Blog Archives - ABIL-Immigration-Updates

America's Role in Syria After the Chemical Weapons Attack and Immigration Reform

8/30/2013

by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

After hearing about the horrific killing of civilians in Syria in a chemical weapon attack, President Obama stated: “We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.” The United States may resort to this military action alone, even though Britain has backed out, although France too believes that there must be a serious deterrent to discourage the use of chemical weapons again. The potential use of force against another country brings up the specter of Iraq, when we went to went to war on false information that Saddam Hussein had weapons of mass destruction. This time it is different. There is conclusive proof of a chemical weapons attack, and it is sad to see images of rows of bodies of innocent children, which was most likely perpetrated by the Assad regime in Syria.

Still, people are legitimately questioning America’s role and whether it is legal for America to use force without a Security Council resolution. It is a foregone conclusion that Russia, which is a steadfast ally of the Assad regime, will veto any proposal in the Security Council to militarily intervene through a UN force to protect the Syrian people from future chemical weapon attacks. The United States, along with France, is attempting to assert and develop a new legal doctrine to bypass the Security Council, which is that a country can use force to protect the citizens of another country that have been killed, such as in the Syrian chemical weapon attack. They use the recent example of NATO’s use of force during the Kosovo crisis in 1999 and bypassing the Security Council in the face of a Russia veto, that prevented Milosevic from further slaughtering the Albanians, and which resulted in his downfall. Today, Serbia is a member of the European Union and Kosovo is an independent country. Kosovo is a successful example of countries intervening through force to stop a humanitarian disaster. On the other hand, the world stood by when there was genocide of unimaginable proportions in Rwanda.

No matter what people think, but America still remains the superpower and is expected to lead the rest of the world during such a crises. America will never win universal admiration as a superpower and it will make terrible mistakes, like the Iraq invasion, whose specter still haunts us and inhibits countries today from intervening in the affairs of another sovereign state even in the face of an actual chemical weapon attack that has resulted in the slaughter of thousands of innocents (including 400 children) like insects killed by pesticide.

Nearly 12 Years After 9/11 Applicants Perceived as Muslims Still Targeted Under a Secret Immigration Program

8/25/2013

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

After the 9/11 attacks, anything and everything concerning immigration has been viewed through the prism of national security. Even a straightforward bona fide marriage between a US citizen and foreign national spouse will only be approved after every aspect of the spouse's information is extensively checked against humongous and error-prone national data bases. In the immediate aftermath of 9/11, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism.

The Bush Administration in 2003 implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen.

One would like to think that in 2013, this wholesale profiling against people because of their nationality or religion would have stopped, but a little known program known as Controlled Application Review and Resolution Program or CARRP since 2008 has been targeting some applicants who are Muslim or perceived as Muslim for immigration benefits from Arab, Middle Eastern, Muslim and South Asian communities, resulting in their applications languishing in limbo or being denied for reasons other than merit. Immigration attorneys have always suspected this all along, but thanks to the ACLU, there is now a damming report that has unearthed the workings of CARRP, which according to the ACLU is code for “Muslims Need Not Apply.”

CAARP essentially discourages the granting of an application, whether it is for citizenship or for another immigration benefit, to anyone who presents a national security concern. CAARP, an unusual acronym in its own right has engendered other peculiar acronyms and terms, many with devastating consequences for the applicant. An applicant may be identified as a national security concern if she is a Known or Suspected Terrorist (KST) or a Non-Known or Suspected Terrorist (Non-KST). A KST is someone whose name has been thrown into the over-inclusive Terrorist Watch List. One need not be suspected of terrorist activity for one’s name to be included in the Terrorist Watch List.

If the person is not a KST, then CARRP directs immigration officers to look to any other relevant sources to find whether an applicant is a national security concern, and thus a Non-KST. First, CAARP directs officers to examine the security and terrorism grounds of inadmissibility and deportability under INA Sections 212(a)(3)(A), (B), (F) and 237(a)(4)(A) and (B) to determine whether the applicant’s association with any persons or associations can render him a Non-KST. Second, CAARP instructs that the assessment under these overbroad INA provisions do not need to satisfy the legal standard for determining admissibility or removability in order to designate an applicant as a national security concern. As a result of this directive, many Muslim applicants who may have given donations to charitable organizations that have later been designated as terrorist organizations have become national security concerns even though they did not know of the designation. Such a person cannot have provided “material support” to a terrorist organization if he or she “did not know or should not have reasonably known” of it and cannot be found inadmissible or removable. Still, CAARP allows officers to implicate applicants under these provisions as national security concerns even though they are not technically admissible or removable.

CAARP allows officers to even look beyond the parameters of these provisions through “other suspicious activities” such as unusual travel patterns, large scale transfers or receipt of funds, or membership or participation in organizations outlined in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the INA. Finally CAARP allows officers to wander much further to look at whether the applicant has a family member or “close associate” who is a national security concern. Such a “close associate” could be a roommate, co-worker, employee, owner, partner, affiliate or friend.

Once an applicant is designated as a national security concern, CAARP introduces another strange term, but again with adverse consequences for the applicant, called “Deconfliction.” Deconfliction means coordination between USCIS and any investigative agency, which is the owner of the national security information “to ensure that planned adjudicative activities (e.g. interview, request for evidence, site visit, decision to grant or deny a benefit or timing of the decision) do not compromise or impede an ongoing investigation.” This subjects the application to even more mind boggling bureaucratic procedures reflective of a post 9/11 paranoid national security apparatus such as internal vetting/eligibility assessment, external vetting and adjudication (aka denial). It is not difficult to imagine that “Deconfliction” allows another agency such as the FBI to control the adjudicative process, resulting in the pretextual denial of the immigration benefit if the national security concern is not resolved. Attorneys have seen denials of naturalization applications, especially involving Muslims, where the applicant has not listed “membership” or “association” with every organization or group. The overbroad question on the Form N-400 asks –“Have you ever been a member of or associated with any organization, association, fund, foundation, party, club, society or similar group in the United States or in any other place?” It is likely that a Muslim applicant could get denied for inadvertently failing to list his association with a religious group, but a Christian applicant may not face a similar denial for failing to list her church.

