Cyrus Mehta

GOING BEYOND THE POLITICS OF DISCRETION IN THE AMERICAN IMMIGRATION SYSTEM

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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.

Cyrus Mehta

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

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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.

Cyrus Mehta

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

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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.

Cora-Ann Pestaina

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

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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.

Cyrus Mehta

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

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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.

Cyrus Mehta

THE ROLE OF THE IMMIGRATION LAWYER IN ADVISING UNDOCUMENTED IMMIGRANTS

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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)).

Cyrus Mehta

ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS

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By Myriam Jaidi

Second Circuit Court Judge Denny Chin’s decision in Lawson v. USCIS, 09 Civ. 10195 (DC) (issued July 7, 2011) provides a beacon of hope for individuals who have overcome a reprehensible past and wish to pursue U.S. citizenship, and serves as an exemplar to advocates and adjudicators not only on the legal question of good moral character but also on the way to analyze other cases such as waivers requiring a demonstration of extreme hardship. Like the issue of good moral character, which was the lynch pin in Lawson, extreme hardship waivers require the same care in preparation and in adjudication revealed by Judge Chin’s searching legal analysis in Lawson. Judge Chin’s scrutiny and weighing of all relevant facts and legal issues in the case provides a guide to adjudicators on how to conduct the required “case by case” legal analysis. Judge Chin expertly applies the appropriate legal standards with a keen awareness of relevant policies and priorities, and a judicious exercise of discretion that results in justice triumphing over petty posturing.

Judge Chin’s decision also makes clear that applying a set of government priorities in determining whether a legal standard has been met does not mean that individuals will have an easy time of making their cases. Advocates should review the decision and the laws at issue for a sobering overview of just how high the standard is, and how much work and client preparation need be done to succeed in arguing that someone has demonstrated good moral character in the context of naturalization, or merits a favorable decision on a waiver application in the admissibility context. Adjudicators should, in turn, review the case for guidance, in the absence of guidance from DHS/USCIS, on how to apply the law within the framework of agency priorities.

Make no mistake: the road to showing someone merits a favorable finding of good moral character or a favorable exercise of discretion for a waiver, is a hard one and the bars in these case are nebulous and set quite high. Here we will explore the difficulties of establishing good moral character as a matter of law, but readers should keep in mind that the same principles for building and analyzing a case can readily apply in the waiver context as well.

Although courts have long espoused the notion that “[w]e do not require perfection in our new citizens,” Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961), those who have committed significant crimes or have other grave negative incidents in their past face an uphill battle that can be won only if they do not fall within one of the bars to establishing good moral character and only if they have made exemplary efforts to redeem themselves.

In Lawson, the court concluded that Vernon Lawson, a Vietnam War veteran honorably discharged from the Marines, established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985 because he paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates.” Lawson at page 2.

In addition, Mr. Lawson continued his efforts at reform after he left the confines of prison:

Upon his release, he obtained gainful employment, and spent eight years as a drug abuse counselor, drawing on his own experience to help countless individuals deal with their addictions. He moved back home with his mother and took care of her as her health failed. He went to church every Sunday and regularly volunteered to help in church activities. He brought food to homeless veterans, played chess in a neighborhood chess club, and tended a neighborhood garden.

Lawson, at page 3. As described by Judge Chin, Mr. Lawson made extensive, ongoing efforts to overcome his past and though, as the court noted, he committed an “unspeakable act”, by the time of the court’s decision he had utterly reformed his life, had paid his debt to society, and therefore established that he met the legal standard for good moral character.

Judge Chin also spent considerable effort in examining Mr. Lawson’s life experiences and how these impacted him, to place Mr. Lawson’s efforts at redemption and the changes he effected in his life in context. Judge Chin closely considered Mr. Lawson’s horrific experiences in Vietnam, where he became a substance abuser as a result of the stress and suffered psychological damage. He did not get the necessary treatment until he was in prison more than 20 years after he returned from serving his country honorably.

