THE POTENTIAL REACH OF KHALID V. HOLDER: HOW THE 5TH CIRCUIT INTERPRETED THE CSPA AND HOW SOME OUTSIDE ITS TERRITORY MAY BE ABLE TO BENEFIT

By David A. Isaacson

In its recent decision in the case of Khalid v. Holder, the U.S. Court of Appeals for the Fifth Circuit rejected the 2009 decision of the Board of Immigration Appeals (“BIA”) in Matter of Wang. The Fifth Circuit in Khalid held that a derivative beneficiary of an immigrant petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, can under section 203(h)(3) of the Immigration and Nationality Act (“INA”) retain the priority date originally given to the principal beneficiary and proceed in the 2B preference category with respect to that principal beneficiary. That is, if your aunt or your grandfather filed a petition for your parent when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you can retain the family’s place in the priority-date waiting line as the adult son or daughter of your now-lawful-permanent-resident parent, under the 2B preference, rather than going to the back of the years-long waiting line for an immigrant visa number. The BIA had found in Matter of Wang that such priority date retention was impermissible, but the Fifth Circuit held in Khalid that this ignored the plain meaning of the statute.

In rejecting the BIA’s decision in Matter of Wang, the Fifth Circuit also rejected the decision of the Court of Appeals for the Second Circuit in Li v. Renaud regarding the same CSPA provision, criticized by this author in a previous blog post The Second Circuit had reached essentially the same conclusion as Matter of Wang by finding the CSPA to unambiguously preclude retention of a priority date “to use for a different family petition filed by a different petitioner." The Ninth Circuit in Cuellar de Osorio v. Mayorkas found the statute to be ambiguous and the BIA's interpretation in Wang a reasonable one, a conclusion also inconsistent with the Fifth Circuit's decision in Khalid.

The BIA itself had previously taken a more generous view, before changing its mind: Matter of Wang overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family petition beneficiary to retain the priority date that she previously had shared with her parent. The Fifth Circuit in Khalid found Matter of Garcia to represent the correct approach.

Additional background regarding the CSPA in general and Matter of Wang in particular, for those who are interested, can be found in an earlier article written by this author for our firm’s website. The portion of the CSPA in question, now INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

It is available online as enacted into the U.S. Code at 8 U.S.C. § 1153.

In Matter of Wang, the BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was "limited to a lawful permanent resident's son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident." Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.

As the Fifth Circuit pointed out in Khalid, however, the BIA’s finding of ambiguity ignores the internal cross-references in § 203(h) and the statute’s clear identification of the petitions to which it applies. Subsection (h)(2), entitled “Petitions described”, makes clear that INA § 203(h) as a whole applies to all derivative beneficiaries, as well as 2A child beneficiaries. Moreover, “(h)(3) expressly references (h)(1), which in turn expressly references (h)(2).” Particularly because subsection (h)(3) expressly applies “for the purposes of subsections (a)(2)(A) and (d)” just as subsections (h)(1) and (h)(2) do, there is no textual basis for excluding from the protection of (h)(3) the derivative beneficiaries under subsection (d) who are all expressly included by (h)(2). Thus, as the Fifth Circuit said in Khalid, “subsection (h)(2) directly answers the question that the BIA found that Congress left unanswered.”

The Second Circuit’s decision in Li is similarly convincingly refuted by the Fifth Circuit in Khalid. Li’s holdingthat a priority date could not be retained “to use for a different family petition filed by a different petitioner” was based on the notion that there is no “appropriate category” to convert to in the sort of scenario at issue in Li and Khalid, because there is, for example, “no family preference category for grandchildren of LPRs”. The Fifth Circuit in Khalid aptly notes that this latter criticism only makes sense if one assumes that a change in petitioners is indeed necessarily impermissible, and that no such rule against a change in petitioners appears anywhere in the text of the statute. Proceeding on this unwritten assumption does leads to the conclusion that, as the BIA held in Matter of Wang, § 203(h)(3) only protects the derivative child beneficiaries of second-preference petitions for a spouse, who were already protected by regulation—but in that case, as the Fifth Circuit noted, “the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the spouse of the burden of filing a new petition, since the conversion would now be automatic.” It is, as the Khalid court pointed out, unlikely “that this meager benefit was all Congress meant to accomplish through subsection (h)(3), especially where nothing in the statute singles out derivative beneficiaries of second-preference petitions for special treatment.” Reading the statute as it is written gives much larger and more appropriate significance to § 203(h)(3).