With the revelation of CAARP, attorneys can explain to clients why applications have been delayed for so long, as well as take steps to protect their clients from pretextual denials if they have been designated as national security concerns. It would be worthwhile to accompany all clients for interviews who could be potentially CAARPed as well as insist that the USCIS video tape their interviews. It is also incumbent to advise the client on how to answer the overbroad question regarding his or her membership in associations or organizations on the Form N-400 or other applications, and it is best to err on the side of caution and interpret this question broadly to also include organizations to which the applicant may have made a charitable contribution. If the client forgets to provide information at the interview, it is important to provide that information as soon as possible in order to avoid a denial based on a misrepresentation to obtain benefits. An attorney can also challenge a denial if the client was not provided adverse information prior to the denial or for not being given the opportunity to contest a CARRP determination. Finally, an applicant subject to CAARP will not only face a denial, but the government may also find a way to place her in removal proceedings or even initiate a criminal prosecution. It is important to protect the client by being familiar with her history, and to pay attention to irregularities, which even if minor and may be overlooked for others, could result in the institution of removal proceedings or criminal proceedings.

The Lazarus Effect: How Comprehensive Immigration Reform Can Survive the House GOP and Come Back to Life

8/18/2013

by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

“The only true test of leadership is the ability to lead and lead vigorously”
President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections. What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members. It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party. First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small. It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways. It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN. Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized) may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.). Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

RNC Hoisted on Its Own Immigration Petard in Opposing Path to Citizenship

8/18/2013

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Last Friday the Republican National Committee (RNC) passed a resolution opposing a path to citizenship for the 11 million people living among us without immigration status. Viewing these individuals as gate-crashers or overstayers, the resolution claimed that a majority of Americans "oppose any form of amnesty that would propose a pathway to citizenship for illegal aliens." Inexplicably, however, the RNC nonetheless offered this amnesty-lite proposal:

RESOLVED, that the Republican National Committee calls upon the President and Congress to create a new work permit program that will allow foreign nationals who are currently in the country and have not violated any other laws of the U.S. to come forward and register and be allowed to remain and work in the U.S. The work permit will not result in application for citizenship nor any family members entering the U.S. and will require renewal every two years upon proof of continuous employment with no more than two (2) months per two (2) year period unemployed or convicted of a crime.

The resolution provides no explanation for this change of tune. Rather than espousing the usual shibboleth that immigration amnesty would reward those who flouted the "rule of law" in the U.S., the RNC posits this puzzling twist:

Americans recognize that for many of those seeking entry in our country, the lack of respect for the rule of law in their country of origin has meant economic exploitation and political oppression

Does this newfound RNC solicitude for the "rule of law in their country of origin" suggest a contorted rationale for amnesty-lite? The RNC seemingly implies that since these "illegal aliens" (their phrase, not mine) are victims of economic exploitation and political oppression, caused by a lack of respect for the rule of law in their homelands, American immigration law should be amended to go just a tad easier on them here. It's hard to know for sure, because the resolution doesn't explain the change of heart.

Also befuddling and unexplained is the resolution's support for a "merit system utilizing the newest technology that focuses on the needs of United States employers and matches the economic and cultural attributes that each immigrant possesses to those needs." Since when do Republicans give a hoot about matching the "cultural attributes" of would-be immigrants and foreign temporary workers to the needs of American employers? There's a dog whistle in there somewhere, but it's hard to discern. Are "cultural attributes" a code for "English-only" speakers from abroad? Again, it's anyone's guess.

One thing is clear, however, and that's self-deportation or "attrition through enforcement" -- the immigration policy of the GOP's last presidential nominee -- is now officially viewed, at least by RNC Chairman, Rance Priebus, as "a horrific comment to make" and "not something that has anything to do with our party."

So, in sum, the RNC's policy seems to be that:

Two-year renewable (but non-amnesty) work permits should be granted to "illegal aliens" who broke our immigration laws because they are victims of lawbreaking abroad that led to their economic exploitation and political oppression (but only so long as they stay mostly employed and otherwise remain crime-free);
Legal immigration that matches the economic traits of qualified foreign workers and the needs of U.S. employers should be expanded, especially if the workers' "cultural attributes" are similarly aligned; and
Self-deportation is horrific and should not be supported as policy by red-blooded Republicans.

Is this kind of petard-hoisting an illustration of Bobby Jindal's allusion to the "party of stupid" or is it Chris Christie's "focus on winning again"? Whatever the underlying rationale for the RNC's muddled messaging, the Republican Party needs to develop a more appetizing and inviting policy, for even a majority of its traditional stalwarts, senior citizens, believes it's too extreme on immigration.

The New Provisional Waiver - A Positive Program Foundering

8/14/2013

Charles Kuck, ABIL President
AILA Leadership Blog

For a year we waited for USCIS to put into effect changes it had discussed in processing the needed waiver for the 10 year bar found in INA § 212(a)(9)(B) for those people married to U.S. Citizens who had entered the United States without inspection. The announcement of the change to a “provisional” waiver program brought with it much anticipation and joy to those who would most benefit from this change. Nothing was worse than leaving your spouse behind in the United States, many times with young children, for an uncertain number of months, with a strong possibility you would not come back home for 10 years. And, as a result, many people chose not to take advantage of the waiver because of the fear of the unknown.