In Mr. Lawson’s case, as in many cases, good moral character made the difference between deportation and US citizenship. That these two outcomes are alternatives in one case is astounding and underscores the importance of closely examining and mustering the positive efforts and achievements in an individual’s past and present, even where a significant obstacle to a finding of good moral character may exist. Doing so (and making the determination of whether someone should risk applying for naturalization), however, requires an understanding of the nebulous concept of good moral character as well as a firm grasp of the government’s policy goals.

Although the relevant legislative and regulatory frameworks provide an idea of what precludes a finding of good moral character, no definition exists and the term has been called “incapable of exact definition.” Posusta v. United States, 282 F.2d 533, 535 (2d Cir. 1961). The statutory and regulatory bars may be found in INA 101(f) and 8 CFR 316.10. These laws dictate a finding of a lack of good moral character for a person who has ever been convicted of murder, who has been convicted of an aggravated felony (defined in INA 101(a)(43)) after November 29, 1990, and who has at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom). Further, an applicant must be found to lack good moral character if during the relevant statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;
(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act;
(viii) Is or was involved in the smuggling of a person or persons into the United States as described in section 212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant was convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.

Finally, a third set of preclusions apply, which includes a catchall. Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing marriage; or
(iii) Committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

The time frame relevant to a determination of good moral character may reach well beyond the specific statutory periods relevant to particular types of petitions, for instance 5 years (individuals applying as lawful permanent residents under INA 316(a)(1)), 3 years (if LPR living for 3 years in marital union with US citizen spouse under INA 319(a)), 1 year (under regulations governing eligibility under INA 329). According to 8 CFR § 316.10(a)(2), USCIS may

take into consideration, as a basis for its determination, the applicant’s conduct and acts at any time prior to [the relevant statutory] period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.

Within this framework, USCIS is directed by regulation to evaluate good moral character “on a case-by-case” basis. 8 CFR § 316.10(a)(2) There is sparse policy guidance on the question of good moral character. The Adjudicator’s Field Manual contains a lengthy section on good moral character but the section is designed to provide an overview of the statutory bars, methods of uncovering fraud, and procedures for defending challenges to a denial rather than apprising officers of how to objectively assess a person’s character within the framework of the laws and overarching agency policies. The AFM provides a baseline for analysis, specifically that “good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides should be considered, without regard to whether the applicant has been arrested or convicted.” AFM 73.6(a). The AFM also provides some helpful guidance with regard to what kind of misstatements may be excused or insignificant because they do not demonstrate the requisite intent to deceive for an immigration benefit. (“[M]isrepresentations that results [sic] from poor memory or because the applicant did not understand the question are not false testimony.”) However, in the next paragraph, the AFM goes on to note that individuals use the failure to understand the question as a “very common defense” and refers readers to another section “regarding interviewing techniques and proper documentation to file in order to eliminate this line of defense.” Perhaps more helpful to adjudicators would be direction on how to figure out whether someone is using a “line of defense” or sincerely has not understood. Such direction is once again found in Judge Chin’s decision.

In Mr. Lawson’s case, the government finally based its effort to deport Mr. Lawson on its claim that he committed perjury (at the deposition taken as part of the action in district court regarding his application for naturalization) for the purpose of obtaining an immigration benefit (in violation of 8 CFR § 316.10(b)(2)(vi)). The government argued that Mr. Lawson did not truthfully answer a question about whether he continued to drink alcohol. Closely examining the questions asked and answers given, Judge Chin found that Mr. Lawson had not understood the question at the deposition. Judge Chin recognized that Mr. Lawson had interpreted the words “drinking” and “drinks” [and “alcohol”] to mean “hard liquor” and reasonably interpreted the question as inquiring whether he continued to engage in abusive drinking. The court concluded that Mr. Lawson could therefore not be found to have committed perjury for not mentioning that he occasionally had wine or beer at family gatherings. The court noted that “[i]n light of the case law and all of the compelling circumstances, the Government’s latest position seems nothing but petty.”

