THEY STILL HAVE THEIR DREAM: LAWSUIT AGAINST DREAMERS WILL GO NOWHERE

By Gary Endelman and Cyrus D. Mehta

“The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King

As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by disgruntled ICE agents further reveals the misguided hate against a most vulnerable and sympathetic immigrant population in the US – young  people who entered the US before they turned 16, and who are not in a lawful status through no fault of their own.

The lawsuit, Crane v. Napolitano, has been filed by 10 ICE agents in a federal court in Texas who are being represented by Kris Kobach – the architect of the anti-immigrant state laws of Arizona and Alabama. It is being bank rolled by NumbersUSA, an anti-immigrant organization, which has been called a hate group. Even the head of the AFL-CIO has slammed the plaintiffs as not representing legitimate union grievances (as 9 out of the 10 plaintiffs belong to the ICE Union) but as “working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.”

The lawsuit alleges that the recent prosecutorial discretion policies enunciated in the Memo by ICE Director John Morton  and DACA command ICE officers to violate federal law. In essence, ICE officers, according to plaintiffs,  are required to remove non-citizens who are not here legally while DACA prohibits an officer from doing just that, which among other things, requires the individual to have entered the US under the age of 16;  been continuously residing in the US from June 15, 2007 until June 15, 2012, and was present on June 15, 2012;  is currently in school, has graduated from high school or obtained a GED or has been honorably discharged from the Armed Forces or the Coast Guard;  and is not above the age of 30. Also, the qualified individual should not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety.

The lawsuit invokes provisions from the 1996 Immigration Act. The complaint alleges as follows:  “8 U.S.C. § 1225(a)(1) [INA § 235(a)(1)] requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3) [INA § 235(a)(3)] which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A)  [INA § 235(b)(2)(A)] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a [INA § 240] are removal proceedings in the United States immigration courts.”

Deferred action is neither recent nor radical. Widows of US citizens have been granted this benefit. Battered immigrants  have also known its sheltering arms.  Never has the size of a vulnerable population been a valid reason to say no. Knowing this, the extension of such relief to DACA applicants is less a leap into the unknown justified by some wild, lawless ideology than a sober reaffirmation of an existing tool for remediation in prior emergencies. Moreover, many EWIs are also eligible for adjustment of status under special provisions of the law, but they are not routinely detained under INA § 235(b)(2)(A).  While they may be entitled to admission beyond a clear doubt, such a determination is not been made upon the mere filing of the adjustment application. Moreover, this argument is clearly not applicable to individuals who enter the US on a valid visa and overstay, which is the case with many DACA applicants.

Also, Kobach's lawsuit conveniently omits to mention INA § 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the Act, which in turn implies that the DHS can decide when to and when not to remove an alien. He also fails to mention INA 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 authorizes the grant of employment authorization to one who has been granted deferred action, has been around for several decades. The only new thing about DACA is that the guidance memorandum set forth criteria for the grant of deferred action, and work authorization under 8 CFR 274a.12(c)(14).  

Congress too has recognized “deferred action” in § 202(c)(2)(B)(viii) of the REAL ID Act as a status,  which can allow an alien to receive a driver’s license.  This stands in marked contrast to the stated refusal of the Republican gubernatorial quartet noted supra to allow issuance of state driver’s licenses. Texas Governor Perry apparently does not realize that current Texas law already allows deferred action beneficiaries who have an employment authorization document to get a one-year Texas license.

There is a direct conflict between these Governors and the provisions of the Real ID act that, as of January 1, 2013, will sanction issuance of state driver’s license to deferred action grantees, This has been brought out vividly in Nightmare in Arizona: Governor Brewer’s Nonsensical And Mean-Spirited Executive Order Against Dreamers, and is a classic example of conflict pre-emption that is constitutionally impermissible under Arizona v. United States, 132 S. Ct. 2492, 183  L.Ed.2d  351 (2012). Whatever state executives may think, when confronted with the expressed intent of Congress in the Real ID Act, their opposition to deferred action having state driver’s licenses must give way. State law cannot “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,  312 U.S. 52, 67 (1941). We suggest that the enemies of Dream Act relief tread softly and with great care. Gary Endelman & Cynthia Lange, The Perils of Preemption: Immigration and the Federalist Paradox, 13 Bender's Immigr. Bull. 1217 (Oct. 1, 2008).