The Provisional Waiver regulation announced on January 2, 2013, and effective on March 1, 2013, now made it possible for foreign spouses of U.S. citizens to apply for the permanent residence without the risk associated with departing the U.S. without having the forgiveness offered by the waiver in their hand. Being assured that you would know of the timing of your return after a brief trip to a consulate was nothing short of gift from heaven for many people. Predictably, many couples and their lawyers prepared their waiver packages and submitted them to the USCIS as soon as they could after March 1, and many have been waiting patiently for what were promised to be approval notices. Those approval notices, coupled with their trip abroad, would finally yield what many have desired for so long – normalcy in their lives and permanent residence.

Sadly, the hoped for promise of these provisional waivers has become nothing short of a major disappointment and some say outright fraud on the participating immigrants and their attorneys. The USCIS has been denying many provisional waivers, not on the merits, but on technical grounds that have nothing to do with the waiver process. A typical provisional waiver “denial” letter from the USCIS states that the waiver will not be adjudicated because the applicant “may” have another ground of inadmissibility. For example, one waiver was not adjudicated because the applicant had given a different birth date 15 years ago when he was caught coming into the U.S. (saying he was older than he was to avoid not being sent back) and was returned to Mexico. As any immigration lawyer will tell you, while the giving of a false date of birth “may” be a ground of denial for misrepresentation, it is not a definite denial, and one that can be dealt with at the consulate and likely without another waiver being needed. Another example is the “denial” of the adjudication of a waiver based upon a misdemeanor offense that clearly falls within the petty offense exception, something any immigration lawyer (and consular officer) knows will not bar an applicant from being admitted to the United States.

Perhaps more disturbing is the USCIS’s new approach to adjudicating provisional waivers that ignores evidence in the filings. A recent denial stated that the affidavit from a mental health professional of the psychological issues of the U.S. Citizen spouse were not supported by other “documentary” evidence, and thus could not serve as a basis for the establishing hardship. Obviously, such a position ignores long-standing case law and policy on the submission of evidence. This is compounded by the greater problem of the inability to challenge provisional waiver “denials” on appeal. Applicants are left with only refiling and re-paying for the waiver again to try to correct the erroneous decision.

Finally, the grant rate of I-601 waivers from the USCIS office in Mexico (which adjudicated the vast majority of the waivers under INA § 212(a)(9)(B)), was well over 80%. USCIS will not release the grant rate under the provisional waiver program, but knowledgeable and experienced attorneys are seeing approval rates at or below 50%. Let’s be fair, perhaps some people are filing cases now that were not as strong as those filed under the original consulate-based program. But there are widespread reports of cases that are clearly approvable under any standard now being denied for vague and obtuse reasons.

Given the announcement from Secretary Napolitano and the cheery presentation of the new provisional waiver program by various DHS officials, it is alarming and ultimately disheartening to see a program that once worked well being turned into yet another poorly functioning USCIS-run nightmare. Unless USCIS gets its act together, properly trains the adjudicatory staff, gets out of the consulate’s job of determining inadmissibility, and reinstitutes a culture of yes, the provisional waiver program will cause fewer people to attempt to secure the permanent residence for which they are eligible, and further delay any current-law based fix to their immigration status. It will become another in a long line of Bait and Switch immigration proposals that fall victim to over-zealous and under-educated enforcement – and it will fail.

Perhaps someone at USCIS will realize how important this program could be to more than a million American citizens and their foreign national spouses. Perhaps someone at USCIS will “buck” the system and demand real adjudicatory action from its employees. And, perhaps, someone at USCIS will ensure proper training and push for the success of a program that could change the nature of the debate on immigration reform. I fear the problem is that that “someone” does not really work for USCIS.

Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers

8/11/2013

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Blogger's note: Today's post is by guest columnist, John Klow. John is one of the most knowledgeable private citizens who understands the inner workings of U.S. Customs and Border Protection. In the post below, John elucidates the often opaque, behind-the-scenes process whereby an individual who is found inadmissible to the U.S. may apply for a temporary waiver, and, if the governmental stars are aligned, nonetheless be granted entry.

Spoiler alert: The government holds all the cards -- another reason why Congress should inject a dose of due process as it struggles to reform our immigration laws.]

Immigration Mystery Revealed: The Occult Process behind Nonimmigrant Visa Waivers
By John B. Klow

Back in the days of the Immigration and Naturalization Service (INS), the immigration benefits and enforcement agency operated within the Department of Justice, processing of consular nonimmigrant waivers seemed to be pretty straight forward.

Applicants submitted their nonimmigrant visa applications at American consulates, and if an individual were found inadmissible to the U.S., consular officers, if so inclined, forwarded recommendations that a waiver of inadmissibility be granted to the overseas INS offices with jurisdiction to approve a waiver. The process was transparent, but decisions could take frustratingly long times -- often months, sometimes stretching to a year or more. Lengthy delays were attributable to the competing priorities assigned to the particular INS office overseas. Also, with this sort of decentralized decision-making, there was at least a perception of inconsistency of adjudications.

With the creation of the Department of Homeland Security on March 1, 2003, changes came. U.S. Customs and Border Protection (CBP) decided to keep the nonimmigrant waiver decision-making process within the inspections program as it had rested in the INS days. The reasoning was that the decision of whom to admit at ports of entry was CBP’s, and CBP should not have to go to another agency for that determination. Since the immigration inspection program transferred to CBP, so also did nonimmigrant waiver decision-making authority.