Beyond the legal virtues of the Fifth Circuit’s decision, however, it is worth examining the practical implications of its ruling for those who are not lucky enough to live within the boundaries of the Fifth Circuit, that is, Texas, Louisiana, and Mississippi. As Cyrus Mehta pointed out in a recent blog piece, one way for § 203(h)(3) to benefit many more outside of the Fifth Circuit would be for Attorney General Eric Holder to issue a decision acquiescing in Khalid on a nationwide basis, just as the BIA on the Attorney General’s behalf has acquiesced in favorable Court of Appeals decisions in the past. Unless and until such action is taken, however, one question which arises is whether those who seek the benefit of Khalid may be able to obtain it through litigation even if they reside outside the jurisdiction of the Fifth Circuit.

In cases where the original beneficiary who has now become an LPR seeks to recapture the old priority date under § 203(h)(3) for their derivative son or daughter by filing a new I-130 petition, obtaining the benefit of Khalid may be difficult, at least when the parties do not happen to reside within the Fifth Circuit. Such I-130 petitions will generally be processed either by the California Service Center, which is located within the jurisdiction of the Court of Appeals for the Ninth Circuit (home to Cuellar de Osorio), or the Vermont Service Center, which is located within the jurisdiction of the Court of Appeals for the Second Circuit (home to Li). The initial filing and receipt by USCIS of an I-130 petition will usually take place at the USCIS lockbox in Chicago, within the jurisdiction of the Court of Appeals for the Seventh Circuit, which has not yet ruled on the correctness of Matter of Wang. As an initial matter, therefore, USCIS is likely to follow Matter of Wang in such cases.

If a lawsuit were filed against USCIS to attempt to force compliance with the proper meaning of INA § 203(h)(3) as found in Khalid, the statute governing venue would be 28 U.S.C. § 1391. For actions against U.S. government agencies, 28 U.S.C. § 1391(e) provides:

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

1. (1) a defendant in the action resides,
   
   
2. (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
   
   
3. (3) the plaintiff resides if no real property is involved in the action.

Leaving aside Fifth Circuit residents, therefore, such a lawsuit could only be brought in a district within the Fifth Circuit if that was where “a substantial part of the events or omissions giving rise to the claim occurred”—which is, in the case of an I-130 petition, unlikely for the reasons explained above. For those residing in a circuit other than the Fifth, Ninth, or Second – one which has not yet confronted Matter of Wang – an I-130 filing followed by litigation may still be worthwhile, but would likely have to go up to the relevant Court of Appeals to succeed.

The filing of a new I-130 petition following the adjustment of the original beneficiary, however, is not the only way to seek CSPA protection for a derivative son or daughter under the logic of Khalid. In Matter of Garcia, which the Fifth Circuit in Khalid cited approvingly, the BIA made quite clear that it was the original petition filed for the adjustment applicant’s mother that rendered her eligible for adjustment using the old priority date, after having been automatically converted to a second-preference petition. An additional petition was not necessary; Ms. Garcia was permitted to seek adjustment of status based on the converted old petition. Indeed, the Fifth Circuit in Khalid described the non-necessity of filing a second petition as the one (meager) benefit which 203(h)(3) would provide, at least in 2A derivative cases, even under the Second Circuit’s narrow interpretation. Thus, where visa numbers are available for the appropriate priority date in the 2B preference category, those seeking the benefit of Khalid’s interpretation of the CSPA should be able to simply file a derivative I-485 application for adjustment of status based on the deemed converted petition, and challenging any denial or rejection in federal court, without the intervening step of a new I-130 petition.

