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Federal Court Victory for Hospital Staffing Services Company

10 Dec

hospital

Just beforeTKR Thanksgiving, we filed suit in federal district court against U.S. Citizenship and Immigration Services (USCIS) on behalf of a hospital staffing services company. Our lawsuit challenged the agency’s denial of an H-1B specialty occupation visa to a foreign physician whom the company sought to employ to care for patients in a low-income, medically underserved area. This is a story of why litigation matters, and why suing the government is sometimes the only way to achieve a just outcome. Last Friday, a mere fourteen days after the lawsuit was filed, USCIS reopened the case, reconsidered its prior denial, and approved the H-1B visa. The company will get its physician, the physician will get to stay in the U.S. and continue his work in internal medicine, and the residents of the medically underserved area will be afforded the quality medical care they so desperately need. But there’s more to the story …

Many communities throughout the U.S. lack sufficient, quality health care services. Their local hospitals are not sufficiently staffed and the specialties and expertise that many patients require are simply unavailable. Thus, certain regions of the country are designated by the federal government as health professional shortage areas, because they struggle to attract qualified doctors and nurses who are willing to live and work in often rural areas where the residents may be poor or low-income. In an effort to meet this need, Congress passed a law whereby foreign physicians who would otherwise have to leave the U.S. upon completion of their residency – and remain outside the country for at least two years – can waive this Physicianrequirement by committing to spend three years in a health professional shortage area. The program makes sense – patients in medically underserved communities get a qualified, committed physician and the foreign doctor avoids a two-year exile from the United States.

The physician whom our client sought to employ is typical of those who benefit from the program. After completing his residency at a U.S. hospital, he was granted a waiver of the two-year home residency requirement in exchange for his agreement to serve in one of the state’s health professional shortage areas. He was offered a position as an internal medicine physician by the hospital staffing services company, which then filed a petition for an H-1B visa on his behalf. Everything appeared to be in order and it seemed only a matter of time before the visa would be issued. But the immigration service had other ideas.

Rather than approve a straightforward petition filed by a company that had never before been denied an H-1B visa, USCIS issued a lengthy request for additional evidence (RFE), questioning the nature of the job of the viability of the petitioner. The company promptly submitted a detailed response. The agency then issued a second RFE, asking for yet more information and documentation – all of which had previously been provided. Once again, the company filed a thorough response and gave the agency everything it asked for. But USCIS was not convinced, and issued a lengthy decision denying the H-1B petition – based on a purported (and insignificant) discrepancy that had not been raised in either of the RFEs. Remarkably, the agency expressed doubt that the company had made a “credible offer of employment as an Internal Medicine Physician.”

At this point, we were contacted by the attorney who represented the company before USCIS. She knew the agency’s decision was wrong and sought our help in overcoming the denial. Once we’d reviewed the decision and the underlying materials, we agreed, and proposed that litigation in federal court – rather than a protracted administrative appeal – was the best course. The company agreed, so we filed suit challenging the agency’s decision under the Administrative Procedure Act (APA) as arbitrary, capricious, contrary to law and past agency practice, and unsupported by substantial evidence. We described the merits of the petition and detailed the hardships visited upon the company, the physician, and the medically underserved community impacted by the loss of a qualified doctor. To fast-track the case, we also filed a motion for preliminary injunction, asking the Court to enjoin USCIS from its erroneous decision and order the agency to issue the visa.

And it worked. Our litigation forced the agency to reexamine the petition and consider whether its myopic decision could withstand the scrutiny of a federal judge. Just two weeks after the case was filed – and one week before a scheduled court hearing – USCIS reopened the case on its own motion and granted the H-1B petition. Today, instead of packing his bags and preparing his family for an early and unexpected departure from the United States, the physician will go to work in a community in dire need of his services. Suing the government isn’t always the best option, but sometimes it’s the only strategy that works.

Court of Appeals Limits Mandatory Detention

9 Oct

Detention

On October 6, 2014, the U.S. Court of Appeals for the First Circuit issued a decision in Castañeda v. Souza that greatly limits the ability of Immigration & Customs Enforcement to subject individuals to mandatory detention during their removal proceedings.  In Castañeda, the First Circuit interpreted the not very confusing language “when the alien is released” and rejected the Board of Immigration Appeals’ formulation, articulated in Matter of Rojas that the “when released” means “any time after release.  The First Circuit determined that the Board got that wrong and concluded that “when released” means “at the time the individual is released” rather than “any time after release not matter how many days, weeks, months or years later.”  Amazingly, two other circuit courts, the Third and the Fourth, have already upheld the Board’s decision.  Thus, the First Circuit’s decision creates a “circuit split” that may result in the Supreme Court resolving the two differing interpretations.