We refer our readers to the excellent Immigration Impact blog on why Kobach and the plaintiffs will likely lose. One compelling argument that the blog makes is that the court will dismiss for lack of jurisdiction since a federal case cannot be made out of a difference of opinion between government employees and their superiors. The blog’s author Ben Winograd draws this apt analogy: “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees—or Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It’s just not how the legal system works.”

We propose further suggestions why the law suit may have no merit. We now revive the argument that we made in The Tyranny of Priority Dates that the courts will most likely give deference to the administration’s interpretation of INA provisions in the event that it grants benefits, such as work authorization, through executive action. Indeed, in the recent past, another restrictionist group filed a similar law suit against an administrative measure, which failed. In Programmers Guild v. Chertoff,  08-cv-2666 (D.N.J. 2008), the Programmers Guild sued DHS challenging the regulation extending Optional Practical Training from 12 months to 29 months for STEM (Science, Technology, Engineering and Math) students. The plaintiffs in seeking a preliminary injunction argued that DHS had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, 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 step in only when the agency’s interpretation is irrational or in error. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron,  the agency’s interpretation will also trump a judicial decision interpreting the same statute. The court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff,  338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with  “ the power to persuade.” Skidmore  v. Swift  & Co., 323 U.S. 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).   

Kobach and his clients might profitably peruse Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429 (2006) if they really want to know why they are wrong.  Writing for the Brand X majority, Justice Thomas noted that, in Chevron itself, the Supreme Court deferred to the reversal by the Reagan EPA in 1981 as to the meaning of “statutory source” in the 1977 Clean Air Act amendments. Id. at 440, n. 66.   If  Kobach does not know if the DHS has the power to act, or what the constitutional wellsprings of the DACA memoranda are, we suggest that the Supreme Court does. 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 DHS has done. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive Branch to grant employment authorization  to whomever it wants. Deferred action has also been around for decades, and Congress has been aware of this administrative benefit, which it recognized when enacting the Real ID Act. Until now, Chevron, and Brand X in particular, have been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own – at least in this law suit challenging DACA.

It is also worth mentioning that while the lawsuit may argue that 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. 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. Nativist lawyers look in vain for explicit authority in the INA that supports DACA relief. 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)

Finally, one cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA. They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself. This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion. We think this is a losing proposition. In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “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.”  Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.  Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;   inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971). The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make due. It has served us pretty well so far.

NIGHTMARE IN ARIZONA: GOVERNOR BREWER'S NONSENSICAL AND MEAN-SPIRITED EXECUTIVE ORDER AGAINST DREAMERS

By Cyrus D. Mehta

On August 15, 2012, the day that the Consideration of Deferred Action For Childhood Arrivals programs (DACA) took effect, thousands of young undocumented people lined up at legal assistance clinics with hope and joy. They got to know whether they were eligible to file an application under DACA, and by filing an application, their deportation would be deferred and they would also obtain employment authorization.

It was extremely gratifying to be an immigration attorney that day volunteering at a DACA legal assistance clinic organized by the New York Immigration Coalition, among others. I could see in the twinkle in the eyes of each potential youth applicant when told that he or she could file under DACA. That twinkle revealed a whole new world of opportunity opening up. The sky seemed to be the limit, which before the June 15, 2012 announcement was simply unimaginable.

