Archive | December, 2013

Lifted Lamp’s Top Ten Blog Posts for 2013 & Poll for Topics for 2014

27 Dec


Looking back on what turned out to be a disappointing 2013 for the lack of progress on meaningful immigration reform and on the continuing pace of removals, we have tried to figure out what articles and stories most appealed to our readers.  Turns out that our readers were not as interested in the minute-by-minute accounts of progress, but rather came to Lifted Lamp for information about developments in the law that had a real impact upon their lives.  The provisional waiver, DACA, the de Osorio litigation were topics that continually received interest from our readers.  We hope to use this information to make this blog more useful and interesting to our readers.

We have compiled our 2013 Top Ten Blogposts and provide some thoughts on them after they have been written, published and we have received feedback.

10.  Leave it to controversy to be popular.  Our tenth most popular blog of 2013 is just over a month.  On November 25, we wrote about the young man who challenged the President to halt removals while waiting for immigration reform.  In “Does the President Have the Power to Stop All/Most Removals?“, we discussed whether the President can use his executive power to halt all deportations.  We decided that the President probably could not halt all deportations, but he could definitely stop a whole lot more.

9.   The provisional waiver, which has allowed the spouses of U.S. citizens to seek the required waiver of the ten year bar before traveling abroad, has been a continually popular topic on this blog.  In February 2013, we asked “Should I Apply for a Provisional Waiver or Wait for Immigration Reform?”  We answered that the provisional waiver was likely the better bet.  Turns out we were right.  Hundreds of people have received their residence through the provisional waiver, whereas immigration reform remains stuck in the quagmire of today’s politics.  While there is lots of talk about the prospects for reform in 2014, we continue to place our bet on the provisional waiver.

8.  The de Osorio litgation regarding the interpretation of the Child Status Protection Act has generated a lot of interest on this site.  We have chronicled the litigation from our submission of an amicus brief on behalf of undocumented youth at the 9th circuit and celebrated the victory in the 9th Circuit decision.  We implored the administration not seek review of the 9th Circuit’s decision in the Supreme Court and  shared our disappointment in the government’s decision to seek certiorari review in “Opportunity Lost: Administration Seeks Supreme Court Review of de Osorio.”  The Court heard arguments on December 12, 2103 and a decision is expected by June 2014.

7.  Also, in January 2013, we sought to explain some basics of immigration law as the popularity of the “go to the back of the line” school of thought dominated discussion of immigration reform.  In “What’s The Deal with the Immigration Line?“, we discussed how the visa numbers and quotas work and, more often, don’t work.  We had a lot of fun with this post and are glad that it was so well received.

6.  In February 2013, we highlighted a piece of legislation proposed by Senator Orrin Hatch (R-UT) called the I-Squared Act.  In “Immigration Reform 2013: Understanding the I-Squared Act,” we described Senator Hatch’s proposals to modernize and improve the visa process for high tech workers.  Much of Senator Hatch’s bill was folded into the Senate bill which passed the Senate in June 2013 and remains languishing in the House of Representatives.

5.  A surprise for number 5!  In March, we wrote about Congress’ belated re-authorization of the Violence Against Women Act.  In “Congress Reauthorizes VAWA But Falls Short on Immigration Provisions,” we discussed the history of the VAWA, improvements made in the 2013 reauthorization, and disappointments in the bill.  One of the bigger disappointments was Congress’ failure to raise the cap on U visas, a failure that has proven to be significant as the U visa cap for 2013 was reached in December.

4.  In January 2013, we discussed the development and roll-out of the provisional waiver process.  The provisional waiver has been one of the most popular topics on our blog.  And for good reason, the provisional waiver is one change to the immigration laws that has directly benefited immigrants in 2013.  While immigration reform has stalled, the provisional waiver has proven to be a way out of the catch-22 of ineligibility for adjustment in the U.S. and the ten year bar triggered by traveling abroad.  In “Q&A on I-601A Provisional Waivers,” we reported on the procedures that CIS would use in executing the provisional waiver process.

3.  The provisional waiver dominates the top three spots.  In “The Provisional Waiver and Removal Proceedings,” we discussed the process of seeking a provisional waiver for individuals in removal proceedings.  This topic still draws interest as I took a call yesterday from a lawyer who wanted our thoughts on a government motion to terminate removal proceedings so that the client could seek the provisional waiver.