Derivative adjustment applications in family-based cases, unfortunately, are filed with the USCIS Chicago lockbox, within the Seventh Circuit where Matter of Wang has not been struck down, and are then generally transferred to the local office in the area where the applicant resides, which for applicants not having the good fortune to reside within the Fifth Circuit will also not be in an area definitively outside the grasp of Matter of Wang. Derivative adjustments in employment-based cases based on a pending or approved I-140 petition, however, are, at least for those living in roughly the eastern half of the U.S., filed with the USCIS lockbox in Dallas or Lewisville in Texas, and generally processed by the Texas Service Center before perhaps being sent to a local office for an interview. Specifically, the area in question includes Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia. For applicants living in those states and territories, if a derivative I-485 based on an I-140 is filed and denied or rejected based on Matter of Wang, it appears that “a substantial part of the events or omissions giving rise to the claim” will have occurred in Texas. (For those applicants in the western and midwestern states not included in the above list, sadly, their I-485 applications will go to the Phoenix Lockbox in the Ninth Circuit and perhaps then the Nebraska Service Center in the Eighth Circuit, which has not yet ruled on Matter of Wang.)

Thus, if the son or daughter of an I-140 beneficiary who would benefit from the Khalid interpretation of the CSPA, residing in one of the listed states within Texas lockbox jurisdiction, files a derivative adjustment application along with their parent’s I-140-based application without awaiting a redundant I-130 by their parent, it would appear that the rejection or denial of that application could be potentially challenged in a Texas federal district court, located within the Fifth Circuit and bound by Khalid. Such a challenge to the legally erroneous denial (or rejection) of an adjustment application by USCIS would be brought under the Administrative Procedure Act, as explained by the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005). Some other circuit courts of appeals have previously rejected the logic of Pinho, but the Fifth Circuit is not among them; the question of district court jurisdiction over legal error in the denial of an adjustment application, outside the context of removal proceedings, appears to be an open one in the Fifth Circuit.

Due to this jurisdictional uncertainty and the possibility that DHS could avoid the problem by initiating removal proceedings in the beneficiary’s home location, such an approach would be quite risky for any derivative beneficiary residing outside the Fifth Circuit who was not maintaining nonimmigrant status (and was utilizing, for example, INA § 245(i)). However, in those instances where the adult son or daughter of an I-140 beneficiary has acquired a nonimmigrant status of his or her own, and resides in the half of the U.S. that is under the jurisdiction of the Texas lockbox, attempting to file a derivative adjustment application under Khalid without an intervening I-130 petition may be an approach worth considering if visa numbers in the 2B preference category are available for the relevant priority date.

REINTERPRETING THE AUTOMATIC CONVERSION PROVISION OF THE CSPA TO HELP DREAM KIDS

By Cyrus D. Mehta

The DHS has commendably issued policies urging prosecutorial discretion in recent months recognizing its inability to deport all undocumented immigrants, and designating certain deportable deserving discretion immigrants under a low priority status. Especially noteworthy is the June 17 Morton Memo on prosecutorial discretion, which urges against enforcement of individuals who came to the US as children, and who have successfully graduated from high school or are pursuing college or advanced degrees. Although DREAM Act legislation failed in December 2010, the DHS has nevertheless announced policies that would stay or terminate the deportation of those who came to the US as children and would otherwise have qualified under this legislation to gain legal status.

While the DHS has been using administrative action to ameliorate the hardships for DREAM kids, why can’t it reinterpret a provision in the Child Status Protection Act more consistently with the statute? INA § 203(h)(3), called the automatic conversion provision, has been the subject of much litigation lately, but all this would be unnecessary if the DHS only interpreted it consistent with its plain language and allowed children who were otherwise not eligible under the age protection formula of the CSPA to automatically convert to the new category they may be entitled to and retain the priority date of the original petition.

