’s decision, “Hispanic students have started vanishing from Alabama public schools” because fear has caused “scores of immigrant families” to withdraw their kids from school or keep them home. Alabama should not be permitted to do indirectly what the Supreme Court has forbidden it to do directly.

Judge Blackburn’s memorandum opinion only addressed whether to grant a preliminary injunction, so it is still possible that she may reverse herself before the conclusion of the case at the district court level. If she does not, the Court of Appeals for the Eleventh Circuit or the Supreme Court may need to step in to reverse those portions of her recent decision that uphold particularly problematic portions of Alabama’s law.

THE POTENTIAL REACH OF KHALID V. HOLDER: HOW THE 5TH CIRCUIT INTERPRETED THE CSPA AND HOW SOME OUTSIDE ITS TERRITORY MAY BE ABLE TO BENEFIT

September 26, 2011/1 Comment/in Blog, uncategorized/by David Isaacson

By David A. Isaacson

In its recent decision in the case of Khalid v. Holder, the U.S. Court of Appeals for the Fifth Circuit rejected the 2009 decision of the Board of Immigration Appeals (“BIA”) in Matter of Wang. The Fifth Circuit in Khalid held that a derivative beneficiary of an immigrant petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, can under section 203(h)(3) of the Immigration and Nationality Act (“INA”) retain the priority date originally given to the principal beneficiary and proceed in the 2B preference category with respect to that principal beneficiary. That is, if your aunt or your grandfather filed a petition for your parent when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you can retain the family’s place in the priority-date waiting line as the adult son or daughter of your now-lawful-permanent-resident parent, under the 2B preference, rather than going to the back of the years-long waiting line for an immigrant visa number. The BIA had found in Matter of Wang that such priority date retention was impermissible, but the Fifth Circuit held in Khalid that this ignored the plain meaning of the statute.

In rejecting the BIA’s decision in Matter of Wang, the Fifth Circuit also rejected the decision of the Court of Appeals for the Second Circuit in Li v. Renaud regarding the same CSPA provision, criticized by this author in a previous blog post The Second Circuit had reached essentially the same conclusion as Matter of Wang by finding the CSPA to unambiguously preclude retention of a priority date “to use for a different family petition filed by a different petitioner." The Ninth Circuit in Cuellar de Osorio v. Mayorkas found the statute to be ambiguous and the BIA’s interpretation in Wang a reasonable one, a conclusion also inconsistent with the Fifth Circuit’s decision in Khalid.

The BIA itself had previously taken a more generous view, before changing its mind: Matter of Wang overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family petition beneficiary to retain the priority date that she previously had shared with her parent. The Fifth Circuit in Khalid found Matter of Garcia to represent the correct approach.

Additional background regarding the CSPA in general and Matter of Wang in particular, for those who are interested, can be found in an earlier article written by this author for our firm’s website. The portion of the CSPA in question, now INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

It is available online as enacted into the U.S. Code at 8 U.S.C. § 1153.

In Matter of Wang, the BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was "limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident." Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.

As the Fifth Circuit pointed out in Khalid, however, the BIA’s finding of ambiguity ignores the internal cross-references in § 203(h) and the statute’s clear identification of the petitions to which it applies. Subsection (h)(2), entitled “Petitions described”, makes clear that INA § 203(h) as a whole applies to all derivative beneficiaries, as well as 2A child beneficiaries. Moreover, “(h)(3) expressly references (h)(1), which in turn expressly references (h)(2).” Particularly because subsection (h)(3) expressly applies “for the purposes of subsections (a)(2)(A) and (d)” just as subsections (h)(1) and (h)(2) do, there is no textual basis for excluding from the protection of (h)(3) the derivative beneficiaries under subsection (d) who are all expressly included by (h)(2). Thus, as the Fifth Circuit said in Khalid, “subsection (h)(2) directly answers the question that the BIA found that Congress left unanswered.”

The Second Circuit’s decision in Li is similarly convincingly refuted by the Fifth Circuit in Khalid. Li’s holdingthat a priority date could not be retained “to use for a different family petition filed by a different petitioner” was based on the notion that there is no “appropriate category” to convert to in the sort of scenario at issue in Li and Khalid, because there is, for example, “no family preference category for grandchildren of LPRs”. The Fifth Circuit in Khalid aptly notes that this latter criticism only makes sense if one assumes that a change in petitioners is indeed necessarily impermissible, and that no such rule against a change in petitioners appears anywhere in the text of the statute. Proceeding on this unwritten assumption does leads to the conclusion that, as the BIA held in Matter of Wang, § 203(h)(3) only protects the derivative child beneficiaries of second-preference petitions for a spouse, who were already protected by regulation—but in that case, as the Fifth Circuit noted, “the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the spouse of the burden of filing a new petition, since the conversion would now be automatic.” It is, as the Khalid court pointed out, unlikely “that this meager benefit was all Congress meant to accomplish through subsection (h)(3), especially where nothing in the statute singles out derivative beneficiaries of second-preference petitions for special treatment.” Reading the statute as it is written gives much larger and more appropriate significance to § 203(h)(3).

Beyond the legal virtues of the Fifth Circuit’s decision, however, it is worth examining the practical implications of its ruling for those who are not lucky enough to live within the boundaries of the Fifth Circuit, that is, Texas, Louisiana, and Mississippi. As Cyrus Mehta pointed out in a recent blog piece, one way for § 203(h)(3) to benefit many more outside of the Fifth Circuit would be for Attorney General Eric Holder to issue a decision acquiescing in Khalid on a nationwide basis, just as the BIA on the Attorney General’s behalf has acquiesced in favorable Court of Appeals decisions in the past. Unless and until such action is taken, however, one question which arises is whether those who seek the benefit of Khalid may be able to obtain it through litigation even if they reside outside the jurisdiction of the Fifth Circuit.

In cases where the original beneficiary who has now become an LPR seeks to recapture the old priority date under § 203(h)(3) for their derivative son or daughter by filing a new I-130 petition, obtaining the benefit of Khalid may be difficult, at least when the parties do not happen to reside within the Fifth Circuit. Such I-130 petitions will generally be processed either by the California Service Center, which is located within the jurisdiction of the Court of Appeals for the Ninth Circuit (home to Cuellar de Osorio), or the Vermont Service Center, which is located within the jurisdiction of the Court of Appeals for the Second Circuit (home to Li). The initial filing and receipt by USCIS of an I-130 petition will usually take place at the USCIS lockbox in Chicago, within the jurisdiction of the Court of Appeals for the Seventh Circuit, which has not yet ruled on the correctness of Matter of Wang. As an initial matter, therefore, USCIS is likely to follow Matter of Wang in such cases.

If a lawsuit were filed against USCIS to attempt to force compliance with the proper meaning of INA § 203(h)(3) as found in Khalid, the statute governing venue would be 28 U.S.C. § 1391. For actions against U.S. government agencies, 28 U.S.C. § 1391(e) provides:

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

(1) a defendant in the action resides,

(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) the plaintiff resides if no real property is involved in the action.

