Yes He Can: A Reply to Professors Delahanty and Yoo
Posted: October 29, 2012 Filed under: Blog | Tags: arizona v. united states, daca, deferred action, deferred action for childhood arrivals, department of homeland security, dream act, napolitano, obama, prosecutorial discretion, supreme court, youngstown sheet & tube co. v. sawyer Leave a comment »By Gary Endelman and Cyrus Mehta
Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the laws be faithfully executed.” That being so, can President Obama grant deferred action for childhood arrivals (DACA) whose presence here represents a violation of US law? Professors Robert Delahunty and John Yoo offer a scholarly and resounding “No” to this question. In their paper, The Obama Administration, the DREAM Act and the Take Care Clause (hereinafter cited as Delahanty & Yoo). They argue that the President must enforce the removal provisions of the Immigration and Nationality Act. Absent either express or implied authority to the contrary, the Obama Administration has violated its constitutional duty. No presidential prerogative exists that would sustain such non-enforcement nor has the President put forward a cogent excuse that would make his DACA decision constitutionally permissible. Professors Delahunty and Yoo offer up George Washington’s famous reminder in his Proclamation of September 15, 1702 that “it is the particular duty of the Executive ‘to take care that the laws be faithfully executed.” Such a serious charge requires an answer. That is why we write.
We agree with Professors Delahunty and Yoo that President Obama must enforce all provisions of the INA, including the removal sections contained in Section 235. We do not agree, however, that DHS Secretary Napolitano’s June 15, 2012 memorandum, or ICE Director John Morton’s June 17, 2011 directive on prosecutorial discretion, instructed or encouraged ICE officers to violate federal law. At current levels of funding, it is manifestly impossible for ICE to deport most undocumented persons in the United States. Even at the historically high levels of removal under President Obama, some 400,000 per year, this amounts to only 3-4% of the total illegal population. Delahanty & Yoo n.21. That is precisely why the Obama Administration has focused its removal efforts on “identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law offenders and other individuals prioritized for removal.” Delahanty & Yoo n. 22, citing Letter from Janet Napolitano, Secretary, Department of Homeland Security, to Senator Richard Durbin (D-Ill.)(Aug. 18, 2011). Far from refusing to enforce the law, President Obama is actually seeking to honor his constitutional obligation by creating a scheme that removes some while deferring the removal of others without granting anyone legal status, something only Congress can do.
Professors Delahanty and Yoo’s characterization of DACA relief as detached, even radical, suffers from a lack of an informed appreciation of the extent to which it has deep roots in existing immigration law. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there. Never has the size of a vulnerable population been a valid reason to say no. The extension of DACA relief is less a leap into the unknown arising out of a wild, lawless ideology divorced from a proper respect for the Take Care Clause than a sober reaffirmation of an existing tool for remediation in prior emergencies. Professor Delahanty and Yoo conveniently omits any mention of INA Section 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien. They also fail to consider INA Section 274A(h)(3)(B) which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed …by the Attorney General.” After all, 8 CFR 274a.12(c)(14), which grants employment authorization to one who has received deferred action, has been around for several decades. The only new thing about DACA is that the Secretary Napolitano’s guidance memorandum articulates limiting criteria without endowing deferred action grantees with any legal status, something reserved solely for the Congress. In fact, the Congress has also recognized “deferred action” in Section 202(c)(2) (B)(viii) of the REAL ID Act as a status sufficiently durable to allow the extension of driving license privileges.
Courts are loath to review any non-enforcement decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508 U.S. 182, 191-92 (1993); Massachusetts v. EPA, 127 S. Ct. 138, 1459 (2007). It is up to DHS, rather than to any individual, to decide when, or whether, to initiate any enforcement campaign. Heckler v. Chaney, 470 US 821, 835 (1985). During the last Supreme Court term, Arizona v. United States, 132 S.Ct. 2492, 2499 (2012) articulated the true reason why: “(a) principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…”
Professors Delahanty and Yoo do not feel constrained by the wide deference that has traditionally characterized judicial responses to executive interpretation of the INA. Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute. Surely the “body of experience” and the “informed judgment” that DHS brings to INA § 103 provide its interpretations with “ the power to persuade.” Skidmore v. Swift& Co., 323 US 134,140(1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “ the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv.L.Rev. 2245, 2246 (2001). Indeed, the very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v Brown & Williamson Tobacco Corp., 529 US 120, 159 ( 2000). That is precisely what the President and DHS have done with respect to their power to enforce the immigration laws.
This is precisely why 100 law professors argued that the President had the discretionary authority to extend such relief, which Professors Delahunty and Yoo have acknowledged in their paper:
Through no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at least 1971
Delahanty & Yoo n. 38.
It is also worth mentioning that while there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. We agree with Professors Delahunty and Yoo when they cite Youngstown Sheet, Delahunty & Yoo n 185. as a rejection of the idea that the President has “prerogative” power, but the President has not used any “prerogative power” with respect to DACA relief; he has indeed acted pursuant to Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Professors Delahanty and Yoo look in vain for explicit authority in the INA that supports DACA relief, and delve into instances when Presidents have been able to use “prerogative” power, which they argue cannot be applied in the context of DACA. They can stop searching:
Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result. United States v. Mead, 533 U.S. 218, 229(2001)
Even if arguendo discretion is too weak a foundation for DACA relief, the equitable merits of such remedial action should be strong enough to withstand constitutional scrutiny. Indeed, as the Supreme Court’s Arizona opinion recognized, it is frequently the case that “ Discretion in the enforcement of immigration law embraces immediate human concerns.” Delahanty & Yoo, n. 222. That is why Section 240A of the INA endows the Attorney General with discretion to cancel removal. Contrary to what Professors Delahanty and Yoo argue, the exercise of executive compassion in the Dream Act context is not a constitutionally prohibited expression of misplaced sentiment floating without anchor in a sea of ambiguity but a natural out-growth of prior initiatives when dealing with deferred action. Such initiative is entirely consistent with the Take Care Clause while scrupulously respectful of Congressional prerogatives to make new law. While Professors Delahanty and Yoo argue that equity in individual cases may be justified as an exception to the President’s duty under the Take Care Clause, they claim that the DACA program is not a judgment in equity but more as a statement of law. We disagree. The President has made clear under DACA that each case merits an exercise of individual discretion. Each application has to be supported by voluminous evidence of not just an applicant’s eligibility, but also evidence as to why the applicant merits an exercise of favorable discretion. Professors Delahanty and Yoo claim that equity divorced from reliance on another statute or treaty must be opposed as a breach of the President’s sworn oath. No such worry here need trouble them for the Administration not only acts in reliance on its well-settled authority under the INA but precisely and primarily to infuse such authority with relevance made ever more insistent by the lack of Congressional action.
Notwithstanding our rebuttal, the deep scholarship and sincere reservations voiced by Professors Delahanty and Yoo must not be cavalierly ignored nor summarily dismissed. Indeed, they are a powerful justification of the need for comprehensive immigration reform. Only Congress can solve this problem, even though we have shown that the President did have authority to roll out DACA. The nation waits.
This post originally appeared on The Insightful Immigration Blog on October 28, 2012.
The Ties That Bind: Can Family Unity Co-Exist with Maintenance of Lawful Permanent Resident Status?
Posted: July 9, 2012 Filed under: Blog | Tags: deferred action, dream act, green card, hana v. gonzales, john morton, lateef v. holder, lawful permanent resident, pakistan, prosecutorial discretion, singh v. reno, supreme court Leave a comment »By Gary Endelman and Cyrus D. Mehta
While many covet lawful permanent resident (LPR) status in the US, popularly known as the green card, since it allows them to freely live and work in the US, it can also become a burden if one remains absent from the US, which can result in the loss of this status. This happened in Lateef v. Holder, where the petitioner, a Pakistani national, argued that despite multiple long absences from the United States, she did not intend to abandon her status, which also served as the foundation for her husband’s and child’s entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA’s finding that she had abandoned her LPR status. The court also noted that the petitioner, at the end of a long and exhausting international flight, fearful of losing her LPR status, had lied in one instance to border officials about the date of her last visit to the United States.
Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner’s daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.
The main lesson learned from Lateef v. Holder is that waiting outside the US with your loved ones, until they can immigrate to the US, can result in abandonment of your green card. Due to the tremendous backlogs in the family-based immigration system, it can take years before an LPR can sponsor a spouse or child to the US, thus compelling the LPR to be absent from the US until such time that the family members are issued immigrant visas. The case highlights the tensions between a global world involving frequent travel, and where families live apart in different countries, and an insular immigration system.
Lateef, a native of Pakistan, became a LPR in 1991 along with her parents and brothers. She initially went back to Pakistan to complete her final 2 years of medical school, and then returned to the US and remained for over 2 years. After Lateef married her husband in Pakistan in June 1995, she spent most of her time in Pakistan until February 2001, when she was charged with inadmissibility based on abandonment of her LPR status. Between 1995 and 2001, she returned periodically to the US to take her medical exams. Her husband was also denied a visitor visa during this time. She also gave birth to a daughter in Pakistan. Although, according to the majority her daughter was granted LPR status “as a child born during a temporary visit abroad” to an LPR under 8 C.F.R. § 211.1(b)(1), Judge Stranch’s dissenting opinion disputes this fact. Due to an error by the INS at the port of entry, according to Judge Stranch, the daughter was not granted LPR status under this special dispensation. Lateef had to file a separate I-130 petition on behalf of her daughter, which resulted in the daughter having to wait in Pakistan for many years. Lateef’s daughter developed behavioral problems whenever she came to the US to take medical exams. She was thus forced to return to Pakistan, and she last left the US in November 1999 due to her daughter’s continuing behavioral problems, where she remained there for a year and three months. Her husband and children (by then she also had a son) were granted immigrant visas in November 2000, but she stayed in Pakistan until 2001 to attend weddings.
When Lateef last arrived in the US in February 2001 after being out since November 1999, she falsely told the officer that she was last in the US in July 2000. Upon being confronted, she changed her story that she was last in the US in April 2000, which was also untrue. When being further confronted with documents found in the family’s luggage, she confessed that she was out since November 1999 and that she had previously lied to immigration officials.
Before we draw further lessons from Lateef v. Holder, we give you a primer on the law of abandonment of LPR status. For a more extensive review on this subject, we refer you to our article, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:
A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.”If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.
Singh v. Reno is worth further elaboration as the facts in this case are somewhat analogous to Lateef v. Holder. Singh obtained lawful permanent residence through the special agricultural worker program on December 1, 1990. From that date till the initiation of the proceedings on July 8, 1993, Singh spent less than one-third of his time in the US. In fact, he spent time with his wife and daughter in the United Kingdom who were waiting for their family-based immigrant visa petition to materialize. During the time Singh spend in the US, he worked sporadically for a restaurant in California, and lived in temporary housing provided by the employer. Singh also applied for a visitor visa at the US consulate in London and entered the US four times on that visa after he obtained permanent residency in the UK. The Ninth Circuit held that Singh’s long visits to the UK did not qualify as a temporary visit, even though he was never out of the US for more than a year, and upheld the Board’s decision affirming his abandonment of LPR.
In a scathing dissent, Judge Reinhardt criticized the majority for failing to consider that Singh’s motive for spending time abroad was due to the wait for his wife and daughter to gain immigration status. Moreover, the dissenting judge disagreed with the majority that the wife and spouse were free to reside in the US while waiting for their immigration status.
Another important case is Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005), which in turn drew from Singh v. Reno. Although the facts in Hana v. Gonzales, are similar to Singh, the Sixth Circuit found that Hana, an Iraqi national, did not abandon her status. On May 22, 1992, Hana was granted LPR status upon which she immediately filed immigrant visa petitions for her husband and four children. A few weeks later, on July 19, 1992, Hana returned to Iraq, and to her job as an inspector at the Central Bank of Iraq under the Saddam Hussein regime. Hana was compelled to return to Iraq to work because she was afraid that the government would hurt her family. Upon obtaining a reentry permit, Hana spent in the next two years in Iraq with her family and to care for her terminally ill mother in law. Two weeks prior to the expiration of her re-entry permit in December 1996, Hana returned to the US but was detained and charged with inadmissibility as an immigrant without a valid visa. Hana admitted that she had never paid income tax in the US and had no property in this country, but had initially entered with $10,000 in jewelry and money, which she gave to her brother so that she could ultimately purchase a home and car, and provide for her children when they arrived in the US.
While ruling in Hana’s favor, the Sixth Circuit emphasized that it must take into account the totality of the alien’s circumstances in addition to the two-part test established in Singh v. Reno to determine what constitutes a temporary visit abroad. Thus, while Hana did not possess family, property or job in the US, the Court held that she still had an intent to return to the US upon the materialization of her family members’ immigration visa petitions. It appears that the Sixth Circuit was influenced by Hana’s decision to remain in Iraq with her family to ensure that they were not harmed by a brutal regime’s henchmen and for caring for her terminally ill mother-in-law. The Sixth Circuit distinguished Singh v. Reno, by observing that Singh’s family, even though not free to reside in the US, could freely travel between the two countries which were relatively safe democratic nations, although the Court acknowledged that Singh was a “close case.” Clearly, Hana is a better decision as it recognizes an LPR’s need to remain with family overseas, and is also more understanding of the realities of the backlogs in family-based immigration, along with the difficulty that sponsored family members may have in obtaining visitor visas to the United States as well as the political and economic realities that might hinder one’s ability to return to the US quickly.
Lateef v. Holder is also from the Sixth Circuit, and Lateef sought to show that her case was similar to Hana, but the majority thought otherwise. Unlike the Hana petitioner, who was forced to remain in Iraq to protect her family from a brutal dictatorship, the Lateef court thought that Pakistan was a free country that allowed its people to travel. Also compare Hana’s intent to return to the US upon the immigration of her relatives, which the Sixth Circuit paid attention to despite her lack of other ties, with the refusal of the Sixth Circuit to pay similar deference to Lateef’s intent as a controlling factor. It appears that the Sixth Circuit thought that Lateef’s case was more like Singh who could freely travel between two democratic countries, the United Kingdom and the US, even though they had relatives who were waiting in the preference system for immigrant visas. While this is a refreshing observation on Pakistan, we know anecdotally that Pakistani nationals do not otherwise fare too well in our immigration system. Their applications for routine immigration benefits get scrutinized more than others through the prism of national security, and they are more amenable to be placed in removal proceedings notwithstanding the new DHS prosecutorial discretion policy set forth in the Morton Memo of June 17, 2011. It is true that Lateef did not have a reentry permit, unlike Hana, when she returned to the US in February 2011 and even lied about the last time she came back to the US. This may have cut against her, but the misrepresentation would not have been material, and thus an additional ground of inadmissibility, if she had not abandoned her LPR status. Also, a reentry permit is not an essential prerequisite for maintaining LPR status. In yet another decision involving a Pakistani national, Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003), the petitioner, after obtaining LPR status, left for Pakistan to marry and spent the majority of the next several years with her husband and children in Pakistan. Even though Moin had a sick child who died after barely one year and had a reentry permit, the fact that she spent most of the time in Pakistan without an intent to return within a relatively short period caused the Fifth Circuit to affirm the abandonment of her LPR status. The Fifth Circuit observed that “a reentry permit, in and of itself, does not prevent a finding that an alien has abandoned her permanent residency status.” Indeed, this lesson is one that is poorly understood by LPRs who see the re-entry permit as offering the absolute assurance of retention. The Lateef court, in finding that the petitioner had abandoned LPR status was more influenced by Moin and Singh than Hana.
Still Judge Stranch’s dissent in Lateef has considerable moral force like Judge Reinhardt’s dissent in Singh. Green card holders should not be deprived of their status primarily because they reside abroad with family members whom they have sponsored under our creaky immigration system. In Lateef, it appears that there was also an error with respect to her infant daughter being expeditiously granted LPR status at the airport under the special dispensation in 8 C.F.R. § 211.1(b)(1). Her daughter thus was forced to stay in Pakistan until the regular immigrant visa processing for a few years, and Lateef needed to be with her daughter in Pakistan due to continuing behavioral problems. Even though the court opined that Lateef and her family were free to travel, her husband was denied a tourist visa. This is often the case when a family member is being sponsored for a green card, and the tourist visa is routinely denied on the ground that the family member is wrongly suspected of being an intending immigrant and planning to overstay the visa. Moreover, the court seemed to be impressed by the fact that Hana brought $10,000 worth of valuables and cash with her to purchase a home and a car in the US when she finally would come and reside in the US. But the court glaringly missed the investment in time that Lateef was spending taking medical exams in the US that would qualify her to practice as a physician and establish a career in the US. It is clear that Lateef was expending her own human capital in the US even though she did not bring physical assets to the US like Hana, which appeared rather modest. On the other hand, Lateef’s investment of time in obtaining a medical license to practice in the US was impressive.
The unfortunate holding in Lateef v. Holder again compels us to offer our proposal that, if adopted, will change the law on preservation of LPR status in a really big way: green card holders, like US citizens, should not be presumed to abandon their status without a tangible manifestation or expression of informed consent. The significance of LPR status would be greatly enhanced if a presumption existed in favor of retention of status, notwithstanding the commission of certain acts that might suggest a contrary intent. US citizens now enjoy this same presumption and there is no reason why resident aliens should not as well. It is neither sound nor sensible to assume that naturalized Americans have a stronger or more meaningful attachment to this country than lawful permanent residents; indeed, there are numerous anecdotal reasons to commend the opposite conclusion. Extended absence from the US, without more, should never serve as the basis for abandonment; in a global economy, where an LPR may have to reside abroad with family members until their immigration process is completed or where international relocations are the price of career advancement or even job retention, the law should and must provide that no LPR can be stripped of their green card on the basis of abandonment unless he or she clearly states an unmistakable intention to give it up. No inference from proven conduct would be possible absent clear evidence that such was the desired and intended consequence. Application of this presumption would properly reflect the profound importance of lawful resident alien status while serving as symbolic recognition of the vast contributions that such permanent residents have made to their adopted home. How is the nation well served when we presume that a citizen does not intend the consequences of a potentially expatriating act while denying the LPR his or her right to rely upon the very same presumption? What reason is there to believe that a US citizen is more invested in keeping citizenship than an LPR in preserving the green card? Do we seek to punish the lawful permanent resident for retaining original loyalties and not taking that one, final, fateful step signifying that they have truly become one of us, making our cause their own?
So long as the green card holder has not violated our laws, or otherwise subjected themselves to justifiable removal, no public interest is advanced when the law refuses to shield permanent residents from involuntary loss of status. Our liberties are not made more secure, our federal coffers do not swell with more tax dollars, our enemies are not chastened nor our friends reassured from such an anomalous state of affairs. The genius of the American constitutional arrangement, that which has provided it with the equipoise so prized in times of crisis, lies in its ability to give all those affected by its operation a stake in society. As Professor Alexander M. Bickel taught us in Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), the value of citizenship is most authentically reaffirmed when the rights of citizens are least exalted above all others. No one, LPRs included, should have to choose between loyalty to family and retention of status. The true meaning of America lies elsewhere. F. Scott Fitzgerald in The Crack-Up (1933) points the way:
France was a land, England a people but America was somehow different… It had about it still the quality of an idea…It was, above all else, a willingness of the heart.
This post originally appeared on The Insightful Immigration Blog on July 09, 2012.
Dreaming In Arizona: Can Prosecutorial Discretion Co-Exist with Show Me Your Papers?
Posted: June 27, 2012 Filed under: Blog | Tags: antonin scalia, arizona, current-events, deferred action, dream act, government, jan brewer, politics, prosecutorial discretion, show me your papers, supreme court Leave a comment »By Gary Endelman and Cyrus D. Mehta
In our blog, From Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v. Arizona?, we speculated whether the federal government’s ability to decide not to remove certain non-citizens from the US would be its trump card in Arizona v. USA, 567 U.S ___ (2012). A few days prior to Arizona v. USA, the Obama administration announced deferred action for young persons via a June 15, 2012 memorandum, which will prevent the deportation of over a million people who fell out of status of no fault of their own while Arizona’s SB 1070 aims at driving away these very people through an attrition policy. These young people who will benefit under administrative deferred action would have otherwise been eligible under the DREAM Act, which narrowly failed to pass Congress in December 2010.
We were almost correct. In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB 1070 on the grounds that they were preempted by federal law such as criminalizing the failure to carry registration documents (section 3), criminalizing an alien’s ability to apply for or perform work (section 5(c)), and authorizing state officers to arrest a person based on probable cause that he or she has committed a removable offense (section 6). On the other hand, the Supreme Court, 8-0, narrowly upheld section 2(B), the “show me your papers” law, which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”
Before we analyze the Court’s narrow upholding of section 2(B) and how it would impact the federal government’s prosecutorial discretion policies, the following extract from Justice Kennedy’s majority opinion acknowledging the federal government’s ability to exercise prosecutorial discretion is worth noting:
A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….
Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.
Arizona v. USA, supra, Slip Op. at pages 4-5.
It is indeed unfortunate that despite noting the role of the federal government in formulating immigration policy, the Court did not, at least for the moment, invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873 (1975) (Mexican ancestry on its own cannot be an articulable fact to stop a person). The Court was obviously mindful of concerns relating to racial profiling, but the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and the other provisions of SB 1070. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law as the other invalidated provisions did. All that 2(B) does is to allow Arizona police officers to determine if someone was unlawfully present in the context of a lawful stop by inquiring about that person’s status with the federal Department of Homeland Security, and such communication and exchange of information has not been foreclosed by Congress.
The question is whether 2(B) will interfere with the federal government’s dramatic new prosecutorial initiative to not deport over a million young undocumented people if they met certain criteria. The June 15 memorandum on deferred action directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).Even though the new deferred action policy has not been implemented, the memorandum instructs ICE and CBP to refrain from placing qualified persons in removal proceedings or from removing them from the US. How does this very explicit instruction to ICE and CBP officials square with Arizona’s section 2(B)? While Justice Scalia, who fiercely dissented and blasted the Obama administration from the bench, saw no need for preemption of any of Arizona’s provisions based on the federal government’s ability to exercise prosecutorial discretion, the majority, fortunately, were more mindful of this factor. Suppose a young DREAMer who prima facie qualifies under the deferred action program was stopped for jaywalking in Tuscon, and the Arizona police officer had a reasonable suspicion that her presence was unlawful, would it be reasonable for the police officer to detain this person even though she would not ordinarily be detained for the offense of jay walking? Even if the Arizona officer could query ICE about her status, how long would it take for ICE to respond? Moreover, even though she may qualify for the deferred action program, how would ICE be able to tell if there is no record of her application at all? DHS has yet to even create an application process, but it has instructed its officers from immediately refraining placing such persons in removal proceedings or removing them from the US. Even once an application is lodged, it may take weeks or months before the DHS is able to grant deferred action. While this person should not be apprehended by the federal government under its deferred action policy, Arizona could potentially hold her.
But not for long. The majority explicitly held that 2(B) should be read to avoid the hold of a person solely to verify his or her immigration status. The Court noted in connection with the jaywalker hypothetical, “The state courts may conclude that unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” Slip Op. at 22 (citation omitted). Even in a case where a person is held in state custody for a non-immigration offense, the Court cautioned that the delay in obtaining verification from the federal government should not be a reason to prolong that person’s detention. The Court also suggested that 2(B) ought to be “read as an instruction to initiate a status check every time someone is arrested…rather than a command to hold the person until the check is complete no matter the circumstances. Slip Op. at 23. This temporal limitation harkens back to the Court’s rationale for justifying warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce:
The intrusion is modest. The Government tells us that a stop by a roving patrol “usually consumes no more than a minute.” Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;”[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States. 422 US at 880.
Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided.
As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that the Administration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.
It does not require a crystal ball to imagine that 2(B), if enforced, will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action. This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.
The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption. When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated. It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.
Ed. note: More information about the deferred action (also known as “DREAM” Act) can be found here: http://www.fosterquan.com/Services/US_Immigration/DREAM_Deferred_Action/
This post originally appeared on The Insightful Immigration Blog on June 26, 2012.
Hidden Treasure: How States That Want Immigrants Can Take Advantage of Arizona v. USA
Posted: May 6, 2012 Filed under: Blog | Tags: arizona v. usa, attorney, constitution, endelman, foster, immigration, law, quan, scotus, supreme court Leave a comment »By Gary Endelman and Cyrus D. Mehta
Anyone in favor of federal preemption of state immigration laws, especially Arizona’s SB 1070, was disappointed with the way the oral arguments before the Supreme Court justices on April 25, 2012 turned out in Arizona v. USA. It appears that the core provision of SB 1070, Section 2(B), which mandates police officers to determine the immigration status of anyone they stop if they have a “reasonable suspicion” that the person in “unlawfully present in the United States” may be upheld even if other provisions are preempted. And while it is obvious that this provision would lead to racial profiling, the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and other provisions. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law. All it does is to allow police officers to determine if someone was unlawfully present by inquiring about that person’s status with the federal Department of Homeland Security. Whether this would lead to the incarceration of both citizens and lawfully present non-citizens did not seem to concern the justices as the inquiry regarding immigration status would be made in conjunction with another state offense, such as speeding or driving without a license. Moreover, even without SB 1070, the justices noted that the federal government has allowed state enforcement personnel to do much the same thing, especially through its Secure Communities program or through cooperation in the “investigation, apprehension or detention of aliens in the United States” under INA § 287(g).
The colloquy, below, between Chief Justice Roberts and Solicitor General Verrilli during oral argument gives us some insight into why 2(B) is likely to be upheld:
CHIEF JUSTICE ROBERTS: Right. So, apart from Section 3 and Section 5, take those off the table, you have no objection to Section 2?
GENERAL VERRILLI: We do, Your Honor. But, before I take 3 and 5 off the table, if I could make one more point about 3 and 5, please? The — I think -because I think it’s important to understand the dilemma that this puts the Federal government in.
Arizona has got this population, and they’ve — and they’re, by law, committed to maximum enforcement. And so the Federal government’s got to decide, are we going to take our resources, which we deploy for removal, and are we going to use them to deal with this population, even if it is to the detriment of our priorities –
CHIEF JUSTICE ROBERTS: Exactly. You — the Federal government has to decide where it’s going to use its resources. And what the state is saying, here are people who are here in violation of Federal law, you make the decision. And if your decision is you don’t want to prosecute those people, fine, that’s entirely up to you. That’s why I don’t see the problem with Section 2(B).
We hope we are proved wrong and the Supreme Court will find SB 1070 unconstitutional in its entirety, but even if we are not wrong, do not lose heart. Good things can also come out of it. Take a look at Peter Spiro’s intriguing essay in the New York Times, where he argues that even if SB 1070 stands, it will ultimately wither as Arizona, and other copycat states, will continue to hurt economically. Thus, such laws that Arizona and some states will enforce with vigor will ultimately die their own natural death. Of course, this still does not excuse the fact that 2(B), while in existence, is likely to result in mass incarcerations, while the state police inquire about each detainee’s status. One saving grace it that someone who is actually affected, such as an individual who is lawfully present, can mount another challenge based on due process and equal protection violations, rather than preemption, and this may have more of a chance to succeed. In the meantime, Spiro states, “One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.” Thus, most other states that welcome immigrants, legal and undocumented, and recognize their contributions, will deliberately not pass similar laws like Arizona’s. By not enacting similar laws, they will be competing with those states by enticing their corporations, as well as jobs, to move over.
While there are very good arguments in support of preemption, if part of SB 1070 is upheld, states that want immigrants can go even further than do nothing. For instance, a state can pass a law that encourages immigrants who reside within to apply for a personal endorsement from the state’s governor in support of a national interest waiver request, which waives the job offer and labor certification requirement, when applying for permanent residency. The state can set criteria for whom it wants to encourage, such as entrepreneurs or robotics specialists, and its governor can write a personal letter in support of their petitions for permanent residency through the federal national interest waiver pursuant to INA § 203(b)(2)(B)(i). As in Arizona’s Section 2(B), the state is not creating a new immigration category, but simply assisting the federal government to make a determination under federal law. Unlike Arizona’s SB 1070, which is premised on driving away immigrants from the state through attrition, the purpose of a state law in our hypothetical example is to encourage the immigrant to remain in that state and contribute to its economy, which in turn will benefit the national interest of the US. Indeed, we commend noted attorney Rami Fakhoury of Troy, Michigan, who is proposing such standards for Governor Snyder of Michigan to implement in order to support a national interest waiver request from a Michigan resident.
In the same vein, a state can designate certain occupations as shortage occupations, which may assist the Department of Labor in more easily certifying a labor certification pursuant to INA § 212(a)(5) of an employer filed on behalf of a non-citizen resident in the state. A state can be a more effective judge of shortage occupations than the federal government, and if a labor certification is filed on behalf of a non-citizen in that particular state designated shortage occupation, the DOL may be more influenced in making a favorable determination on the labor certification. Similarly, even with regards to an undocumented immigrant, a state may be able to enact criteria for recommending that such a person, who has otherwise not been convicted of serious crimes and is say an essential farm worker, is deserving of prosecutorial discretion by the federal government under its new prosecutorial discretion policy and thus be permitted to remain in the state and prevent its farm produce from otherwise rotting away. There may already be such authority under INA § 287(g), which authorizes the federal government to enter into a written agreement with a state to perform the function of a qualified immigration officer in relation to the “investigation, apprehension and detention” of non-citizens. In the era where the government has implemented a broad prosecutorial discretion policy, a state can assist the federal government in the “investigation,” rather than the apprehension or detention, of an individual who may merit such discretion from the federal government.
While Utah has also passed an enforcement oriented immigration law similar to Arizona’s, it contains one unique provision quite unlike any other state’s law. The Utah provision offers work permits to undocumented immigrants who pass background checks, have paid fines and can demonstrate a work history. The measure does not offer legal status or citizenship, but would allow unauthorized workers who meet its criteria to continue working in Utah. This provision also requires a federal waiver. If the Utah provision, which is currently enjoined, is allowed to go forward, in the event that the Supreme Court gives a green signal to states in Arizona v. USA, we estimate that there will be more states that will enact laws similar to the Utah guest worker provision than Arizona’s SB 1070.
There is no reason to think that it will always be punitive. Many of the progressive achievements in modern American history, such as women suffrage, popular election of senators, wage and hour laws, occupational safety, and most recently same sex marriages, to name but a select few, first appeared on the state level. The many instances where federal intervention has been necessary to protect civil rights against state abuse should not blind us to the possibility that state action can also be a force for good. Long ago, Justice Brandeis recognized that federalism offered a constitutional framework for experimentation and creativity:
To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…
New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932)(Brandeis, J. dissent)
Since the New Deal, the operating assumption in American politics has been that reform must come from Washington DC to be imposed upon the states. The growth of the imperial presidency has flowed directly and inevitably from this core conviction. This is certainly the case with immigration reform given the plenary federal power over this issue as an extension of foreign policy. The inability or unwillingness of Congress to deal effectively with undocumented migration to this country on an unprecedented level has created the impetus for state action to fill up the vacuum. We advocate that Congress must deal with this situation by creating more pathways to legal status over an enforcement only approach, which is what states like Arizona have done. Until now, such state action has been deprived of constitutional legitimacy; the Supreme Court may be ready to change that. Indeed, the first signs of this came with Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 179 L.Ed.2d 1031 (2011) when a 5-3 ruling upheld the 2007 Legal Arizona Workers Act thus transforming the power of state regulators to grant or withhold business and professional licenses into tools of immigration enforcement. Should the High Court sustain SB 1070, for the first time since the 1870’s, the states will be able to take advantage of a constitutional regime that not only tolerates but welcomes their presence and invites their participation. Of course, Congress can also deal with states legislating on immigration by expressly preempting such action, but one will need to wait for that day to happen.
Those who think immigration is good for America will then have to find a way to review and revise their most basic assumptions on the nature of American reform. There is a way to make lemonade out of lemons. Even now, not all state and local action has been negative. Utah is but one such example. Look and you will find others. Congress may not have passed a federal Dream Act but California and Illinois have done precisely that on the state level. Maryland too adopted its own Dream Act in 2011 and the Maryland Supreme Court will soon decide if this measure must go to a voter referendum this fall. In his most recent state-of-the-city address, New York City Mayor Michael Bloomberg vigorously supported a Dream Act for New York State, though Governor Cuomo has yet to declare his position. 12 states now grant in-state tuition rates to undocumented students. Texas, California and New Mexico provide financial aid to undocumented students. If we look north to our neighbor, Canada, its provinces have considerable influence in Canada’s immigration policy. An intending immigrant to Canada will get a preference if he or she meets certain requirements of Quebec province, for example.
Our position on SB 1070 has not changed. We do not believe it is constitutional. We do not write to endorse a patchwork immigration system of 50 different approaches without unity or definition. The dangers of this are apparent to all and we devoutly wish that our ideas will be made irrelevant when the Supreme Court finds SB 1070 to be constitutionally impermissible. Yet, candor requires us to admit that the result may not be as we would like. Now is the time to prepare for what may come and think the unthinkable. We owe it to our clients and our country to turn a problem into an opportunity. Until now, both supporters and critics of SB 1070 have assumed that if the Supreme Court were to uphold the law, it will unleash a tsunami of copycat legislation. This may happen and it may hurt. Yet, the future often has a way of surprising us. More may emerge; the outcome could well be different than what most hope or fear. This blog points a way forward. What happens next is up to you.
This post originally appeared on The Insightful Immigration Blog.
Is It Still A Federal Case? An Unintended Consequence of Arizona v. USA
Posted: April 29, 2012 Filed under: Blog | Tags: arizona v. usa, attorney, immigration, law, lawyer, sperry v. florida, supreme court, uscis Leave a comment »By Gary Endelman
Of all the unexpected consequences of Arizona v USA, perhaps the least likely is the potential reshaping of licensure regulations for the immigration bar. So long as the states did not seek to regulate immigration, lawyers licensed in one state could practice immigration law in another, save for those jurisdictions such as California and Colorado that banned such practice. Relying on ABA Model Rule 5.5(d) and Supreme Court precedent in the case of Sperry v. Florida, 373 US 379, 383-84 (1963), immigration was a federal practice and any credentialed advocate could join in. That is why USCIS recognized this multi-jurisdiction bar in 8 CFR 292.1(a)(1) and 1.1(f). The State Department is no less courteous:
9 FAM 40.4 N12.3 Local or U.S.-Licensed Attorneys Practicing Abroad You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.
This has never been without controversy. New York makes out of jurisdiction lawyers register every two years at a $375 fee. In Texas, a solo immigration practitioner from New York State moved to Houston but did not bother to sit for the Texas bar exam. She was not given a Texas-size welcome; the Unauthorized Practice of Law Committee of the Texas State Bar sued her, expressing a concern for the integrity of the Texas family and penal code as well as the potential harm to Texas residents. Ultimately, the case was dropped. See John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right to Practice, 18 Tex. Law. 24. (2002); Gregory Siskind, New York Immigration Lawyer Wins Battle to Practice in Texas, Immigration Daily available here. For those who want a deep dive into the delicacies of this controversy, see the wonderful article by Charles Kuck and Olesia Gorinshety as well as the masterful insights provided by Cyrus Mehta.
The exemption from state bar rules depends upon dealing exclusively with federal law. Can this easily or always be done? That is the concern voiced by Texas Ethics Opinion No. 516:
Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federal law in the area of immigration and nationality law before the U.S. Immigration and Naturalization Service and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out-of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law…However, the committee recognizes that the foregoing assumptions do not resolve all unauthorized practice of law problems presented in this question. As a practical matter, it simply may not be possible to separate federal and state law issues when representing clients on matters under the U.S. Immigration and Nationality Act. Representing clients on immigration and nationality law may require an out-of-state attorney to know and advise such clients on issues and matters involving Texas law. For example, Texas law governing family matters such as marriage, divorce and adoption may be determinative in certain immigration cases; likewise, immigration law questions may necessarily involve giving advice on Texas criminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging in the unauthorized practice of law in Texas inevitably increases with the number of immigration and nationality cases handled by an out-of-state attorney. http://www.law.uh.edu/libraries/ethics/opinions/501-600/eo516.pdf
This is where SB 1070 comes in. If the Supreme Court finds that Arizona can use its retained police powers to regulate and punish conduct by and the presence of undocumented immigrants, then it will be much more difficult to separate state from federal law in the analysis of any immigration problem,whether in Arizona or in all the other States that either have their own state immigration laws already or will be encouraged to adopt them. No longer will immigration lawyers be able to refrain, if they can now, from state law questions. Should this happen, and the lines between state and federal jurisprudence between irretrievably blurred to the point where they cease to exist, it is hard to imagine how any immigration lawyer who is not licensed in the state where they practice can avoid engaging in the unauthorized practice of law. Do we really want this? As Proverbs warns us, he “who troubleth his own house shall inherit the wind.”
Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen
Posted: February 2, 2012 Filed under: Blog | Tags: immigration and nationality act, immigration reform, obama, supreme court Leave a comment »By Gary Endelman and Cyrus Mehta
“The only valid test of leadership is the ability to lead, and lead vigorously.”[1]
As part of his emerging re-election strategy, President Obama has issued a series of executive orders designed to take action on serious national problems without support from the Congress.[2] In each case, the President has justified his actions with the rallying cry of “We Can’t Wait!” The press has taken note of this renewed executive vigor and the President’s poll numbers have begun to rise a bit as Americans are reminded once again of how powerful a bully pulpit the Presidency can be when its resources are fully engaged. One wonders if the same initiative could not produce equally dramatic results in the immigration arena. What if, for example, the President issued an executive decree that henceforth derivative family members would no longer be counted against the immigrant visa quotas, both family and employment-based? That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore equilibrium to our imbalanced immigration system.
At this point, if one files a labor certification in 2011 under the employment-based third preference for India, it will take 70 years before the green card materializes![3] The adult son or daughter who was born in Mexico of a US citizen does much better relatively under the family-based first preference, but the wait is still close to 20 years! Such a hopeless wait is simply untenable for an employer who has unsuccessfully tested the US labor market for much needed skills in short supply. It is similarly inhumane for a parent to yearn for so long to reunite with her son. Mind you, we are talking here about legal immigration, and those who rail against unauthorized immigrants accuse them for not getting into the line. But when the avenues for legal immigration are few and the lines endless, the system has broken and we are dealing with a situation, in the face of Congressional paralysis, that is going from bad to abysmal. We acknowledge that the House recently passed H.R. 3012, the Fairness for High Skilled Immigrants Act on September 22, 2011 by a landslide vote of 389-15, which if passed, will eliminate the employment-based per country limits and increase the family-based per country cap from 7% to 15%. , H.R 3012,on the other hand, will not increase the overall number of immigrant visas. While it may reduce the waiting times for China and India in the employment-based preferences, nationals of all other countries may experience backlogs, especially in the employment-based second preference. Thus, the problems of backlogs will still remain. While we acknowledge that only Congress can create more avenues for legal immigration, is there a legal basis for an interpretation that would dramatically reduce, or even eliminate, such a long wait under the EB and FB preferences? We think there is.
We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. Let us examine what INA § 203(d) says:
A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
There is nothing here that explicitly authorizes or mandates the counting of family members under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal alien, nothing requires that family members also be given their own numbers. Suppose, for example, that there is only one visa number left in a fiscal year for the EB-2 category and that the last principal beneficiary who gets this number has a spouse and 6 children. What happens to them? Ought they not be accorded “the same status and the same order of consideration?” Should only the principal become an LPR while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA § 203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA 203 § (d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.”
There is no regulation in 8 CFR that truly interprets INA § 203(d). Even the Department of State’s regulation at 22 CFR Section 42.32 fails to illuminate the scope or purpose of INA 203(d). It does nothing more than mindlessly parrot INA § 203(d). The authors recall the Supreme Court’s decision in Gonzales v Oregon, 546 US 243, 257 (2006) reminding us that a parroting regulation does not deserve deference:
Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.
It is certainly true that family members are not exempted from being counted under INA § 201(b) as are immediate relatives of US citizens, special immigrants, or those fortunate enough to merit cancellation of their removal. Yet, we note that the title in INA § 201(b) refers to “Aliens Not Subject to Direct Numerical Limitations.” What does this curious phrase mean? Each of the listed exemptions in INA § 201(b) are outside the normal preference categories. That is why they are not subject to direct counting. By contrast, the INA § 203(d) derivatives are wholly within the preference system, bound fast by its stubborn limitations. They are not independent of all numerical constraints, only from direct ones. It is the principal alien through whom they derive their claim who is and has been counted. When viewed from this perspective, there is nothing inconsistent between saying in INA § 203(d) that derivatives should not be independently assessed against the EB or FB cap despite their omission from INA § 201(b) that lists only non-preference category exemptions.
We do not claim that derivative beneficiaries are exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all, for which we do not contend, and being counted as an integral family unit rather than as individuals. For this reason, INA § 201(b) simply does not apply. We seek through the simple mechanism of an Executive Order not an exemption from numerical limits but a different way of counting them.
Other objections present themselves. Skeptics will remind us that, when Congress wished to carve out family members from a quota, even apart from INA § 201(b), it knew how to do so. Take a look at how family members of special immigrant Iraqi translators were treated. In §1244(c) of the Defense Authorization Act of 2008, Pub. L. No. 110-181, Congress explicitly stated that only principal aliens would be charged against the 5,000 visas allocated to Iraqi translators. Is this a problem? Not really since §1244 of the Defense Authorization Act of 2008 was clearly emergency legislation designed to extract Iraqi translators from a dangerous situation. The United States properly felt a moral obligation to extract these people who had worked with us and could not allow inadequate visa allotments to jeopardize lives. So §1244 is clearly sui generis. By fortunate contrast, the INA is not emergency legislation.
Another argument can be lodged in opposition to our proposal that President Obama need not wait for Congress to act. We are properly reminded that INA §§ 201(a) (1) and 201 (a) (2) mandate that “family sponsored” and “employment based immigrants” are subject to worldwide limits. Does this not cover spouses and children? After all, the definition of “immigrant” in INA § 101(a) (15) includes “every alien except an alien who is within one of the following classes of nonimmigrant aliens.” Then the rest of the subsection goes on to categorize the various nonimmigrant visa classifications from A to V. True enough but all is not lost. While the term “immigrant” under INA §101(a)(15) (a) (15) includes spouse and children, they were included because, in concert with their principal alien family member, they intended to stay permanently in this their adopted home. No one ever contended they were or are non-immigrants. However, this does not mean that such family derivatives are either “employment based” or “family sponsored” immigrants. No petitioner has filed either an I-140 or I-130 on their behalf. Their claim to immigrant status is wholly a creature of statute, deriving entirely from INA § 203(d) which does not make them independently subject to any quota.
INA § 203(d) must be understood to operate in harmony with other provisions of the INA. Surely, if Congress had meant to deduct derivative beneficiaries, it would have plainly said so somewhere in the INA. The 1952 Act has been amended numerous times for many different reasons over the years. At no point did Congress do so. Under the theory of expressio unius est exclusio alterius, it is entirely reasonable to conclude that Congress had not authorized such deduction. Surely, if this was not the case, Congress would have made its intent part of the INA. Interpreting a statute through its plain meaning trumps all other cannons of interpretation, and the following quotes from notable Supreme Court decisions are worth noting:
[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.
Rubin v. United States, 449 U. S. 424, 430 (1981).
Prior to IMMACT 90,[4] which took effect on October 1, 1991, the start of FY 1992, family members were counted against the cap but there was no explicit provision as in current INA § 203(d) granting them the same visa and “green card” status as the principal alien family member. What was the purpose then of inserting INA § 203(d)? §101(b)(3) of the House version of IMMACT 90 amended INA § 201(b) to provide that an alien “who is provided immigrant status under INA § 203(d) as the spouse or child of an immigrant under INA 203(b)” would be among the other classes not subject to numerical limitation.[5] Take a look at the Conference Report that accompanied S. 358, IMMACT 90. In the Joint Explanatory Statement of the Committee of Conference at page 121 under the title “Employment Based Immigration” we read the following:
The House amendment allocated 65,000 employment-based visas during the Fiscal Years 1992-96 and 75,000 thereafter not including numerically exempt derivative spouses and children… (emphasis added)[6]
Curiously, there is no explicit mention or discussion of what became of INA § 203(d) in the Conference Report. We next look at House Report No. 101-723 that accompanied House passage of HR 4300 on October 3, 1990. S. 358 passed in lieu of HR 4300 after its language was amended to contain much of the text of the House bill. Under the proposed HR 4300, the 54, 000 visas that were then allocated under the employment-based preference would have been capped at 75,000 principals. Those family members accompanying or following to join were not included in this cap.[7] Candor compels us to admit that the House exemption for derivatives was removed in Conference. Ultimately, Congress enacted INA 201(d) which set a numerical limit of 140,000 for EB immigrants but counting family under that expanded cap. If the House had its way, IMMACT 90 would have had a lower numerical limit of 75,000 EB numbers, but, since family members were not counted, the actual number of EB immigrants would have been higher than 140,000.[8] However, it must be remembered that the House’s intent to exclude family members only applied to the EB not Family quota.
Despite the legislative history cutting against us, it still remains a mystery as to why INA §203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT 90 quotas. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could not it be equally the case that INA § 203(d) remains as a vestigial reminder of the House’s intent that was never taken out? The purpose of INA 203(d) then would be to make sure that, even though derivatives would not be counted against an enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal?
Our proposal does not call for the President to defy the express or implied will of Congress nor do we suggest for a moment that he should act without due regard for Congressional authorization. The INA remains resolutely undecided on whether family members should be subject to an independent assessment. At a minimum, in such an uncertain situation, the President finds himself in what Justice Jackson famously called a “twilight zone” such that Congressional inertia not merely enables, but actually invites, the exercise of independent presidential authority.[9] In his famous concurring opinion, Justice Jackson reminds us, and should remind our readers as well, that, however meritorious, separation of powers it was not without limit:
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.[10]
President Obama’s demonstrated willingness to bypass the current gridlock in Congress as a way to enact economic policy should be a model for the same executive initiative as a tool for immigration reform. The creation of law by federal agencies has become the norm rather than the exception in our system of governance , if for no other reason than that the sheer multiplicity of issues, as well as their dense complexity, defy traditional compromise or consensus which are the very hallmarks of Congressional deliberation. Despite the assertion in Article I of the Constitution that “ All legislative Powers herein granted shall be vested in a Congress of the United States,” it is far from novel to acknowledge as we must that independent federal regulatory agencies also exercise legislative powers. As Justice White noted in his dissent in INS v Chadha,[11] 462 U.S. 919, 947 (1983) (White,J., dissenting) after reviewing prior cases upholding broad delegations of legislative power:
These cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without passage of new legislation. For some time, the sheer amount of law- the substantive rules that regulate private conduct and direct the operation of government- made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question that agency rulemaking is lawmaking in any functional or realistic sense of the term.
