David Isaacson

My Comment on Proposed Affidavit of Support Revisions – Do You Have One Too?

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USCIS has recently proposed changes to the Form I-864, Affidavit of Support Under Section 213A of the Act, which is used by petitioners in family-based immigration cases and certain employment-based immigration cases to promise to provide required support to an immigrant as required under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Similar changes are also proposed to the related Form I-864EZ, a simplified version of the affidavit of support for certain sponsors with straightforward tax situations, and Form I-864A Contract Between Sponsor and Household Member, used when the income of a household member other than the sponsored immigrant is to be counted towards meeting the minimum income requirement.

To summarize, in addition to changing language throughout the form and instructions in what USCIS claims is an effort “to better inform sponsors and household members of their support obligations”, USCIS has proposed substantive changes to the way in which the forms must be executed and the information that will need to be provided in them. USCIS has proposed to add the requirement that the forms be executed before a notary public, and that bank account information be collected from the sponsor or household member. There will also be an option for the sponsor or household member to submit a credit report.

Public comments on the proposed changes, according to USCIS, “are encouraged and will be accepted until May 11, 2020.” Comments can be submitted online at regulations.gov with reference to OMB Control Number 1615-0075, agency name/Docket ID USCIS- 2007-0029.

I have submitted a comment, which seemed worth reproducing here even though in principle it is available to the public already on regulations.gov. I would encourage readers who have their own concerns about the proposed revisions to submit comments as well. (A note, however, for anyone who agrees with my comment and was thinking of resubmitting it verbatim: identical comments are likely to be ignored, so it is better if you add or alter something to express your own views and not just mine.) My comment was as follows:

I write to comment regarding OMB Control Number 1615-0075, agency name/Docket ID USCIS- 2007-0029.

The proposed requirement that an I-864, I-864EZ or I-864A be notarized by a notary public would be in violation of federal statute, specifically section 1746 of Title 28, United States Code. That section provides:

“Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature)”.”

Congress has determined that in matters subject to federal law and regulation, any affidavit which would ordinarily be required to be taken before a notary public may instead be substituted “with like force and effect” by an unsworn declaration under penalty of perjury including the appropriate language. USCIS has no authority to override this statute through a change in form instructions, If the instructions are not altered to allow for the possibility of an unsworn declaration under penalty of perjury pursuant to 28 USC 1746, rather than a notarization, they will be in violation of the law.

USCIS is well aware of how to offer the option of a statement under penalty of perjury pursuant to 28 USC 1746 instead of a notarized signature. Page 4, Part 4 of the Form G-639, Freedom of Information/Privacy Act Request, contains precisely this option. If USCIS insists on adding notarization or the equivalent to Forms I-864, I-864A, and I-864EZ, then it must provide the same option as on the G-639.

The proposed requirement to provide bank account information is also in severe tension with the statute. 8 USC 1183a(g)(6) clearly provides that certified copies of tax returns, accompanied by a written statement under oath or under penalty of perjury under section 1746 of title 28 regarding such copies, are the primary means of demonstrating means to maintain the required level of income, and that the possibility of proving assets is an additional form of “flexibility” offered where necessary:

“(6) Demonstration of means to maintain income
(A) In general
(i) Method of demonstration

For purposes of this section, a demonstration of the means to maintain income shall include provision of a certified copy of the individual’s Federal income tax return for the individual’s 3 most recent taxable years and a written statement, executed under oath or as permitted under penalty of perjury under section 1746 of title 28, that the copies are certified copies of such returns.

(ii) Flexibility

For purposes of this section, aliens may demonstrate the means to maintain income through demonstration of significant assets of the sponsored alien or of the sponsor, if such assets are available for the support of the sponsored alien.”

It does not demonstrate “flexibility” to require sponsors, or sponsored aliens, to prove their assets or related information in circumstances where the certified copies of the sponsor’s tax returns provided under 8 USC 1183a(g)(6) already establish ability to maintain sufficient income. Doing so is therefore inconsistent with the statutory structure.

Moreover, there are good practical reasons for sponsors not to want to provide information regarding their bank accounts unnecessarily. In the event of lost or misdirected mail, for example, such information could facilitate the theft of funds from the sponsor by anyone who were to inappropriately come into possession of the I-864, I-864A or I-864EZ. USCIS has no statutory basis to impose this risk on those who can demonstrate sufficient income through their tax returns.

These proposed changes appear to represent an inappropriate effort by USCIS to hinder family-based immigration authorized by Congress, without statutory authority to do so. They should be rejected.

Cyrus Mehta

Immigration Attorneys on the Frontlines in the COVID-19 Crisis

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Since USCIS still requires paper submissions by mandated deadlines and the immigration courts in detention centers still function, the COVID-19 crisis has compelled immigration attorneys to take more risks than others, and many are performing essential services on behalf of clients like first responders, medical personnel and delivery people. If some people in certain occupations do not take risks to help others in a crisis, then everything collapses.

While some attorneys have had the privilege of working from home but effectively crank out cases, other attorneys have been compelled to step out of their home to represent detained clients in immigration court, and until last Tuesday, March 17, at adjustment and naturalization interviews. Not all work can be 100% remote, and some filings comprising hundreds of pages may still have to be assembled in the office. Legal support staff have stepped out of their homes to assemble the case and file it in time with the USCIS and just before the client falls out of status or misses the asylum deadline.

Those living in large cities like NYC may still be taking the subway to help their clients as it may be their only mode of transportation. An empty subway car is probably less risky than travelling in a taxi or Uber as one can maintain the recommended six feet of social distance. Whatever valiant efforts that are being made by attorneys and their staff on behalf of clients’ unique circumstances in these perilous times must be saluted until such time that the government comes to its senses and halts immigration hearings and automatically extends all deadlines by 3 months.

The USCIS and other agencies have made some modest concessions such as not insisting on wet signatures, but that is not enough when the submission must still be on paper rather than electronically. The submission must also be accompanied by a check rather than through a credit card or ACH payment. Because of the significant number of such filings, key operations cannot be handled remotely, and these include sorting out mail from the USCIS and other agencies, organizing and assembling the filings, scanning and making extensive copies and shipping out packages through Fedex or US mail. The USCIS has put the immigration bar in an awful place. They are forced to risk their health and safety to process cases, and even suffer sanctions under state laws for violating restrictions, or fail in their duty towards their clients.

To add further insult to injury, the DOJ has kept open the immigration courts in immigration detention centers. ICE requires attorneys to provide their own protective gear to visit clients in detention. It would be in the interests of all to release noncitizen detainees. There is no reason to detain noncitizens in removal proceedings during the COVID-19 period unless they are not a flight risk or a threat to public safety. Noncitizens who have already been convicted and completed their sentences and facing removal proceedings need not be in detention. If they were US citizens, they would not be incarcerated and so noncitizens, even lawful permanent residents, are doubly penalized if they remain incarcerated and are at greater risk of contracting COVID-19 and spreading it. We also learned that the New York Varick Street Immigration Court has closed today because of a case of coronavirus further confirming that immigration detention and the courts within should cease  at this time.

Various calls to extend deadlines and provide other ameliorative relief by the American Immigration Lawyers Association and the Alliance of Business Immigration Lawyers have gone unheeded.  Is this foot dragging deliberate as a result of Trump’s known hostility towards immigrants or is it because a bureaucracy cannot get its act together fast enough? The failure to act while other federal agencies have acted, such as IRS extending the tax deadline, is unconscionable. The quickest way to eradicate the disease is for all to be united, whether citizen or noncitizen, and all prior prejudices by this administration towards immigrants have to be put on the back burner, or better still, completely incinerated. President Trump is not doing much to help the cause by referring to COVID-19 as the Chinese Virus. This only inflames tensions against not just Asian Americans but against all people who are perceived to be “foreign”, and abrogates from the historic role that presidents in the past have played to heal and unite the nation.

Cyrus Mehta

How Interpol Red Notices Allow Abusive Foreign Governments to Manipulate and Undermine the Integrity of Immigration Proceedings in the United States

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The Board of Immigration Appeals in Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020) recently ruled that an Interpol Red Notice may constitute reliable evidence of criminality that serves as a  bar for asylum and withholding of removal. Giving credence to a Red Notice without more undermines the integrity of our asylum system as it allows a foreign government to sway the outcome of an asylum case against an opponent who is in the US.