After Mr. Lawson’s many years of hard work to redeem his character, it is daunting to think that a misinterpretation of question could have made all the difference in his case. What saved Mr. Lawson was not only that the court found that he had not answered the question “falsely” but also that case law recognizes other possible motives for false statements besides that of seeking to obtain an immigration benefit or naturalization exist and requires these alternatives to be considered. Judge Chin reviewed case law recognizing that fear, embarrassment or a desire for privacy could be alternative reasons, see Kungys v. United States, 485 U.S. 759, 782 (1988) as could misinterpretation of a question. See United States v. Hovsepian, 422 F.3d 883 (9th Cir. 2005).

Hovsepian involved two individuals who had been convicted in the past of serious crimes, but who, like Mr. Lawson, had completely reformed their lives, both earning advanced degrees and becoming community and youth role models, devoting a great deal of their lives to community leadership. The government argued that in the course of their quest for naturalization, each made false statements on the Form N-400 and regarding other issues (one regarding the nature of a youth group to which he belonged; the other regarding other names by which he had been known). Ultimately, the court found no error in the lower court’s conclusion that the individuals had not given intentionally false testimony for the purpose of obtaining an immigration benefit. Interestingly, the court noted that the question on the form at issue — “Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” — was rife with potential for misinterpretation or different reasonable interpretations given the extensive case law regarding the concept of “persecution.”

Individuals and their advocates must parse the question of good moral character very carefully and prepare to answer questions carefully, asking for clarification where they do not understand in order to avoid running afoul of the legal standards by mistake. What might appear to be a lost cause may not be if the individual can demonstrate that he has changed for the better because the laws are not meant to punish “but to admit as citizens those who are law-abiding and useful.” Posusta, 285 F.2d at 535-36. Circuit Judge Chin’s decision serves as an excellent reference for understanding what good moral character is and how it can be demonstrated. It also presents guidance for individuals who seek to reform themselves after having committed an act that stands as an obstacle (though not falling within the statutory bars) to naturalization. These individuals must demonstrate sincere and significant efforts to become upstanding and engaged contributors to their communities and to the nation in order to merit a favorable finding on their behalf. Finally, the decision serves, in the absence of guidance from DHS/USCIS on the adjudication of good moral character and similarly the exercise of discretion in waiver cases, as an exacting guide of the type of searching legal and factual inquiry adjudicators should make in these cases, not simply to uncover suspected fraud, but to analyze a person in light of their experiences, their mistakes, and their efforts to remake themselves into law-abiding and useful members of their local and national communities.

David Isaacson

LEAVING TOO MUCH FOR ANOTHER DAY: WHAT THE SECOND CIRCUIT’S RECENT CSPA DECISION MISSED IN AGREEING WITH THE RESULT OF MATTER OF WANG

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By David A. Isaacson

In its recent decision in Li v. Renaud, the U.S. Court of Appeals for the Second Circuit found that a derivative beneficiary of a family-based petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, cannot use section 203(h)(3) of the Immigration and Nationality Act (“INA”) to retain the priority date originally given to the principal beneficiary with respect to a petition in the 2B preference category by that principal beneficiary. That is, if your grandfather filed a petition for your father 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 cannot retain the family’s place in the priority-date waiting line now that you count as over 21 after subtracting the year that the petition was pending; instead, you will have to go to the back of the years-long waiting line for an immigrant visa number.

In so holding, the Second Circuit essentially approved the result reached by the Board of Immigration Appeals (“BIA”) in its Matter of Wang decision in 2009, although for somewhat different reasons. In the process, however, the Second Circuit appears to have overlooked the significance of its reasoning as applied to employment-based petitions, a subject which was deliberately left for another day but which I would argue sheds substantial light on why the Second Circuit’s decision in Li was incorrect.Additional background regarding the CSPA in general and Matter of Wang in particular can be found in an earlier article written by this author for our firm’s website. The section construed by Matter of Wang and Li v. Renaud, 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.