2. Again, the provisional waiver draws a lot of interest.  In this post, “What is Extreme Hardship?“, we used our years of experience preparing applications for waivers to help illuminate this very subjective and squishy standard.  One of our most popular posts, this post is very similar to many of the consultations we do where we help people identify relevant hardship factors before applying for waivers.

numero uno1.  Our most popular post is “10 Facts About the Provisional Waiver Process.”  This is, by far, our most popular post.  It was our first post of 2013.  We are a bit curious as to its popularity given how many developments there have been in the provisional waiver process, but this post remains an informative introduction to the provisional waiver, what it means to accomplish, and the mechanics of seeking a waiver.

Thanks to all of our readers.  We have studied these results and will use this information to make this blog more interesting and useful to you.  Happy new year to all!

The 212(h) Aggravated Felony Bar: The BIA versus the Courts

16 Dec


This article was written by Thomas K. Ragland and he will present it to the South Florida Chapter of the American Immigration Lawyers Association annual Continuing Legal Education Conference in February 2014.

Among the most hotly litigated immigration law issues in recent years centers on the meaning and scope of the so-called “aggravated felony bar” in section 212(h) of the Immigration and Nationality Act (“INA”). A number of federal courts – including the U.S. Court of Appeals for the Eleventh Circuit – have rejected the interpretation articulated by the Board of Immigration Appeals (“BIA” or “Board”) in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), and reaffirmed in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). These circuit courts have unanimously espoused a narrower construction based on the plain language of the statute. To determine whether a particular court’s holding may benefit an individual client, it is essential to understand the BIA’s position, the contrary views among the circuits, and the arguments that underlie these opposing interpretations.

We begin, as always, with the language of the statute. Section 212(h) of the INA provides, in relevant part:

The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I),[1] (B),[2] (D),[3] and (E)[4] of subsection (a)(2) and subparagraph (A)(i)(II)[5] of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if –

(1)   (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that —

(i)       the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,

(ii)      the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii)    the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or

(C) the alien is a VAWA self-petitioner; and

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … since the date of such admission the alien has been convicted of an aggravated felony …. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection. (Emphasis added).

The INA defines the terms “admission” and “admitted” to mean, with respect to a noncitizen, “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”[6] This statutory definition, which was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),[7] is central to the ongoing dispute between the agency and the courts over the reach of the 212(h) aggravated felony bar.

The BIA’s Interpretation


The BIA historically has construed the term “admission” to include both inspection and authorization to enter at a port of entry and adjustment of status to lawful permanent resident (“LPR”).[8] More than 20 years ago, in Matter of Rainford, the Board declared that “an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States.”[9] Likewise, in Matter of Rosas, the Board held that noncitizens who are lawfully admitted for permanent residence through adjustment of status are considered to have made an “admission,” because to conclude otherwise would mean that persons who entered without inspection and later adjusted status have never been “admitted,” and in removal proceedings, such persons would be ineligible for certain forms of relief .[10] As the BIA explained, unless adjustment is treated as an “admission,”

an alien who entered without inspection and resided in this country for many years as a permanent resident after adjustment of status … would be ineligible for relief under section 212(c) or 240A(a) because he or she would not be considered to have been “admitted” for permanent residence.[11]

According to the Board, such an interpretation would be inconsistent with the overall structure of the Act.[12]

One effect of the Board’s interpretation, which equates admission at a port of entry with adjustment of status, is to give a broad construction to the aggravated felony bar in INA §212(h). Under this approach, any noncitizen convicted of an aggravated felony after becoming an LPR is rendered ineligible for a 212(h) waiver – whether she acquired LPR status upon being admitted to the U.S. as an immigrant or, alternatively, through adjustment of status after arrival. Over the past few years, this construction of the statute has been consistently spurned by the federal appellate courts. In response to challenges brought by creative immigration litigators, five circuits have flatly rejected the BIA’s expansive reading and another has done so indirectly.