Leaving aside Fifth Circuit residents, therefore, such a lawsuit could only be brought in a district within the Fifth Circuit if that was where “a substantial part of the events or omissions giving rise to the claim occurred”—which is, in the case of an I-130 petition, unlikely for the reasons explained above. For those residing in a circuit other than the Fifth, Ninth, or Second – one which has not yet confronted Matter of Wang – an I-130 filing followed by litigation may still be worthwhile, but would likely have to go up to the relevant Court of Appeals to succeed.

The filing of a new I-130 petition following the adjustment of the original beneficiary, however, is not the only way to seek CSPA protection for a derivative son or daughter under the logic of Khalid. In Matter of Garcia, which the Fifth Circuit in Khalid cited approvingly, the BIA made quite clear that it was the original petition filed for the adjustment applicant’s mother that rendered her eligible for adjustment using the old priority date, after having been automatically converted to a second-preference petition. An additional petition was not necessary; Ms. Garcia was permitted to seek adjustment of status based on the converted old petition. Indeed, the Fifth Circuit in Khalid described the non-necessity of filing a second petition as the one (meager) benefit which 203(h)(3) would provide, at least in 2A derivative cases, even under the Second Circuit’s narrow interpretation. Thus, where visa numbers are available for the appropriate priority date in the 2B preference category, those seeking the benefit of Khalid’s interpretation of the CSPA should be able to simply file a derivative I-485 application for adjustment of status based on the deemed converted petition, and challenging any denial or rejection in federal court, without the intervening step of a new I-130 petition.

Derivative adjustment applications in family-based cases, unfortunately, are filed with the USCIS Chicago lockbox, within the Seventh Circuit where Matter of Wang has not been struck down, and are then generally transferred to the local office in the area where the applicant resides, which for applicants not having the good fortune to reside within the Fifth Circuit will also not be in an area definitively outside the grasp of Matter of Wang. Derivative adjustments in employment-based cases based on a pending or approved I-140 petition, however, are, at least for those living in roughly the eastern half of the U.S., filed with the USCIS lockbox in Dallas or Lewisville in Texas, and generally processed by the Texas Service Center before perhaps being sent to a local office for an interview. Specifically, the area in question includes Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia. For applicants living in those states and territories, if a derivative I-485 based on an I-140 is filed and denied or rejected based on Matter of Wang, it appears that “a substantial part of the events or omissions giving rise to the claim” will have occurred in Texas. (For those applicants in the western and midwestern states not included in the above list, sadly, their I-485 applications will go to the Phoenix Lockbox in the Ninth Circuit and perhaps then the Nebraska Service Center in the Eighth Circuit, which has not yet ruled on Matter of Wang.)

Thus, if the son or daughter of an I-140 beneficiary who would benefit from the Khalid interpretation of the CSPA, residing in one of the listed states within Texas lockbox jurisdiction, files a derivative adjustment application along with their parent’s I-140-based application without awaiting a redundant I-130 by their parent, it would appear that the rejection or denial of that application could be potentially challenged in a Texas federal district court, located within the Fifth Circuit and bound by Khalid. Such a challenge to the legally erroneous denial (or rejection) of an adjustment application by USCIS would be brought under the Administrative Procedure Act, as explained by the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005). Some other circuit courts of appeals have previously rejected the logic of Pinho, but the Fifth Circuit is not among them; the question of district court jurisdiction over legal error in the denial of an adjustment application, outside the context of removal proceedings, appears to be an open one in the Fifth Circuit.

Due to this jurisdictional uncertainty and the possibility that DHS could avoid the problem by initiating removal proceedings in the beneficiary’s home location, such an approach would be quite risky for any derivative beneficiary residing outside the Fifth Circuit who was not maintaining nonimmigrant status (and was utilizing, for example, INA § 245(i)). However, in those instances where the adult son or daughter of an I-140 beneficiary has acquired a nonimmigrant status of his or her own, and resides in the half of the U.S. that is under the jurisdiction of the Texas lockbox, attempting to file a derivative adjustment application under Khalid without an intervening I-130 petition may be an approach worth considering if visa numbers in the 2B preference category are available for the relevant priority date.

REINTERPRETING THE AUTOMATIC CONVERSION PROVISION OF THE CSPA TO HELP DREAM KIDS

September 16, 2011/1 Comment/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

The DHS has commendably issued policies urging prosecutorial discretion in recent months recognizing its inability to deport all undocumented immigrants, and designating certain deportable deserving discretion immigrants under a low priority status. Especially noteworthy is the June 17 Morton Memo on prosecutorial discretion, which urges against enforcement of individuals who came to the US as children, and who have successfully graduated from high school or are pursuing college or advanced degrees. Although DREAM Act legislation failed in December 2010, the DHS has nevertheless announced policies that would stay or terminate the deportation of those who came to the US as children and would otherwise have qualified under this legislation to gain legal status.

While the DHS has been using administrative action to ameliorate the hardships for DREAM kids, why can’t it reinterpret a provision in the Child Status Protection Act more consistently with the statute? INA § 203(h)(3), called the automatic conversion provision, has been the subject of much litigation lately, but all this would be unnecessary if the DHS only interpreted it consistent with its plain language and allowed children who were otherwise not eligible under the age protection formula of the CSPA to automatically convert to the new category they may be entitled to and retain the priority date of the original petition.

INA §203(h)(1), 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 immigrant visa petition (Form I-130 or I-140) 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 (even if he or she is over 21 at the time of visa availability), 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.

But what if the child is not protected under this formula? The automatic conversion provision could still come to his or her assistance. This is how §203(h)(3) reads:

Retention of priority date –If the age of an alien is determined under paragraph 1 [which sets forth the age protection formula] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition

Like the facts in the latest 5th Circuit decision in Khalid v. Holder, which sensibly interprets the automatic conversion provision, assume that a non-citizen child is 11 years old when his mother’s sister, a US citizen, files an I-130 petition for his mother on January 12, 1996. By the time that the priority date becomes current under the Family Fourth preference in February 2007, the child is 22 and cannot unfortunately avail of CSPA’s age protection formula. His mother, who has now become a Lawful Permanent Resident (LPR) files an I-130 petition on November 23, 2007 for her 22 year old son under the Family 2B preference. It makes no sense for the son to wait another 8 years or longer for the Family 2B date to become current. Under the plain meaning of the automatic conversion provision, §203(h)(3), the earlier priority date of the mother’s sister’s I-130, January 12, 1996, can be retained under the new I-130 petition filed by the mother on behalf of her 22 year old son. If the priority date is retained, her son will not need to wait and can potentially adjust his status immediately under the current January 12 1996 priority date. Under the broad “grandfathering” provision of INA §245(i), since he was the derivative beneficiary of his mother’s I-130 petition filed long before April 30, 20001, he can file an application to adjust status even though he is no longer maintaining status presently.