Enacted into the U.S. Code at 8 U.S.C. § 1153(h)(3), this section can be found online within 8 U.S.C. § 1153 .

In Matter of Wang, the BIA had overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family preference petition beneficiary to retain the priority date that she previously had shared with her parent. 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.
The Second Circuit in Li went a step further, holding that the statutory language was not even ambiguous, and that one need not resort to legislative intent to find that a priority date could not be retained “to use for a different family petition filed by a different petitioner.” Under circumstances such as the grandfather/child/grandchild fact pattern noted earlier (modeled on the facts of Li), the Second Circuit said, there is no “appropriate category” to convert to, because there is, for example, “no family preference category for grandchildren of LPRs”.
In footnote 1 of the Li opinion, at the urging of amicus curiae Mohammed Golam Azam, the Second Circuit made clear that they were leaving the issue of employment-based petitions for another day, and not determining how § 203(h)(3) applies to such petitions. The problem with this well-intentioned effort not to decide an issue unnecessarily is that it allowed the court to avert its eyes from the implications of the Liholding in the employment-based context, implications which I would argue suggest a problem with the entire holding.

As the reader will note from the quoted text of INA § 203(h) above, § 203(h)(2) specifically applies § 203(h) to derivative beneficiaries under § 203(d) not just of family-based petitions covered by § 203(a), but also of petitions in employment-based cases covered by § 203(b) and in diversity cases covered by § 203(c). Moreover, § 203(h)(3) specifically mentions subsection (d), pertaining to derivative beneficiaries, so we know that § 203(h)(2) doesn’t just apply to principal beneficiaries under § 203(a)(2)(A), children of Lawful Permanent Residents (“LPRs”) petitioned-for under the “2A” preference, who age out and must use the 2B preference for adult sons and daughters. Rather, the structure of § 203(h) read as a whole clearly indicates that the CSPA mechanisms apply to employment-based cases just as well as to family-based cases, and that priority-date retention applies to derivative beneficiaries just as much as to principal beneficiaries.

In the employment-based context, however, the reasoning of Li, if taken to its logical conclusion, suggests that § 203(h)(3) has no role to play at all. Being the child of the beneficiary of an employment-based petition will never qualify as a preference category in its own right, any more than being the grandson of a family petitioner is its own category does, and the derivative beneficiary will never (or almost never) be the direct beneficiary of a second petition by the same employer. Perhaps the Second Circuit in a later case will choose to shy away from this implication and prevent its precedent from going further down the wrong path, but that does appear to be the direction in which Li points it.
On the other hand, § 203(h)(3) does have work to do in the context of § 203(b) petitions if we adopt the interpretation that Li and Matter of Wang rejected, the one previously offered by the BIA in Matter of Maria T. Garcia: that the appropriate category for an aged-out derivative under § 203(d) is the 2B category, under INA § 203(a)(2)(B), with respect to the original beneficiary. This interpretation allows the derivative beneficiary to continue in essentially the same relation to the principal beneficiary that has existed all along, modified for the aging-out. It should not come as a surprise that the process allowed by this interpretation requires awaiting the LPR status of the principal beneficiary, because the defining characteristic of derivative beneficiaries under § 203(d) is always their entitlement to “the same order of consideration . . . if accompanying or following to join[] the spouse or parent”—to quote directly from the text of § 203(d) as enacted at 8 U.S.C. § 1153. By definition, one cannot accompany or follow to join a parent who has not yet become an LPR, whether or not the CSPA is involved.
The irrelevance of § 203(h)(3) with regard to § 203(b) derivatives caused by the interpretation in Li is a contextual clue in the statute that this interpretation is incorrect. Interpretations which render part of a statute superfluous are, and should be, disfavored. According to the logic of Li, it appears that even though § 203(h)(2)(B) mentions family-based petitions under § 203(a) and employment-based petitions under § 203(b) in precise parallel as contexts in which the entirety of § 203(h) should apply to derivative beneficiaries under § 203(d), and even though § 203(d) is specifically cited in § 203(h)(3) as a context in which that particular subsection applies, § 203(h)(3) may not apply at all to § 203(d) derivative beneficiaries of § 203(b) employment-based petitions. Whether or not one agrees with the BIA’s policy decision in Matter of Wang (which this author finds overly harsh) as applied to a statute thought by the BIA to be ambiguous, it certainly seems excessive given this clue to read the statute as unambiguously mandating such a result. And yet that is what the Second Circuit did in Li.
There is a famous saying, often attributed to Thomas Jefferson, that you should never put off until tomorrow what you can do today. Courts are often properly reluctant to follow this maxim, because it is a principal of judicial decision-making in our system of law that a court should not reach out to decide questions unnecessarily. But when a court too cavalierly puts off until tomorrow a question which is actually important to the resolution of the issue it is deciding, it may come to an incorrect result. It appears that this may be what occurred in Li.