Martinez v. Mukasey and Yin Hing Sum


The first domino to fall was the Fifth Circuit, in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), which held that “for aliens who adjust post-entry to LPR status, § 212(h)’s plain language demonstrates unambiguously Congress’ intent not to bar them from seeking a waiver of inadmissibility.”[13] The court rejected the government’s argument that section 212(h) is ambiguous and thus that the BIA’s interpretation merits “substantial deference” under Chevron.[14] To the contrary, Martinez explicitly declined to follow Rosas and held instead that it was constrained by the plain language of the statute to conclude that LPR “adjustment” does not constitute prior “admission” as an LPR for purposes of INA §212(h).[15]

In a related decision, the Ninth Circuit likewise held that the phrase “lawfully admitted for permanent residence” refers to a “substantively lawful admission for permanent residence,” because “[t]he term ‘lawfully’ denotes compliance with substantive legal requirements, not mere procedural regularity.”[16] In Yin Hing Sum v. Holder, the court distinguished this language from the phrase “previously been admitted” in section 212(h), finding that this refers to a procedurally regular, rather than substantively lawful, admission.[17] And in any event, the plain language of the statute verifies that the terms “admitted” and “admission” refer to “’the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.’”[18] Consequently, Yin Hing Sum supports the view that only a noncitizen who has been admitted to the U.S. as an immigrant – i.e., inspected and authorized to enter the country as an LPR – and subsequently has been convicted of an aggravated felony, is barred from seeking 212(h) relief.

Matter of Koljenovic

In response to Martinez, the BIA issued a decision reaffirming its long-held view that “adjustment” qualifies as “admission” for purposes of triggering the bar in section 212(h).[19] In Koljenovic, the Board declared that “[a]n alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or adjustment of status if the alien is already in the United States.”[20] According to the Board, “[a]djustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace.”[21] Koljenovic sought to reaffirm the BIA’s prior decisions in Rainford and Rosas that “adjustment of status is the functional equivalent of inspection and authorization to enter at the border.”[22]

The Board cited practical considerations for its refusal to change course and defended its long-held interpretation as the only way to avoid “absurd” results.[23] First, because Mr. Koljenovic entered the United States without inspection and later adjusted his status, the BIA argued that “[i]f his 2001 adjustment of status is not considered an admission, he would be in the absurd position of being a lawful permanent resident without ever having been ‘admitted’ in that status” – and thus subject to inadmissibility and ineligible for various forms of relief from removal.[24] Second, the BIA claimed support in the legislative history of INA §212(h) and insisted that a contrary interpretation would “frustrate” Congress’ purported attempt to “create congruity” in the 7-year residency requirements for a 212(h) waiver and LPR cancellation of removal under INA §240A(a).[25] Furthermore, according to the Board, Congress’ amendment of the terms “admitted” and “admission” in INA §101(a)(13) was meant to clarify when a departure from the U.S. is meaningfully interruptive of permanent residence and thereby “address complexities in the law” caused by the “brief, casual, and innocent” test articulated by the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963).[26]

The BIA also labored to distinguish Martinez, while acknowledging the Fifth Circuit’s clear rejection of Rosas and determination that the plain language of INA §212(h) “demonstrates unambiguously” Congress’ intent not to bar from relief “aliens who adjust post-entry to LPR status.”[27] The Board contended:

However, Martinez did not consider whether the same rule would apply in a case like the respondent’s where the alien was not previously admitted. Indeed, if we were to literally apply the Fifth Circuit’s holding to this case, the respondent would have no admission date at all. Given that the Fifth Circuit did not have to confront the factual scenario presented here, we are not persuaded by respondent’s contention that Martinez should control.[28]

Koljenovic thus sought to limit the impact of Martinez by insisting that its reasoning should apply, at most, to individuals who were “admitted” on nonimmigrant visas and later adjusted to LPR status, but not to those who originally entered without inspection and then adjusted.

Lanier and Bracamontes

Despite the Board’s valiant attempt to reinforce its position, not long after Koljenovic was issued in April 2010, two more federal appellate courts rejected its interpretation of section 212(h). The Eleventh and Fourth Circuits instead concurred with Martinez, in each instance finding that a narrower interpretation of the aggravated felony bar is compelled by the plain language of the statute.[29] These courts agreed that the bar applies only to those noncitizens convicted of an aggravated felony after having been physically admitted to the United States as LPRs (i.e., as immigrants), but not to those who were first admitted as nonimmigrants, or entered without inspection, and later adjusted to LPR status prior to being convicted. The distinction turns on the specific language of section 212(h), which provides that “no waiver shall be granted” to an alien “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” and subsequently convicted of an aggravated felony.