CBP established a single office to decide all nonimmigrant waiver cases, the Admissibility Review Office, now located in Hearnden, VA. Centralization provided a dedicated, experienced resource that could be focused on a single (or at least primary) priority to provide consistent decision-making.

For consular nonimmigrant waivers, cases are forwarded electronically from the consular officer to the ARO through the State Department’s Consular Consolidated Database (CCD) by means of the Admissibility Review Information Service (ARIS). ARIS is entirely electronic (no paper), and works through secure Internet communication via the CCD. For security reasons, there is no provision for outside parties to be part of the ARIS communication process.

The inability for attorneys or accredited representatives to be part of the ARIS communication between the consular officer and the ARO has led to some frustrations.

What gets referred to the ARO?

Only a favorable recommendation from the consular officer gets consideration by the ARO Director. Under the Immigration and Nationality Act (INA), the Attorney General (now the Secretary of Homeland Security) may approve a recommendation from the Secretary of State or the consular officer that an alien be admitted temporarily despite inadmissibility. In reality, this means that only a favorable recommendation gets consideration for approval. Without a consular recommendation for admission, the ARO Director will return the consular officer’s referral through the U.S. Department of State Visa Office, asking the Visa Office to remind the consular officer to not forward cases without a positive recommendation for approval. (See, 9 FAM 40.301 N6.1 (b))

What gets forwarded with a favorable consular recommendation?

One of the frustrations expressed by immigration lawyers is that carefully prepared briefs are ignored by the consular officer and never forwarded for ARO consideration. This is not an imaginary problem. Briefs, and other documentation, must be scanned by the consular post into the CCD. Scanning is labor-intensive, and utilizes valuable consular resource. 9 FAM 40.301 N2 a (3) clearly instructs that all supporting documents are to be scanned into the CCD; however, that does not always happen. ARO staff may return the referral to post, requesting additional documentation, but are more likely to request records of conviction than attorney briefs. Practitioners should use their best persuasive skills to urge the consular officers to scan important documentation into the CCD for ARO consideration.

Will the ARO approval be a blanket authorization for travel?

The INA requires that conditions be attached to each approval: “The Attorney General shall prescribe conditions … to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.” (INA 212(d)(3)(A).) The prescribed conditions are clearly evident on the nonimmigrant visa, as they typically are expressed as the NI category authorized, number of admissions, and validity of the visa.

When is the consular recommendation forwarded?

Each post will have its own review process, before the case is finalized and forwarded to the ARO. A busy post such as London (contributing roughly 20% of the world-wide total) may have several layers of review before the Chief of Consular Services will push the final send button to forward the case to the ARO. Each layer of review takes some necessary time; occasionally a practitioner will find that a case that presumably was pending with the ARO has not yet left post. Remember that the ARO Director has nothing to consider until he receives the referral through ARIS in the CCD.

Are there other delays?

9 FAM 40.301 N 6.2 describes other situations when a consular post may (or must) refer the case to the Visa Office for review. Remember that any case referred to the VO must go through that clearance process before final referral to the ARO.

How can a visa applicant receive expedited action from the ARO?

The FAM advises that ARO decisions may take as long as 120 days. The experienced practitioner probably recognizes that 120 days is a goal that may not always be realized, and should be prepared for longer processing times. The FAM also advises that Expedited Action may be requested in truly meritorious cases. (9 FAM 40.301 N7 a.)

Can an immigration lawyer communicate directly with the ARO?

Another expressed frustration is the lack of a direct communication channel with the ARO. This is best explained by recognizing that the traveler’s sole application is the request for the nonimmigrant visa, pending before the consular officer. It is the consular officer’s recommendation for a nonimmigrant waiver that is forwarded to the ARO Director, and the only communication about that recommendation is between the ARO staff and the consular officer. Any attempt to communicate directly with the ARO Director is seen as an attempt to circumvent the direct communication between the consular post and the ARO through the secure process existing in ARIS and the CCD. Any inquiries about processing should be directed to the consular post where the nonimmigrant visa application is pending.

Who makes the final decision?

Although the ARO Director makes the decision on the consular officer’s recommendation, the consular officer has the final decision on whether to issue the visa. The ARO Director may authorize visa issuance, but the final decision rests with the consular officer and the Secretary of State.

Can visa applicants or their counsel find out why the ARO Director has denied a consular officer’s favorable recommendation?

Although the ARO historically has approved more than 90% of consular officers’ recommendations, some requests are denied. Both the State Department and CBP are reluctant to disclose the ARO Director’s exact reasoning, even though FOIA requests. The simple truth is that the ARO Director’s negative response, through ARIS in the CCD, will be terse, indicating “Denied”, and often advising only that “Risk of harm is too great if alien is admitted.

May a consular officer’s decision to not make a favorable recommendation be appealed? Although there is no formal appeal process, a visa applicant or her attorney may insist that the consular officer refer the case to the Visa Office for an advisory opinion if a consular officer declines or refuses to make a favorable recommendation to the ARO. (9 FAM 40.301 N6.2 a.) After review, the Visa Office may concur with the consular officer’s decision and likewise decline to offer a favorable recommendation; in that instance, the nonimmigrant visa application is denied. The applicant’s only recourse is to apply again, hopefully when circumstances are more in favor of approval. Alternatively, the Visa Office may decide to make a direct recommendation for approval to the ARO Director.

What about an appeal of the ARO Director’s decision?

No appeal by the alien shall lie from an adverse decision made by a Service officer on the recommendation of a consular officer or other State Department official.” 8 CFR 212.4(a)(1), final sentence. The question is – by what means could the NIV applicant appeal the denial of a consular officer’s recommendation to the ARO Director? There has been no direct application submitted by the applicant to the ARO Director. The only issue considered by the ARO Director is the consular officer’s recommendation. The consular officer’s denial of the nonimmigrant visa application is subject to the doctrine of consular nonreviewability.

