Tag Archive for: Comprehensive Immigration Reform + Tyranny of Priority Dates

David Isaacson

Matter of Douglas: The BIA Confirms That Brand X Can Sometimes be a Force For Good

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On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas, 26 I&N Dec. 197 (BIA 2013).  At first glance, Matter of Douglas is about an interesting but obscure aspect of a section of the Immigration and Nationality Act (INA) that was repealed more than a decade ago.  But perhaps more importantly, Matter of Douglas is also an example of the BIA using its authority to go against Court of Appeals precedent decisions under National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), to the benefit of an immigrant and potential U.S. citizen rather than to the detriment of the immigrant.At issue in Matter of Douglas was former section 321(a) of the INA, repealed effective February 2001 by the Child Citizenship Act of 2000, which in relevant part replaced INA §321(a) with the simpler rule of current INA §320.  As Matter of Douglas explained, former §321(a)

provided that citizenship was automatically acquired by a child born outside the United States of alien parents under the following conditions:

(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents, is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

Matter of Douglas, 26 I&N Dec. in 198 (emphasis in original).The question in Matter of Douglas was the relevance of the order in which the conditions of former INA §321(a) were satisfied.  As the BIA explained, Mr. Douglas

was born in Jamaica on January 29, 1976, to his married parents, each of whom was a native and citizen of Jamaica. On December 14, 1981, [Mr. Douglas] entered the United States as a lawful permanent resident. [Mr. Douglas]’s mother was naturalized on April 13, 1988. His parents were divorced on July 25, 1990. [He] became 18 years old in 1994.

Matter of Douglas, 26 I&N Dec. at 198.  That is, Mr. Douglas’s mother became “the parent having legal custody of the child when there has been a legal separation of the parents” under former INA §321(a)(3) only after she was naturalized, having been naturalized in 1988 and divorced in 1990.  Both of these events, however, happened while Mr. Douglas was a lawful permanent resident and before he reached the age of 18, in compliance with former INA §321(a)(4)-(5).In its earlier decision in Matter of Baires, 24 I&N Dec. 467 (BIA 2008), the BIA had held that “A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act . . . before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.”  Matter of Baires, 24 I&N Dec. at 467.  Under this rule, Mr. Douglas would be a U.S. citizen.  Case law of the U.S. Court of Appeals for the Third Circuit, however, as the BIA acknowledged, required that one seeking to show acquisition of citizenship under former INA §321(a)(3) demonstrate “that his [parent] was naturalized after a legal separation from his [other parent],” rather than before such a separation.  Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005)(alterations in original) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)).  In Matter of Baires, the BIA had noted the Third Circuit case law, but had indicated that “we are not bound by the Third Circuit decisions on which the Immigration Judge relied because this case is within the jurisdiction of the Fifth Circuit.” 24 I&N Dec. at 469.  The proceedings in Matter of Douglas, however, had taken place within the jurisdiction of the Third Circuit, and so the BIA had to decide whether to follow Matter of Baires or the Third Circuit’s decisions in Jordon and Bagot.

The BIA chose to follow Matter of Baires, rather than Jordon and Bagot, and so found Mr. Douglas to be a U.S. citizen and terminated his removal proceedings.  Under Brand X, as the BIA explained, an administrative agency such as the BIA can sometimes be entitled to “Chevrondeference” pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) regarding its interpretation of a statute, even when there has been a prior court interpretation of the statute going the other way, so long as that court did not find that the statute unambiguously supported its interpretation.  Believing that its interpretation in Baires was a reasonable interpretation of the statute, and that Jordon and Bagot had not interpreted the statute to be unambiguous, the BIA concluded that under Brand X it could and would follow Baires, rather that Jordonand Bagot, even in the Third Circuit.