INA §203(h)(1), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current) and the immigrant visa petition (Form I-130 or I-140) was approved, whichever came later, and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21 (even if he or she is over 21 at the time of visa availability), the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

But what if the child is not protected under this formula? The automatic conversion provision could still come to his or her assistance. This is how §203(h)(3) reads:

Retention of priority date –If the age of an alien is determined under paragraph 1 [which sets forth the age protection formula] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition

Like the facts in the latest 5th Circuit decision in Khalid v. Holder, which sensibly interprets the automatic conversion provision, assume that a non-citizen child is 11 years old when his mother’s sister, a US citizen, files an I-130 petition for his mother on January 12, 1996. By the time that the priority date becomes current under the Family Fourth preference in February 2007, the child is 22 and cannot unfortunately avail of CSPA’s age protection formula. His mother, who has now become a Lawful Permanent Resident (LPR) files an I-130 petition on November 23, 2007 for her 22 year old son under the Family 2B preference. It makes no sense for the son to wait another 8 years or longer for the Family 2B date to become current. Under the plain meaning of the automatic conversion provision, §203(h)(3), the earlier priority date of the mother’s sister’s I-130, January 12, 1996, can be retained under the new I-130 petition filed by the mother on behalf of her 22 year old son. If the priority date is retained, her son will not need to wait and can potentially adjust his status immediately under the current January 12 1996 priority date. Under the broad “grandfathering” provision of INA §245(i), since he was the derivative beneficiary of his mother’s I-130 petition filed long before April 30, 20001, he can file an application to adjust status even though he is no longer maintaining status presently.

While it is beyond the scope of this blog to explain the detailed holding behind Khalid v. Holder, and the government’s counter arguments, it is worth mentioning that the 5th Circuit cited with approval an earlier unpublished decision of the Board of Immigration Appeals in Matter of Garcia, No. A79 001 587, 2006 WL 2183654 (BIA June 16, 2006) with identical facts:

In this instance, the principal beneficiary of the original petition was the respondent's mother, who became a lawful permanent resident of the United States once a visa number became available to her in 1996. The respondent was (and remains) her mother's unmarried daughter, and therefore the "appropriate category" to which her petition was converted is the second-preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

If Matter of Garcia was followed by the DHS in 2006, there would have been no need for such expensive and needless litigation, and many thousands of children who aged out due to delays in the burgeoning backlogs under the family and employment preferences would have been permanent residents today. Unfortunately, three years later, in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA reached the opposite result and disregarded Garcia under the rationale that the automatic conversion provision, §203(h)(3), only affirmed limited conversions acknowledged by regulation. For instance, 8 C.F.R. § 204.2(a)(4) provides for “retention” of a priority date for a minor child who was accompanying or following to join a principal beneficiary parent on a second-preference spousal Family 2A petition but then turned 21 before the mother could become a LPR. Under 8 C.F.R. § 204.2(a)(4), if a child ages out prior to the parent being issued the immigrant visa, a separate I-130 petition for that son or daughter is then required, although the original priority date is retained if the subsequent petition is filed by the same petitioner. Khalid v. Holder correctly rejects Wang’s strained interpretation since §203(h)(3), reading it in conjunction with subparagraphs (1) and (2), makes reference to both second preference family petitions and derivatives of all family and employment petitions. It is thus illogical to only consider the reference to the second preference petitions, where minors have been able to retain the original priority date, and to ignore derivatives of all other employment and family petitions, even though explicitly mentioned in §203(h)(3), who can also automatically convert to the “appropriate category” and “retain the original priority date.”

Admittedly, two other circuits have come out differently. The Ninth Circuit in Osorio v. Mayorkas decided that §203(h)(3) was ambiguous and paid Chevron deference to the BIA’s constricted interpretation of this provision in Matter of Wang. The Second Circuit in Li v. Renaud, on the other hand held that the provision was unambiguous, but nevertheless reasoned the provision would only allow someone to retain the priority date to a petition that was filed by the same petitioner. Thus, in the example in Khalid v. Holder, the original petitioner was the child’s aunt, and the new petitioner is his mother, and according to the Second Circuit in Li, which David Isaacson has critically commented on in a prior blog, there could be no automatic conversion.