The Immigration & Nationality Act (INA) allows Immigration & Customs Enforcement (“ICE”) to detain someone without any right to release on bond if they are removable for having been convicted of certain offenses.  This “mandatory detention” causes certain individuals to be held in detention for the duration of their removal proceedings.  They are not entitled to an individualized determination as to whether they present a danger to the community or are not likely to appear for removal proceedings.  The section of the INA that allows for mandatory detention states that DHS “shall take into custody” certain foreign nationals who are deportable on specific criminal grounds “when the alien is released” from criminal custody.  Stewart

For years, individuals have challenged their mandatory detention by arguing that they were not taken into custody “when released,” but weeks or even years later.  By filing actions for habeas corpus in U.S. District Court, individuals obtained decisions from courts nationwide ordering DHS to give the detainee an individualized bond hearing where issues of dangerousness or flight risk could be assessed by an independent judge.   The overwhelming majority of district courts to consider the “when released” language concluded that the Immigration & Nationality Act only subjected those who were taken into custody within a reasonable period of time from criminal custody to mandatory detention.  Courts concluded that mandatory detention did not apply to those who ICE apprehended long after their release from custody and those individuals must be given an individualized bond hearing.  Over the past few years, the government has appealed some of these district court decisions.  The first decision from a Court of Appeals occurred here in the 4th Circuit.  In Hosh v. Lucero, the government appealed a district court’s order that DHS provide Mr. Hosh with a bond hearing in light of the three year gap between his release from criminal custody and his apprehension and detention by ICE.  The 4th Circuit reversed the decision of the district court determining that the Board of Immigration Appeals’ interpretation of the “when released” language was reasonable and not plainly in opposition to the INA and therefore, was entitled to the court’s deference.  About a year after Hosh, the Third Circuit reached the same conclusion in Sylvain v. Attorney General.  Thus, although several district courts across the country rejected the Board’s interpretation, the two circuit courts that considered the question deferred to the Board.

FirstIn Castañeda, the First Circuit determined that the “when released” language did not permit the government to subject an individual to mandatory detention when she was taken into custody ten years after her release from criminal custody.  The First Circuit did not require complete immediacy and stated that ICE’s apprehension must occur within a reasonable period of time after release from criminal custody.  The Court noted the arbitrary nature of mandatory detention and why it offends due process when it is undertaken long after a person completes their criminal sentence:

Despite its years long delay in bringing removal proceedings after the petitioner’s release from custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or for that matter, in the other cases where individuals have been detained years after release.  Indeed, when the district court ordered that the petitioners be given bond hearings, the government actually viewed them as neither dangerous nor likely to flee.  Castañeda was even released on her own recognizance (i.e., without a monetary bond) and before her bond hearing even took place.

Mandatory detention of individuals such as the petitioners appears arbitrary on its face.  We are left to wonder whether the petitioner’s sudden arrest and detention is not to “facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons,” which would offend due process.

The decision in Castañeda creates a circuit split between the 1st Circuit and the 3rd and 4th Circuits.  When federal law is different in different parts of the country, there is a strong incentive for the Supreme Court to step in.  However, the Supreme Court can only step in if the government chooses to appeal.  We will be watching to see what the Department of Justice does.

In each of these circuit court cases, Benach Ragland has submitted amicus (“friend of the court” ) briefs on behalf of the American Immigration Lawyers Association and will continue to do so as long as the issue is litigated.