Cyrus Mehta

IMMIGRATION LESSONS FROM THE FALL AND RISE OF STRAUSS-KAHN – PART II

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By Cyrus D. Mehta

Ever since the criminal case of Strauss-Kahn began to disintegrate after the New York District Attorney’s office revealed flaws in the credibility of the accuser, I looked back at my earlier blog, Immigration Lessons From the Fall of Strauss Kahn and feel that many of the immigration lessons I reflected upon still hold true. I wrote:

It is difficult for any victim of a sex crime to come forward, given that the defense will seek to turn the tables against her and undermine her credibility. It is even more difficult for an immigrant who has been a victim of a sex crime to come forward since this person’s immigration status, or lack thereof, will also be put under the microscope.

One of the reasons why the case has collapsed is because DSK’s accuser lied on her asylum application. She also fudged her tax returns. I can only speculate that if the NY DA’s office had an immigration expert on its team at the very outset, her asylum story could have been closely analyzed. If it was found to be fabricated, she could have been advised to come clean. Even if her asylum grant was potentially revocable, she could have been assured a U visa status in exchange, which is issued to non-citizens who have been or who will be helpful in a prosecution involving certain offenses, including rape and sexual abuse. Even if the prosecution of such an offense is not successful or is not likely to move forward presently, the non-citizen may still qualify for U visa status. It may have also been possible to file another asylum claim based on the genuine grounds.

Many asylum applicants may have genuine claims, but are still encouraged by unscrupulous practitioners, often times unauthorized, to embellish or alter their stories. This is particularly true of people fleeing desperately poor countries like Guinea who may not be sophisticated and employ the services of a competent attorney in their quest for asylum. The same holds true for the filing of tax returns. Many poor immigrants are misled into filing less than perfect tax returns. An experienced immigration attorney often comes across immigrants who have claimed dependants they were not supposed to claim in their tax return, and the prudent course is to advise the client to amend the tax return or explain to the Immigration Judge, especially in a waiver application where demonstration of good moral character is crucial, the circumstances that caused the filing of an improper tax return. Often times, this strategy is successful and it is still possible to invoke the favorable discretion of the Immigration Judge in granting relief. Putting the false tax return issue in perspective, I am sure if IRS agents looked really carefully they might find flaws in the tax returns of many Americans with regard to their deductions or other positions they may take to save a few dollars in taxes.

The bottom line is that such a person should not be branded as a fabricator and liar. Such actions are a desperate attempt to flee poverty and persecution in exchange for hope in America. While one should not condone the filing of false applications to gain an immigration benefit, there may be ways to mitigate the adverse consequences by either rehabilitating the application or by exploring other forms of relief. If DSK’s accuser had a history of filing a false asylum application and tax returns, it should not undermine her ability to be a credible witness regarding the circumstances of her sexual assault, and there is still clearly a case for trying Strauss-Kahn. As to the conversation the accuser had with her friend in immigration detention regarding gaining a financial benefit, one need not reach the sole conclusion that her accusation was false. Is it so unusual for anyone who has been victimized to vent to a family member or close friend that she is prepared to take the perpetrator to the cleaners because he can afford to compensate her for lost wages?