I could not help broadcast this tweet, @cyrusmehta.com:

To see hope and joy in the faces of 100s lining up at pro bono #DACA clinic of #NYIC+ #AILA NY makes being an #immigration attorney gratifying

As I was basking in the glow of that day and returning home on the New York subway, I saw on my Twitter feed that Governor Brewer of Arizona passed a mean spirited and hateful executive order that evening. According to the executive order, since deferred action does not confer lawful status or lawful presence, the alien granted employment authorization under DACA continues to be unlawfully present, and thus cannot avail of benefits in Arizona, including a driver’s license. I love Twitter because I can instantly express my thoughts, and hopefully there is an audience. These were my new tweets, quite different from the prior exuberant one, in reaction to the horror of Brewer’s executive order:

Brewer's executive order is unlawful & wicked - there are many who are allowed to remain without lawful status. When is she being sued? #DACA

Brewer's mean spirited exec order against granting #DACA applicants AZ driver's licenses will help Obama in elections, http://bit.ly/N4LE8E

I write this blog to expand on my impetuous tweets of last evening.

First, deferred action has existed for several decades. Many have been granted deferred action, including John Lennon. Prior the announcement of DACA, non-citizens who have demonstrated extenuating circumstances, such as medical emergencies or who have lost parents, have been granted deferred action. In recent times, battered spouses, crime victims and widows/ers of US citizens have also been granted deferred action. There are other non-ctiizens who may not have lawful status but are allowed to remain in the US. These include people who are presently in removal proceedings. Even those who have been ordered removed, such as through the grant of withholding of removal (based on persecution in their home countries), can remain in the US and obtain work authorization. Moreover, due to a quirky split in jurisdiction involving arriving aliens between Immigration Court and USCIS, arriving aliens cannot file defensive adjustment applications in Immigration Court, but have to file them with the USCIS while an Immigration Judge can still order them removed. If the adjustment application is approved, they can become lawful permanent residents despite the removal order. How will Brewer’s executive order be able to differentiate between each of these categories of people who have been allowed to remain in the US?

Second, the grant of deferred action stops the accrual of unlawful presence. However, unlawful presence is different from unlawful status. Governor Brewer’s executive order does not seem to understand the difference. Unlawful presence is relevant, according to the USCIS DACA guidance, only with respect to determining whether one is inadmissible under the 3 and 10 year bars. Unlawful presence has nothing to do with status or the ability to remain in the US. There are situations when one may not be in lawful status and yet not be accruing unlawful presence since they are in a “period of stay authorized by the Attorney General.” A classic example is someone who entered lawfully as a tourist, fell in love with a US citizen and married him. She filed an adjustment of status application based on the US citizen spouse’s green card sponsorship. She is allowed to remain in the US while waiting for the green card, although her underlying tourist visa has expired. Such a person may not be in lawful status but is in a “period of stay authorized by the Attorney General” and is also not accruing unlawful presence. Governor Brewer’s executive order does not seem to have grasped any of these distinctions.

Third, in Arizona v. USA, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion. As noted in a prior blog I wrote with Gary Endelman, Justice Kennedy writing for the majority in that decision noted:

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.

Although the Supreme Court struck down all of the other provisions of Arizona’s SB 1070, it narrowly upheld 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.” The Supreme Court upheld the provision, for now, since it had not taken effect, but cautioned that a person’s detention under an Arizona provision cannot be prolonged because the state cannot readily determine this person’s immigration status.

Governor Brewer, through her executive order, has perhaps unwittingly opened up another challenge to 2(B). By not recognizing that a grant of deferred action to remain lawfully and work in the US, it will be disregarded by Arizona’s law enforcement personnel, such as by the notorious Sheriff Joe, and his troopers, when he stops a non-citizen for jay walking and suspects that a person is unlawfully present in the US. Even if this DREAMer shows Sherrif Joe an employment authorization that was issued through a DACA filing, it could be disregarded and the person’s detention could be needlessly prolonged even though the federal government has allowed this person to lawfully remain in the US and no longer considers him unlawfully present for purposes of the 3 or 10 year bar.