Immigration has historically been linked to foreign policy. Indeed, a core reason for the plenary federal power over immigration is precisely because it implicates real and genuine foreign policy concerns. This is another reason why the Executive enjoys wide, though not unchecked, discretion to effect changes in immigration procedures through sua sponte regulation. Indeed, it is perhaps only a modest exaggeration to maintain that the INA could not be administered in any other way: “The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”[12] Not only is it appropriate for the President to direct the formulation of immigration policy on technical issues of surpassing importance, this is the way it must be; this is what the Constitution expects. In perhaps the most famous judicial exposition of the need for pragmatic presidential initiative, we end our advocacy in confident reliance upon the still cogent observations of Chief Justice John Marshall in McCulloch v. Maryland.[13]
To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
The situation will not improve on its own. If anything, it is going to get worse. Why? The longer it takes to get a green card, the older adjustment of status or immigrant visa applicants will be, and the result will inevitably be an increase in the number of spouses and children who will take an increasing share of the green card pie.[14] Rather than easing, the problem will worsen as more immigrant visa deductions per adjustment of status case simply clog the arteries of the priority date system to the point where it can no longer function. The haunting lyrics of Paul Simon would then become the anthem of the priority date system as the holy grail of a current priority date becomes ever more elusive:
Slip sliding away
Slip sliding away
You know the nearer your destination
The more you’re slip sliding away,[15]
Not only would this serve as a brake against lawful permanent admissions from visa backlogged countries but, additionally, the numbers of naturalized citizens from these same sending nations will also be artificially depressed. Not being able to become lawful permanent residents in the numbers that would otherwise be theirs if dependents were not deducted translates into a loss of naturalization eligibility on a massive scale. This silent though no less insidious process will shape the political character of the American electorate in ways that we can now only dimly anticipate.
While modest recent EB-2 advances for China and India are certainly welcome, they result largely from EB-1 overflow and do not disguise the continued structural drag on the natural progression of priority dates resulting from the continued independent counting of derivatives. The degree to which this represents a modern version of the infamous national origins quota remains very much of an open, though enormously troubling, question.
All of this could be profoundly affected should the Senate follow the House of Representatives and, over a three-year period, eliminate per country caps on employment-based immigrant visas and raise the per country limit on family-based cases from 7 to 15%. Is HR 3012 the answer to systemic visa regression? Ironically, this is the brainchild of Tea Party favorite Representative Jason Chaffetz (R-Utah), a freshman who won his House seat by knocking off six-term Congressman Chris Cannon in a Republican primary that revolved around Cannon’s attempts to solve the problem of undocumented immigration. Senator Mike Lee from Utah, who unseated long-time Utah Senator Robert Bennett in 2010 for being too moderate, introduced an identical bill in the Senate. The “Fairness for High-Skilled Immigrants Act,” S. 1857, was introduced on November 10, 2011. It has been referred to the Senate Committee on the Judiciary. While there seems widespread support for this bill in the Senate, Iowa Republican Charles Grassley, known principally for his crusade against the H-1B, has placed a hold on the bill so it is uncertain whether or when the Senate will act.
It is anticipated that removal of per country caps on employment-based migration would drastically reduce, perhaps eliminate, the green card backlogs for EB-2 advanced degree holders from China and India while significantly reducing EB-3 waiting times. Since HR 3012 would not be totally effective until October 1, 2014, most of the anticipated benefits should be felt with regard to future submissions, not pending cases. What is far less certain is the impact on the rest of the world. This is because HR 3012 does not create any new immigrant visas so that reductions in time for India and China may come at the expense of greater delays for natives of all other countries. . There are more optimistic assessments, however, from the National Foundation for Immigration Policy. Any estimates are highly speculative since the Visa Control Office within the Department of State has far more reliable statistics concerning I-140 consular processing than the I-140 caseload at the Nebraska or Texas USCIS Service Centers where the vast majority of demand is felt. Ironically, if waiting for Godot becomes a global concern rather than just a Chinese or Indian problem, the impetus for comprehensive immigration reform may acquire powerful new momentum.
A cursory review of recent history does provide possible reason for cautious optimism. Prior to January 1, 2005, the EB numbers were always current because the American Competitiveness in the 21st Century Act (“AC 21”) recaptured 130,000 numbers from 1998 and 1999. Per Country limits were postponed under a formula until EB demand outstripped supply. So, despite the surge of 245(i) cases, the lack of per country limit did not cause the system to seize up and stop.[16]
If HR 3012 eliminates much of the EB backlog for India and China without replacing it with an equally long queue for the rest of the world, then the problem of counting derivatives will lose much of its salience. It will be downgraded from a fundamental flaw to a minor annoyance. If, however, EB backlogs continue to stretch from here to eternity, then not much would have changed and the tyranny of priority dates will remain. As of this writing, no one knows whether or when Congress will act nor what the final shape of any new law will be. We must be ready for change but plan for more of the same.
Since there is no national consensus that will prompt or allow Congress to expand the immigrant quotas themselves, unless we are willing to watch this slow death in silence, the President must act on his own and is not prevented from doing so under the INA. Doing so will double or triple the number of available green card numbers without the creation of a single new visa. The waiting lines will disappear or be dramatically reduced Any discussion of possible executive action must consider the possibility that Congress will address the issue on its own. This is certainly to be preferred. We are properly reminded of what the Supreme Court taught in Lorillard v. Pons:[17]
So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.
Since derivatives have always been counted under the INA, Congress can be presumed to know that. H.R. 3012 provides an opportunity for Congress to address this issue. Neither the House nor Senate version of H.R. 3012 does so. What lesson do we draw from such silence? One such would be that Congress did not intend to disturb this prior practice. Another is that H.R. 3012 deals only with removal of per country EB caps and upward revision of per country family based percentage. The issue of not counting derivatives is simply outside the contemplation of the Congress at this time. In order to clarify this ambiguity, we urge Congress to seize this moment to state plainly that derivatives should not be counted against the immigrant visa cap. Out of an abundance of caution, and to allow full opportunity for legislative consideration, the President should defer any executive action until Congress has had an opportunity to amend the bill in this fashion. But patience, while a virtue, is not without limit. Should the Congress not act, the need for the President to step forward remains. You are perfectly correct Mr. President- we cannot wait. As the Great Rabbi Hillel asked:” If not now, when?”
Footnotes
[1] John F. Kennedy: Address of Senator John F. Kennedy Accepting the Democratic Party Nomination for the Presidency of the United States – Memorial Coliseum, Los Angeles, available at http://www.presidency.ucsb.edu/ws/ index.php?pid=25966#ixzz1e7mJzTBf (last visited Dec. 20, 2011)
[2] See e.g Obama uses orders to bypass Congress, Financial Times, October 31, 2011, available at http://www.ft.com/cms/s/0/6a5a3f66-03d2-11e1-bbc5- 00144feabdc0.html#axzz1h0MtZ5Nu (last visited Dec. 20, 2011).
[3] See Stuart Anderson, Waiting and More Waiting: America’s Family and Employment-Based Immigration System, National Foundation for American Policy Brief, October 2011, available at http://www.nfap.com/pdf/WAITING_NFAP_Policy_Brief_October_2011.pdf (last visited Dec. 20, 2011).
[4] Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat.4978 (1990).
[5] H.R. 4300, 101st Cong. 2d sess. (1990); available at http://thomas.loc.gov/cgi-bin/query/z?c101:H.R.+4300 (last visited Dec. 20, 2011).
[6] H.R. Rep. No. 101-955, pt.2, Sec. 121(1990).
[7] H.R. Rep. No. 101-723(I), Title I, Subtitle A (1990).
[8] Former Congressman Bruce Morrison (D-Ct), the House floor manager for IMMACT 90, told the authors on August 31, 2009 that there is no basis in IMMACT 90 to argue that dependents should be exempt. He does say that the House bill HR 4300 would have exempted dependents but the EB level in the House bill would have been much lower-75,000 principals multiplied by 1.5 to give a grand EB total of 187,000; however, this House proposal was rejected in Conference. The goal in Conference was to set a total number. The House conferees wanted more but former Senator Alan Simpson (R- Wyo) wanted less and did not like exemptions. Ultimately, the EB number was set at 140,000. See Informal Interview of Congressman Bruce Morrison by Gary Endelman on August 31, 2009 (on file with the authors).
[9] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J. concurring).
[11] 462 U.S. 919, 947 (1983) (White,J., dissenting)
[12] Morton v. Ruiz, 415 U.S. 199, 231 (1974).
[14] Unfortunately, the authors confirmed in a telephone conversation on November 21, 2011, that the USCIS Office of Immigration Statistics does not track the numbers of permanent resident admissions according to the size of family unit so our conclusions as to its effects are necessarily impressionistic though no less logical.
[15] Music and lyrics by Paul Simon (1977), available at http://www.paulsimon.com/us/song/slip-slidin%E2 %80%99-away (last visited 12/20/2011).
[16] See the January 1, 2005 Visa Bulletin notes that explain it all (Part D, Items 1 and 2), http://travel.state.gov/visa/bulletin/bulletin_1360.html > Archived visa bulletins > January 2005 (last visited 12/20/2011).
[17] 434 U.S. 575, 581 (1978).
Copyright 2012, Cyrus D. Mehta and Gary Endelman. All rights reserved.
This article is a revised and updated extract from The Tyranny of Priority Dates by Gary Endelman and Cyrus D. Mehta, 15 Bender’s Immigr. Bull. 469 (Apr. 1, 2010). The online version of The Tyranny of Priority Dates dated March 25, 2010 is available at http://www.scribd.com/doc/45650253/The-Tyrannyof-Priority-Dates-by-Gary-Endelman-and-Cyrus-DMehta-3-25-10.
Remembering Fleuti: New Developments in the Law of Admission
Posted: October 23, 2011 Filed under: Blog | Tags: attorney, fleuti, immigration, law, supreme court Leave a comment »By Gary Endelman
It has been a long time since the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) introduced the concept of “admission” now codified at INA Section 101(a)(13)(C) yet arguments have continued to rage as to what it means and who has the burden of proof when it comes to a returning permanent resident. Now, at long last, the Board of Immigration Appeals has brought clarity to this muddled picture, or so it seems. If the United States Supreme Court upsets this transquility, those charged with the responsibility of advising clients may once again find themselves searching for answers.
Before IIRIRA, the INA defined “entry” in these terms: ” any coming of an alien into the United States…except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if…his departure to a foreign port or place…was not intended…” 8 USC Section 1101(a)(13). This is, to put it charitably, not the most artful or easily digestible drafting so it was not clear what Congress meant. Happily, the Supreme Court told us in Rosenberg v. Fleuti, 374 US 449 462 (1963) which held that a lawful permanent resident was not making an entry if his or her departure was “brief, casual and innocent.” Comes along April 1, 1997 and “entry” a la Fleuti is no longer, replaced now by IIRIRA Section 101(a)(13)(C) “admission” pursuant to which an LPR shall not be regarded as seeking admission “unless” he or she met 6 specific criteria, including having been absent for a continuous period in excess of 180 days or having abandoned or relinquished LPR status while away. Not content to stop there, IIRIRA also introduced INA 240(c)(2), 8 USC Section 1229a(c)(2) that requires an applicant for admission to prove by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.” The burden is on the applicant for admission to demonstrate “clearly and beyond doubt” that he or she is not inadmissible. At the same time, IIRIRA also lowered the burden on the government as the charging party in removal proceedings to establish deportability b y “clear and convincing” evidence replacing the “clear, unequivocal and convincing” evidence test articulated by the Supreme Court in Woodby v. INS, 385 US 276,286 (1966). Following hard on the heels of IIRIRA, which did not explicitly abrogate Fleuti, the Board of Immigration Appeals held in Matter of Collado-Munoz, 21 I&N Dec.1061, 1065(BIA 1997) that “the Fleuti doctrine, with its origins in the no longer existent definition of ‘entry’ in the Act , does not survive the enactment of the IIRIRA as judicial doctrine.” Farewell Fleuti!
Has the burden of proof shifted after IIRIRA fora an LPR who seeks admission to the US? If so, what burden applied? It is true, after all, that Woodby was not a constitutional decision and did not create a separate law on abandonment as opposed to all deportation cases. As my learned colleague Cyrus Mehta and I wrote in “Home Is Where The Card Is: How to Preserve Lawful Permanent Status In A Global Economy,” 13 Bender’s Immigration Bulletin 849,856 notes 37-41 (July 1, 2008), even after IIRIRA, both the BIA and the Circuit Courts continued to place the traditional burden on the government when the applicant has a colorable claim to LPR status.
Enter Matter of Benno Rivens, 25 I&N Dec. 623,625(BIA Oct. 19, 2011) which settles the matter or should unless the Supreme Court unsettles it, but more on that disturbing possibility later. Keep reading! In Benno Rivens, the Board of Immigration Appeals tells us what we all wanted to hear ( unless of course we work for CBP!) : ” As a matter of first impression with respect to the application of section 101(a)(13)(C) of the Act,we find no reason to depart from our longstanding case law holding that DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seekind admission.” Interestingly, the Board cites Matter of Huang, 19 I&N Dec. 749, 754(BIA 1988) which, in turn, had cited Woodby even though Congress eleced not to include the phrase ” unequivocal” in IIRIRA INA 240(c)(3)(A). Did this omission mean a lesser standard? The BIA has ” no occasion to determine whether, or to what degree, this has effected a substantive change.” Benno Rivens, 25 I&N Dec. at 626. Now that is frustrating, maybe even a tad annoying. Would not we all like to know ?
So what’s not to like? Isn’t this enough even for a disgruntled yet zealous advocate? Allow me to introduce Vartelas V. Holder, 620 F.3d 108 (2d Cir. 2010), cert. granted Sept. 27, 2011 (No. 10-1211). Here, an LPR had pled guilty in 1994 to the crime of possessing or making counterfeit securities. At that time, IIRIRA had not yet been enacted. How is IIRIRA relevant here? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the 2nd Circuit both ruled that the application of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same issue reached by the 9th Circuit in Camins v. Gonzales, 500 F. 3d 872 (9th Cir. 2007) and the 4th Circuit in Olatunji v. Ashcroft , 387 F.3d 383(4th Cir. 2004). Perhaps to resolve this conflict among the different circuits, the Supreme Court has granted certiorari to review this narrow question of whether the current INA 101(a)(13)(C)(v) can be applied retroactively. Doubtless, the conceptual framework that will shape its analysis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 US 244( 984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a0(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor in question “reasonably relied.” Interestingly, IIRIRA’s temporal effect cannot be circumscribed simply because ”it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Landgraf, 511 US at 269. When in doubt, retroactivity is not favored. Chang v United States, 327 F.3d 99,920 (9th Cir. 2003). The Supreme Court said it best: ” Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expecations should not be lightly disrupted.” See Landgraf, 511 US at 265.
As that immortal baseball philosopher Leroy Satchell Paige so wisely said: “Don’t look back. Something might be gaining on you.”
Gary Endelman