As the Eleventh Circuit explained in Lanier, the term “alien lawfully admitted for permanent residence” is a term of art that “encompasses all persons with lawful permanent resident status,” whether they gained that status through admission on an immigrant visa or after adjustment of status while living in the United States.[30] But the statute clearly bars only those aliens “previously … admitted to the United States as [LPRs]” from section 212(h) relief.[31] Lanier held:

The term “admitted” has expressly been defined by Congress as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A). This definition is limited, and does not encompass a post-entry adjustment of status. … Thus, when the statutory provision is read as a whole, the plain language of §212(h) provides that a person must have physically entered the United States, after inspection, as a lawful permanent resident in order to have “previously been admitted to the United States as an alien lawfully admitted for permanent residence.”[32]

Under this reading, the aggravated felony bar applies only to persons who were admitted as LPRs and later convicted of an aggravated felony. “Based on this unambiguous text,” the court affirmed, “we find that the statutory bar to relief does not apply to those persons who, like Lanier, adjusted to lawful permanent resident status while already living in the United States.”[33]

Soon after Lanier was issued, the Fourth Circuit joined the chorus in Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012). Mr. Bracamontes had entered the U.S. as a temporary resident and subsequently adjusted to LPR status before being convicted of an aggravated felony.[34] Following the lead established in Martinez and Lanier, he argued that his post-entry adjustment did not qualify as an “admission” within the plain meaning of INA §212(h).[35] The Fourth Circuit concurred:

We agree that this reading accords section 212(h) its plain meaning and properly utilizes the definitions of terms Congress provided in the INA, as codified at 8 U.S.C. § 1101. “Admission” and “admitted” are defined as “with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Clearly, neither term includes an adjustment of status; instead, both contemplate a physical crossing of the border following the sanction and approval of United States authorities.[36]

Bracamontes rejected the government’s argument that Congress could not have intended to disrupt the “settled principle” that adjustment of status and inspection and admission are “functionally equivalent,” and thus that the BIA properly found Mr. Bracamontes ineligible for 212(h) relief.[37] The court disparaged “the BIA’s speculation concerning congressional intent” and united with its sister circuits in concluding that “the statute plainly says what it says, and the fact remains that the definition of ‘admission’ provided by Congress simply does not include an adjustment of status.”[38] The government’s tally in the circuits thus far was 0-4.

Matter of E.W. Rodriguez     

Undeterred by the drubbing it was taking in the federal courts, the BIA once again defended its approach in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). The Board conceded, as it must, that it is “obliged to follow” the decisions flatly rejecting Koljenovic in those circuits – the Fifth, the Eleventh, and the Fourth – that have interpreted the 212(h) aggravated felony bar more narrowly based on the plain language of the statute.[39] The Board also retreated from the purported distinction, which it had advanced in Koljenovic, between noncitizens who were originally admitted to the U.S. as nonimmigrants and those who entered without inspection.[40] E.W. Rodriguez conceded that the “breadth” of the Fifth Circuit’s holding compels equal treatment of both categories of individuals, because “[i]n the Martinez court’s view, the section 212(h) aggravated felony bar applies only if the applicant was admitted as a lawful permanent resident at the border, but not if he was merely admitted to lawful permanent resident status.”[41]

Rather than abandon its increasingly untenable interpretation of the aggravated felony bar, however, the BIA announced that it would follow the narrower interpretation only in those circuits where Koljenovic had been explicitly rejected.[42] Elsewhere, because “the language of section 212(h) is ambiguous when understood in the context of the statute taken as a whole,” E.W. Rodriguez insisted that “the proper resolution of that ambiguity is to interpret the statute as barring relief for any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status,” irrespective of whether the individual became an LPR through admission as an immigrant or through adjustment of status.[43]

Hanif, Papazoglou, and Mendoza-Leiba

The BIA was waging a losing battle, however, as two more circuit courts promptly rejected Koljenovic, and the Fourth Circuit made clear that there is no meaningful distinction, for purposes of the aggravated felony bar, between a noncitizen who was originally admitted as a nonimmigrant and later adjusted to LPR status and one who entered without inspection and then adjusted.[44] In Hanif v. Attorney General, the Third Circuit considered the BIA’s approach and conceded that the argument in favor of a broader interpretation of the aggravated felony bar “has some appeal.”[45] But the court disagreed that abiding by the plain meaning of section 212(h) produces an absurd result, because “Congress could have had reasons to treat LPRs differently based on whether or not they were admitted to the United States in that status.”[46] Ultimately, though, Hanif simply concluded that “we cannot substitute our judgment for that of Congress. We can, and in fact, must, give the statute the meaning Congress intended.”[47]