While it is beyond the scope of this blog to explain the detailed holding behind Khalid v. Holder, and the government’s counter arguments, it is worth mentioning that the 5th Circuit cited with approval an earlier unpublished decision of the Board of Immigration Appeals in Matter of Garcia, No. A79 001 587, 2006 WL 2183654 (BIA June 16, 2006) with identical facts:

In this instance, the principal beneficiary of the original petition was the respondent’s mother, who became a lawful permanent resident of the United States once a visa number became available to her in 1996. The respondent was (and remains) her mother’s unmarried daughter, and therefore the “appropriate category” to which her petition was converted is the second-preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

If Matter of Garcia was followed by the DHS in 2006, there would have been no need for such expensive and needless litigation, and many thousands of children who aged out due to delays in the burgeoning backlogs under the family and employment preferences would have been permanent residents today. Unfortunately, three years later, in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA reached the opposite result and disregarded Garcia under the rationale that the automatic conversion provision, §203(h)(3), only affirmed limited conversions acknowledged by regulation. For instance, 8 C.F.R. § 204.2(a)(4) provides for “retention” of a priority date for a minor child who was accompanying or following to join a principal beneficiary parent on a second-preference spousal Family 2A petition but then turned 21 before the mother could become a LPR. Under 8 C.F.R. § 204.2(a)(4), if a child ages out prior to the parent being issued the immigrant visa, a separate I-130 petition for that son or daughter is then required, although the original priority date is retained if the subsequent petition is filed by the same petitioner. Khalid v. Holder correctly rejects Wang’s strained interpretation since §203(h)(3), reading it in conjunction with subparagraphs (1) and (2), makes reference to both second preference family petitions and derivatives of all family and employment petitions. It is thus illogical to only consider the reference to the second preference petitions, where minors have been able to retain the original priority date, and to ignore derivatives of all other employment and family petitions, even though explicitly mentioned in §203(h)(3), who can also automatically convert to the “appropriate category” and “retain the original priority date.”

Admittedly, two other circuits have come out differently. The Ninth Circuit in Osorio v. Mayorkas decided that §203(h)(3) was ambiguous and paid Chevron deference to the BIA’s constricted interpretation of this provision in Matter of Wang. The Second Circuit in Li v. Renaud, on the other hand held that the provision was unambiguous, but nevertheless reasoned the provision would only allow someone to retain the priority date to a petition that was filed by the same petitioner. Thus, in the example in Khalid v. Holder, the original petitioner was the child’s aunt, and the new petitioner is his mother, and according to the Second Circuit in Li, which David Isaacson has critically commented on in a prior blog, there could be no automatic conversion.

While it is not the purpose here to discuss the merits of the various holdings, from a policy perspective and in the spirit of the Morton memo on prosecutorial discretion, it would make sense if the Administration withdrew its opposition to a broader interpretation of §203(h)(3) and followed Khaled v. Holder across the country. Currently, Khalid v. Holder is only binding within the 5th Circuit, which comprises Mississippi, Texas and Louisiana. To achieve this, Attorney General Holder would have to issue a new decision reversing Matter of Wang, and consistent with Matter of Garcia and Khalid v. Holder. The Attorney General, through the BIA, has done this before and can do it again if there is truly a will to implement policy consistent with the Morton memo. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). Of course, if the government still wants to contest, this matter is ripe for review in the Supreme Court due to splits within the circuits, but one questions the wisdom of the government in further contesting this issue when it otherwise supports prosecutorial discretion for DREAM kids.

REFLECTING ON 9/11 AFTER 10 YEARS AS AN IMMIGRATION ATTORNEY

September 10, 2011/5 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

In the spring and summer of 2001, and the days just prior to September 11, 2001, things were not going so badly for immigrants. Although the Section 245(i) deadline of April 30, 2001 had expired, hundreds of thousands of people had managed to file their applications before the deadline to hopefully benefit from this provision and ultimately adjust status in the US even though they were in the US unlawfully. A week before September 11, Presidents Vicente Fox of Mexico and Bush were in serious negotiations on an immigration deal that would have granted benefits to undocumented immigrants, especially those from Mexico. In the same week, on September 6, 2001, a compromise was reached between the Senate and the House (the Senate had earlier passed its version) to extend the Section 245(i) provision to April 30, 2002, which would have allowed those unlawfully in the US to adjust status, albeit under more limited terms.

It was on that beautiful crystal clear Tuesday morning, September 11, just as I was leaving my Manhattan apartment for the office, worried about an impending deadline for an immigration case that a neighbor told me that a plane had crashed into the first tower. I went back home, and saw the second plane crash into the second tower on my television set. Before one could realize the horrific extent of the calamity that tragically killed just under 3,000 people, the towers came crashing down. It was difficult to realize then as I watched agape with horror how much would change for me as an immigration lawyer. I was the Chair of the Committee on Immigration and Nationality Law of the New York City Bar, and our next meeting was scheduled on September 13. I decided we should go ahead with the meeting and not call it off. It was important to have this meeting as our work was cut out, and I prepared remarks for the members of the committee. On September 12, it was important to send a loud and clear message that immigration was completely separate from terrorism. This became the most critical mission for the immigration lawyer and it remains so even ten years later.

Less than ten days after September 11, the Executive under Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism. I remain surprised that not more noise has been made about this. As all this was happening, I wondered whether immigrants caught in the post 9/11 sweeps were being subjected to the same treatment as Japanese-Americans who had been interned after the Pearl Harbor attacks. Were not certain immigrants after 9/11 being broadly profiled in the same way under expanded powers in the name of national security as Japanese-Americans after Pearl Harbor? Was this another dark period in American history, and would we ever learn history’s lessons?

As if this were not enough, the Bush Administration implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen. Special Registration confirmed my worst fears that race and religion were being used as proxies for individualized suspicion and guilt. In the end, Special Registration did not catch a single terrorist or make our country safer. Instead, it separated families, created more burdens on the government to administer the program, and in the end special registration was disbanded because it was a colossal failure.

The INS was dismantled and folded into the Department of Homeland Security bureaucracy. A new agency within DHS, Immigration and Customs Enforcement (ICE) came into being, which continues to expand and deport immigrants with even greater zeal. Databases got integrated, and fingerprints of all visitors needed to be taken at ports of entry. Visa interviews became mandatory and visa grants got delayed due to security checks. Many of the delays were needlessly caused due to the fact that one’s name matched a name in the humongous government database.

Yet it is a testament to the power and clout of immigrants that the basic underlying architecture of American immigration law did not change after September 11. There were no drastic cutbacks in visa quotas or categories. People continued to receive nonimmigrant visas and green cards. Foreign students continued to come to study at US universities of all stripes. The practice of immigration law continued in the same way. The only difference was that everything was seen through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse would only be approved after every aspect of the spouse’s information was extensively checked against error-prone national data bases.

While the immigration system was left intact, including the draconian provisions from the 1996 immigration law, the September 11 attacks unfortunately prevented it from being improved and to keep pace with globalization. The 245(i) extension that was about to happen the week before September 11 never saw the light of day. The deal that was made between Presidents Bush and Vicente to legalize the status of millions of productive undocumented immigrants was put into cold storage. The immigration system continued to break, and then crash, but Congress was never interested in fixing it, perhaps based on a subconscious fear that immigration equated to terrorism. The immigrant visa preferences remain hopelessly oversubscribed resulting in waits lasting more than a decade. The H-1B cap limit of 65,000 has never been expanded, save for an additional measly 20,000 under a special advance degree cap. Several efforts to achieve Comprehensive Immigration Reform in Congress have failed. The last effort to pass the DREAM Act in December 2010 also failed. Even business immigration, which can spur growth and more jobs, has gotten bogged down because of national security concerns. There are admittedly other forces also at work. The sluggish economy, along with joblessness, can also serve as a disincentive for immigration reform, along with nativist backlash. But the main bogeyman has been national security, largely as a result of the trauma caused by the 9/11 attacks. Various states are competing with each other to pass laws that will punish suspected immigrants who are not in lawful status. And then there is the combustible mix of Islamophobia and Xenophobia, which got unleashed nearly 10 years after September 11.

I was all set to move downtown prior to September 11, 2001 to spanking new offices, and when the attacks happened, I did not break my new contract and moved in the hope that the area would get rejuvenated, and the immigration system would too. It took a long time for downtown to break itself from the doom and gloom of 9/11, but it did. Today, it has become a vibrant and bustling neighborhood with attractive restaurants, and I see each day with some joy the new World Trade Center rising like a phoenix, along with many other residential towers along with the opening of swanky new restaurants and shops. After ten years, I fervently hope that the immigration system will also break itself free from the shackles of the September 11 attacks. I yearn for a new immigration system like the new WTC that will invigorate the economy and attract the best from all over the world like we did before September 11. I also hope for an immigration system that will recognize the dignity of the individual and restore due process.

GOING BEYOND THE POLITICS OF DISCRETION IN THE AMERICAN IMMIGRATION SYSTEM

September 2, 2011/1 Comment/in Blog/by Cyrus Mehta

By Gary Endelman and Cyrus Mehta

The ability of whether the President can use discretion in the immigration arena has become the flavor of the month. The announcement by the DHS on August 18, 2001 under which 300,000 individuals who are low priority can hope to have their cases closed and obtain work authorization was welcomed. The details about how this policy will play out are nicely explained in a Legal Action Center advisory. Although many were pleasantly surprised by this policy, within days of the announcement even advocates for immigration reform have become skeptical about whether this policy will have a dramatic and far reaching impact. Obama supporters have even gone so far to accuse the Obama administration for mere window dressing in order to keep certain voters on his side in the next elections. Commentators such as Dan Kowalski also justifiably feel that ICE personnel will continue to ignore this policy, and choose not to exercise their discretion favorably.

While the President has his critics within the pro-immigration camp regarding his new announcement on discretion, the attempt by immigration restrictionists in Congress to blunt the June 17, 2011 Morton Memo on prosecutorial discretion when viewed in a larger context repeats an old pattern. For instance, Congressmen Lamar Smith (R-TX) and Senator Vitter have proposed a most unusual piece of legislation suitably called the HALT Act (Hinder the Administration’s Legalization Temptation Act) that will suspend all of the Administration’s discretionary relief until January 21, 2013, which is the day after the next Presidential inauguration.

Those who think the exercise of discretion will reduce enforcement or promote immigration support the concept of discretion. This is the case with the Morton Memo. The same thing happened with respect to the leaked memo to USICS Director Mayorkas – it was written to allow for remediation through executive fiat without the need for Congress to act and it was leaked to prevent this from happening. However, when the policy question appears to reinforce narrow interpretation and make strict enforcement more likely, then the antagonists switch sides and the pro-immigration camp seeks to curb discretion. Skeptics who fear ICE over-reaching often counsel clients to avoid signing up for the IMAGE program precisely because the exercise of discretion by ICE will, in reality, prove both invasive and punitive.

What is lost in all this is an open and honest discussion of the place that discretion has in the American immigration system separate and apart from the substantive issues or ideological positions at stake. In an increasingly complex, hyper-technical system, the need for discretion as a way to make intelligent choices seems more open and obvious than ever. In light of the possibility of more than a decade long backlog in the Employment-based Second and Third Preferences, for persons born in India and China, we provided in The Tyranny of Priority Dates, a dispassionate approach for the exercise of discretion to ameliorate the plight of those caught in the backlogs. The entrenched positions and mutual recriminations that characterize relations between all major interest groups makes such a disinterested dialogue virtually impossible. Consequently, the system becomes increasingly rigid and ever more incapable of responding in a meaningful and effective way to new challenges and emerging opportunities.

The Doris Meissner Memo on Prosecutorial Discretion and Letter from Assistant Attorney General Robert Raben to Congressman Barney Frank (available on AILA Infonet at Document # 00020771, Feb. 7,2000) both dealt with concerns by immigration advocates that the Illegal Immigration Reform and Responsibility Act of 1996 had deprived the legacy INS of the fundamental authority to grant discretionary relief; in each case, it was not the presence or absence of discretion that was of primary concern to critics who sought clarification and reassurance but rather the ability to obtain the substantive relief that Congress had seemed to put out of reach.

Both critics and defenders of discretion often convey the subliminal but powerful message that discretion is the polar opposite of enforcement. Restrictionists oppose discretion because they oppose the substantive relief that discretion makes possible. Advocates promote discretion not because they accept the need for more intelligent or targeted enforcement, but because they hope that its vigorous exercise will make any enforcement less likely.

The point is that whether discretion is good or bad depends upon whether one supports or opposes the short-term end result to which discretion is presumed to lead. A detached, disinterested examination of how discretion will affect the larger national interest or the fundamental heath and rationality of the system itself is, sad to say, conspicuously absent.

The Immigration Policy Center has published a report on the historical role of the Administration in exercising discretion. This paper provides the example of the implementation of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), which provided relief, but unequal treatment, to Nicaraguans, Cubans, Salvadorians and Guatemalans. Nicaraguans and Cubans were allowed to adjust their status without preconditions, while Salvadorians and Guatemalans were thrown the gauntlet to demonstrate extreme hardship if removed from the US. While advocates demanded the same standard to apply for Salvadorians and Guatemalans as NACARA sought to apply for Nicaraguans and Cubans, which the then Clinton Administration correctly stated it could not do under the legislation, the Administration compromised through subsequent regulation, and through use of judicious discretion, by softening “extreme hardship” for Salvadorians and Guatemalans through the creation of a rebuttal presumption standard.

The exercise of discretion by the Clinton Administration after the passage of NACARA is a good example of how this exercise was used judiciously to achieve a compromise between competing interests. Moreover, the use of discretionary administrative action is no stranger to immigration policy, and previous efforts to administratively correct hardships or imbalances were implemented without a whisper. Deferred Action has been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. A USCIS memo, issued on June 15, 2009, provided extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries could request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow (er) who was married less than two years at the time of the citizen’s death to apply for permanent residence. The USCIS has also implemented “parole in place” for spouses for military personnel who would otherwise not be eligible for adjustment of status if they were unable to demonstrate that they were admitted or paroled into the US.