It appears that this may be the first time that the BIA has explicitly relied on Brand X to rule in favor of the immigrant respondent.  The BIA has, to be sure, previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock).  The proceedings underlying Matter of F-P-R-, however, appear to have taken place in the Ninth Circuit, not the Second, see 24 I&N Dec. at 682 (referring to “the absence of any controlling decisions on the issue from either the United States Court of Appeals for the Ninth Circuit or the Board”), and so the BIA did not have to determine whether it would follow Joaquin-Porras within the Second Circuit.  Here, in contrast, the BIA held that it would not follow Jordon and Bagot even within the Circuit that had decided them.  And while there was a footnote in the BIA’s acclaimed decision inMatter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6.  It appears that Matter of Douglas may be the first BIA decision to go flatly against a contrary Circuit precedent under Brand X and do so to the benefit of the immigrant respondent.

The possibility of using Brand X as a force for good has been raised before, notably by Gary Endelman and Cyrus D. Mehta in their articles on “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, as well as their post on this blog which explained how the BIA’s decision in Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), implementing the Supreme Court’s striking down of Section 3 of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013), effectively overruled the Ninth Circuit’s earlier decision in Adams v. Howerton, 637 F.3d 1036 (9th Cir. 1982) in regard to recognition of same-sex marriages for immigration purposes.  Like Matter of F-P-R-, however, Matter of Zeleniak had not explicitly relied on Brand X.  In this regard, Matter of Douglas is a significant step forward.Of course, Brand X is not always a force for good.  Less than a year ago, for example, the BIA decided in Matter of M-H-, 26 I&N Dec. 46 (BIA 2012), that it would disregard the Third Circuit’s decision in Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), and follow its own prior decision in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), so as to consider even some crimes that are not aggravated felonies as “particularly serious crimes” which can bar withholding of removal.  The merits of Matter of M-H- (which this author considers dubious) are beyond the scope of this blog post, but it is only one example of the fact that the BIA can seek to rely on Brand X to strip applicants for relief of protection that a Court of Appeals has given them.  Also within the last year, the BIA invoked Brand X in Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), to find that violation of California Penal Code 314(1), regarding indecent exposure, was categorically a crime involving moral turpitude, despite the contrary decision of the Court of Appeals for the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010).  Nor are these the only examples; an exhaustive list of all instances in which Brand X has been invoked by the BIA to the advantage of the Department of Homeland Security and the disadvantage of an immigrant would unnecessarily lengthen this blog post.Now that the BIA has acknowledged in Matter of Douglas that Brand X is not a one-way ratchet and can also work in favor of immigrants, however, it is important for practitioners to keep Brand X in mind when they are faced with unfavorable Court of Appeals case law interpreting an ambiguous immigration statute.  Especially where existing BIA case law in other circuits is more favorable, an unfavorable Court of Appeals decision in a particular circuit need not be the last word.

Cyrus Mehta

MAKING COMPREHENSIVE IMMIGRATION REFORM POSSIBLE

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By Gary Endelman and Cyrus D. Mehta

In shock at the overtly racist profiling now sanctioned by the State of Arizona, https://blog.cyrusmehta.com/news.aspx?SubIdx=ocyrus201042724527, the Democratic Party has turned to comprehensive immigration reform to pay off its political debt to the vast and growing body of Hispanic voters whose allegiance may determine our national electoral map for decades to come. That is why Senators Reid, Durbin, Schumer, Leahy, Feinstein & Menendez this week introduced the aptly named REPAIR proposal otherwise known more completely as the Real Enforcement with Practical Answers for Immigration Reform Act, http://tiny.cc/gnm21. While the prospects for ultimate enactment remain highly uncertain, the commitment by the Democratic Party to moving on CIR is an event of singular importance and one that deserves serious consideration.