Likewise, the Seventh Circuit in Papazoglou v. Holder found itself bound to apply the statute as written, not as the BIA seemingly wishes it had been written but was not.[48] The court explained:

The government’s interpretation [of INA §212(h)] would conflate two requirements, and preclude waiver whenever a person was lawfully admitted for permanent residence. We will not interpret a statute in a manner that renders part of it irrelevant, particularly where, as here, the statute has an unambiguous meaning if we simply apply the definition provided in the statute itself.[49]

Explicitly agreeing with the other circuits that have rejected the Board’s construction of the aggravated felony bar, the Seventh Circuit held that the plain language of the statute confirms that section 212(h) relief “is precluded only when the person was a lawful permanent resident at the time of his or her lawful entry into the United States.”[50]

Finally, in Mendoza-Leiba v. Holder, the Fourth Circuit sought to resolve any lingering uncertainty over whether there is a meaningful distinction between an LPR who acquired that status after being admitted as a nonimmigrant versus after entering without inspection.[51] The court stated:

The government argues that accepting Mendoza’s interpretation would produce an absurd result in that there is no rational basis for favoring aliens like him, who entered the country illegally and only later obtained their LPR status through adjustment, over those aliens who entered the country illegally. As we have explained, however, that is an argument we specifically rejected in deciding Bracamontes. We are without authority to revisit it here.[52]


What does this all mean for the immigration practitioner whose client needs a 212(h) waiver to overcome inadmissibility due to a criminal conviction – particularly where that conviction qualifies as an aggravated felony? For cases arising in the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits, only those noncitizens who were admitted to the United States as LPRs – i.e., after inspection and authorization at a port of entry – are barred from seeking a waiver under section 212(h). Clients who were originally admitted to the U.S. as nonimmigrants, or who entered the country without inspection, and later adjusted to LPR status before acquiring an aggravated felony conviction are eligible to apply for 212(h) relief. Outside these six circuits, the BIA’s broader interpretation of the bar, as articulated in Koljenovic and E.W. Rodriguez, prohibits any permanent resident convicted of an aggravated felony after acquiring LPR status from seeking a 212(h) waiver. But lawyers in these jurisdictions should continue to press the contrary arguments, until either the circuit court rules favorably or the Board surrenders its indefensible position.

* Thomas K. Ragland is a founding Partner of Benach Ragland LLP in Washington, D.C.

[1] For conviction of a single crime involving moral turpitude.

[2] For conviction of two or more crimes for which the aggregate sentences to confinement were 5 years or more.

[3] For engaging in prostitution.

[4] For involvement in serious criminal activity and assertion of immunity from prosecution.

[5] For violation of any law relating to a controlled substance.

[6] INA §101(a)(13)(A).

[7] Division C of Pub. L. No. 104-208, 110 Stat. 2009-546.

[8] See Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Dep’t of Homeland Security, 450 F.3d 578 (4th Cir. 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) (en banc); Matter of Rainford, 20 I&N Dec. 598 (BIA 1992).

[9] 20 I&N Dec. at 601.

[10] 22 I&N Dec. at 623.

[11] Id.

[12] Id. at 621-23.

[13] Martinez, 519 F.3d at 546.

[14] Id. at 543-44; see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984).

[15] Id. at 542.

[16] Yin Hing Sum v. Holder, 602 F.3d 1092, 1098 (9th Cir. 2010).

[17] Id.

[18] Id. at 1096 (quoting INA §101(a)(13)(A)).

[19] Koljenovic, 25 I&N Dec. at 223-25. The issue in Koljenovic is the 7-year continuous residence requirement in INA §212(h), rather than the aggravated felony bar. However, the question posed – whether an alien who became an LPR through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” – is the same.

[20] 25 I&N Dec. at 221 (emphasis added).

[21] Id.

[22] Id. at 223.

[23] Id. at 222.

[24] Id.

[25] Id.

[26] Id. at 223.

[27] Id. (quoting Martinez, 519 F.3d at 546).

[28] Id.