As a background, a Red Notice is a request to locate and provisionally arrest an individual pending extradition, which Interpol issues at the request of a member country or an international tribunal based on a valid national arrest warrant.  A Red Notice does not establish that the person has been convicted of a crime. It is based on the word of the government that issued the arrest warrant, and does not add any further force or legitimacy to it. Unfortunately, the issuance of a Red Notice by a country whose government is corrupt or abusive can result in adverse  consequences for persons applying for immigration benefits under US law. Many immigration benefits may not be granted based on the commission of a crime or if there is reason to believe that the person will commit a certain crime.  For an excellent overview, please read Challenging a Red Notice – What Immigration Attorneys Need to Know About INTERPOL by Ted R. Bromund and Sandra A. Grossman, AILA Law Journal, April 2019.

In W-E-R-B– , the respondent, an El Salvadorian, was the subject of an Interpol Red Notice, reflecting an arrest warrant by the Magistrate Court of San Salvador, for his arrest regarding a violation of article 345 of the Salvadoran Penal Code, which prohibits participation in an “illicit organization.” The Red Notice indicated that the respondent was a “hit man” with the MS-13 gang. Under INA 208(b)(2)(A)(iii), a respondent is barred from obtaining asylum when “there are serious reasons for believing that the alien committed a serious nonpolitical crime.” The companion bar to withholding of removal is at INA 241(b)(3)(B)(iii).

The BIA agreed with the Immigration Judge’s finding that there were serious reasons to believe that the respondent had committed a serious nonpolitical crime prior to his entry in the US, and was thus barred from obtaining political asylum or withholding of removal. Although a Red Notice is not even a formal arrest warrant, the BIA still found that it constituted reliable evidence of a serious nonpolitical crime for triggering the bar to asylum. While the respondent can rebut the finding through a preponderance of evidence, his rebuttal was found to be unavailing in W-E-R-B. The respondent submitted a letter from an attorney in El Salvador indicating that the charges stemming from the incident were dismissed, but the BIA held that an attorney’s letter standing alone was insufficient in the absence of official court documents.

The respondent could have also shown that his crime was political in nature, but he conceded that it was not. He was arrested in El Salvador following a melee in 2010 that resulted in injury to a police officer. The respondent was also shot and had a gun on this person. Although not applied in this case, the BIA has established a framework in Matter of E-A-, 26 I&N Dec. 1 (BIA 2012) to determine whether the bar applies or not. First, in Matter of E-A-, the BIA interpreted the “serious reasons for believing” standard as being equivalent to probable cause. Next, in determining the political nature of the crime, the BIA explained that the political nature of the crime must outweigh its common law character. If the criminal conduct was of “an atrocious nature” or grossly out of proportion to the political objective, then there is no question of the crime being political in nature. If the crime is not of “an atrocious nature” then the BIA balances the seriousness of the criminal acts against the political aspects of the conduct to determine whether the criminal nature of the applicant’s acts outweighs their political character. Interestingly, in footnote 5 of the W-W-R-B decision, the BIA noted that where a respondent has put forth evidence of the political nature of the crime, the Immigration Judge should consider evidence in the record that the foreign country issuing Red Notices abuses them for political reasons, and cites Tatintsyan, 2020 WL 709663, which held that a Red Notice from Russia may provide grounds for overcoming the bar if there is credible testimony that the Russian government persecuted the respondent.

As the only remaining issue was to determine whether the crime indicated in the Red Notice was serious or not, the BIA agreed that the Respondent’s crime was serious in nature within the meanings of the bars in INA 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) as it involved a substantial risk of violence and harm to persons.

W-E-R-B unfortunately gives leeway for a foreign government persecuting the asylum claimant to issue an arrest warrant based on a false charge, and then inform Interpol to issue a Red Notice. If the charges remain outstanding, an IJ can potentially take for true the accusations in the charge even though there has not been a conviction. The burden of establishing the nonpolitical nature of the accusation is high under Matter of E-A as well as the nonseriousness of the crime. It has long been established that fear of prosecution under laws that are fairly administered does not qualify an individual as a refugee, although prosecution can amount to persecution where the prosecution is arbitrary or excessive, indicating that the motive, in part, may be on account of one of the five enumerated grounds. See, e.g., Singh v. Holder, 764 F.3d 1153, 1162 (9th Cir. 2014) (“If a petitioner has presented evidence that [a]… political opinion was a central reason for the persecution…then the fact that the persecution occurred during the course of a legitimate criminal investigation would not preclude eligibility for asylum” (emphasis added)); Osorio v. INS, 18 F.3d 1017, 1032 (2d Cir. 1994) (finding that prosecution became persecution when the Respondent established a pattern of the Guatemalan government targeting similarly situated union leaders); Tagaga v. INS, 228 F.3d 1030, 1034-35 (9th Cir. 2000) (finding that prosecution for treason for refusal to participate in persecution of Indo-Fijians constitutes persecution); Bandari v. INS, 227 F.3d 1160, 1168 (9th Cir. 2000) (finding that while the police’s initial stop may have been for law enforcement, subsequent beatings were on account religion); Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (“[i]f there is no evidence of a legitimate prosecutorial purpose for a government’s harassment of a person… there arises a presumption that the motive for harassment is political”); Matter of S-P-, 21 I&N Dec. 486 (BIA 1996); El Balguiti v. INS, 5 F.3d 1135, 1136 (8th Cir. 1993) (finding prosecution becomes persecution where prosecutorial conduct seeks to disguise a government’s intent to persecute with the veneer of legitimacy – where an alien fears punishment “that is not legitimate, but instead masks an invidious motive” to prosecute the alien on account of an enumerated ground). W-E-R-B could undermine these decisions by nixing asylum claims via a Red Notice when the asylum claimant is escaping a politically motivated criminal prosecution and the foreign government maliciously causes the issuance of a Red Notice through Interpol.

The issuance of a Red Notice can also potentially roil other applications for immigration benefits such as when one files an I-485 application for adjustment of status. Although W-E-R-B applies to the bars set forth in INA 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii), which require at a minimum only the commission of a crime and not a conviction, the criminal grounds of inadmissibility also similarly only require at a minimum a commission of a crime. Thus, under INA 212(a)(2)(A)(i)(1), a person who has admitted to the essential elements to the commission of  a crime involving moral turpitude, and who does not fall under the petty offense exemption, is inadmissible.  INA 212(a)(2)(A)(i)(1) does have an exception for a “purely political offense,” but unlike the bar to asylum, there is no balancing test. The offense must be purely political, and thus this stricter standard has been set forth in Matter of O’Cealleagh, 23 I&N Dec. 976 (BIA 2006).  In practice, though, it would be difficult for the government to find  a person inadmissible under INA 212(a)(2)(A)(i)(1) based on an admission as it is generally difficult to extract an admission that meets the standard under Matter of K, and a conviction is thus  generally required.  There are other grounds of inadmissibility that do not require either a conviction or admission, such as under INA 212(a)(2)(C)(i), where a noncitizen can be found inadmissible if the government has reason to believe that the applicant is or has been an illicit trafficker in a controlled substance.

While the W-E-R-B standard is not applicable in a non-asylum context,  the applicant subject to bogus charges must be prepared to strenuously contest that the underlying charges of a Red Notice are without merit, the applicant never committed the crime and provide evidence that the country abused the process in having Interpol issue the Red Notice to target him or her. Bromund and Grossman’s article  in the AILA Law Journal provide invaluable advice on how to challenge a Red Notice if it violates Interpol rules or indicates a bias on the part of the requesting authorities. More often than not, the charges against a non-citizen who is already in the US applying for a benefit will likely remain outstanding indefinitely in the foreign country. The Department of Justice infrequently extradites people subject to a Red Notice. If the DOJ has not taken any action, this too could be pointed out that the US has not taken the Red Notice seriously.  One should try to convince the adjudicating official that the accusation, apart from not constituting a conviction, does not necessarily prove that the applicant even committed the crimes and do not render him or her inadmissible. Even if the applicant is granted permanent residence, it can further be asserted that the government can always hypothetically commence removal proceedings if there is a conviction that would render the applicant deportable.  Interpol Red Notices are being erroneously viewed by the US immigration authorities as conclusive proof of criminality against non-citizens living in the US. Every effort must therefore be made to push back against this assumption. Otherwise, the US becomes complicit in the abuse by foreign governments to manipulate and undermine the integrity of immigration proceedings, including asylum claims, that otherwise ought to assure fairness and due process to non-citizens under the law.