Victory! BIA finds Domestic Violence Victims May Qualify for Asylum

27 Aug

U.S. Agents Take Undocumented Immigrants Into Custody Near Tex-Mex Border

In a major victory for immigrants, the Board of Immigration Appeals ruled yesterday that women who are unable to leave domestic violence caused by their husbands may qualify as a particular social group for asylum purposes.  This decision brings to an end a lengthy period of uncertainty regarding the viability of claims to asylum by women fleeing domestic violence.  The Board’s decision in Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014), establishing clear and controlling law to the nation’s immigration judge that victims of domestic violence can qualify for asylum.  While the law has been moving in this direction for quite some time, there was still a lack of Board precedent obligating immigration judges nationwide to follow it.  While progressive judges cobbled together legal authority from circuit court cases and unpublished decisions, recalcitrant judges used the lack of directing precedent to deny domestic violence claims.  The Board’s decisions removes any uncertainty that victims of domestic violence can obtain asylum in the U.S. due to the domestic violence they suffered in their home country.  The decision could not be more timely as the influx of women and children on the Southern border being detained in Artesia, New Mexico has shone a spotlight on the ability of victims of domestic violence to seek protection under U.S. asylum law.  The decision gives these applicants a potent new weapon and undermines the administration’s ability to remove them with barely a semblance of due process.

The decision is the result of nearly two decades of litigation on the topic of victims’ of domestic violence eligibility for asylum.  This issue has been pushed for all that time by Karen Musalo of the Center for Gender and Refugee Studies at the University of California at Hastings, who conceived the legal basis for the asylum claim and saw through a terrible BIA precedent called Matter of R-A-, which, in the BIA’s first analysis, denied asylum eligibility to victims of domestic violence.  R-A- eventually got settled with Rodi Alvarado being granted asylum but without a precedent decision.  That precedent decision came down yesterday.

In yesterday’s decision, the BIA squarely held that ” ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.”  The Board considered a case where a married woman suffered atrocious abuse at the hands of her husband, who tried to leave the relationship, and who was rebuffed by the police when she sought help.  The BIA considered the development of case law on particular social groups, the facts of the case, and the social context in which domestic violence occurs and determined that the social group of “married Guatemalan women who are unable to leave their relationship” can support a claim to asylum.

Of course, the individual facts and social context of the case are extremely important.  However, the decision gives strong support to the thousands of women fleeing domestic violence by coming to the U.S. and provides hope that there is an alternative to the violence and degradation they experienced in their home countries.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

dwi-obama-copy

The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.

Strong Presidents are Great Presidents

17 Feb

Stop deports

On this President’s Day, we wish to add a historical perspective to the robust exercise of executive authority.  The President routinely tells audiences that he does not have the power to act unilaterally on immigration reform.  Frustration and anger have mounted as the toll from deportations rises, and the lost opportunities due to the lack of immigration reform are compiled.  The President’s claim of impotency is in direct conflict with how the right wing of the GOP (is there another wing?) sees the President.  Recently, the House Judiciary Committee held a charade of  hearing on the President’s duty to see that the laws be faithfully executed.  The theory: the President has abdicated his constitutional duty to faithfully execute the law by granting deferred action to childhood arrivals.  Apparently, the theory goes that the President has a duty to remove all deportable individuals and by granting deferred action to a sub-group of the deportable individuals, the President has failed to do his duty.  So, who is right?  Is the President a dictator who ignores the laws?  Or is he an executive with a limited vision of his authority, doomed to mediocrity?  That answer remains to be seen, in our opinion.  It will depend on whether the President follows the example of those presidents who have monuments on the National Mall and across the capital or those who are reviled, ignored and forgotten.  For a president as historic as Obama, we hope that he embraces a more robust view of Presidential power.

The earliest President who truly revolutionized the role of the Chief Executive was Andrew Jackson.  When Jackson took office, he viewed himself as the only national andrew jackson kingembodiment of the people’s will.  He scandalized the country by making arguments to the people in support of his policy decisions.  In addition, he broke tradition by vetoing pieces of legislation that he disagreed with.  Previously, Presidents would only veto legislation that they thought unconstitutional.  Jackson was the first President to veto legislation for the plain reason that he was opposed to it.  In addition, when South Carolina asserted that it could nullify a federal law that it did not like, Jackson stood for the not-yet-clear proposition that federal law was supreme and a state could not pick and choose which federal laws it wished to follow.  Jackson’s position on nullification provided historical precedent when another President was faced with rebellious southerners.

Before taking office, Abraham Lincoln was confronted with the “secession” of South Carolina and several other states.  Lincoln refused to accept that a state could secede and decided that his principal obligation was to preserve the Union.  Abraham_Lincoln_head_on_shoulders_needlepointWhen Lincoln called up 75,000 troops in the wake of the Southern attack on Fort Sumter, several other states, including Virginia, seceded. Lincoln arrested secessionist deputies in Maryland and advocated for a strenuous war against the rebellious states.  Lincoln exerted his powers as Commander-in-Chief to free the slaves in “territories in rebellion against U.S. authority” in the Emancipation Proclamation.  Just to be clear: Lincoln dissolved certain “property” rights in nearly half the country.