This proposal might also be called the “Indian and Chinese PhD Relief Act” because relief for these folks is precisely what it would provide. The per country cap would be lifted for those foreign-born scholars who earned advanced degrees from US universities in science, technology, engineering and mathematics, the now sacrosanct STEM cordon sanitaire. There is the slight matter of having a job offer from a US employer in a related field but that is mere detail. We do not know if these lucky few would be able to apply directly for adjustment of status to lawful permanent resident given the immediate availability of a green card number or whether they would still have to qualify under one of the existing employment categories such as national interest waiver, outstanding researcher, extraordinary ability or on the basis of labor certification. What is clear, however, and perhaps most importantly, is that the tyranny of priority dates under which the prospect of gaining green card status had become a cruel dream has now been overthrown. No longer does the priority date regime have legal relevance. Praise the Lord!

REPAIR also ends the unconscionable injustice of separating lawful permanent residents from their families for years on end by treating such dependents as immediate relatives free of quota restrictions which is precisely what they should and now will be. Bravo Congress! Before we get too excited, we would do well to remember that significant new burdens would cripple the H-1B and L-1 categories. L-1B specialized knowledge workers are limited to one year, though the statute is silent on the possibility of extensions. Numerical caps will be placed on both H and L sponsorship for large employers and all H employers must face both more investigations and more restrictive wage methodology so Wage Levels I and II are likely no longer to be available. The prospect of further government intrusion in the form of more and more frequent H and L investigations also clouds the happy horizon. It is ironic that Congress would select the REPAIR bill as the vehicle to deliver such punishment at the same time as they are making the H1B less relevant. Indeed, if STEM Master’s and PhD graduates from our top schools can apply right away for the green card, and since STEM F-1 visas will now enjoy dual intent, why would anyone in his or her right mind seek H-1B sponsorship at all? Most ominous is the Orwellian sounding “Commission on Employment-Based Immigration” which is invested with the awesome power to declare an immigration emergency and issue Olympian edicts to which a hapless Congress must say “yea” or “neigh”. A concept born in the brain of the AFL-CIO and former Carter Secretary of Labor Ray Marshall, this Commission places all of employment-based immigration on the chopping block, even the priority date relief noted above.

What of those who live in the shadows? For them, REPAIR offers “Lawful Prospective Immigrant” (LPI) status in two phases. First comes the right to live, work and travel for eight years. Then, once all current green card visa backlogs have been cleared out, one can apply for adjustment of status after learning English, mastering civics, paying back taxes with penalties, registering for Selective Service and passing security checks. Glad the rest of us don’t have to do all that! . How will the magic of backlog elimination weave its spell? Well, a massive infusion of new numbers on the family side of the ledger should help some. What about employment-based waiting lines? Ah, here, REPAIR is strangely silent. What are we to assume from this? Will LPI adjustments take precedence over EB-3 cases where the employer has demonstrated the absence of qualified, willing and available US workers? Will they come ahead of EB-2 applicants from China or India whose work has been found to be in the national interest? Congress should step up to the plate and provide the same green card relief on the employment side of the ledger. The fact that REPAIR does not do that once again illustrates the pervasive yet unspoken belief that family migration is worthy of our compassionate concern while employment migration has no claim on our conscience or our sense of national priorities.

If Congress does not do the right thing, what then? That is where executive fiat can help make CIR possible in two key ways. First, as we have discussed at length previously ( Tyranny of Priority Dates, http://scr.bi/i0Lqkz) the USCIS can largely eliminate EB backlogs by eliminating family members from the cap, an approach that can be supported by textual reinterpretation and legislative history. Second, the very notion of visa availability can be redefined to allow for provisional submissions that can be advanced in the absence of current priority dates following I-140 approval. If we allow those who have been here without color of law to apply for green cards as lawful prospective immigrants, which we strongly support, there is no reason in law or logic to prevent those who are in legal status from also prospectively seeking to get LPR status. Allowing adjustment of status applications for EB beneficiaries after I 140 approval but conditioning final approval of same upon a current priority date is the perfect book-end to the LPI program, . It is something that can be done entirely through Executive Fiat and the effect of which would be to wipe away the EB backlog which very presence could indefinitely delay the implementation of the LPI initiative. What’s not to like? Now that Congress has taken the first tentative steps on the road to real immigration reform, why not use all the weapons at our disposal to make it happen?