* * *

As can be seen, much about the mechanics of a nonimmigrant visa waiver is shrouded from the visa applicant and legal counsel. Hopefully, this blog post has added some transparency to a process seemingly cloaked in mystery.

How California's AB 1159 Will Hurt Immigration Lawyers and their Clients: A New York Immigration Lawyer's Perspective

8/9/2013

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The California State Legislature is about to pass a bill to protect its residents from immigration fraud. The bill, which if passed will take effect on January 1, 2014, is also supported by the State Bar of California. While a bill to protect people against immigration fraud is always laudable, California’s Immigration Reform Act, AB 1159, will not meet this objective. Indeed, many of its provisions are so onerous, and interfere so radically with the attorney-client relationship, that it will likely drive away good and ethical attorneys from representing clients in California leaving it to unscrupulous unauthorized and unregulated practitioners to prey upon them.

I write as a New York attorney since AB 1159 may also impact out of state attorneys like me if we choose to represent people in California in immigration matters. As a New York attorney, I will also point out how New York’s Rules of Professional Conduct already govern my ability to provide ethical services to clients and may also be in direct conflict with the requirements under AB 1159.

Although the American Immigration Lawyers Association has justifiably opposed the bill on policy grounds, I focus on some of the specific provisions that target immigration attorneys in order to show how we have been singled out among other lawyers, and how impossible it will be for us to effectively assist immigrants. Many immigration attorneys have chosen this area of practice because it is most noble and gratifying to make a meaningful difference in the lives of people rather than for the money. It is therefore disappointing to see that this bill extends a pre-existing law that has regulated immigration consultants, and unfairly presupposes that immigration attorneys must be more regulated than other attorneys even though all attorneys are already bound by their state bar rules of ethical conduct. In addition, immigration attorneys can also be sanctioned under the disciplinary rules promulgated by the Department of Homeland Security and Executive Office for Immigration Review at 8 CFR 1003.102.

AB 1159 contemplates that if the Border, Security, Economic Opportunity, and Immigration Modernization Act, S. 744 (BSEOIMA) becomes law, an attorney who provides “immigration reform act services” will have to register with the State Bar of California and file a bond of $100,000. This bond shall be payable to the State of California, and shall be for the benefit of “any person damaged by any fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the immigration reform act services of the attorney or the agents, representatives, or employees of the attorney, while acting within the scope of their employment or agency.” One can only wonder what standards will be set for someone to prove damages, and whether it will be comparable to the malpractice standard in a court of law. Given the underlying complexity in any new immigration law, along with the evolving standards and interpretations, it is hoped that immigration attorneys will not be held needlessly liable for an alleged “failure” to provide services when the denial was due to other extraneous reasons.

AB 1159 impacts California attorneys who will provide immigration reform act services as well as out of state lawyers who are authorized under 8 CFR 1.2 and 8 CFR 1001.1(f) to represent persons before the Department of Homeland Security or the Executive Office for Immigration Review, but only if this out of state attorney is providing immigration reform act services in an office or business in California. While it is clear that AB 1159 will apply to a non-California attorney who works in a law office or is in house counsel in a corporation in California; if interpreted broadly, it could also include an out of state attorney who represents a client at an interview in a USCIS office or Immigration Court in California. It should clearly not be interpreted to apply to an out of state attorney who files an application with a centralized USCIS office in California, such as the California Service Center, while practicing in an office outside California.

Since most immigration attorneys are solo or part of small firms, the $100,000 bond requirement will immediately preclude attorneys from providing competent and diligent services, which they are mandated to do under their professional responsibility obligations. If BSEOIMA becomes law, there will likely be a shortage of competent attorneys who will be required to represent the millions of applicants who may become eligible for Registered Provisional Immigrant status. The $100,000 bond requirement will further exacerbate the shortage. Employees of organizations that are qualified to provide free legal services or of non-profit tax exempt organizations will be exempt from the $100,000 and the other provisions of AB 1511, but many of the legitimate non-profits providing legal services work with private attorneys to provide pro bono services, and this is particularly true upon the implementation of a new immigration benefit, as was the case with the Deferred Action for Childhood Arrivals (DACA) program, where non-profits leveraged off thousands of pro bono lawyers to effectively represent young applicants throughout the country. Such pro bono efforts, which will need to be scaled up upon the passage of BSEOIMA, will not be possible in California under AB 1159. Then, on top of the $100,000 bond, section 6247 authorizes the California State Bar to collect additional fees from attorneys for the reasonable costs of administering and enforcing the statute.

Another provision of AB 1159, section 6246, is particularly problematic as it makes it unlawful for an attorney to accept payment for any immigration reform act services before the enactment of BSEOIMA. While one can understand the concern behind this provision about preventing an unscrupulous attorney to speculatively charge fees for a filing, which does not yet exist, it is clearly part of competent representation for an attorney to advise a client in advance regarding changes in law. For instance, a client may wish to know whether he or she is hypothetically eligible for RPI status with criminal convictions, and the diligent attorney may recommend that a disqualifying felony conviction under the new law be expunged, if at all that is possible. Again, interpreting section 6246 broadly, an attorney may be penalized for legitimately charging a fee for providing such strategic advice. Similarly, a corporate client may wish to know how BSEOIMA may affect its ability to file new H-1B petitions on behalf of its existing employees and new employees. Providing advice in contemplation of a change in law would enable such a company to restructure its personnel prior to the law taking effect so that it is not deemed an H-1B dependent employer under BSEOIMA, as well as file labor certifications on behalf of employees so that they become “intending immigrants,” and are thus not part of the dependency calculation.