Possibly, if the accuser was advised by someone with a perspective on how desperate immigrants try to enter the US, and given assurances regarding her ability to continue to remain in the US notwithstanding the fabrication in her asylum claim, there may have been less of a chance for the case to get derailed and she may have testified more consistently to the grand jury. Even so, there is no reason why the case should not go ahead. Failure to prosecute this case, when there is still a credible accusation of sexual assault, will dissuade other immigrants from coming forward if their immigration past will be viewed under a microscope for the purpose of tearing their credibility to shreds. One ought not to be the perfect immigrant or victim to be able to come forward with a criminal complaint.

Finally, in my prior blog post, I also reflected about how non-citizens on temporary visas are less likely to get bail even before they have been found to be guilty. This is because their non-immigrant status, often linked to a job, evaporates after they are arrested and indicted, and they are then automatically viewed as a flight risk. I do hope that after the lessons learned from the fall and rise of Strauss-Kahn, judges in criminal court will be more prone to releasing a non-citizen defendant on bail and not automatically view this person as a flight risk just because he or she is not a US citizen.

Cyrus Mehta

RIGHT TO APPOINTED COUNSEL IN REMOVAL PROCEEDINGS? THE SUPREME COURT MAY HAVE OPENED THE DOOR IN TURNER v. ROGERS

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By Cyrus D. Mehta

A non-citizen placed in removal proceedings has the privilege of being represented at no expense to the government pursuant to §240(b)(4)(A) and §292 of the Immigration and Nationality Act. While every non-citizen has a right to be represented by competent counsel of his or her choosing, he or she cannot ask the Immigration Court to appoint counsel if indigent. Even though we all know that immigration law is extremely complex, and a respondent’s chances to stave off removal are substantially increased if represented by counsel, this person is out of luck if he or she cannot afford a lawyer or does not have access to one if detained in a remote area where an immigration attorney may not be in close proximity.

Intuitively to one, including a lawyer, unschooled in immigration procedures, it may seem obvious that a respondent in removal proceedings, especially if incarcerated, should be afforded counsel to navigate through the labyrinthine maze of immigration law as would a defended in criminal proceedings. The Sixth Amendment clearly grants an indigent defendant the right to state appointed counsel in a criminal case, Gideon v. Wainright, 372 U.S. 335 (1963), and so why not the same right to a non-citizen in a removal case? Deportation has always been classified as a civil rather than as a criminal procedure. Harisiades v. Shaughnessy, 342 U.S. 580 (1952). Deportation even while harsh, which tears the person away from family and all that life is worth living for, is not seen as punishment, Bugajewitz v. Adam, 228 U.S. 585 (1913), and nor is detention for the sole purpose of facilitating the deportation. Demore v. Kim, 538 U.S. 510 (2003).

Not many may have noticed the Supreme Court’s June 20, 2011 decision in Turner v. Rogers, 64 U.S ____(2011) for its relevance in the immigration context, which held that an indigent parent threatened with incarceration for civil contempt for failure to provide child support does not have a right to counsel under the Fourteenth Amendment. Although Turner v. Rogers dwelt on whether a right to counsel was applicable to an indigent non-custodial parent in a civil contempt proceedings, on first brush it applies negatively to all civil proceedings, including immigration removal proceedings. But hold your breath! The Supreme Court qualified its holding that there is no right to appointed counsel only if certain other safeguards are met in child custody cases. The question is whether such safeguards even exist in immigration cases? The answer is a clear “No,” and this author believes that Turner v. Rogers can be used favorably by immigration advocates seeking to establish a right to appointed counsel in immigration removal proceedings.