 

Cyrus Mehta

Trump’s Expanded Travel Ban and Other Immigration Madness

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President Trump has done it again. On January 31, 2020, he used his extraordinary broad powers under INA § 212(f) to expand his travel ban to six additional countries.  The affected countries are Nigeria, Eritrea, Sudan, Tanzania, Kyrgyzstan and Myanmar. The expanded ban comes about three years after the first ban. Most of the countries targeted in this ban, like the first ban, are countries with significant Muslim populations. Even Myanmar, where Buddhists constitute the majority, has a significant minority population comprising Muslims including the persecuted Rohingya people.  The administration has spuriously argued that the new travel ban is vital to national security and the ban will remain “until those countries address their identified deficiencies” related to security and information-sharing issues. Even if this is the case, it is not sufficient justification to impose a travel ban on unsuspecting countries without warning and on those who have applied to immigrate to the US.

Unlike the first ban, the new ban only restricts immigrants from Burma, Eritrea, Kyrgyzstan and Nigeria. The restrictions on Sudan and Tanzania are narrower as they only apply to immigrants who have won green cards under the diversity program. The new ban does not apply to nonimmigrants who visit the US temporarily such as tourists, students or workers under specialized work visa programs such as the H-1B for specialty occupations or L-1 for intracompany transferees.  It will also not apply to special immigrants who have been helpful to the US such as employees of US consular posts.  Banning immigrants and not nonimmigrants does not make sense at all. If the administration is so concerned about US security, then those granted immigrant visas are more vetted than those who travel on temporary nonimmigrant visas. A terrorist is more likely to quickly get into the US on a temporary visa to cause harm. The justification that the administration has provided is that it is harder remove immigrants from the US is also spurious from a security perspective since all noncitizens are subject to the same removal process, able to contest the charges against them and are eligible for relief from removal. People placed in removal can remain in the US until they exhaust all their appeals.   Also the justification to restrict immigrants from Tanzania and Sudan who have won green card lotteries makes even less sense. Why would one who has won the lottery in Sudan and Tanzania pose more of a risk than someone who is immigrating on another basis?

In 2018 the Supreme Court  in Trump v. Hawaii upheld a third version of the ban, after the previous versions were challenged in court, on the ground that the third version was neutral as it did not violate the First Amendment Clause of the Constitution despite Trump’s utterances in favor of banning Muslims. For instance, in his presidential campaign he called for a “total and complete shutdown of Muslims entering the United States. “  He also said, among other derogatory statements, that “Islam hates us.” This expanded ban too targets Muslim countries, and allows Trump to fulfill his campaign promise to his supporters to ban nationals from Muslim countries. This is why the first ban was rightly called the Muslim ban, and the new ban, also ought to be called the expanded Muslim ban.

Before Trump, one could hardly imagine that an American president would use INA § 212(f) to rewrite immigration law in a manner he saw fit and with whatever prejudices might be harboring in his mind. While INA § 212(f) does give extraordinary power to a president, Trump has exploited these powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

In the expanded ban, Trump has blocked people who have won green card lotteries under the DV program. This is a program that Trump and immigration restrictionists in his administration clearly disfavor, but he has used INA § 212(f) to obliterate the green card provisions in the INA for Tanzanians and Sudanese. Trump has also openly indicated his animosity towards immigrants who come from “shi*hole” countries. It is hardly surprising that Trump, bolstered by a Republican dominated Senate that will likely acquit him for brazen corruption, is abusing his power under INA § 212(f) to reshape immigration law as he sees fit. Congress in enacting INA § 212(f) would have never conceived that a future president could use the provision to block green card lottery winners. Trump can decide, based on whatever prejudice he has, that anything is “detrimental to the interests of the United States.” It is eerily uncanny that Trump’s lawyers have mounted a similar defense in his impeachment trial, especially Alan Dershowitz, who nonsensically argued that “If a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Trump has  used INA § 212(f) to reshape immigration laws enacted by Congress that have nothing to do with travel bans and national security. On November 9, 2018, he issued another Proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States.  The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation. The key issue is whether INA § 212(f) allowed a president like Trump with authoritarian impulses to override entire visa categories or change the US asylum system?   INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration had virtually closed the designated ports of entry for asylum seekers, which forced them to cross the border through irregular methods. In East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (2018), the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus, INA § 212(f) could not be used as a justification to override INA § 208. The Supreme Court has temporarily stayed the injunction in a related case that prohibits asylum seekers on the Southern border from applying for asylum in the US if they have not applied in Mexico or Guatemala – and thus by implication East Bay Sanctuary Covenant v. Trump – from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided. There has been no ruling on the merits of the case.

On October 3, 2019, Trump yet again invoked INA § 212(f) by issuing a Proclamation to ban intending immigrants from entering the United States if they did not have health insurance within 30 days of their arrival in the United States. Under the Proclamation, an intending immigrant who has satisfied all statutory requirements set out in the INA will nevertheless be permanently barred from entering the United States if that person cannot show, to the satisfaction of a consular officer, that he or she either “will be covered by approved health insurance” within 30 days of entering the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” A federal district court in Oregon temporarily blocked the health insurance proclamation through a nationwide injunction by relying on East Bay Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA  § 212(f) to amend the INA. In the health insurance case, Trump’s proclamation contradicts the public charge provision under INA 212(a)(4), which does not have a health insurance requirement. The Ninth Circuit has upheld the temporary order of the Oregon district court, although it has a strong dissent by Judge Bress criticizing the Oregon district court’s finding that INA $ 212(f) was unconstitutional  under the nondelegation doctrine. Under this doctrine, associated with separation of powers, Congress cannot delegate legislative powers to the president under INA § 212(f). This argument needs to be watched more closely as it is bound to play out further when the administration defends its authority under INA § 212(f) in this case and other cases.  The Supreme Court has not yet intervened in this case.

The new travel ban is bound to be challenged in federal district courts, and one or more courts may issue nationwide injunctions. The Trump administration, like in other instances, will likely take this to the Supreme Court and request a stay of the injunction. Most recently, the conservative majority in the Supreme Court stayed the injunction of a New York district court, which was confirmed by the Second Circuit, against the public charge rule. Justice Gorsuch wrote a concurring opinion along with Justice Thomas that was critical of nationwide injunctions of this sort. The concurrence complained that a single judge enjoined the government from applying the new definition of public charge to everyone without regarding to participation in this lawsuit, and that they are “patently unworkable” and sow chaos. It could also be argued that Justice Gorsuch’s lifting of a nationwide injunction would sow chaos if a law that is potentially inconsistent with a statute or unconstitutional is implemented until it is found so by the Court. And here, in the instant case, there is even further chaos as the public charge rule is being implemented everywhere after the stay of the injunction expect in Illinois. Nationwide injunctions, according to Mila Sohoni, a professor at the University of San Diego law school, are not a recent phenomenon and this practice goes all the way back to the 19th century.

Notwithstanding all the barriers and obstacles, including the admonition against nationwide injunctions by Justice Gorsuch and the prior Trump v. Hawaii ruling, it is imperative that the limits to INA § 212(f) be challenged as Trump can use this provision to radically transform immigration laws enacted by Congress, and without going through Congress to amend laws that he does not like. A challenge to the expanded ban will again give courts the ability to examine INA § 212(f).   The Supreme Court, disappointingly, held in Trump v. Hawaii   that INA § 212(f) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” One should however  still give credit to prior lower federal court decisions that blocked the first and second versions of the travel ban, on the grounds that Trump exceeded INA § 212(f), which were far worse than the watered down third version that was finally upheld. Although the Supreme Court may have stayed the injunction in East Bay Sanctuary Covenant v. Trump, it has not ruled on the merits of the Ninth Circuit’s reasoning that Trump could not use INA § 212(f) to rewrite asylum law in the INA. The Supreme Court is yet to hear any challenge to the health insurance proclamation. The Ninth Circuit in both these cases did not disapprove of the reasoning by district court judges that Trump overstepped his authority notwithstanding the powers given to him under INA § 212(f).