It is worth noting that the Connecticut Bar Association’s Professional Ethics Committee addressed a similar question in 2012 when an attorney requested guidance on whether it was ethically appropriate to be retained and perform work for a client in anticipation of the enactment of the federal regulations pertaining to the I-601A Provisional Waiver. Referencing Connecticut Rules of Professional Conduct 1.4 and 1.0 pertaining to client communication and informed consent, this opinion concluded that it was, so long as clients are fully informed of the costs, risks and potential benefits of preparing the case without a guarantee that the law will be enacted. See Informal Opinion 2012-04, Work Performed in Anticipation of New Federal Regulation. Connecticut Bar Association Professional Ethics Committee, May 9, 2012. In contrast, section 6246 prohibits any kind of service that can be provided in advance of a law becoming effective, even if otherwise ethical and which would clearly benefit the client.

In the interests of brevity required in a blog, I will not pick on each and every onerous provision of AB 1159, but must finally note that the bill would require attorneys providing immigration reform act services in California to put all funds received form a client in an attorney trust account, and only withdraw these funds when the services have been completed. Most immigration attorneys charge flat fees and such flat fees if not unreasonable generally benefit the client as they provide certainty at the outset of the representation. An immigration practitioner’s typical retainer agreement defines the various steps required in an immigration case, and the fee pertaining to each step. The initial payment from the client thus is not an advance; rather it is paid for starting work towards the case such as research, strategy, inputting information, and gathering of evidence in preparation of an application. The next payment is made prior to filing the application and the next could be for preparation and appearance at an interview or hearing, and so on. According to NYC Bar Opinion 1991-3:

A "flat fee" is a stated amount for the representation contemplated, to be paid regardless of the actual hours that are ultimately required. The agreement might provide for an additional fee if the representation extends to an additional phase (e.g., the case goes to trial or there is an appeal). The flat fee reflects a sharing of risks between lawyer and client and generally provides the client with the security or comfort of a known cost for a particular service.

In New York, a lawyer can deposit such a flat fee, or other variations of non-hourly fees such as an advance retainer, in the lawyer’s own account. In fact, according to N.Y. State Bar Op. 816 (2007), if the parties agree to treat advance fees as the lawyer’s own, then a lawyer is required to deposit such fees in the business account and not in the attorney trust account as the latter would “constitute impermissible commingling.” Even if such a flat fee is deposited in the lawyer’s own account, it is seldom considered non-refundable. If the client terminates the lawyer’s services or vice versa prior to the completion of the agreed representation, the lawyer is still required to refund the unearned portion of the fee even if it was deposited in the lawyer’s own account. Whether a fee is considered an advance towards unearned legal fees, and thus required to be deposited in a trust account, or a fee immediately earned by the lawyer, is subject to much ambiguity and varying interpretations in different states. Texas, for example, according to Robert Alcorn may require flat fees to be put in a trust account unless they are non-refundable, although it is not clear whether the Texas ethics opinions cited in the forthcoming article involved unearned fees or fees charged for commencing work on defined steps as in an immigration case. See A Perfect Storm – CIR and IOLTA by Robert Alcorn, Bender’s Immigration Bulletin, August 15, 2013. Clearly, treating a fee as an advance towards future fees (even when it is not and agreed as such by attorney and client), and thus requiring strict accounting of deposits and withdrawals from the trust account (along with significant additional expenses), will likely force lawyers to engage in hourly billings so as to ensure accounting accuracy, which in turn will result in less predictability and comfort for the client.

It is hard to understand why the State Bar of California is behind such a bill aimed at immigration lawyers. In New York, for example, bar associations such the New York City Bar look to the immigration bar in working jointly together to assist immigrants and to also fill unmet needs through pro bono projects. In addition to immigration lawyers being regulated by their own state bar rules and special immigration rules, they will also be subject to criminal sanctions under BSEOIMA for knowingly filing fraudulent applications. Thus, the new provisions in AB 1159 are totally unnecessary. Instead of supporting such a pernicious and ill-conceived law targeting immigration lawyers, the California State Bar can better focus its efforts in launching programs that facilitate mentoring, education, and pro bono collaborations among immigration lawyers, which will result in the more effective delivery of legal services to millions of people who will truly need them if immigration reform becomes a reality.

Update - Improved Markup of AB 1159

Since the blog was posted, AILA InfoNet posted an amended version of the bill, which substantially improves some of the provisions. For instance, pro bono attorneys will no longer be subject to the provisions of the bill. The immigration reform related services provision is limited to preparing applications for undocumented immigrants who will be able to apply under legalization provisions of BSEOIMA or future versions of this law. A certified legal specialist in California who maintains a professional liability policy of $100,000 per occurrence and a general aggregate limit of $350,000 is also exempt. Most important, a non-exempt attorney may maintain a professional liability policy in an amount of not less than $100,000 per occurrence and a general aggregate limit of $350,000 or a bond of $100,000. Hence, a bond of $100,000 is not required if the attorney has the requisite professional liability insurance. It appears that AILA's advocacy efforts have born fruit, but the bill still needs to be further improved before the immigration bar can support it. Notwithstanding these modest improvements, AILA leader Annaluisa Padilla, who is spearheading this effort in California, asks these pertinent questions: "Is further state regulation of immigration attorneys specifically acceptable to us? In the sense that in addition to to already existing requirements, is further regulation needed in this particular area of the law? Will these regulations actually prevent fraud on immigrants? If so, are not immigrants likely to be defrauded in other areas of the law?"