[29] See Lanier, 631 F.3d at 1366-67; Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012).

[30] Lanier, 631 F.3d at 1366.

[31] INA §212(h).

[32] Lanier, 631 F.3d at 1366-67.

[33] Id. at 1367.

[34] Bracamontes, 675 F.3d at 382-83.

[35] 675 F.3d at 385.

[36] Id.

[37] Id. at 386.

[38] Id.

[39] E.W. Rodriguez, 25 I&N Dec. at 788.

[40] Id.

[41] Id.

[42] Id. at 788-89.

[43] Id. at 789 (expressing concern that “refusal to treat adjustment of status as an admission can result in serious incongruities”).

[44] Hanif v. Att’y Gen. of the United States, 694 F.3d 479 (3d Cir. 2012); Mendoza Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Papazolglou v. Holder, 725 F.3d 790 (7th Cir. 2013).

[45] 694 F.3d at 485.

[46] Id. at 487.

[47] Id.

[48] Papazoglou v. Holder, 725 F.3d 790, 793-94 (7th Cir. 2013).

[49] Id.

[50] Id. at 794.

[51] 699 F.3d 346 (4th Cir. 2012).

[52] Id. at 353 (internal citation omitted).

Mayorkas v. Cuellar de Osorio: CSPA at the Supreme Court

9 Dec


Tomorrow, December 10, 2013, the Supreme Court will hear oral arguments in Mayorkas v. Cuellar de Osorio, reviewing the 9th circuit decision that reversed the Board of Immigration Appeals’ decision in Matter of Wang that rejected the applicability of the Child Status Protection Act (CSPA) to a large number of immigrants.  If the Supreme Court upholds the decision of the 9th Circuit, many aged-out young adults will be immediately eligible to apply for residence.  If the Supreme Court reverses the 9th Circuit, the BIA’s interpretation will stand and young adults who aged-out while their families’ petitions were stuck in the immigration backlogs will continue to wait for alternative paths to residence.

At the heart of the dispute is a common question in U.S. immigration law- how much deference does a court owe to an agency’s interpretation of matters within its expertise.  In a seminal 1984 case, Chevron v. Natural Resources Defense Council, the Supreme Court held that the answer to that question requires a two part analysis.  First, the court must determine whether Congress spoke clearly in the statute.  If Congress spoke clearly, the court must look to whether the agency faithfully implemented the statute’s directive.  The second part of the analysis comes into play if the court determine that Congress did not speak clearly and left the details of the matter to the expertise of the agency.  Where Congress spoke ambiguously, courts should defer to the agency’s special expertise so long as their interpretation was reasonable.  As a practical matter, if a court finds that Congress’ directive in a piece of legislation was ambiguous, it will likely uphold the agency’s interpretation.  Thus, in this case, the Court must decide whether the Child Status Protection Act was clear in how these aged-out young people should be treated.  If the court decides that Congress was pellucid in the language of the statute, it is likely that the court will reject the BIA’s interpretation and uphold the 9th Circuit’s decision.  In addition to the 9th Circuit, one other court, the 5th Circuit, has also rejected the BIA’s formulation.

Cuellar de Osorio’s lawyers will be arguing that Congress spoke with particular clarity when it passed the Child Status Protection Act and intended for all aged-out derivative beneficiaries of their parent’s immigrant petitions to be able to reclaim their original filing date rather than going back to the “end of the line” after turning 21.  They are supported by a brief filed by several Senators who explain to the Court that their intention in passing the legislation was to help as many aged-out children as possible.  The government seeks to muddy the waters and state that Congress was not clear and that the court should defer to the government.  The government warns of major disruption to the way visas are distributed if the Court rejects its interpretation.

Tomorrow, lawyers for the government and for the immigrants affected will get their chance to argue the case before the Supreme Court.  A decision will likely come in the spring of 2014.


9 Dec

This article was prepared by the George Washington Law School Immigration Clinic and was written by  GW Law Professor Alberto Benitez (second from left) and Immigration Clinic Alumni Cleveland Fairchild (fifth from left), Binta Mamadou (seventh from left), and Rebekah Niblock (fourth from left).


One of the most common sound bites to emerge from the ongoing immigration debate is that the immigration system is somehow “broken.” I have directed the George Washington Law School Immigration Clinic since 1996, and I do not share this view. The reality is that most critics have never set foot in an immigration court or a detention center.