Franklin Roosevelt determined that the circumstances of the Great Depression required an energetic response by the federal government.  However, he found that the Supreme Court proved to be a formidable obstacle.  After the Supreme Court issued a series of opinions striking down New Deal federal legislation on matters previously considered solely the domain of the state as well as progressive state legislation, such as maximum hours and minimum wage laws, Roosevelt came up with the preposterous idea of adding additional justices to the Supreme Court.  After all, where is it written in the Constitution that there need to be 9 justices?  Roosevelt threatened to add additional justices– to pack the court— to get his agenda past the Court.  The crisis was averted when Justice Owen Roberts, a reliable Supreme Court vote against the New Deal agenda, changed his opinion and joined a group of justices supportive fdr2of the President giving Roosevelt a 5-4 win which upheld a Washington state minimum wage law.  Roberts’ switch and the retirement of Justice Willis Van Devanter provided Roosevelt with a solid majority to uphold the New Deal legislation.  The New Deal legislation significantly expanded federal authority over tremendous swaths of economic and commercial activity.

Each of these Presidents was derided during their terms as being despots, dictators, and wannabe kings.  A faction of the country called them tyrants bent on reshaping the country in some perverse way.  Yet today, each is honored with a place on our National Mall (True, Jackson is not on the mall- but his equestrian statute is right in front of the White House for the President to see every day.)  Each of these Presidents is understood as being an essential part of this country’s progress and their allegedly improper power grabs have been revalidated generation after generation.  This is not to say that they receive universal acclaim; there are plenty of holdouts who are anti-Lincoln for the Civil War and the modern day GOP and its court appointees are determined to undo the legacy of the New Deal.  Yet, when historians rank the best Presidents, all three will make that list.  They are on the list because they responded with energy to the crises facing the country.  In doing so, they expanded the power of the Presidency (without creating tyranny!) and pushed the country forward.

roosevelt-memorial-washington-dc

Contrast Lincoln with his predecessor James Buchanan.  Believing he could do nothing about secession or slavery, Buchanan allowed guerrilla warfare to rage in Kansas and Missouri through much of his term.  Buchanan felt he had no power to stop secession.  In other words, that the President of the United States was powerless to stop the dissolution of the union.  Little wonder that there is no monument to Buchanan and he routinely fills out the bottom slot when historians rank the Presidents.

All this is to say that history reveres Presidents who have a dynamic view of their power.  It has now become clear that Congress has no intention of taking up any meaningful immigration reform. This is despite an acknowledged crisis.  Lincoln-Memorial-4Families are being torn apart, the administration is closing in on 2 million deportations, businesses can not get the workers they need, and national security and public safety are compromised due to the failure of Congress to act on immigration reform.  It is time for the President to be worthy of the slurs hurled at him by the know-nothings in Congress.  It is time for the President to make a bold claim of Presidential authority and place a hold on all bust the most serious removals.  History will reward him if he does.  Lincoln or Buchanan?  The choice is the President’s.Andrew_Jackson_(2873018869)

New Common Sense Rules on Material Support for Terrorism Bars

17 Feb

Syria

We have written on this page before about the absurd over-inclusiveness of the ground of inadmissibility for “material support” for terrorism.  This net barred Nelson Mandela from entering the U.S. without a waiver until 2008 and still bars 3000 refugees from the Iranian regime whose lives are at risk in Camp Liberty in Iraq from being resettled in the U.S. as promised by the U.S. government.  Moreover, hundreds, if not thousands, of others have had their applications for asylum, adjustment of status, or refugee admission placed on hold for allegations that they provided material support for terrorism by engaging in minor activities, such as distributing political leaflets, cooking food or distributing water, which the government has deemed to constitute material support of terrorism.  We are happy to report some good news on this front.  On February 5, 2014, the Departments of State and Homeland Security, issued new rules allowing the government to exempt those whose support is deemed to be “insignificant” or unintentional This decision should free the applications of hundreds of individuals in the U.S. who are awaiting the adjudication of green cards after having already won asylum in the U.S.  In addition, it should open the door to refugees from the war in Syria languishing in unsafe and unsanitary refugee camps.