8 Issues That Must Be Addressed When Documenting Source of Funds for Chinese EB-5 Cases

8/8/2013

by Bernard Wolfsdorf, ABIL Lawyer and Associates Minjie Xu and Ellen Fan
Wolfsdorf Connect

1. Many EB-5 applicants use one or more aged assets as collateral to secure loans. If the applicant acquired property more than seven years ago, it is possible to document the lawful source of the funds used to acquire the property and submit that evidence with the I-526 petition. However, when such assets were purchased with a large lump-sum payment in the last two to three years, USCIS often issues Requests for Evidence (RFE). These requests have typically sought bank statements corroborating the retained income to the date of purchase for the property. If available, these statements should be included with the I-526 filing in order to avoid an RFE and consequent delay in processing. However, if such statements show large inward transfers prior to the transaction, the lawful source of the transfers must also be documented and explained.

2. Cases in which the investor earned a significant amount over the past 20 years, but used the majority of total income, say 80%, in purchasing the property used for the investment funds, can be problematic. USCIS is likely to issue an RFE seeking an explanation of how the investor’s family was supported financially, given that the majority of the investor’s income was used to purchase the property. In such cases, we often document the investor’s annual income and expenses to establish that a majority of that income was saved in the years preceding the property purchase rather than being used for the family’s support.

When the investor uses the majority of earned income to acquire a home that is the source of funds, but does or has not commanded a high salary, this may trigger questions about the ability to repay the EB-5 loan. When dealing with an ability to pay issue, it is important to document the investor’s annual income and expenses to show that the investor had enough funds both to live on and to repay the EB-5 loan.

3. If the investor secures the funds using property as collateral, there will normally be a lien recorded on the title deed. However, in most cases the loan creditors do not create such a record, especially for microcredit companies, which are licensed lending institutions in China. In some cases the title deed indicates a mortgage loan recorded when the investor purchased the property but no such record when the client mortgages the property for his EB-5 loan. We have not yet seen an RFE questioning this practice but believe it may only be a matter of time.

4. If the current market value of the collateral is close to the loan amount, this warrants inquiry into whether there is a bone fide loan. Normally, the loan amount should not exceed 70% of the property’s market value.

5. Investors should always avoid using unsecured loans for two reasons. First, USCIS might question who bears the investment risk, the investor or the unsecured loan creditor? Second, unsecured loans will likely be treated as gifts, in which case, the source of the giftor’s money must be explained.

6. If a home equity loan is extended by a creditor that is not a bank or a licensed lending institution, the financial ability of that creditor to make such loans must be clearly and comprehensively documented. If the loan is obtained from the investor’s own company, not only must s/he document the company’s financial ability to extend the loan, but the investor’s ownership of or interest in the company must also be established, as well as evidence of the lawful source of the initial investment and each subsequent investment in the company. A formal loan approval resolution issued by the board of directors should also be included with the I-526.

7. Investors previously relied heavily on family and friends to wire the investment funds to the U.S. from their own accounts. But now, investors are more and more frequently using a special service (优汇通) provided by Bank of China to wire the $545,000 to the escrow account via a single transfer. Unlike the old suspicious tactic, with the investor finding at least 11 individuals to transfer $545,000, this new approach is more efficient, from the investor’s perspective, and lawful, from USCIS’s perspective, because such services are approved by China’s regulatory department and are provided by one of China’s biggest banks. Thus, investors should be encouraged to use this new efficient and lawful approach to exchange and transfer the funds out of China.

8. It is not recommended that investors who have received and used undisclosed commissions, or other forms of compensation expressly prohibited the Articles of the Chinese Anti Unfair Competition Law, use those funds for their EB-5 investment.

For more information on the EB-5 investor program, please click here to REGISTER for the Wolfsdorf Immigration Law Group Free EB-5 webinars series. The first webinar was held on July 16, 2013 and provided an overview of all aspects of EB-5 visas including “hot topics” and both Regional Center investments and direct/stand-alone EB-5s. This will be followed by the remaining three webinars:

Intermediate Part 2 – Critical Issues in EB-5 practice, including Due Diligence, on August 14, 2013;
Advanced Part 3 – Setting-up and Operating Regional Centers on September 18, 2013; and
Hot Topics Part 4, including Securities Issues & Challenges, on November 19, 2013.

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes Be a Good Thing

8/5/2013

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals. This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1. Pursuant to that delegation, as many AAO decisions state, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003. (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e). Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii). But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions. If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted. Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications. And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place. If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application. That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary. Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisions from 2012; 2010; February, March, April and June of 2009; 2008; and 2007). Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from January and March of 2009, 2008, and 2006). Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi”, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction. Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009 and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006). AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official. Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v). For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa. In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit. The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself. The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception. Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT. The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa. In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989. In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11) applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.” And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility. Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case. If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

Immigration Voices - Careen Shannon: "Edward Snowden and the Politics of Asylum"

8/4/2013

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Blogger’s note: Our guest blogger today is Careen Shannon, Of Counsel at Fragomen, Del Rey, Bernsen & Loewy, LLP and an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law in New York. Careen Shannon and Austin Fragomen blog about immigration issues at Fragomen on Immigration. She writes to offer a background on the law of asylum applied to perhaps the world's most famous -- albeit temporary -- recipient, Edward Snowden, granted that international treaty protection by Russia's Vladimir Putin. Pundits are not sure who loses more by the grant of temporary asylum -- Putin or Snowden. Immigration lawyers are divided on whether it's prudent to opine on asylum eligibility because usually no one on the outside can know the facts. In this case, however, with Snowden's leaking releasing a flood of media focus on his background, an exception is warranted -- especially if it elucidates key concepts and dispels popular misconceptions, as Careen does here.]