The immigration system is not broken. The system has flaws and there is room for improvement, but it works well for most people in most cases. The student-attorneys who I supervise are all in their third year of law school and come from different walks of life. Despite their differences, the students share a common objective of wanting to help people and be a part of an immigration system that saves lives and reunites families.

A Great Big Hug

A great big hug exchanged between a student-attorney and her client’s two children exemplifies the immigration system working as it should. Earlier in the day, the student-attorney accompanied her client to the Immigration and Customs Enforcement (ICE) Field Office to figure out what was going on with the client’s case. The client had recently come to the United States with her two children to flee gang-related violence.  The client found herself in a new country with a different language and swept into an immigration system that she did not understand.

As the student-attorney stood in line waiting to speak to an ICE official, the client stood trembling with her two children at her side. The client began to pray and perform the holy trinity in Spanish. After waiting for some time, the student-attorney asked to speak directly with the ICE officer managing the client’s case. The ICE official agreed to meet with the student-attorney and informed her that the client was in removal proceedings and would be receiving a court date shortly. The client was utterly confused and she did not understand the conversation until the student-attorney translated the information into Spanish. Even though the client learned that she was in removal proceedings, she felt a sense of relief because she now had answers and knew exactly what was going on in her case. When the student-attorney and the client parted, the client’s children reached up and gave the student-attorney a great big hug. While trips to the ICE Field Office are understandably terrifying for immigrants, news to the clients that they will have their day in court is proof that the system works.

She Fell to Her Knees

As the woman fell to her knees outside the courtroom following her hearing, I could tell that the student-attorney was caught off-guard. The woman was in tears, but these were tears of joy. After more than two years of uncertainties, countless meetings, and medical and psychological evaluations, she could now sigh in relief. At that point, she knew that she would never have to return to the country responsible for the disappearances and deaths of several family members and where she had suffered for expressing unpopular political views.

I observed the student-attorney’s reaction. I could tell that she maintained her composure because lawyers are taught to be stoic, particularly in front of their clients. In those few minutes, I recalled the student once telling me that she had dreamed about the ICE attorney who she had to face during the trial. I remembered how hard the student-attorney worked on behalf of the client and the emotional roller coaster that she endured. Her personal commitment to the case was extraordinary-she even gave the client a suit to wear to court! Naturally, she questioned the strength of the case and whether the client would be granted asylum even though the client’s claim was compelling.

On the day of the trial, the student-attorney went to court prepared to advocate for her client. After both sides made their arguments, there was a long period of silence while the immigration judge made notes and flipped through the evidence. Eventually, he looked up and announced his ruling.

That afternoon was a victory, but not just for the client or the student-attorney. It was a victory for the immigration system. It was evidence that the system works.

Keep in Mind What the Immigration Laws Are Supposed To Do

In considering what it is that we want to fix, we should remember what our immigration laws were written to accomplish. Lost in the talk of immigration reform is the fact that the current U.S. system is the world’s best at reuniting separated families, allowing foreigners to invest in the economy, and bringing talented students from around the world to our universities. The system is good at providing persecuted refugees with a chance to resettle in the U.S. and establish a better future. Many countries have smaller populations, smaller borders, and less demand for visas; yet, they have settled on having immigration systems that are hopelessly complicated and inefficient. It is my desire that any upcoming reform focus primarily on the day-to-day activities that an immigration system must necessarily accomplish. If the overwhelming focus is on having a system that effectively keeps people out, we might end up with a system that does not do much of anything at all. To me, that sounds broken.

Nelson Mandela and the Abuse of the “Terrorist” Designation

6 Dec


As accolades from world leaders pour in to remember Nelson Mandela, it is hard to recall that for decades, much of the world accepted the apartheid South African government’s designation of Mandela as a terrorist.  It would be tempting to write that designation off as a relic of the Cold War, unfit for these modern times.  Yet, it was not until 2008 when Nelson Mandela and the African National Congress were removed from the U.S. terrorist list.  2008!  Are you kidding me?  Twitter and Facebook have been around longer than Mandela has been off the U.S. terrorist watch list.  George W. Bush (43), and not George H.W. Bush (41) signed the legislation removing him from the list!  Miley Cyrus was already Hannah Montana by then!