U.S. law makes an individual inadmissible to the U.S. if they have provided “material support” to a terrorist organization.  The terms material support has been interpreted very broadly.  An illustration of the absurd lengths the bar extended to comes from a U.S. Citizenship & Immigration Service public forum.  A representative of CIS explained the “doing laundry” nature of the bar.  Let’s imagine that one person in a home has ties to a terrorist organization and another person in the household does the laundry for the household.  That person has provided material support for terrorism because she (let’s be real, here) has removed the terrorist’s burden of doing his laundry freeing him to do more terrorist things.  People have been found inadmissible for providing food, water, shelter to terrorists.  Although there is a duress exemption to the bar, the standard is high and the facts are rarely uncovered in an adjudication.

The new rules allow DHS to waive inadmissibility if DHS concludes that the individual applicant “has not provided more than an insignificant amount of material support to a terrorist organization.”  To exempt an individual, DHS must find the following that the applicant:

(a) Is seeking a benefit or protection under the INA and has been determined to be otherwise eligible for the benefit or protection;

(b) has undergone and passed all relevant background and security checks;

(c) has fully disclosed, in all relevant applications and/or interviews with U.S. government representatives and agents, the nature and circumstances of any material support provided and any other activity or association, as well as all contact, with a terrorist organization and its members;

(d) has not provided more than an insignificant amount of material support to a terrorist organization

(e) (1) has not provided the material support with any intent of furthering the terrorist or violent activities of the individual or organization; (2) has not provided material support that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity; and (3) has not provided material support to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity;

(f) has not provided material support to terrorist activities that he or she knew or reasonably should have known targeted noncombatant persons, U.S. citizens, or U.S. interests;

(g) has not provided material support that the alien knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items;

(h) has not provided material support in the form of military-type training;

(i) has not engaged in any other terrorist activity;

(j) poses no danger to the safety and security of the United States; and

(k) warrants an exemption from the relevant inadmissibility provision in the totality of the circumstances.

As the standards in the regulation make it clear, DHS must still conduct an extensive background check, determine that the individual does not pose a threat to the safety and security of the U.S. and also determine that the assistance provided to a terrorist organization be de minimis.  The new DHS rule recognizes that many immigrants come from war zones where failure to provide a drink of water or where failure to show solidarity with certain armed groups can be risking one’s life.

DHS also published a rule that is identical to the one above, but instead of insignificant support, the rule exempts those who provided support but did so unknowingly.  DHS exempts those who meet the criteria above and an applicant who:

(d) Has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;

(e) Has not provided material support (1) that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity or (2) to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity on behalf of a designated terrorist organization, as described in section 212(a)(3)(B)(vi)(I) or (II) of the INA, 8 U.S.C. 1182(a)(3)(B)(vi)(I) or (II);

This should assist the many people who have provided support to organizations that they believed to be charitable or humanitarian organizations only to find out later that their funds were used for terrorist acts.  Individuals will not be exempted if they should have reasonably known that their funds and  efforts would be supporting terrorism.

Predictably, many have used these common sense rules to accuse the administration of aiding terrorists.  This is pure demagoguery.  The administration has pushed the “war on terror” to new limits with the aggressive use of drones and targeted killings.  Like DACA, the new rules allow the government to separate the priorities from those who present no threat to the security of the U.S.  Yet, the anti-immigrant crowd asserts that the administration is being easy on terrorists and letting them into the U.S.  The fact is that many of these people are here.  They are working and living among us with no instances of terrorist acts.  For several years the DHS has had these cases on hold and people have lived here in administrative limbo.  A U.S. District Court in Virginia just last week rejected the government’s argument that it could keep a case in limbo for over fourteen years based upon an individual’s support for the Mujahedin-e-Khalk, an Iranian resistance group. 

The new rules should put an end to administrative limbo for thousands of individuals who, for fear of their lives, did little more than provide food or water or distribute political leaflets for groups that are today deemed to be “terrorists.”  This is a very welcome development.

Another 4th Circuit Social Group Victory! When is mental illness not like hating broccoli?

2 Feb

appeal-granted

Last week, we wrote about the Fourth Circuit’s decision in Martinez v. Holder, in which the 4th Circuit held that “former gang members” can qualify as a particular social group for the purpose of establishing eligibility for asylum.  Martinez is one of the two cases we wrote about in October in the hope that the 4th Circuit would bring some clarity and reason to the jurisprudence on the meaning of “particular social group” as a basis for asylum eligibility.  We now focus on the victory for immigrants in Temu v. Holder, in which the 4th Circuit decided that “people with bipolar disorder who exhibit erratic behavior” satisfies the requirements for designation as a particular social group and can establish eligibility for asylum.

Mr. Temu is a Tanzanian national whose mental illness caused him to enter the traffic on the streets of Dar Es Salaam to direct traffic because he believed that he had the power to prevent accidents with his hands.  This behavior caught the attention of Tanzanian authorities who deposited him in a hospital, where he was subjected to beatings by the nurses.  Tanzanian custom sees mental illness as demonic inhabitation and treatment is in the form of beatings.  During these beatings, Mr. Temu was told “this is how we treat people like you.”  They referred to him by the name of “mwenda wazimu,” a Tanzanian term for those with visible severe mental illness which literally means “demon possessed.”

Mr. Temu eventually made his way to the U.S. and sought asylum arguing that he faced persecution on account of his membership in the social group of individuals with bipolar disorder who exhibit erratic behavior.  The Immigration Judge denied Mr. Temu asylum stating that his proposed social group lacked the required elements of immutability, particularity, and social visibility.   Moreover, the IJ held that Mr. Temu was not persecuted on account of this social group.  However, the IJ did find that Mr. Temu merited relief under the Convention Against Torture (CAT) because he had been tortured by his nurses and guard because he was mentally ill.  The Board of Immigration Appeals affirmed the IJ’s ruling.

The 4th circuit rejected the IJ and BIA’s reasoning.  “It is impossible to square the BIA’s conclusions with the undisputed facts of this case.”  Reviewing the fact that Mr. Temu credibly testified that nurses beat him and told4th cir him that they were doing it to him because he was mwenda wazimu, the 4th Circuit stated, “we fail to see how a rational factfinder could simultaneously credit these facts and also conclude that Mr. Temu was not persecuted because of his mental illness and its manifestations.”  The court continued “it is difficult to imagine evidence that is more persuasive and unequivocal than a persecutor directly telling a victim, “this is how we treat people like you.”  The court then exposed the inconsistency by noting that shortly after finding that Mr. Temu was not persecuted because of his mental illness, the IJ granted CAT relief stating that “he was singled out for more frequent beatings because he was mentally ill.”  The court stated that “logical acrobatics” would be required to reconcile the conflicting findings on CAT relief and asylum eligibility.

The court also engaged in an expansive analysis of the BIA’s requirements for classification of a particular social group: (1) immutability; (2) particularity; and (3) social visibility.  Of these requirements, the social visibility standard has been the most problematic.  The court stated unequivocally that “social visibility does not mean ocular visibility.”  In other words, for a group to be socially visible, it is not necessary that all members be identified by sight.  The court quoted a dissent from Judge Alex Kozinski of the 9th Circuit in which he explained that, for example, in the United States “Vietnam veterans, . . . cancer survivors, blind people, Cajuns, practitioners of Falun Gong, and hippies” would likely be identified as social groups whereas “second-born children and haters of broccoli would not.”  Social visibility relates to whether society views them as a group and not whether they are identifiable on sight.  The court found that since Tanzanian society views the “mwenda wazimu” as a group, that is all that the social visibility test requires.  The court also discussed particularity, a requirement that demands that a proposed social group have identifiable boundaries.  The IJ noted that not all bipolar people engage in erratic behavior and not all those who engage in erratic behavior are bipolar.  The 4th Circuit held that the BIA ad IJs must consider the social group formulation as a whole and not broken into component parts.  When taken as a whole, the social group of “bipolar individuals who exhibit erratic behavior” is sufficient to particularize the group.  Finally, the court found that the BIA and IJ were wrong on whether Mr. Temu’s condition was immutable.  The IJ had concluded that since Mr. Temu’s condition could be controlled with medication, it was not immutable.  However, the IJ also made the factual findings that Mr. Temu had been abandoned by his family in Tanzania and that the medicines he required were not widely available in Tanzania.  The court concluded that “Mr. Temu’s membership in his proposed group is not something he has the power to change.”

One judge on the three judge panel dissented and stated that he would defer to the BIA’s findings.

The case has been sent back to the immigration court and it is likely given this ruling that Mr. Temu will receive asylum.  This will help Mr. Temu get the assistance and medication he needs to remain stable and a chance at a life far removed from the beatings and deprivations he endured in his home country due to his mental illness.

This case was brought by some outstanding lawyers, Katie Bukrinsky and Thomas Tynan at McDermott Will & Emery, working pro bono.  It is a case that was identified by the fierce and lovely lawyers from the Capital Area Immigrant Rights Coalition and Stephen Dekovich of CAIR submitted an amicus brief on behalf of the organization, which has labored for years to advance the rights of the mentally ill in immigration proceedings.  Finally, I had the honor to participate in moot court events to prepare these talented advocates for oral argument.  BR sends our heartiest congratulations to all those involved and to Mr. Temu for having the courage and resourcefulness to take this to the circuit after being shut out by the Judge and the BIA.

“Social Group” Victory in Martinez v. Holder

24 Jan

Yesterday the U.S. Court of Appeals for the 4th Circuit issued its decision in Martinez v. Holder, a case that has been discussed at various times on this blog for its relevance in defining the contours of the protected ground of “particular social group.”

Asylum may be granted to an individual who can demonstrate that he or she has suffered persecution or has a well-founded fear of persecution in his or her home country on account of his or her race, religion, nationality, political opinion, or membership in a particular social group.  These five bases for asylum are known as “protected grounds.”  Whereas political opinion, race, religion, and nationality are all fairly intuitive, U.S. law has had to define “particular social group” on a case-by-case basis.

The watershed decision establishing what constitutes a particular social group is a 1985 decision by the Board of Immigration Appeals, Matter of Acosta In Acosta, the Board defined a particular social group as a group of individuals who share a certain immutable characteristic that can not be changed or is so fundamental to their identity that they should not be required to change.  In the two decades since Acosta, homosexuals, members of clans, family relationships, women opposed to female genital mutilation, women who refuse to conform to strict religious codes, and women seeking escape from domestic violence have all been recognized as social groups for the purposes of asylum.

In Martinez, the 4th Circuit considered whether a young man who was conscripted into a gang and who subsequently left the gang can obtain protection under U.S. asylum law.  Mr. Martinez was attacked on multiple occasions and was aware that gang leaders had given the “green light” to other gang members that they were free to murder their former compatriot.  In the underlying Board of Immigration Appeals (BIA) decision, the BIA decided that Congress could not have intended gang membership (and therefore former gang membership) to create an opportunity for protection under U.S. law – that Congress could not have intended for criminal gangs to be social groups worthy of protections of U.S. law.  The 4th Circuit was required to decide whether former gang membership is an “immutable” characteristic that warrants such protection.  On January 23, 2014, the court did just that:

We conclude that Martinez’s proposed particular social group of former MS-13 members from El Salvador is immutable for withholding of removal purposes in that the only way that Martinez could change his membership in the group would be to rejoin MS-13. We hold therefore that the BIA erred in its
ruling declining — on immutability grounds — to recognize the particular social group of former members of MS-13 who have renounced their membership in the gang.

***

The government argues that the INA disqualifies groups whose members had formerly participated in antisocial or criminal conduct. Attaching this condition to qualification as a “particular social group,” however, is untenable as a matter of statutory interpretation and logic.

This decision has major implications for former gang members seeking asylum in the U.S., and equally major congratulations are due to Maureen Sweeney at the University of Maryland College of Law Immigration Clinic, who argued for Mr. Martinez, and FOBR Ben Casper, who argued for the American Immigration Lawyers Association, which filed a brief supporting Mr. Martinez’s claim to protection, for their excellent work on this case. Our very own Andres Benach also was on brief as amicus, and both Andres and Dree Collopy helped prepare oral argument.  As Maureen Sweeney put it in her racap of oral argument:

…I will say that two of our 3 judges seemed to really get what the case was about. …Judges seemed uninterested in whether initial membership in the gang was voluntary or not – they seemed to get that once the person left, that became the defining characteristic. And they didn’t seem particularly worried about letting in a bunch of bad guys. As Judge Neimeyer said, “That’s what you have all those bars in the statute for.” 

Congratulations to all for your part in securing the protection for former gang members seeking asylum in the U.S.

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

27 Dec

Top-10-trophy2

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

TKR

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

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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

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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]

Summary

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).