Edward Snowden and the Politics of Asylum
By Careen Shannon

Edward Snowden has now been granted temporary asylum in Russia, which he earlier indicated he was seeking only while he looked for a more permanent option elsewhere. Whether you think Snowden is a hero or a traitor, his quest for asylum raises interesting questions from an international law perspective. Does he actually qualify for asylum under international standards? Or would any country—including Russia—that grants him asylum really be engaging in what immigration attorney Jason Dzubnow has called the realpolitik of asylum?

Under the principle of non-refoulement in international law, countries have a duty not to return (“refouler”) a person to a place where they would face persecution. This principle was embodied in the 1951 Convention relating to the Status of Refugees (which most countries of the world, but not the United States, signed that year) and the 1967 Protocol relating to the Status of Refugees, which expanded the 1951 convention and which the United States did sign.

In 1980, Congress enacted the Refugee Act of 1980, which implemented the UN Protocol. Under this Act, a refugee was defined as “any person who is outside of any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” A grant of asylum can only be made to a person who fits this definition of what constitutes a refugee. This definition is now part of the U.S. Immigration and Nationality Act, and mirrors the language which most countries around the world have also adopted, including, notably, Russia, as well as Iceland, Ecuador, Bolivia and Venezuela, which have all been mentioned as possible final destinations for Snowden.

The Department of Justice stated in a letter to the Russian Minister of Justice that Snowden would not be subject either to torture or to the death penalty were he to be returned to the United States—undermining any claim Snowden might otherwise have made under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which, unlike asylum, does not require that the fear of torture be based on one of the five enumerated grounds). This has left Snowden with few options other than to seek asylum.

In Snowden’s case, the question then becomes whether he can establish a claim to asylum based on one of the five enumerated grounds. Since race, religion and nationality play no part in his story, he would have to qualify either on the basis of political opinion or by virtue of being a member of a particular social group that has been singled out for persecution by the U.S. government. The Russian government has not disclosed the basis for granting temporary asylum to Snowden. Given the swiftness with which the government granted his application, which was submitted a mere two weeks ago, it would seem that pragmatic considerations—defusing the tension created by Snowden’s having been holed up in the transit area of Moscow’s Sheremetyevo International Airport for several weeks—were probably paramount.

So let’s assume that Snowden will now attempt to use his passport-like Russian refugee document to travel to another country in order to secure a permanent grant of asylum. Eric Posner, a professor at the University of Chicago Law School, has suggested that Snowden is actually a terrible candidate for asylum. Claiming a well-founded fear of persecution based on political opinion would certainly appear to be a challenge, unless Snowden could successfully argue that his act of disclosing government secrets amounted to an expression of his political opinion. Even if Snowden can credibly paint himself as a person who has fled his country due to his dissenting political views, however, the U.S. government seeks his extradition not because of his political opinions per se, but because he violated federal law by disclosing classified information. Here, the United States can credibly draw a fairly clear distinction between prosecution and persecution.

Snowden’s best option, as Max Fisher suggested in the Washington Post, might be to seek asylum on the ground that he has a well-founded fear of persecution based on membership in a particular social group, which in his case might require him to argue that the United States persecutes whistleblowers. This may not be as far-fetched as it sounds. According to a report by Thomas Hedges in Salon, it wouldn’t be the first time that the U.S. government has at least arguably persecuted a CIA whistleblower. John Kiriakou, a former CIA agent who revealed details of the George W. Bush administration’s torture program, claims, with substantial basis, that he was pursued by the CIA, FBI and Department of Justice for years until they finally managed to find a criminal charge that would stick and land him in prison.

Interestingly enough, the United States has granted asylum to foreign nationals whose claims were based on having engaged in whistleblowing against government corruption. In Snowden’s case, while the information he has disclosed might be shocking to the public, it would be a stretch to characterize it as government corruption—since, whatever one thinks about the secret court and secret warrants that authorized the government action that Snowden revealed, such action was, in fact, legal under existing U.S. law. Another country, however, might have a more expansive view of whistleblowing for asylum purposes. (After all, lawfulness per se does not necessarily mean persecution has not occurred.) On the other hand, how many countries really want to set the precedent that disclosing government secrets is a good reason to grant a person asylum?

If Snowden cannot demonstrate a well-founded fear of persecution based on either social group or political opinion, might a nation somewhere in the world still opt to grant him permanent asylum, just as Russia has done on a temporary basis? The righteousness of Snowden’s cause has certainly been undermined by his flight to countries—China and Russia—that are themselves hardly paragons of democracy and transparency. A country that decides to offer Snowden permanent refuge notwithstanding his inability to qualify for asylum under accepted international standards would most likely be seeking to burnish its own image, damage U.S. foreign policy, and take advantage of a unique opportunity to stand up to the United States. While this might provide a country like, for example, Ecuador a certain amount of prestige among its Bolivarian neighbors in the short term, it is unclear to what extent the country—or Snowden himself, for that matter—would benefit from such a decision in the long run.

Russia’s decision to grant Snowden asylum only temporarily indicates that it wishes to avoid creating long-term damage to its relations with the United States. As Eric Posner wrote in Slate, "[C]ountries are free to grant residence, citizenship, and other forms of protection to anyone they want, for whatever reason they want, and political reasons can play [a] role…. [But] Snowden is not the type of person you want living in your country. Countries don’t grant citizenship or permanent residence to people they know to be felons.”

In the popular mind, asylum is typically equated with “political asylum,” which is technically inaccurate since there are four other grounds on the basis of which a country can grant an individual asylum. But asylum is inherently political in nature, and the decision to grant asylum necessarily includes an implicit rebuke against the country from which the person has fled. While the story that Snowden has to tell about secret U.S. government policies may or may not be over, his personal story—and its implications for U.S. policy, the international law of asylum and international relations as a whole—has in many ways just begun.