In Turner v. Rogers the petitioner, Michael Turner, who had been incarcerated previously for civil contempt, was again sentenced to 12 months of incarceration for civil contempt even though he tried to demonstrate that he was unable to pay the child support. Turner appealed on the ground that that the Federal Constitution entitled him to right to counsel. The Supreme Court had to decide whether Turner threatened with incarceration for civil contempt was entitled to the same right as counsel under the Fourteenth Amendment as a criminal defendant under Gideon v. Wainwright, supra. The majority acknowledged that a contempt proceeding is a civil proceeding although it still involved the indigent parent’s loss of liberty through imprisonment. However, such imprisonment in a civil proceeding is not punishment, but only to coerce the defendant to do what the court had ordered him to do. While there is still a requirement of fairness in civil proceedings under the Due Process clause, it does not always require the provision of counsel even where there is a threat of incarceration. Key to this analysis, however, is the defendant’s ability to pay. If the defendant parent subject to the child support order can demonstrate indigence, he or she can avoid incarceration. Thus, if the defendant is given an opportunity in the civil contempt proceeding to demonstrate the lack of ability to pay, including a meaningful opportunity to respond to questions of financial status during the hearing, such safeguards would be have been met. The Supreme Court also took into consideration that the other parent opposing the defendant at the hearing is also mostly not represented by counsel, which was the case with Ms. Rogers, the custodial parent. Therefore, providing a lawyer to the non-custodial parent would create an asymmetry of representation, resulting in delay, making the proceeding overall less fair and increasing the risk of the depriving the family in need of support the payment it is entitled to receive. Even though Turner did not have a lawyer, he also did not receive the benefit of the alternative safeguards such as a notice that his ability to pay would make the difference between being incarcerated or not, or a finding on his ability to pay. The Supreme Court remanded the case back to the South Carolina court for further proceedings in conformance with its opinion.

Now compare these safeguards that were elaborated by the Supreme Court in the context of a civil contempt proceeding to an immigration removal hearing. The respondent charged with deportability cannot avoid incarceration by meeting a condition precedent like the non-custodial parent such as an ability to pay! Indeed, INA §236(c) makes it mandatory for the detention of a non-citizen based on the commission or conviction of an assortment of offenses, no matter even if the respondent can pay a million dollars to post bond. The respondent’s opponent in removal proceedings is the government, which is always represented by a well trained counsel employed by Immigration and Customs Enforcement. Interestingly, the majority in Turner v. Rogers concluded, “Neither do we address what due process requires in an unusually complex case where defendant “can fairly be represented only by a trained advocate.”[citing Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973)].

No one, not even opponents of due process for immigrants, can deny the fact that immigration removal proceedings are extremely complex, and can only fairly be represented by a well trained attorney conversant in immigration law. Yet, the majority of incarcerated respondents never have access to counsel. According to the Katzmann Immigration Representation Study Group’s recent findings, 60% of detained immigrants in New York City and 27% of non-detained immigrants do not have counsel by the time their cases are completed. Individuals who are transferred elsewhere and who remain detained and out of New York are unrepresented 79% of the time. This is truly a crisis. It is unthinkable to allow respondents in removal proceedings to proceed without the assistance of a lawyer to navigate and help through the complex maze of statutes, regulations and legal interpretations. This same study indicates that where there is competent representation of those who have been released or never detained, 74% had a successful outcome.

Advocates must continue to press for the right to appointed counsel in removal proceedings where the respondent cannot afford his or her own lawyer. Such a cause may be too unpopular for Congress to pass legislation at this time. Only a court ruling can make this happen, and the Supreme Court’s decision in Turner v. Rogers may provide the analytical framework to make a winning argument. Gideon v. Wainright was historic as it established the right to counsel under the Fourteenth Amendment for criminal defendants in state courts. We need a civil Gideon, and the best place to establish this is in immigration removal proceedings.

In conclusion, the following passage from Gideon v. Wainright citing Mr. Justice Sutherland’s eloquent and moving need for a right to counsel in Powell v. Alabama , 287 U.S. 25 (1932) will surely resonate with those seeking a right to appointed counsel in removal proceedings:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.