While it is not the purpose here to discuss the merits of the various holdings, from a policy perspective and in the spirit of the Morton memo on prosecutorial discretion, it would make sense if the Administration withdrew its opposition to a broader interpretation of §203(h)(3) and followed Khaled v. Holder across the country. Currently, Khalid v. Holder is only binding within the 5th Circuit, which comprises Mississippi, Texas and Louisiana. To achieve this, Attorney General Holder would have to issue a new decision reversing Matter of Wang, and consistent with Matter of Garcia and Khalid v. Holder. The Attorney General, through the BIA, has done this before and can do it again if there is truly a will to implement policy consistent with the Morton memo. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). Of course, if the government still wants to contest, this matter is ripe for review in the Supreme Court due to splits within the circuits, but one questions the wisdom of the government in further contesting this issue when it otherwise supports prosecutorial discretion for DREAM kids.

REFLECTING ON 9/11 AFTER 10 YEARS AS AN IMMIGRATION ATTORNEY

By Cyrus D. Mehta

In the spring and summer of 2001, and the days just prior to September 11, 2001, things were not going so badly for immigrants. Although the Section 245(i) deadline of April 30, 2001 had expired, hundreds of thousands of people had managed to file their applications before the deadline to hopefully benefit from this provision and ultimately adjust status in the US even though they were in the US unlawfully. A week before September 11, Presidents Vicente Fox of Mexico and Bush were in serious negotiations on an immigration deal that would have granted benefits to undocumented immigrants, especially those from Mexico. In the same week, on September 6, 2001, a compromise was reached between the Senate and the House (the Senate had earlier passed its version) to extend the Section 245(i) provision to April 30, 2002, which would have allowed those unlawfully in the US to adjust status, albeit under more limited terms.

It was on that beautiful crystal clear Tuesday morning, September 11, just as I was leaving my Manhattan apartment for the office, worried about an impending deadline for an immigration case that a neighbor told me that a plane had crashed into the first tower. I went back home, and saw the second plane crash into the second tower on my television set. Before one could realize the horrific extent of the calamity that tragically killed just under 3,000 people, the towers came crashing down. It was difficult to realize then as I watched agape with horror how much would change for me as an immigration lawyer. I was the Chair of the Committee on Immigration and Nationality Law of the New York City Bar, and our next meeting was scheduled on September 13. I decided we should go ahead with the meeting and not call it off. It was important to have this meeting as our work was cut out, and I prepared remarks for the members of the committee. On September 12, it was important to send a loud and clear message that immigration was completely separate from terrorism. This became the most critical mission for the immigration lawyer and it remains so even ten years later.

Less than ten days after September 11, the Executive under Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism. I remain surprised that not more noise has been made about this. As all this was happening, I wondered whether immigrants caught in the post 9/11 sweeps were being subjected to the same treatment as Japanese-Americans who had been interned after the Pearl Harbor attacks. Were not certain immigrants after 9/11 being broadly profiled in the same way under expanded powers in the name of national security as Japanese-Americans after Pearl Harbor? Was this another dark period in American history, and would we ever learn history’s lessons?

As if this were not enough, the Bush Administration implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen. Special Registration confirmed my worst fears that race and religion were being used as proxies for individualized suspicion and guilt. In the end, Special Registration did not catch a single terrorist or make our country safer. Instead, it separated families, created more burdens on the government to administer the program, and in the end special registration was disbanded because it was a colossal failure.

The INS was dismantled and folded into the Department of Homeland Security bureaucracy. A new agency within DHS, Immigration and Customs Enforcement (ICE) came into being, which continues to expand and deport immigrants with even greater zeal. Databases got integrated, and fingerprints of all visitors needed to be taken at ports of entry. Visa interviews became mandatory and visa grants got delayed due to security checks. Many of the delays were needlessly caused due to the fact that one’s name matched a name in the humongous government database.