In issuing the expanded travel ban, which takes effect on February 21, 2020,  Trump has abused his authority in selectively blocking immigrants from predominantly African nations.  This ban too, like the last one, will equally impact US citizens who have legitimately sponsored family members under the law as they will not be prevented from reuniting in the US. The ban also arbitrarilyy, and without  foundation, blocks green card lottery winners from two nations. Nigerians will be most impacted by the new ban as they by far make up the largest number of African immigrants in the US, numbering approximately 327,000. A connection between Trump’s ban and Nigeria can be made to a meeting in the Oval Office in June 2017 when Trump told his advisers in the Oval Office in June 2017 that Nigerians who set foot in the US would never “go back to their huts” in Africa. This ban will result in the isolation of the US while other countries will benefit. The new ban also does nothing to enhance US national security. Since it does not apply to nonimmigrant visa entries, US citizens who are not yet married to their spouses in any of the newly banned countries may file a nonimmigrant K-1 visa fiance petition. Once the fiance enters the US on a K-1 fiance visa, they can marry the US citizen and adjust status to permanent residence. It makes no sense for a person from a banned country to delay a marriage with a US citizen in order to be eligible for a K-1 fiance visa, but  this is what Trump’s illogical ban forces them to do in addition to making every national of the banned country a suspect.

In approving Trump’s first travel ban,  the majority in Trump v. Hawaii made reference to Korematsu v. United States, 323 U.S. 214 (1944). This was the shameful Supreme Court case that allowed the internment of Japanese Americans after the attack on Pearl Harbor in 1941. Justice Sonia Sotomayor referencing this decision in her powerful dissent in Trump v. Hawaii. Justice Sotomayor found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy. The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel bans, especially after the second one, they are not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

It is time to revisit the Supreme Court’s overruling of Korematsu in Trump v. Hawaii. In that case, the Supreme Court opined that the first travel ban was facially neutral and took pains to distinguish it from the repugnant Korematsu decision. The second travel ban confirms that the first ban was not neutral, and this ban, along with the first one is strikingly similar to Korematsu. Since the first ban took effect, thousands of intending immigrants from the banned countries, from infants to elderly parents, have been needlessly impacted and they pose no threat to national security. The waivers in the first ban are a sham and are seldom granted. The waivers incorporated in the second ban will also be a sham.  INA § 212(f) must have limits, courts must hold, including the Supreme Court someday. Otherwise, Trump’s travel bans and other sorts of immigration madness will have no limits.

 

 

 

Cyrus Mehta

Is the USCIS Improving or Undermining the Immigration System Through its Top Ten Ways?

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USCIS posted TOP TEN WAYS USCIS is improving the Integrity of the Immigration System. Really? Is USCIS improving the integrity of the system or undermining it? The USCIS has been mandated by Congress to grant benefits. Instead, it has usurped the role of ICE to become an enforcement agency. USCIS’s policies under President Trump and its Director, Francis Cissna,   have been mean spirited and cruel, designed to hurt individuals who are trying to come to or remain in the US legally. Their objective is to restrict immigration, and bring it to a grinding halt via the backdoor, something that the Trump administration has not been able to achieve as yet through Congress.

My responses to each Top Ten Way shows that USCIS is actually undermining the immigration system rather than improving it. To those who are dismayed at the sudden turn the USCIS has taken, including many employees of the USCIS who believe in America’s noble mission of welcoming immigrants, my advice is to ensure that the USCIS applies the Immigration and Nationality Act as intended by Congress rather than follow the current leadership’s meaningless Top Ten slogans! There is a general rule of statutory interpretation that when the legislature enacts an ameliorative law designed to forestall harsh results, the law should be interpreted in an ameliorative fashion, and any ambiguities especially in the immigration context, should be resolved in favor of the non-citizen. See e.g. Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). As the USCIS is mandated by Congress to implement the provisions of the INA that grant benefits and ameliorative relief, those provisions ought to be interpreted by the official in favor of the applicant seeking the benefit. Unfortunately, this is not the guiding mission of the USCIS through its Top Ten Ways.

1. FAITHFULLY EXECUTING THE LAW THROUGH UPDATED “NOTICE-TO-APPEAR (NTA) GUIDANCE

placing individuals in removal proceedings who have applied for an immigration benefit, are denied, and do not have any lawful status to remain in the United States. Previously, most such persons were not issued NTA.

My Response: It is a waste of resources to place every individual whose application for an immigration benefit is denied, often arbitrarily, in removal proceedings. Many would prefer to leave the United States than stay in the US in an unauthorized manner. Moreover, placing everyone in removal proceedings will overburden the immigration courts even more, resulting in further backlogs and delays. It would force individuals to appear for hearings when they would have otherwise left the country, or at least stayed up to the point they could appeal and reverse the denial. As  David Isaacson has aptly stated: “Subjecting well-meaning temporary workers, students, tourists and other nonimmigrants to immigration court proceedings, and even potential detention, just because USCIS disagrees with the merits of their application for extension of stay or change or adjustment of status, is indicative of a malicious attitude towards noncitizens.

2.  CLARIFYING “UNLAWFUL PRESENCE”

holding foreign students accountable by counting as unlawful presence all of the time they remain in the United States after violating the terms of their student admission. Previously, students could violate their student status and potentially remain and work illegally in the United States for years and not accrue a single day of unlawful presence.

My Response: There are many ways in which a student may technically violate status without even knowing it. Students are even found to be in violation of status when the school has authorized more than 12 months of Curricular Practical Training under the regulation.   A student would only come to know of the violation after departing the country, and being barred for 10 years from reentering the country. This clarification of unlawful presence upends over 20 years of the way “unlawful presence” has been interpreted, potentially in violation of the Administrative Procedures Act, and places students in even greater jeopardy than other nonimmigrants who may have been found to have violated status during their period of authorized stay.

3.  ENHANCING SCREENING AND VETTING

strengthening procedures, such as biometric (eg fingerprint) collection and in-person interviews, to ensure that those seeking immigration benefits are eligible and do not pose a risk to national security, and to strengthen identity management and deter fraud.

My Response: The new biometric procedure for nonimmigrant dependents applying for extension of status along with the principal is mean spirited. It is designed to cause further delay of the processing of their applications, and there is no need to subject dependent infants to biometrics. How do they pose a risk to national security?  The in-person interview of all applicants is also unnecessary in straight forward cases, and this new imposition is slowing down the granting of immigration benefits that deprive people of their ability to work and travel while their applications remain pending for longer than usual periods of time.

4. MORE EFFICIENT ASYLUM PROCESSING

increasing resources dedicated to processing asylum cases and reinstituting “last in, first out” (LIFO) processing of asylum cases to help recent asylum seekers and address new operational realities at the Southern border.

My Response: This policy delays those who filed asylum cases less recently. The asylum system only becomes efficient when all cases are processed quickly rather than the last cases. The goal of LIFO is not designed to  “help” recent asylum seekers, rather it is to apply the new restrictive social group interpretations  to those fleeing gang violence or domestic abuse from Northern Triangle countries, thus assuring the denial of their asylum applications and their swift deportation from the US

5. ENSURING PETITIONERS MEET THE BURDEN OF PROOF

rescinding guidance that requires USCIS officers to give deference to the findings of a previously approved petition by the same employer. Every petition for an immigration benefit should stand or fail on its own merit and USCIS officers should not have their hands tied in assessing whether a petition meets legal requirements.

My Response: It defies common sense to not give deference to a previously approved petition by the same employer when the facts and circumstances remain unchanged. For those who are caught in the never ending green card backlogs, their life has become ever more uncertain when they now apply for routine extension of their H-1B status and face the peril of a denial. Moreover, the preponderance of evidence standard is applicable when applying for an immigration benefit. This standard, requiring that there is more than a 50% chance that the claim is true, is being disregarded and petitioners must meet a standard that is higher than even the “beyond a reasonable doubt” standard that is required for proving guilt against a defendant in a criminal trial.