Finally, it remains to be seen whether Brewer’s executive order will be politically viable. The GOP may see more Latino voters flee by the November elections, and the future of the party without support from Hispanics and minorities looks grim. Moreover, the granting of status to undocumented youth under the proposed DREAM Act, with promise to do well and contribute to the US, has broad support among the American people. Governor Brewer will likely find herself on the wrong side of history, only to be relegated forever in its garbage heap.

THROUGH THE LOOKING GLASS: ADVENTURES WITH ARRABALLY AND YERRABELLY IN IMMIGRATION LAND

By Gary Endelman and Cyrus D. Mehta

“Why, sometimes I've believed as many as six impossible things before breakfast.”

― Lewis Carroll, Alice in Wonderland 

Arrabally and Yerrabelly are not characters in a children’s fantasy story book. They were the respondents in a decision of the Board of Immigration Appeals styled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which to immigration attorneys is like a fairy tale story come true. The decision is magical, and truly benefits foreign nationals who are subject to the 3 and 10 year bars even if they travel abroad.

Indeed, Arrabally and Yerrabelly, husband and wife respectively, were unlawfully present for more than 1 year. A departure after being unlawfully present from the US for one year renders the individual inadmissible for a period of 10 years. Specifically, § 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA) provides:

Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more , and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible

A companion provision, INA § 212(a)(9)(B)(i)(I) triggers a 3 year bar if the non-citizen is unlawfully present for more than 180 days and less than one year, and leaves the US prior to the commencement of removal proceedings.

The 3 and 10 year bars create a federal Catch-22. An individual who is unlawfully present cannot generally apply for lawful permanent residence in the US through adjustment of status unless he or she falls under limited exceptions. Such an individual who is ineligible to apply for a green card in the US must leave the US to process for an immigrant visa at an overseas consular post. But here’s the catch: If this person leaves the US he or she will trigger the bar and cannot return for 10 years. Thus, this person, even though approved for a green card, remains in immigration limbo.

Arrabally and Yerrabelly were unlawfully present too for more than 1 year, and would have triggered the 10 year bar had they “departed” the US. Fortunately, they were able to file Form I-485 applications for adjustment of status under an exception, INA § 245(i), after the employer’s I-140 petition got approved. § 245(i), which expired on April 30, 2001 but which could still grandfather someone if an immigrant petition or labor certification was filed on or before that date,  allows those who are out of status to  be able adjust status to permanent residence in the US. Due to a family emergency in India, they left the US under advance parole, which is a special travel dispensation one can obtain when one is a pending applicant for adjustment of status. At issue is their case was whether they effectuated a “departure” under advance parole and thus triggered the 10 year bar.

The DHS has always taken the position that leaving the United States under advance parole effectuates a departure and thus triggers the 10 year bar under § 212(a)(9)(B)(i)(II) if the individual is unlawfully present for one year.

The adjustment of status applications of Arrabally and Yerrabelly were denied on the basis that they were inadmissible for 10 years, and were subsequently placed in removal proceedings. The Immigration Judge affirmed the DHS’s finding, but the BIA like magic reversed on the ground that their leaving the US under advance parole did not result in a departure pursuant to § 212(a)(9)(B)(i)(II) thus rendering them inadmissible under the 10 year bar. The BIA reasoned that travel under a  grant of advance parole is different from a regular departure from the US, since the individual is given the assurance that he or she will be paroled back in the US to continue to seek the benefit of adjustment of status. Thus, traveling outside the US under advance parole does not trigger the 10 year bar. Although Matter of Arrabally and Yerrabelly interpreted the 10 year bar provision under § 212(a)(9)(B)(i)(I), its logic can apply equally to the 3 year bar under § 212(a)(9)(B)(i)(I).