Yet it is a testament to the power and clout of immigrants that the basic underlying architecture of American immigration law did not change after September 11. There were no drastic cutbacks in visa quotas or categories. People continued to receive nonimmigrant visas and green cards. Foreign students continued to come to study at US universities of all stripes. The practice of immigration law continued in the same way. The only difference was that everything was seen through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse would only be approved after every aspect of the spouse's information was extensively checked against error-prone national data bases.

While the immigration system was left intact, including the draconian provisions from the 1996 immigration law, the September 11 attacks unfortunately prevented it from being improved and to keep pace with globalization. The 245(i) extension that was about to happen the week before September 11 never saw the light of day. The deal that was made between Presidents Bush and Vicente to legalize the status of millions of productive undocumented immigrants was put into cold storage. The immigration system continued to break, and then crash, but Congress was never interested in fixing it, perhaps based on a subconscious fear that immigration equated to terrorism. The immigrant visa preferences remain hopelessly oversubscribed resulting in waits lasting more than a decade. The H-1B cap limit of 65,000 has never been expanded, save for an additional measly 20,000 under a special advance degree cap. Several efforts to achieve Comprehensive Immigration Reform in Congress have failed. The last effort to pass the DREAM Act in December 2010 also failed. Even business immigration, which can spur growth and more jobs, has gotten bogged down because of national security concerns. There are admittedly other forces also at work. The sluggish economy, along with joblessness, can also serve as a disincentive for immigration reform, along with nativist backlash. But the main bogeyman has been national security, largely as a result of the trauma caused by the 9/11 attacks. Various states are competing with each other to pass laws that will punish suspected immigrants who are not in lawful status. And then there is the combustible mix of Islamophobia and Xenophobia, which got unleashed nearly 10 years after September 11.

I was all set to move downtown prior to September 11, 2001 to spanking new offices, and when the attacks happened, I did not break my new contract and moved in the hope that the area would get rejuvenated, and the immigration system would too. It took a long time for downtown to break itself from the doom and gloom of 9/11, but it did. Today, it has become a vibrant and bustling neighborhood with attractive restaurants, and I see each day with some joy the new World Trade Center rising like a phoenix, along with many other residential towers along with the opening of swanky new restaurants and shops. After ten years, I fervently hope that the immigration system will also break itself free from the shackles of the September 11 attacks. I yearn for a new immigration system like the new WTC that will invigorate the economy and attract the best from all over the world like we did before September 11. I also hope for an immigration system that will recognize the dignity of the individual and restore due process.

GOING BEYOND THE POLITICS OF DISCRETION IN THE AMERICAN IMMIGRATION SYSTEM

By Gary Endelman and Cyrus Mehta

The ability of whether the President can use discretion in the immigration arena has become the flavor of the month. The announcement by the DHS on August 18, 2001 under which 300,000 individuals who are low priority can hope to have their cases closed and obtain work authorization was welcomed. The details about how this policy will play out are nicely explained in a Legal Action Center advisory. Although many were pleasantly surprised by this policy, within days of the announcement even advocates for immigration reform have become skeptical about whether this policy will have a dramatic and far reaching impact. Obama supporters have even gone so far to accuse the Obama administration for mere window dressing in order to keep certain voters on his side in the next elections. Commentators such as Dan Kowalski also justifiably feel that ICE personnel will continue to ignore this policy, and choose not to exercise their discretion favorably.

While the President has his critics within the pro-immigration camp regarding his new announcement on discretion, the attempt by immigration restrictionists in Congress to blunt the June 17, 2011 Morton Memo on prosecutorial discretion when viewed in a larger context repeats an old pattern. For instance, Congressmen Lamar Smith (R-TX) and Senator Vitter have proposed a most unusual piece of legislation suitably called the HALT Act (Hinder the Administration’s Legalization Temptation Act) that will suspend all of the Administration’s discretionary relief until January 21, 2013, which is the day after the next Presidential inauguration.