6. COMBATTING H-1B ABUSE AT THIRD-PARTY WORKSITES

ensuring that those who employ foreign workers that they seek to assign to client worksites establish eligibility for h-1B petition approval and comply with the terms of the petition approval; violation of the rules regarding placement of H-1B workers at client worksites and related abuse of those foreign workers can also result in injury to US workers

My Response:  Corporate America relies on H-1B workers to keep it efficient and the economy humming. The USCIS has made it impossible for petitioners to place H-1B workers at client sites without onerous and unnecessary documentation in order to establish a nexus between the petitioner and the client. The need to submit detailed statements from the end-client company regarding the specialized duties that the H-1B beneficiary will perform, as well as the qualifications that are required to perform those duties, would be extremely onerous. Since the end-client is not the ultimate employer of the beneficiary, most clients would be reluctant to provide such letters. Indeed, providing such letters would be tantamount to acknowledging an employment relationship with the beneficiary, which the end client has avoided by arranging to contract with the petitioner or intervening vendors for a project or to fill positions. As a result of a client’s unwillingness to provide the unreasonable documentation being required by the USCIS, petitioners are unable to successfully assign H-1B workers to clients’ project that critically need the H-1B worker’s skills.  This draconian policy relating to placement at their party sites of H-1B workers is designed not to combat legitimate abuse, but to kill a successful business model that has benefitted the American economy.

7. EXPANDING SITE VISITS

increasing site visits in employment-based visa programs to ensure employers of foreign workers are doing what they represented to the USICS.

 My Response: Under the site visit policy, USCIS officials in Fraud Detection and National Security come unannounced often catching unsuspecting employers and foreign workers off guard without the benefit of legal representation. If the foreign worker is legitimately not available during this surprise visit, due to sickness or vacation, fraud is needlessly suspected.  These officials are not so well trained in understanding the nuances of different nonimmigrant visas (such as an L-1A functional manager from an L-1A people manager) that has already been granted and adjudicated after a review of the evidence. The site visit official asks for evidence that may have no bearing to establish eligibility under the specific visa category.  As a result of misinterpretation of the law and the facts, many approved visa petitions get needlessly revoked causing great hardship to both the employer and the foreign worker.

8. PROTECTING U.S. WORKERS FROM DISCRIMINATION AND COMBATTING FRAUD

USCIS entered into a partnership with the Department of Justice to help deter, detect, and investigate discrimination against U.S. workers

My Response: No one can object to the need of protecting U.S. workers from legitimate discrimination. However, in a market-based economy, employers should also be free to hire the best workers most suited to their needs and the most qualified. Just because an employer hires qualified foreign workers, it should not axiomatically lead to an assumption that the employer is discriminating against US workers. .If the employer can hire the best workers without fear of discrimination, these workers make the business more profitable, which in turn results in more jobs for American workers.

9. STRENGTHENING INFORMATION SHARING

streamlining information sharing with other agencies to administer and enforce the immigration laws and ensure adherence to the President’s enforcement priorities

My Response: One can understand the need to share information between government agencies in the interests of national security in specific cases, but unnecessary sharing of information results in delays in the adjudication of an immigration benefit. It is also inappropriate for USCIS to share information to “ensure adherence to the President’s enforcement priorities.” USCIS should be in the business of granting benefits and leave enforcement priorities to ICE.

10. IMPROVING POLICIES AND REGULATIONS

proposing and implementing policies that better comport with the intent of the laws Congress has passed, including updating the EB-5 immigrant investor program, defining what it means to be a “public charge,” and eliminating work authorization for categories of foreign nationals that Congress did not intend to allow to work in the United States.

My Response: While the EB-5 immigrant investor program needs reform, simply raising the investment amounts without expanding visa numbers will kill the program. Foreign investors will no longer be drawn to the US to invest money in projects that create jobs for American workers. Also, proposing a regulation to rescind work authorization for H-4 spouses, most of whom are women and waiting for years in the green card backlogs, is downright cruel. It is also false to claim that Congress did not intend to allow work authorization for certain categories of foreign nationals. INA 274A(h)(3) gives the Attorney General, and now the Secretary of Homeland Security, broad flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Finally, redefining the definition of “public charge” is essentially a subterfuge to find ways to deny immigration benefits to a broad swath of people.

I rest my case, and leave it to readers to decide whether USCIS is improving or undermining the immigration system through its TOP TEN WAYS!  I would recommend to Mr. Cissna that he spend his time and energy in finding ways to ensure that the INA works for individuals who wish to come to the US through legal means. There are many flaws in the nation’s immigration system that restrict pathways to legal status, and the INA clearly needs an urgent update, but USCIS’s current anti-immigration bias makes a bad situation even worse. The USCIS has the power to make America a welcoming nation for immigrants. Reverting to its former mission, rather than dabbling in President Trump’s enforcement priorities, when there is no basis in the INA for USCIS to do so,  would also keep its employees happier as well as being in the nation’s interest.

 

Cyrus Mehta & Sophia Genovese

Labor Certification: Mustn’t the US Job Applicant Be Able to Perform the Job Even If Qualified on Paper?

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PERM labor certification operates outside of the realm of typical real world recruitment efforts. Whereas employers in the real world normally look to hire the most qualified applicant, PERM requires employers to only assess whether a worker is minimally qualified for the position, regardless of whether they’re a good fit for the job. But even if a US worker applicant met the minimum requirements of the position, it is reasonable to expect this individual to perform the duties of the position.  There are certain requirements that are so inherent to the position that it would be redundant to even list them in an advertisement. One example is the ability to speak English or to not be addicted to video games in the workplace so that the employee ceases to be effective. There is an inherent requirement for an applicant to properly perform the job. Can the employer lawfully reject the applicant if she or he cannot perform the job duties after the employer discovers this in an interview even though the inherently obvious requirement was not listed in the advertisement?

As background, under Section 212(a)(5)(A)(i) of the Immigration and Nationality Act (INA), the Department of Labor (DOL) has the authority to determine whether there are insufficient US workers who are “able, willing, qualified, and available” to perform a job that has been offered to a foreign worker, and to ensure that the admission of the foreign worker will not adversely affect the wages and working conditions of those similarly situated. In order to demonstrate to the DOL that there are no “able, willing, qualified, and available” US workers to perform the proffered role, employers must go through the labor certification process, which requires, among other things, a good faith recruitment. 20 CFR § 656.17(e)(1)(i) describes the mandatory recruitment steps for professional occupations that an employer must take ahead of filing the ETA Form 9089, Application for Permanent Employment Certification. These include the posting of a job order with the relevant State Workforce Agency (SWA), two Sunday advertisements, and three additional recruitment steps (such as postings on job search websites, on-campus recruitment, local newspaper ads, etc.). The advertisements must clearly apprise US workers of the offered position and the minimum requirements for the role. Thereafter, the employer must prepare a recruitment report signed by the employer describing the recruitment steps taken, how many applicants applied for the role, and if those applicants were rejected, an explanation of why they did not qualify for the role. Critically, 20 CFR § 656.17(g)(2) states that “a US worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.”

Key to labor certification is the job advertisement. The advertisements must be carefully drafted to ensure that US workers are apprised of the position and also to demonstrate what the minimum qualifications are for the role. Under Board of Alien Labor Certification Appeals (BALCA) decisions, employers may only reject US workers for not possessing the skills as listed on the ETA 9089, or not meeting the reasonable minimum education or experience requirements of the position. However, employers may feel that there are many skills that are so inherent to an employee’s ability to perform the job that would qualify as lawful business reasons for rejection, despite the fact that they are not explicitly listed  on the Form ETA 9089.

In Matter of Transamerica Life Insurance Company, 2015-PER-00274 (Feb. 22, 2017), BALCA upheld the denial of a labor certification where US workers were rejected based on an inability to perform the job duties in Section H.11 on the ETA 9089. BALCA reasoned that because the employer had stated that experience in the job offered was not required in H.6, it was “precluded from imposing specific job duties listed in H.11 as requirements that US applicants had to meet.” This holding has been reaffirmed in a number of BALCA decisions. See, e.g., Matter of Nam Info, Inc., 2017-OER-00058 (holding that although the employer could not reject the applicant based on an inability to perform the job duties in H.11 where no experience in the job is required, they could reject the applicant for failure to meet its education requirements for the position); Matter of IBM Corp., 2015-PER-00483 (Mar. 28, 2018) (holding that an employer may not reject an applicant who does not have experience in the duties listed in H.11 where the employer did not indicate that experience in the job offered was required). However, BALCA also added that denial of the labor certification in Matter of Transamerica was proper because the job duties in H.11 were not normal for the job according to O*Net, and if the employer wanted the workers to be able to perform the job duties in H.11, the skills to perform such should have been listed in H.14. Thus, this leaves open the question of whether one can lawfully reject a US worker for inability to perform the job duties listed in H.11 if those duties are listed as normal on O*Net.

As we’ve previously blogged, in Matter of Los Angeles Unified School District, 2015-PER-03153 (Jan. 23, 2017), BALCA upheld the denial of a labor certification where the employer denied a US worker based on a failure to satisfy an inherent job requirement. The position at issue was for a Special Education Teacher. The job advertisement listed a Bachelor’s degree and teaching credential as the sole requirements for the role. The employer received a resume for a US worker who met these minimum requirements; however, the employer rejected the applicant because she could not “teach special education classes competently” and because the employer had also received a negative reference from the applicant’s previous employer. BALCA held that the employer’s actual minimum requirements needed to be listed on the ETA Form 9089, and since nothing in the employer’s stated requirements indicated that an applicant cannot have a negative performance evaluation, BALCA determined that the rejection was unlawful.

It is rather unreasonable to force employers to list every inherent skill in its PERM advertisements, otherwise employers would spend thousands of dollars on lengthy advertisements, which would still not be able to capture every inherent requirement. Indeed, in several pre-PERM BALCA and Court decisions, it was determined that not all inherent skills need be listed in advertisements. See, e.g., Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410 (5th Cir. 1989), Matter of Ron Hartgrove, 1989 BALCA Lexis 6 (BALCA May 31, 1989), Matter of La Dye & Print Works, 1995 BALCA LEXIS 59 (BALCA April 13, 1995).

In Ashbrook-Simon-Hartley, the Court held that the DOL could not flatly ignore job duties listed by the employer in determining that employer did not have job-related reasons for rejecting a US worker who otherwise satisfied the minimum experience requirements. Here, in its labor certification application, the employer listed the minimum education requirements, training, and experience for the position, which included “two years’ experience in the job offered or four years’ experience as a mechanical design engineer.” The employer received two resumes from individuals who had four years’ experience as mechanical design engineers. The employer rejected the first worker for inability to speak English, where the position required the supervision of other employee which inherently required the ability to speak English, as well as on the grounds that he had no experience in the field of wastewater and sewage treatment. The second worker was similarly rejected for lack of experience in wastewater and sewage treatment. The DOL determined that the rejection of the first applicant who could not speak English was lawful because ability to speak English was inherent to the position. However, the DOL denied the labor certification based on rejection of the second worker because the employer stated that a person with four years of experience as a mechanical design engineer was acceptable for entry into the position.

On appeal, the Fifth Circuit held that the DOL inappropriately ignored other aspects of the labor certification application, and the fact that the employer did include experience in the wastewater treatment industry in its job description. The Court found that the DOL cannot cherry-pick inherent skills, such as the ability to speak English, and flatly ignore others, such as experience in the wastewater industry. BALCA in Matter of Transamerica sought to distinguish Ashbrook-Simon-Hartley in footnote 8, stating that “the requirements which the court found that the CO impermissibly ignored referred to ‘experience in the wastewater treatment industry’ when describing the duties of the job. In this case, the Employer stated that experience in the job offered is not required which precluded it from imposing specific job duties listed in Section H.11 as requirements.” However, this distinction is unconvincing. In Ashbrook-Simon-Hartley, the employer listed experience in the wastewater treatment industry in the job duties section, and listed as its minimum requirements “two years’ experience in the job offered or four years’ experience as a mechanical design engineer.” The applicant had four years of experience as a mechanical design engineer, but no experience in the wastewater treatment industry. The Fifth Circuit found that such inexperience, as required in the job duties, was a lawful reason to reject the worker. In other words, the applicant had the minimum experience of four years as a mechanical design engineer, but did not satisfy the inherent requirement of experience in the wastewater treatment industry.

So what does this mean for employers? It is critical that attorneys ask employers what the actual minimum requirements are for the role. Some employers may feel that certain experience and skills are inherent to the role, and may not feel that it is necessary to list these minimum requirements, as they may take up too much space in the advertisement, costing the employer thousands of dollars. Although this would be rational in an ordinary recruitment context, PERM labor certification is anything but rational or ordinary. Although there are certainly arguments to be made that certain skills are inherent to a position under Ashbrook-Simon-Hartley, such as the ability to speak English or having experience in the relevant context in which the position takes place, one may want to include as many required skills as possible in H.14 and the advertisements to prevent an audit or denial. Thereafter, as we’ve previously suggested, when reviewing resumes, the employer ought to err on the side of caution and interview any applicants who appear to meet the stated minimum requirements, even if not all experience is listed on the resume. Thereafter, the employer can zero in to determine whether the US applicant meets the requirement of the position. In those instances where the US applicant meets all of the requirements of the position, but the employer discovers through a good faith interview that the applicant would not be able to perform the duties of the position, the employer can try to make the case that the US applicant was lawfully rejected. It remains to be seen, however, whether the employer will be successful with such an argument after Transamerica.

Cyrus Mehta

EB-5 Visa Cap Busting Lawsuit Opens Up Tantalizing Possibilities to Eliminate Backlogs in Employment and Family Preference Immigrant Visas

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Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012,  I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa numbers under the family and employment preferences.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states:

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

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

The primary objective of my advocacy was to try to persuade a more immigrant friendly Obama administration, in line with other executive actions, to either not count derivatives or count the entire family unit as one consistent with INA 203(d). If the administration was afraid of being sued by reinterpreting INA 203(d), I advocated that there was sufficient ambiguity in the statute to do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.

Despite announcing DACA and DAPA, the Obama administration was too timid to undertake such an audacious reinterpretation of INA 203(d). Much water has flown under the bridge since 2016. The Trump administration will never entertain this idea. While risky, a lawsuit would be an option of last resort. The Trump administration will likely argue that INA 203(d) is ambiguous and thus invoke Chevron deference to the way it and all prior administrations have counted immigrant visas.

I am pleased to learn that a group of investors under the employment-based fifth preference (EB-5) have filed a lawsuit, Feng Wang v. Pompeo, and even won class certification. They are being represented by the venerable Ira Kurzban and John Pratt of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A. Their main argument, supported by an expert opinion from David Bier of Cato Institute, is that in every year, except for 2017, the number of derivatives receiving permanent residence was greater than the number of principal applicants, thus resulting in backlogs for China and subsequently Vietnam in the EB-5. If the derivative family members were not counted in the EB-5, the principal applicants would have received conditional permanent residence or green cards by now.

The EB-5 plaintiffs have focused their argument specifically on the language in INA 203(b)(5), which provides that “[v]isas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers. Thus, plaintiffs argue that INA 203(b)(5) unambiguously provides that 7.1% of the 140,000 employment-based visas shall be allocated to investors who satisfy the EB-5 requirements. Nothing in the language of INA 203(b)(5) provide for the reduction of the allocation of EB-5 visas to spouses and children. Rather, spouses and children, under INA 203(d) will “be entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

The plaintiffs in Feng Wang v. Pompeo also point to the provision in INA 217(f) regarding the removal of conditions for conditional residents to further demonstrate that Congress did not intend to classify the spouses and children of investors as investors under INA 203(b)(5). INA 217(f) separately defines an “alien entrepreneur” who was admitted for permanent residence from the “alien spouse” or “alien child”, who were admitted for permanent residence by virtue of being the spouse and child of the “alien entrepreneur.”

Finally, the plaintiffs also argue that INA 203(b)(5)(B) sets aside 3,000 visas for those who invest in targeted employment areas (TEA), and in exchange, the investor invests a reduced amount. However, since historically approximately two derivative spouses/children accompany each EB-5 investor, investors would be able to use up only the 3,000 visas allocated to TEA investors, even though Congress intended that investors be given a choice to invest in a TEA or in an area outside a TEA.

If the plaintiffs prevail in Feng Wang v. Pompeo, the beneficial impact of the ruling will be limited to EB-5 investors. They have moved for a preliminary injunction based on imminent harm  such as children aging and other economic harms.  Still, a victory, assuming that the plaintiffs also prevail on appeal, will provide a springboard for EB plaintiffs in other backlogged preferences to file a broader class action. Although the plaintiffs in Feng Wang v. Pompeo relied on the unique language in INA 203(b)(5) and INA 217(f), plaintiffs in other EB preferences can rely on similar language in other statutory provisions. For instance, a plaintiff in a backlogged country such as India under the employment-based first preference can point to INA 203(b)(1)(A)(i) to show that Congress intended that all the visas in the EB-1 be allocated to an alien with extraordinary ability while the spouses and children immigrated with the principal alien of extraordinary ability under INA 203(d). Similarly, a plaintiff from a backlogged country in the EB-2 can point to INA 203(b)(2)(A) to show that Congress intended that all the visas in the EB-2 would be allocated to qualified immigrants who are members of the professions holding advanced degrees or those with exceptional ability while their spouses and children immigrated under INA 203(d). A plaintiff in the EB-3 can point to INA 203(b)(3)(A) to show that Congress clearly intended all the visas in this category to be allocated to skilled workers, professionals and other workers while their spouses and children immigrated through INA 203(d). These future plaintiffs can also move for a preliminary injunction showing similar imminent harm as the EB-5 plaintiffs have shown.

Of course, winning on these arguments will not be easy. The government will seek to show, among other arguments,  that there is ambiguity in INA 203(d) and invoke Chevron deference to the way it currently and has historically counted principals and derivatives separately.  However, if the EB-5 plaintiffs win in Feng Wang v. Pompeo, then it opens up tantalizing opportunities for plaintiffs in other backlogged EB preferences, and potentially family-based preferences, to make similar arguments in lawsuits and win. If plaintiffs in these lawsuits are victorious, the number of available green cards will double or triple without Congress needing to lift a finger and despite the Trump administration’s resistance to expanding legal immigration. The waiting lines will vanish or be drastically reduced.  As Rabbi Hillel asked in Ethics of the Fathers, if not now, when?

 

Sophia Genovese

Expecting Asylum-Seekers to Become US Asylum Law Experts: Reflections on My Trip to the Folkston ICE Processing Center

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US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.

Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.

It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.

Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee (ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.

Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.

Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.

During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.

Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, whom are tasked with fairly applying the law, and DHS officials, tasked with enforcing the law, are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.

But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.

We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:

Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation

At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.

Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.

Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.

Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman

During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.

He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.

Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.

Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).

As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.

Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group

My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.

Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.

August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.

Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.

Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.

Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.

[Update: 9/10/2018 at 3:00PM: Shortly after posting this blog, the author received word that Mr. G- had been ordered removed. Despite the fact that his hearing was conducted entirely in Spanish and he has arguable claims to relief, Mr. G- has decided not to appeal his removal order and instead return to Guatemala. Prolonged detention has taken a serious toll on Mr. G-‘s physical and mental health.]

Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion

I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.

Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.

A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.

SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.

(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)

Photos from my trip to Folkston, GA:

The Folkston ICE Processing Center.

Downtown Folkston, GA.

 

Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).

Cyrus Mehta

Assisted Reproductive Technology and Transmission of American Citizenship: Is There Any Need For A Biological Link After Jaen v. Sessions?

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When a child is born abroad to a US citizen parent, the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) has always insisted on a biological relationship with a US citizen parent in order to acquire U.S. citizenship from that parent. This has always meant a genetic relationship, but with the advancement of Assisted Reproductive Technology (ART), the DOS and USCIS have made an exception for a gestational mother who is recognized as the child’s legal parent who used a donor egg but still carried and gave birth to the child.

While including the gestational mother who may not have a genetic relationship to the child is a worthwhile exception, it deprives the mother who may neither be the gestational mother nor have a genetic relationship with the child from passing US citizenship. For instance, when a US citizen mother is medically unable to bear a child and needs to use a surrogate mother overseas to carry the child to birth, and the egg is not hers and the sperm is from a non-US citizen father, US citizenship cannot be passed onto the child. It is acknowledged that commercial surrogacy has generated controversy as a result of instances of unethical and exploitative practices, and is banned in many countries.  India, until recently, was the hub of commercial surrogacy, but is also proposing a law to completely ban it. In the interim, foreign nationals have not been allowed to enter India for surrogacy arrangements on medical visas as of November 3, 2015 and they are also not allowed to take the child out of India after its birth. Still, countries such as Georgia and Ukraine are emerging as new international surrogacy hubs, and even if other countries have banned commercial surrogacy, altruistic surrogacy exceptions exist.  Thus, under current US policy, such a mother who for medical reasons is unable to establish a biological link to her child, and also cannot serve as the gestational mother herself, is unable to transmit US citizenship to her child. This is unfair for such mothers.

Fortunately, federal courts are adopting a broader view of who a parent can be in order to transmit US citizenship. The Court of Appeals for the Second Circuit in Jaen v. Sessions  recently held that a U.S. citizen who is a parent of a child as a result of marriage can also pass along U.S. citizenship to that child notwithstanding the prevalent DOS and USCIS policy that insists on a biological or genetic relationship for passage of US citizenship.  David Isaacson’s blog, Jaen v. Sessions: The Government Reminds Us That Government Manuals Aren’t Always Right, correctly points out that US government policy or guidance may not actually be the law, and federal courts need to step in to point this out. “But this will only happen if attorneys, and their clients, ask the federal courts to do so,” he adds.

In Jaen v. Sessions, Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland.  But Jaen’s Panamanian birth certificate indicated that his father was another man named Liberato Jaen. Jaen moved to the US at the age of 15 as a nonimmigrant in 1988 and lived with the Boreland family. In 2008, Jaen was placed in removal proceedings based on controlled substance violations and he moved to terminate proceedings on the ground that he was a US citizen. The Immigration Judge denied the motion, and the Board of Immigration Appeals affirmed. The Second Circuit reversed.

David Isaacson’s blog nicely summarizes the Second Circuit’s reasoning in finding that Jaen was a US citizen even if there was no biological link with his US citizen parent:

The government had sought to interpret this language as referring only to biological “parents”.  As the Second Circuit pointed out, however, the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth.  As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father.  Jaen, slip op. at 13 & n. 5.  This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes even if it were not also the case, as it was, that he would have been recognized as Levy Jaen’s father under New York law.

The government urged the Court of Appeals to follow the guidance in the DOS Foreign Affairs Manual (FAM) and USCIS Policy Manual, which required biological parenthood to qualify as a “parent”.  But as the Second Circuit noted in a footnote, those internal guidance manuals are not entitled to Chevron deference.  Jaen, slip op. at 11-12 n.4.  Nor did the Second Circuit evidently find them persuasive.

As the Second Circuit observed, it was not the first Court of Appeals to hold that the father by marriage of a child need not have a biological link to that child in order to transmit U.S. citizenship to that child.  The Ninth Circuit had held to the same effect in Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000).  Indeed, the Ninth Circuit in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), extended this holding to cover a man whose U.S. citizen mother was not his biological mother but had been married to his biological father at the time of his birth.  (It remains to be seen whether the Second Circuit’s holding in Jaen will be extended in the same way, as the Second Circuit did not have occasion to address this fact pattern.)