It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system, the Administration can exercise discretion, devoid of ideology, to remedy the imbalance. In the context of the recent August 18 policy announcement about closing the cases of low priority respondents in removal, people on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 12 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it would be wiser for the Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US under the August 18 policy, even if it does not go all the way, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans.

FINAL IMMIGRATION LESSON FROM THE DISMISSAL OF THE STRAUSS-KAHN CASE

August 24, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus Mehta

Much has been written about the amazing turn of events in the Strauss-Kahn case that resulted in the dismissal of the criminal charges against him. The Manhattan DA’s motion to dismiss the indictment reads like a treatise on the ethical role of the district attorney in prosecuting a case, while also richly detailing the inconsistencies of the accuser, Nafissatou Diallo. According to the motion, if the prosecutor does not believe that a crime was committed beyond a reasonable doubt, he or she cannot ask the jury to do so. Moreover, the motion goes on to state that the prosecutor’s duty is to seek justice and not just to win cases. Under New York ethical rule 3.3, a lawyer cannot offer evidence that he or she knows is false and has a duty to correct any false evidence that the lawyer has already offered to the court. I do not fault the ethical judgment of Cyrus Vance, the Manhattan DA, in declining to prosecuting this case, as well as alerting the court of the many inconsistencies of Ms. Diallo after they came to light, although Slate has offered a well reasoned rebuttal of the inconsistencies of Ms. Diallo that have been alleged by the DA’s office.

The main concern for this writer, as stated in prior blogs on the Strauss-Kahn case, is that in the future immigrants will be more reluctant to come forward and press charges if they have been victims of sex crimes. Since in most such cases, the success of the prosecution depends on the credibility of the accuser, one with a less than perfect immigration past will be susceptible to her credibility being attacked in a trial. It is not uncommon for asylum seekers who have been persecuted to be coached by unscrupulous immigration practitioners, both authorized and unauthorized, to exaggerate their claims. For instance, one who may have suffered female circumcision, which in itself is a basis for asylum, may be coached to also state that she was raped by governmental actors to bolster the claim. This is not to suggest that asylum seekers do not present truthful claims. In the experience of this writer, most do, but it is also possible that some may not, especially if they are not represented by an ethical practitioner, and still obtain asylum. If they become victims of a horrific rape in the future, they may be discouraged from coming forward even if the prosecutor is willing to take up the case.

As the recent New York Times editorial on the Strauss-Kahn case aptly states:

There is a legitimate concern that his decision may discourage rape victims from coming forward in the future. Women who have been assaulted often worry, with reason, about being victimized a second time in court. And those with problematic backgrounds must feel confident that they can demand and receive justice.

Finally, what about the fate of Ms. Diallo? Will she be thrown to the wolves even though it is possible that a crime may have been committed during those few minutes in the hotel room, but the prosecutors have declined to go forward because they cannot convince a jury beyond a reasonable doubt that it occurred? If her asylum case was fabricated, the DHS could potentially reopen the case and place her in removal proceedings. She can try to again seek asylum on the genuine grounds of persecution that she suffered, but did not reveal in her asylum application. On the other hand, because she has a minor daughter, and she has been a victim of female circumcision, she could also merit the exercise of the government’s prosecutorial discretion.

Ms. Diallo can also seek a U visa if all else fails and her back is pushed against the wall. To qualify for the U visa under Section 101(a)(15)(U) of the Immigration and Nationality Act, the foreign national must demonstrate that she “has been helpful, is being helpful, or is likely to be helpful” to the prosecutor in addition to demonstrating substantial physical or mental abuse from the criminal activity. After all this, one’s instinctive reaction is that Ms. Diallo was not helpful to the prosecution in investigating or prosecuting criminal activity that would qualify one for the U visa, such as a rape or related sex offenses. The applicant must also possess “credible and reliable information that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based.” See 8 C.F.R. 214.14(b)(2). However, in the U visa immigration context, it can be argued that she was helpful to the prosecution, despite her many inconsistencies, but it was ultimately the prosecutor’s office that decided to drop the case as they could not prove to a jury beyond a reasonable doubt that the offense was committed. A careful read through the motion to dismiss does not suggest that the prosecution was convinced that criminal activity did not occur in the hotel room. A U visa applicant should not be deprived of this benefit only because the prosecution ultimately decided, based on the flaws in the case, that it could not take the case forward in a criminal proceeding under a higher “beyond a reasonable doubt” standard. Also, the grant of a U visa ought not to be based on whether the victim was able to prove the charges against the accuser. Thus, even if there is an acquittal against the defendant who is found not guilty, the U visa ought to still be approved for the crime victim who was helpful to the prosecution, even though unsuccessful. Moreover, the U visa depends on whether the prosecutor will sign the crucial certificate of helpfulness that provides the basis for a successful U visa application. Even if the Manhattan DA’s office dismissed the indictment, it should not shy away from certifying that Ms. Diallo was helpful for purposes of the U visa. This is the least that Cyrus Vance can do if Ms. Diallo needs to remain in the United States. Such a gesture would also provide some encouragement for other immigrants to come forward who have been victims of sex offenses.

FEWER PEOPLE TO GET DEPORTED UNDER NEW POLICY: HAS THE ADMINISTRATION FINALLY COME TO ITS SENSES?

August 19, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus Mehta

The Department of Homeland Security in a letter addressed to Senator Durbin and 21 other senators announced on August 18, 2011 a new policy that would identify low priority removal cases for the exercise of prosecutorial discretion. According to a New York Times story, the beneficiaries of such discretion would also be able to obtain work permits.

This is a refreshingly positive development, and shows that the Obama administration may have hopefully finally come to its senses. At a time when Congress is in a stalemate, and it has been acknowledged that 12+ million people cannot be deported, the administration has used its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans. On first impression, the new policy appears to be a mere promotion of the Morton Memo of June 17, 2011 on prosecutorial discretion. It does not grant relief on a broad scale, and it appears, if put into effect as promised, that it will probably only assist people on a case by case basis who are already in removal proceedings or will be placed in such proceedings. According to Senator Durbin’s website, this is how the new process will work:

Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

On the other hand, the new policy involves an inter-agency effort to identify the low priority cases. Under the Morton Memo, only ICE was charged with the responsibility of exercising prosecutorial discretion, and it seemed unlikely that all ICE officials in the field would follow the new mandate. Indeed, there was already a rebellion within the rank and file of ICE against the Morton Memo. The latest inter-agency initiative refreshingly also involves Immigration Judges at the Executive Office for Immigration Review, who could probably coax the ICE prosecuting attorney to terminate a deserving low priority case and take it off their tremendously clogged court calendar. The new initiative ought to also deeply involve the USCIS. Although the USCIS’s mandate is to grant immigration benefits rather than enforce the law, the USCIS is also authorized to issue Notice to Appears upon a denial of a benefits application. If the USCIS applies discretion earlier on, fewer low priority individuals will be placed in removal proceedings in the first place.

Most problematic at this stage with the new policy, as noted by DREAM activist and law student Prerna Lal, who is herself in deportation is that it may not assist those who are in a legal limbo. These are undocumented individuals who have not yet come on the radar of DHS to even be considered being placed in removal proceedings. We surely do not want to encourage the perverse effect of such people coming forward and attempting to be placed in removal proceedings (by say filing a frivolous asylum application) solely to be considered for prosecutorial discretion. This would also defeat the purpose of the new policy as it will create more work than necessary to process people for removal and then consider them under the new policy for prosecutorial discretion. Indeed, the next logical step for the Obama administration and DHS is to affirmatively grant deferred action, parole and work permits to people in legal limbo who can come forward if they meet the same low priority criteria as those who are in removal proceedings or about to be put into these proceedings. The government does have the power to exercise such discretion under the existing provisions of the Immigration and Nationality Act. Gary Endelman and Cyrus Mehta in a prior blog have outlined a blueprint for undocumented individuals to be affirmatively granted administrative relief, See Keeping Hope Alive, President Obama Can Use His Executive Power Until Congress Passes The Dream Act, http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html.

Critics of the use of prosecutorial discretion such as House Judiciary Chairman Lamar Smith will argue that the President is not faithfully implementing the law. This would be a valid position if our immigration laws were rational and not broken. The reason why we have such a huge undocumented population is because our outdated laws are broken, and have not been able to provide sufficient pathways for people who need to unite with family members in the US . The existing legal framework also deprives employers from being able to effectively sponsor them for work permits or green cards. Moreover, the President is not bypassing Congress by creating a new class of permanent residence. In exercising prosecutorial discretion, the President is merely refraining from deporting low priority individuals, and using his power within the INA to grant administrative relief such as a work permits, parole or deferred action. If Mr. Smith were to have his way through the passage of the HALT Act, which would remove all discretion from the administration, our immigration law would be even more broken, and the undocumented population would continue to build without being able to benefit the US.

PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I FILE A PERM LABOR CERTIFICATION?

August 12, 2011/2 Comments/in Blog, uncategorized/by Cora-Ann Pestaina

by Cora-Ann V. Pestaina

The Department of Labor (DOL) has announced that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage Center (NPWC) has temporarily suspended processing of prevailing wage determinations (PWD), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in 3-4 weeks.

In response to practitioners’ inquiries concerning pending requests, the NPWC has been issuing the following e-mail:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. If you have further questions concerning your PWD, please contact 202-693-3010.

In an August 30, 2010 decision in CATA v. Solis the District Court ordered the DOL to promulgate new H-2B prevailing wage regulations. When the DOL made a decision to delay, by almost one year, the effective date of those regulations, the Federal Court found that the DOL violated the Administrative Procedure Act by imposing the delay without engaging in notice and comment. The Court also found that the DOL acted in contravention of the Immigration and Nationality Act because it justified the delay by pointing to potential hardship to employers—a consideration that was outside the scope of the DOL’s congressional mandate. The year-long delay in implementing the new wage regulations would require the continued payment of a lower and invalid wage to H-2B workers. In a June 15, 2011 court order, the Court mandated a change in the effective date of those regulations.

In order to comply with the Court order, the DOL issued a final rule published in the Federal Register on August 1, 2011, with an effective date of September 30, 2011. There are existing H-2B temporary labor certifications covering work to be performed after September 30, 2011, for which the previously issued PWDs no longer apply. The NPWC is now utilizing all of its resources to reissue approximately 4000 PWDs to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011. In the rule published on August 1, 2011, the DOL indicated that they will be able to reissue all of the required H-2B wage determinations before October 1, 2011 but not before August 31, 2011.

The temporary suspension of processing on PWDs greatly impacts the PERM labor certification process. PERM is the first step of the green card process for foreign nationals seeking permanent residence through their employment. The PWD is an extremely important component of the process and pursuant to 20 C.F.R. §656.40, obtaining a PWD is a mandatory step under PERM. In accordance with 20 C.F.R. §656.40(c) PWDs are issued with a validity period between 90 days and 1 year from the date of determination and in order to use a PWD, the employer must file the PERM application or begin required recruitment within the validity period of the PWD.

Under 20 C.F.R. § 656.10, the employer must post the Notice of Filing for at least 10 consecutive business days between 30 and 180 days before filing the PERM application and the Notice of Filing must contain a wage that is equal to or greater than the PWD. In addition, under 20 C.F.R. §656.17, the mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. Employers who commenced PERM recruitment prior to obtaining the PWD may now have to watch the recruitment expire if the PWD is not issued in time. The employer may have to conduct new recruitment once the NPWC resumes processing of PWDs.

Conducting new recruitment could be a very expensive process for the employer. But, beyond that, the inability of the employer to file a PERM application on behalf of a foreign national in H-1B status may have more far-reaching effects. §106(a) of the American Competitiveness in the 21st Century Act (AC21) allows one to apply for a 7th year H-1B extension if a labor certification or an I-140 petition was filed 365 days prior to the end of the 6th year in H-1B status.

Accordingly, if, due to the current suspension of processing, an employer is unable to file the PERM prior to the commencement of the foreign national’s 6th year in H-1B status, this may affect the foreign national’s ability to extend his or her H-1B status at the end of the 6th year.

There are a few steps employers may take to cope with the current delays in processing and to ensure that they are able to timely file their PERM applications and utilize recruitment before it expires or to protect the foreign national’s ability to extend H-1B status in the US.

Utilize a previous PWD

An employer is permitted to use the same PWD for multiple PERM applications if the PWD is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved. Therefore, a PWD issued in relation to a previous PERM could potentially be used for other PERMs.

Utilize an expired PWD

If the employer commenced its earliest recruitment during the PWD’s validity period, then there is clearly no need to obtain a new PWD and the employer may file the PERM application utilizing the expired PWD.

The DOL previously denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. However, under the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), the employer can rely on an expired PWD in the filing of a PERM application if the employer initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application. The DOL has not yet indicated that it will follow Matter of Horizon Computer Services and employers who intend to rely on this case ought to bear in mind that the employer in that case initiated MOST of its recruitment during the PWD validity period. (See my previous blogs on this topic at http://tiny.cc/mtv39 and http://tiny.cc/9u8zp.)

Predicting the PWD

Practitioners can predict what level and wage will be assigned to any position by going through the same analysis in which the DOL will engage. The Prevailing Wage Guidance (See “Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs,” published on AILA InfoNet at Doc. No. 10019468 (posted Jan. 4, 2010)) provides a detailed description of the four levels, as well as a worksheet at Appendix C and instructions specifying five steps to determine the prevailing wage level. Once the PWD has been predicted, the employer can post the Notice of Filing. This way, the employer will not be forced to wait until the NPWC resumes processing and actually issues a PWD in order to post the Notice of Filing. If the Notice of Filing has already been posted and the employer has complied with the mandatory 30-day quiet period, once the NPWC issues the PWD, the employer may quickly proceed to file the PERM application. If the employer is clearly offering a wage that is excess of any PWD that the NPWC could issue, then the employer need not estimate the PWD and need not wait for the PWD before posting the Notice of Filing.

In the event that the NPWC issues a PWD that exceeds the predicted wage listed on the Notice of Filing, the employer will have no choice but to post a new Notice of Filing bearing the new, higher wage. If the wage was listed in any other forms of recruitment, then that recruitment will have to be restarted. All of this will delay filing of the PERM. The employer will have to conduct precise calculations to ensure that all recruitment occurs within the 30 – 180 day timeframe prior to filing a PERM application.

Hopefully, come October 1st, the NPWC will resume processing on PWDs, etc. As usual, these requests will be processed on a first come, first served (FIFO) basis and no expedite requests will be accepted. Practitioners must continue to file requests for PWDs to secure a place in the lengthening queue.

Do We Have a Start-Up Visa For Entrepreneurs Even When Congress Has Not Lifted a Finger?

August 5, 2011/0 Comments/in Blog/by Cyrus Mehta

The US economy remains sluggish. The joblessness rate is still much too high. Even after the debt ceiling crisis was averted at the last minute, the compromise did not generate any excitement or renewed optimism. Indeed, the Dow Jones industrial average plunged more than 500 points on August 4, 2011 on fears that the US may enter into another recession.

We need something new that would give us cause for hope. How about an immigration stimulus?

On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and USCIS Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” Director Mayorkas wrote a blog acknowledging that entrepreneurs and skilled workers would “fuel our nation’s economy by creating jobs, and promoting new technologies and ideas.”

All this has happened without Congress lifting a finger. In fact, even the DHS has not done much. It has clarified the true meaning of the provisions in the Immigration and Nationality Act, which Congress itself enacted, which it had previously distorted. For example, in its prior policy memo authored by Donald Neufeld on H-1B employment relating to third party sites, the USCIS indicated that to qualify as an H-1B worker, the petitioning employer must demonstrate an employer-employee relationship. Under such circumstances, it would be practically impossible for an owner of a company to be sponsored for an H-1B if it could not demonstrate that the entity could control the employment, despite administrative decisions upholding the separate existence of the corporate entity. In the latest H-1B Question and Answers, the USCIS appears to still hold the line about the need to demonstrate an employer-employee relationship, but has conceded that this can nevertheless be demonstrated even when the owner of the company is being sponsored on an H-1B visa, so long as there is a right of control by the petitioner over the employment of the beneficiary. According to the USCIS Q&A:

For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

This is indeed a welcome clarification, and is something that we also advocated in a prior article on our website, See Cora-Ann Pestaina, USCIS GRAPPLING WITH THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA:

Also, the chance of an approval is greater if others are also involved in the management of the entity. Petitioners must endeavor to establish the power to make final decisions and to terminate the beneficiary’s employment. For example, the employer-employee relationship might be satisfactorily illustrated where petitioner’s bylaws clearly dictate how the corporation will be managed. Petitioner may be able to show, through its bylaws, that its business and property will be managed by a Board of Directors and that a majority vote of this Board will govern the employment, compensation and discharge of all employees of the corporation. A Board of no fewer than three Directors, including the beneficiary, would mean that the majority vote belonged to Directors other than the beneficiary and essentially, that petitioner held the power to make decisions for the company and to terminate the beneficiary’s employment. As a result, the employer-employee relationship is less likely to be questioned.

We hope that this policy announcement becomes a reality and that the officers in the field faithfully follow the directives. Vivek Wadhwa, noted scholar on entrepreneurship, has stated in his recent column in the Washington Post, “We could easily see thousands of start-ups generating tens of thousands of jobs in the next couple of years if these changes are enacted in the spirit that they were intended.” Indeed, unlike the legislative proposal for the Start-Up Visa (which has not made much progress in Congress), or the more onerous EB-5 Investor category that exists presently, there is no minimum investment requirement or creating a minimum number of jobs within a certain time frame. The petitioner, however, will still need to demonstrate that it will be employing the beneficiary in a specialty occupation, which is a position that requires the minimum of a bachelor’s degree in a specialized field, and that the entity will be able to provide work for the beneficiary in this specialty for the duration of the H-1B visa.

The H-1B visa has a six year limit. What happens to this entrepreneur after six years? The USCIS has clarified other existing provisions to encourage entrepreneurs. to apply for the green card. Another set of Question and Answers on the Employment-based Second Preference (EB-2) suggests that an entrepreneur can be sponsored under this immigrant visa category, which generally requires a labor certification, but can seek an exemption of the labor certification requirement through a “national interest waiver.” In addition, the beneficiary must be able to demonstrate an advanced degree (or its equivalent – bachelor’s degree + 5 years of post-baccalaureate experience) or exceptional ability. This too is nothing new. The national interest waiver was enacted by Congress in 1990, and exists under INA §203(b)(2)(B), except that it had become impossibly hard to obtain under Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT), which set forth a three-prong test.

With respect to the first two criteria under NYSDOT, the petitioner must show that he or she will be employed “in an area of substantial intrinsic merit” and that the “proposed benefit will be national in scope.” Interesting, until this new policy, it was always difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. This concern has now been put to rest in the EB-2 Q&A:

For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.

It is the third that is extremely opaque and difficult to overcome. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.” The AAO went on to further illuminate this criterion as follows: “Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”

Overcoming the third prong is difficult, and allowed the USCIS to shoot down the best of arguments made by a national interest waiver claimant. Indeed, the USCIS could always resort to this subjective criterion to thwart even the most meritorious of claims, which is that the claimant does not overcome the inherent interest of the government in making the job available to US workers.

The EB-2 Q&A refreshingly provides the following golden nugget to the entrepreneur to overcome the third prong:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for the NIW. For example, the entrepreneur may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

It would have been nice if the USCIS had thrashed the three prong test in NYSDOT, as in my opinion, INA section 203(b)(2)(B) does not set forth such a cumbersome test, and the statute, which is a clear expression of Congress, is more important than an AAO decision, which added a spin on an unambiguous statutory provision. And what if the entrepreneur cannot demonstrate that he or she is working in the national interest or cannot qualify under the EB-2 because he or she lacks an advanced degree or exceptional ability?