Nelson Mandela was released from South African prison in 1990.  At the same time, South African President F.W. DeKlerk legalized the existence of the African National Congress, Mandela’s political party. In 1993, Mandela received the Nobel Peace Prize. Mandela was elected as President of South Africa from 1994 to 1998.  In 2002, Mandela received the Presidential Medal of Freedom, the highest civilian award granted by the United States government.

The African National Congress was added to the list of designated terrorist organizations in the 1970s.  There it remained for decades.  In 1989, the Berlin Wall fell and shortly thereafter the Soviet Union collapsed.  As the world charged, South Africa did too.  Crippled by U.S. sanctions, which were imposed over President Ronald Reagan’s veto, the South African regime released Mandela and entered into a new phase of democracy that included all the citizens of South Africa.  Yet, the U.S. continued to consider the ANC to be a terrorist organization for decades.

Designation as a terrorist organization has a wide-ranging impact on an organization, its members, donors, and supporters.  In areas from banking to criminal law, the impact is profound.  However, it is in immigration matters where its impact is most often felt.  Members and supporters of designated terrorist organizations are denied admission to the U.S.  If they make it in to the United States, they can be denied asylum or residence.  The bar does not only apply to the leaders, but to people who have provided “material support,” a broad term that has been used to deny admission to a client of ours, an ophthalmologist living in Canada who was extorted by members of Hezbollah into giving money.  The terrorism related grounds of inadmissibility (TRIG) are noted for the inflexibility and their durability.  Although the Secretary of State has the authority to revoke the designation of certain organizations and the Secretaries of State and Homeland Security can grant waivers of inadmissibility to members of designated groups, it took an act of Congress to make it happen for the ANC.

It was not until 2008 that Congress passed a law directing the Departments of State and Homeland Security to remove the ANC from the terrorist watch list.  H.R. 5690 was passed to “remove the ANC from treatment as a terrorist organization for certain acts or events, provide relief for certain members of the ANC regarding admissibility and other purposes.”  Secretary of State Condoleeza Rice called it an embarrassment that she had to grant a waiver to Mandela and members of his entourage whenever he sought to travel to the U.S.

This lengthy delay demonstrates the bureaucratic difficulty of getting off the designated foreign terrorist organization list.  Despite more than a decade of redemption and rehabilitation for the ANC, the executive branch proved incapable of revisiting the designation and normalizing relations with the new leadership of South Africa.  This problem persists today.  Thousands of individuals find them caught in the grips of inadmissibility due to nominal contact with designated terrorist organizations.  Once that connection has been made, the government has  proven incapable of undoing it even where the facts and circumstances clearly warrant it.

Another group that has managed to get itself off the foreign terrorist organization list is the Mujahedin-e-Khalq, an Iranian exile group opposed to the murderous Iranian ThousandsRallyinDCtoDelistMEK05government.  In a misguided effort to appeal to perceived moderates in the Iranian government, the U.S. designated the MEK a foreign terrorist organization in 1997, hobbling the most viable opposition to the Iranian regime.  It took several years of litigation to force Secretary of State Hillary Clinton’s hand to remove the MEK from the list in October 2012.  However, even the removal of the MEK from the designated terrorist organization list has not facilitated the admission of close to 3000 Iranian refugees living in danger at Camp Liberty in Iraq.  The Liberty refugees formerly lived in Camp Ashraf in Iraq and served as a base of political opposition to the Iranian government.  In a deal to help the U.S. military in Iraq, the Ashrafi refugees moved to Liberty with the expectation of resettlement as refugees in the U.S. and other countries.  A year after the revocation of the terrorist designation and the move from Ashraf to Liberty, the refugees wait for the U.S. government to navigate their admission due to the lingering stain of the terrorist designation.  In the meantime, on September 1, 2013, armed assailants attacked those left in Camp Ashraf, killing 52 MEK members.  The delay by the U.S. in addressing the consequences of a faulty terrorist designation is causing lives to be lost.

We have little doubt that in time the designation and vilification of the MEK will be seen to be as repugnant as the designation of the ANC.  Like the ANC did, the MEK struggles against a brutal and tyrannical regime that denies fundamental human rights to its citizens.  It is quite possible that one day the MEK leadership will be the new government of a democratic and secular Iran and we can only hope that a future U.S. Secretary of State is not embarrassed by the MEK’s treatment by the U.S. government.