The reasoning in Jaen v. Sessions can be extended to a US citizen mother who uses a surrogacy arrangement as she is unable to bear her own child, and where the sperm donor spouse is not a US citizen. Although Jaen dealt with the term “parent” in old INA 301(a)(7), it is virtually identical to current INA 301(a)(g) other than requiring different periods of physical presence by the US citizen parent prior to the birth of the child.  The US citizen mother could potentially be considered a “parent” under INA 301(g), if she is married to the non-US citizen parent, notwithstanding the lack of a biological connection in the same way that there was no biological connection between Jaen and his US citizen father.  Indeed, the facts in Solis-Espinoza v. Gonzales, supra,  are more analogous to the example of a surrogacy arrangement as they involved a US citizen mother with no biological connection to the child. Though born in Mexico, Solis-Espinoza claimed citizenship by virtue of the U.S. citizenship of the woman he knew as his mother whose name was Stella Cruz-Dominguez.   Cruz-Dominguez, who was married to Solis-Espinoza’s biological father, a Mexican national, at the time of his birth, acknowledged Solis-Espinoza from his infancy as a member of her family and raised him as his mother, though he did not in fact have a biological connection with Cruz-Dominguez.  His biological mother, a Mexican citizen, had abandoned him. The Ninth Circuit nevertheless held that Solis-Espinoza had acquired US citizenship through Cruz-Dominguez, his US citizen mother, even though there was no biological connection with her, as she was married to his father, and both had accepted Solis-Espinoza into their family. The Ninth Circuit quite correctly observed that “[i]n every practical sense, Cruz-Dominguez was [Solis-Espinoza’s] mother and he was her son.  There is no good reason to treat [Solis-Espinoza] otherwise.   Public policy supports recognition and maintenance of a family unit.   The Immigration and Nationality Act (“INA”) was intended to keep families together.   It should be construed in favor of family units and the acceptance of responsibility by family members.”

Notwithstanding these decisions in the Second and Ninth Circuits, the DOS will likely still adhere to its existing policy. If the US citizen is unable to show a biological link to the child, and she was also not the gestational mother, the DOS will most likely deny an application for Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA). In such a situation, if there is a biological link with the child’s non-US citizen father as the sperm donor, the US citizen mother may file an I-130 petition for the child as her step child for permanent residence. If the step child wishes to become a US citizen after the grant of permanent residence, the parent would have to adopt the child or the child would need to naturalize upon reaching the age of 18. However, this will be more time consuming than obtaining a CRBA in the child’s name In the event that there is also no biological link with the other parent, such as where the father is not the sperm donor, or the other parent is also female (and assuming her egg was not used), then even an I-130 petition cannot be filed unless the child is adopted. This may entail spending 2 years with the child abroad to get around the restrictions in the Hague Convention, if the child is born in a country that is a party to the Convention. Moreover, even a same sex marriage between two males will result in the same sort of problem if they resort to a surrogate arrangement, and the US citizen cannot use his sperm with the donor egg that is implanted in the surrogate overseas who would also not be a US citizen.

A direct challenge to a consular officer’s determination in federal court seeking a declaratory judgment can be attempted. Although in Rusk v. Cort, the Supreme Court allowed a native born US citizen whose citizenship had been revoked while living overseas to directly challenge the revocation in federal court, a recent 2018 Fifth Circuit decision, Hinojosa v. Horn, a three judge (2-1) panel  held that a person claiming US citizenship while outside the US must first apply for a certificate of identity under 8 USC 1503(b) in order to come to the US to seek entry as a US citizen. If the application is denied, then the child may be permitted to challenge the denial in federal court.” No other circuit thus far has issued a decision similar to Hinojosa that negates a direct challenge under Rusk v. Cort.

While there might be many cumbersome and circuitous ways to ultimately bring a child denied a CRBA into the US, it would be far simpler for the DOS and the USCIS to modify it policy so that it would be in line with Scales, Solis-Espinoza and Jaen. The DOS as recently in 2014 made an exception for a gestational mother to transmit US citizenship to a child born abroad, even though there was no biological link. It would not be a stretch for DOS to issue a new policy that would allow transmission of citizenship by a US citizen parent, without any reference to any genetic or biological link, based on a common law definition of “parent” through marriage. Such a definition would not only be consistent with the common law meaning of “parent” in the INA, especially INA 301(g), but it would also be in keeping with public policy that supports the recognition and maintenance of a family unit.

 

 

 

 

Sophia Genovese

Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico

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The Trump Administration is seeking to create and implement a safe third country agreement with Mexico. Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement, which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers. The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections.

As reported by Human Rights First and Amnesty International, 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded, and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum, of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians.

A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, did nothing to protect Mr. H and his family. Not long thereafter, Mr. and Mrs. H are attacked as they leave their home. Mrs. H is severely wounded, but her husband, Mr. H, dies. As Mrs. H recovers in the hospital, she begins to receive death threats on account of her husband’s political beliefs. Fearing for her life, she flees Honduras, travels through Guatemala and Mexico, and presents herself at the US border claiming asylum. Given her extraordinary claims, Ms. H would most likely be granted asylum in the United States. However, under a safe third country agreement, if she travelled through Mexico to get to the US, the US would return Mrs. H to Mexico without first adjudicating her asylum claim. If Mexico in turn denies the asylum application (or worse, denies the asylum seeker access to its asylum procedures) where the US may have granted the application, and if the asylum seeker is thereafter refouled, the US is thus violating its international obligations and potentially under INA § 208(a)(2)(A) for indirectly refouling that individual.

The US currently has a safe third country agreement with Canada that has been similarly criticized, both at the initial signing and now with renewed fervor on account of Sessions’ evisceration of the US asylum system. The first challenge to the agreement was in 2007 in Canadian Council for Refugees, et al. v. Her Majesty the Queen, [2007] FC 1262 (Can. Ont.). The Court began by recalling that the US and Canada are both parties to the 1967 Optional Protocol to the UN Refugee Convention and thus both possessed the same international obligations with respect to the treatment of asylum seekers, including the principle of non-refoulement. The Court found, however, that the US was “not compliant with international conventions,” especially with respect to its one-year asylum filing deadline (which Canada does not have), and thus concluded that the US was not a safe third country for asylum seekers. Accordingly, the Court reasoned that by returning asylum seekers to the US without first adjudicating their asylum claims, which results in their subsequently denied asylum application in the US and refoulement to their country of origin, Canada was also in violation of its international obligations and under the Canada Charter of Rights and Freedoms. In other words, Canada was indirectly responsible for impermissible refoulement. Unfortunately, the decision was ultimately overturned by the Federal Court of Appeal, thus preserving the safe third country agreement.

There was another challenge to the US-Canada safe third country agreement at the Inter-American Commission on Human Rights (IACHR) in John Doe et al. v. Canada, Case 12.586, Inter-Am. Comm’n H.R., Report No. 24/11, OEA/Ser.L/V/II.141, doc. 29 (2011). The IACHR similarly found that Canada was in violation of its international obligations of non-refoulement by failing to adjudicate asylum claims of individuals who had travelled through the US. Lacking enforcement authority, the IACHR merely offered recommendations to Canada so that they remain compliant with their international obligations. Legal challenges to the agreement in Canada laid dormant until July 2017 when Amnesty International and the Canadian Council for Refugees again initiated litigation against the agreement, where they outlined the numerous ways the US asylum system failed to meet international standards, and identified how US asylum policy has continued to deteriorate under the Trump regime. This suit remains pending. If the US were to adopt a safe third country agreement with Mexico, the Canadian Council for Refugees would certainly want to amend their pleadings and raise the issue of an asylum seeker potentially being subject to two safe third country agreements, implicating Canada in chain refoulement.

As we have blogged about extensively, the US asylum system, especially under the Trump Administration, is certainly not the best asylum model out there. This article does not suggest that the US asylum framework is the be-all end-all, nor do we suggest that Mexico is a bad country. Nevertheless, a safe third country agreement with Mexico would cause the United States to be in further violation of our international, and arguably domestic, obligations of non-refoulement. Violence in Mexico has reached record levels and the US State Department has issued multiple travel advisories to various Mexican states. Further, as discussed above, Mexico is extremely dangerous for vulnerable populations such as asylum-seekers and migrants, especially women. Access to asylum procedures is astonishingly low in Mexico, and even if an individual is lucky enough to file their claim, it is still more likely than not that their claim will be denied.

It is unclear if the incoming Mexican president, Andres Manuel Lopez Obrador, will be more open to the agreement than the departing president, Enrique Peña Nieto. Under the backdrop of the NAFTA renegotiations, the US may seek to leverage their continued participation in NAFTA in return for a safe third country agreement with Mexico. Nevertheless, advocates should continue to speak out against this devastating policy ahead of any official negotiations. If the US and Mexico end up creating a safe third country agreement, advocates should vigorously contest the legality of this agreement in Court, as such an agreement will undoubtedly result in the impermissible return of bona fide asylum seekers to their country of origin.