The decision now allows foreign nationals like Arrabally and Yerabelly, who may have been unlawfully present to travel outside the US on advance parole while their adjustment of status applications are pending without fearing the 10 year bar. But the decision opens up other amazing possibilities too. If a person is unable to adjust status by virtue of being out of status, and cannot do so under the § 245(i) exception, another exception is by adjusting status as an immediate relative of a US citizen. The spouse, minor child or parent of a US citizen can adjust status in the US even if they have violated their status. However, this individual must still be able to demonstrate that he or she was “inspected and admitted or paroled” in the United States under INA § 245(a) as a pre-condition to file an adjustment of status application in the US.  Thus, a person who enters the US surreptitiously without inspection is ineligible to adjust status to permanent residence in the US despite being married to a US citizen. Such a person may still have to proceed overseas at a US consulate for immigrant visa processing, and will need to overcome the 10 year bar through a waiver.  This would not be necessary if such immediate relative could be granted “parole-in-place” which at this point of time is only granted to spouses of military personnel in active duty. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.”  

Notwithstanding the lack of “parole in place” for all applicants,  in yet another ground breaking case, Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the BIA held that someone who presents herself at the border, but is waived through, is still inspected for purposes of adjustment eligibility. For example, a person who is a passenger in a car, and is waived through a border post at the Mexico-US border can still establish a lawful entry into the US. Matter of Quilantan can be further extended to someone who enters the US with a photo-switched fraudulent non-US passport. Such a person has also been inspected, albeit through a fraudulent identity. Foreign nationals in such situations, if they can prove that they were inspected, can qualify to apply for their green cards in the US through adjustment of status if they marry a US citizen or are the minor children or parents of US citizens.  They may however be subject to other grounds of inadmissibility, such as fraud or misrepresentation, but they can at least file those waivers with an I-485 application in the US. While it is true that in another feat of administrative innovation, the DHS has proposed that some can apply for the waiver of the 3 and 10 year bars in the US prior to their departure, this rule may not extend to applicants who are applying for an additional waiver, such as to overcome the fraud ground of inadmissibility.

Despite Matter of Quilantan, USCIS examiners during an adjustment of status interview require corroborating evidence of this admission, and may not accept only the sworn statement of the applicant regarding the manner of his or her entry into the US. They may want to actually see the photo-switched passport, which may no longer in the possession of the applicant.  Such a person may still be found ineligible to adjust status despite being inspected and admitted in the above manner under Matter of Quilantan. But if this person, after filing an adjustment of status application, left the US under advance  parole and returned to the US, he or she would be considered  “paroled” into the US and qualify for a new adjustment of status application as an immediate relative of a US citizen. If the first I-485 application is denied, he or she could file this second application where the “parole” would be a clearer basis for adjustment eligibility than the initial “waived through” or fraudulent admission.  Moreover, under Matter of Arrabally and Yerabelly, this individual would not have triggered the 10 year bar during travel under advance parole during the pendency of the first adjustment application. Travelling abroad under advance parole during the first adjustment application without triggering the 10 year bar could give an applicant a second bite at the apple in filing another adjustment application if the first one gets denied for lack of evidence of an admission. There is one caveat though. This is still an untested theory but the authors do not see why it could not be argued in the event of a denial of the first adjustment application, assuming it was filed in good faith and denied only because of lack of corroboration of the admission. Using Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.     

Matter of Arrabally and Yerrabelly can come to the rescue of DREAMers too. In our recent blog, DEFERRED ACTION: THE NEXT GENERATION, June 19, 2012, we proposed extending the holding of Matter of Arrabally and Yerrabelly to beneficiaries of deferred action. There are bound to be many who will be granted deferred action who will also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions.  As already explained, unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted and inspected, filing an application for adjustment of status to permanent residence will generally not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

Since the publication of our blog, the USCIS has issued extensive guidelines for consideration of Deferred Action for Childhood Arrival (DACA) in the form of Frequently Asked Questions (FAQ), which will take effect on August 15, 2012.  We were pleasantly surprised to find in the FAQ that those granted deferred action beneficiaries can apply for advance parole.  It is yet unclear whether one who has been granted deferred action and who has accrued unlawful presence and travels under advance parole can take advantage of Arrabally and Yerrabelly and the current FAQ does not suggest it.  At this point, a DACA applicant should assume that Arrabally and Yerrabelly will not apply, and an individual who has accrued over one-year of unlawful presence and leaves even under advance parole could face the 10-year bar.    Still, there is no reason for Arrabally and Yerabelly’s magic to not apply in this case too. Here too, the individual will be leaving the US under advance parole, which under Matter of Arrabally and Yerabelly, did not effectuate the departure under INA § 212(a)(9)(B)(i)(II). This is something worth advocating for with the USCIS as the DACA program unfolds. Obviously, USCIS will tread carefully as it is already facing criticism from opponents of the program, including members of Congress. Yet, applying Matter of Arrabally and Yerrabelly to young people who have been granted a fresh lease of life would be a logical extension.  The FAQ also indicates that the USCIS will only grant advance parole if one is travelling for humanitarian purposes, education purposes or employment purposes. Again, the FAQ does not expand on what humanitarian, education or employment purposes mean.  A deferred action beneficiary with an approved I-130 or I-140, which has become current for green card processing, can conceivably apply for advance parole based on humanitarian purposes to apply for immigrant visa at the consular post overseas.   His or her departure under advance parole, if Matter of Arrabally and Yerrabelly applies, will not trigger the 10 year bar. If this person successfully comes back on an  immigrant visa to be granted permanent residence upon admission, query whether the holding will still apply.  After all, the BIA in Arrabally and Yerrabelly contemplated a return as a parolee and not as a permanent resident.  Yet, again, just as the BIA performed magic when interpreting "departure" to not apply to those leaving the US under advadnce parole, there is no reason for the USCIS to not stretch it to a scenario where the deferred action beneficiary will leave on advance parole, thus not triggering the 10 year bar, in order to return to the US as an immigrant.  This is clearly not the current position of the USCIS as articulated in its FAQ.  The purpose of our blog is to advance interpretations that would be favorable for DREAMers down the road. 

On the other hand, Matter of Arrabally and Yerrabelly can be more readily applied to those who otherwise would not be able to adjust status if they made an entry without inspection but were immediate relatives of US citizens. Such people would not need to process an immigrant visa at a US consulate overseas if they could adjust status.  Unlike an adjustment of status applicant, a DACA applicant can file an application for deferred action even if he or she entered without inspection. If later, this applicant, now granted deferred action, married a US citizen, he or she could leave under advance parole and not trigger the 10 year bar. At the same time, he or she would have also been paroled back into the US, making him or her eligible to adjust status, which prior to the parole would not have been possible. This fact pattern clearly falls under the four corners of Matter of Arrabally and Yerrabelly as opposed to someone proceeding overseas under advance parole and returning as a permanent resident. Yet, we reiterate, at this point, it is not at all clear whether Matter of Arrabally and Yerrabelly will apply to deferred action beneficiaries who travel abroad, and they should seek the advice of competent legal counsel before they wish to apply for advance parole in order to travel. 

While DACA is clearly not designed to create a pathway to permanent residence, Matter of Arrabally and Yerrabelly can facilitate this indirectly through independent I-130 or I-140 petitions that were filed on behalf of the deferred action beneficiary. Although only Congress can change the law, the President can find new ways to expand the relief available under current law. Our proposal would relieve the Administration from the burdens of extending deferred action every two years (assuming the program lasts for that long) once the beneficiary is granted permanent residence. After all, until Congress acts to reform our broken immigration system, it behooves us to be wildly creative, even to the extent of imagining that fairy tales might become reality, like what the BIA achieved in Matter of Arrabelly and Yerrabelly. Indeed, precisely because DACA is a remedial initiative, it deserves and should be granted the most generous administration infused with the central goal of remaining true to the reasons that inspired its creation. For this to happen, we turn to the wisdom of Albert Einstein:

When I examine myself and my methods of thought, I come to the conclusion that the gift of fantasy has meant more to me than any talent for abstract, positive thinking

All we have to do is dream!