The EB-2 Q&A appears to suggest that the entrepreneur can also be sponsored for a green card under the EB-2 through a labor certification. Presumably, an entrepreneur under the EB-3 could also be sponsored through a labor certification. This is a surprise. The DOL has always frowned upon an owner of an entity being sponsored for a labor certification. In order to obtain labor certification, the employer must establish that it has conducted a good faith test of the labor market and that there were no qualified US workers who were available for the position. The DOL has denied labor certification to both 100% and minority owners of companies who filed a labor certification on their behalf. See ATI Consultores, 07-INA-64 (BALCA Feb. 11, 2008); M. Safra & Co. Inc., 08-INA-74 (BALCA Oct. 27, 2008). The test for determining whether an employee closely tied to the sponsoring entity could qualify for labor certification was set forth in Modular Container Systems, Inc. 89-INA-228 (BALCA July 16, 1991) (en banc), where BALCA applied a “totality of circumstances” test to determine whether there was a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

Clearly, an entrepreneur who may successfully obtain an H-1B visa under the new guidance will most likely fail under the Modular Container Systems “totality of circumstances” test. Did the USCIS consult with the DOL before issuing this guidance? Will the DOL be receptive to the USCIS’s new policy of encouraging entrepreneurs and liberally interpret Modular Container Systems? When DOL implemented the new PERM labor certification program, it also promulgated 20 C.F.R. §656.17(l), which incorporates some of the Modular Container analysis, and also requires the employer to certify on the PERM labor certification application whether the foreign national has an ownership interest in the sponsoring entity or has a familial relationship with the stockholders, corporate officers, incorporators or partners. What will become of this regulation? I do not feel that the DOL will change its ways on entrepreneurs. Whether one agrees or not, the DOL believes that its narrow mission is to protect the jobs of US workers, and not to spur economic recovery and growth. Of course, one can argue that foreign entrepreneurs who are allowed to start up businesses and stay in the US will likely create jobs for US workers, rather than take the jobs of Americans, but this logic may fall on deaf ears as far as the DOL is concerned. I hope I am proved wrong on this by the DOL.

In conclusion, the new policy, if implemented, will allow foreign entrepreneurs to obtain H-1B visas, and under certain circumstances, also qualify for a “fast track” green card under the National Interest Waiver. Much administrative tinkering still needs to be done if we really want to create a system that will spur amazing economic activity. The DOL will need to fall into line. The horrendous EB-2 and EB-3 backlogs for Indian and Chinese beneficiaries will still persist. It makes no sense to encourage entrepreneurs from India and China if the wait to get a green card will be in excess of 5 years in the EB-2 or more than a decade in the EB-3. In Tyranny of Priority Dates, Gary Endelman and I offered a blueprint for further administrative action to allow beneficiaries of approved I-130 and I-140 petitions to file adjustment of status applications even if the priority date is not current as well as allow the grant of employment authorization and parole, which would include spouses and other dependants. We have also provided an administrative blueprint for DREAM kids. Our proposals are more ambitious, but I am heartened that the Executive Branch on August 2, 2011 did the right thing by recognizing that foreign national skilled workers and entrepreneurs can be an asset rather than a liability, even in such hard economic times. If the USCIS guidance is properly implemented, these skilled foreign nationals may provide much needed stimulus for the flagging and lackluster US economy.

THE ROLE OF THE IMMIGRATION LAWYER IN ADVISING UNDOCUMENTED IMMIGRANTS

July 29, 2011/1 Comment/in Blog/by Cyrus Mehta

By Cyrus Mehta

Immigration lawyers commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the attorney recommend that this person remain in the U.S. in this unlawful status until a benefit “may” accrue in the near or distant future? Even if the attorney may not directly advise the client to remain in the U.S. in violation of the law, would an attorney advising the client of a potential future immigration law be implicitly encouraging the client to remain in violation of the law, and also be implicating any ethical obligations?

This situation indeed is one of the great paradoxes in immigration practice, since an individual who is in undocumented status need not expect to remain eternally undocumented. A classic example is one who is “grandfathered” under § 245(i) of the INA. So long as an immigrant visa petition or labor certification was filed on behalf of this person on or before April 30, 2001 that was “approvable as filed,” and if the principal applicant, for whom the labor certification was filed was physically present in the U.S. on December 21, 2000 (in cases where the labor certification or petition was filed after January 14, 1998), this individual can ultimately adjust status in the U.S. when she is eligible to do so.

In the meantime, while this individual is waiting to become eligible for adjustment of status, he or she continues to remain unlawfully in the U.S. and may also be placed in removal despite having an approved petition, but unable to adjust status until the priority date becomes current. We encounter yet another paradox when such a person who is potentially eligible under § 245(i) is issued a Notice to Appear and is placed in removal proceedings. The Board of Immigration Appeals has held that it may be an abuse of discretion for an Immigration Judge to deny a continuance to a respondent who has a prima facie approvable visa petition, in both the family and employment context, and is also potentially eligible for adjustment of status. See e.g. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).

Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria pursuant to INA §240A(b), such as by being physically present in the U.S. on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or a permanent resident. Similarly, the undocumented person can also apply for asylum within one year of his or her arrival in the US, and can do so even later, if exceptional or extraordinary circumstances are demonstrated. Conversely, a documented person, such as one in H-1B status can according to the government also technically be considered not in status, during the pendency of an extension request, although this position has been successfully challenged.

Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status (TPS), if a calamity were to befall his or her country such as the recent TPS program and its extension for Haitians after the devastating earthquake on January 12, 2010. Millions of undocumented immigrants, including children, who have fallen out of status or entered without any status, are waiting for Congress to pass legislation that could legalize their status. Immigration lawyers also advocate on their behalf, and help them draft petitions and accompany them to the offices of elected representatives.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), which held that undocumented children could not be deprived of a public education, is worth noting:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

Against this backdrop, the immigration lawyer must be mindful of certain limitations. On the one hand, a lawyer is under a duty to act zealously. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only zealously represent his or her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling a client to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation where an undocumented noncitizen can eternally hope to gain legal status, a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The latest Immigration and Customs Enforcement Memo on prosecutorial discretion by John Morton, June 17, 2011, instructing officials to exercise prosecutorial discretion in a number of situations also behooves the immigration attorney to zealously advise his or her clients of all options notwithstanding INA §243. The ICE Memo instructs that an individual who is removable, but is on low enforcement priority, can ask ICE for supervised release (and can then request employment authorization), deferred action or can seek to reopen with the government’s consent the removal order if there is relief available.

What about a state law that makes it criminal for an unauthorized immigrant to remain in the state? We can argue at this point that the major provisions of the laws of Arizona, Georgia and Indiana have been enjoined as being unconstitutional. Many of these state laws could snare people who may not technically be registered under federal law, but may be allowed to remain in the US by the federal government and even be given employment authorization such as battered spouses who have filed self-petitions under the Violence Against Women Act, U visa applicants (victims of certain crimes ) or TPS applicants. Moreover, while a state may seek to banish the so called individual from its territory, under the federal immigration system, he or she must first be placed in proceedings. While in proceedings, this individual can then potentially apply for relief such as cancellation of removal, and can get employment authorization even while continuing to remain unlawfully present. The author commends readers to David Isaacson’s A PRELIMINARY LOOK AT SOME OF THE CONSTITUTIONAL AND PRACTICAL PROBLEMS WITH ALABAMA’S NEW IMMIGRATION LAW in order to fully understand the contradictions between a state’s immigration law and the federal immigration law.

In closing, Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

(This blog include extracts from How To Walk The Ethical Line – Being Less Stressed Out, by Cyrus D. Mehta, Sam Myers, and Kathleen Campbell Walker, AILA’s Immigration Practice Pointers (2011-12 Edition)).