Those who think the exercise of discretion will reduce enforcement or promote immigration support the concept of discretion. This is the case with the Morton Memo. The same thing happened with respect to the leaked memo to USICS Director Mayorkas - it was written to allow for remediation through executive fiat without the need for Congress to act and it was leaked to prevent this from happening. However, when the policy question appears to reinforce narrow interpretation and make strict enforcement more likely, then the antagonists switch sides and the pro-immigration camp seeks to curb discretion. Skeptics who fear ICE over-reaching often counsel clients to avoid signing up for the IMAGE program precisely because the exercise of discretion by ICE will, in reality, prove both invasive and punitive.

What is lost in all this is an open and honest discussion of the place that discretion has in the American immigration system separate and apart from the substantive issues or ideological positions at stake. In an increasingly complex, hyper-technical system, the need for discretion as a way to make intelligent choices seems more open and obvious than ever. In light of the possibility of more than a decade long backlog in the Employment-based Second and Third Preferences, for persons born in India and China, we provided in The Tyranny of Priority Dates, a dispassionate approach for the exercise of discretion to ameliorate the plight of those caught in the backlogs. The entrenched positions and mutual recriminations that characterize relations between all major interest groups makes such a disinterested dialogue virtually impossible. Consequently, the system becomes increasingly rigid and ever more incapable of responding in a meaningful and effective way to new challenges and emerging opportunities.

The Doris Meissner Memo on Prosecutorial Discretion and Letter from Assistant Attorney General Robert Raben to Congressman Barney Frank (available on AILA Infonet at Document # 00020771, Feb. 7,2000) both dealt with concerns by immigration advocates that the Illegal Immigration Reform and Responsibility Act of 1996 had deprived the legacy INS of the fundamental authority to grant discretionary relief; in each case, it was not the presence or absence of discretion that was of primary concern to critics who sought clarification and reassurance but rather the ability to obtain the substantive relief that Congress had seemed to put out of reach.

Both critics and defenders of discretion often convey the subliminal but powerful message that discretion is the polar opposite of enforcement. Restrictionists oppose discretion because they oppose the substantive relief that discretion makes possible. Advocates promote discretion not because they accept the need for more intelligent or targeted enforcement, but because they hope that its vigorous exercise will make any enforcement less likely.

The point is that whether discretion is good or bad depends upon whether one supports or opposes the short-term end result to which discretion is presumed to lead. A detached, disinterested examination of how discretion will affect the larger national interest or the fundamental heath and rationality of the system itself is, sad to say, conspicuously absent.

The Immigration Policy Center has published a report on the historical role of the Administration in exercising discretion. This paper provides the example of the implementation of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), which provided relief, but unequal treatment, to Nicaraguans, Cubans, Salvadorians and Guatemalans. Nicaraguans and Cubans were allowed to adjust their status without preconditions, while Salvadorians and Guatemalans were thrown the gauntlet to demonstrate extreme hardship if removed from the US. While advocates demanded the same standard to apply for Salvadorians and Guatemalans as NACARA sought to apply for Nicaraguans and Cubans, which the then Clinton Administration correctly stated it could not do under the legislation, the Administration compromised through subsequent regulation, and through use of judicious discretion, by softening “extreme hardship” for Salvadorians and Guatemalans through the creation of a rebuttal presumption standard.

The exercise of discretion by the Clinton Administration after the passage of NACARA is a good example of how this exercise was used judiciously to achieve a compromise between competing interests. Moreover, the use of discretionary administrative action is no stranger to immigration policy, and previous efforts to administratively correct hardships or imbalances were implemented without a whisper. Deferred Action has been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. A USCIS memo, issued on June 15, 2009, provided extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries could request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow (er) who was married less than two years at the time of the citizen’s death to apply for permanent residence. The USCIS has also implemented “parole in place” for spouses for military personnel who would otherwise not be eligible for adjustment of status if they were unable to demonstrate that they were admitted or paroled into the US.

It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system, the Administration can exercise discretion, devoid of ideology, to remedy the imbalance. In the context of the recent August 18 policy announcement about closing the cases of low priority respondents in removal, people on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 12 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it would be wiser for the Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US under the August 18 policy, even if it does not go all the way, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans.