SHABAJ V. HOLDER: HAS THE COURT OF APPEALS FOR THE SECOND CIRCUIT SPLIT WITH THE THIRD CIRCUIT ON JUDICIAL REVIEW OF CERTAIN USCIS APPLICATION DENIALS? WHAT SORT OF JUDICIAL REVIEW OF USCIS LEGAL ERRORS REMAINS AVAILABLE?

By David A. Isaacson 

On January 15, 2013, the Court of Appeals for the Second Circuit issued a precedential decision in the case of Shabaj v. Holder, No. 12-703.  Paulin Shabaj, the plaintiff in the case, had come to the United States in November 2000 with a false Italian passport and sought asylum.  His asylum application was ultimately denied, but while in asylum-only proceedings before an immigration court, he had married a U.S. citizen in July 2005.  Although USCIS determined Mr. Shabaj’s marriage to be bona fide and approved his wife’s I-130 petition, it denied his application for a waiver under INA § 212(i) of his inadmissibility due to his previous fraud, and denied his related application for adjustment of status.  Mr. Shabaj filed a lawsuit in the U.S. District Court for the Southern District of New York, challenging the determination of the USCIS Administrative Appeals Office (AAO) that he had failed to demonstrate that his wife would suffer extreme hardship if he were removed from the United States.  The Second Circuit, in its recent decision, affirmed the District Court’s decision that it lacked jurisdiction to review this denial, even though Mr. Shabaj asserted “that CIS’s decision to deny his section 212(i) waiver application was erroneous as a matter of law.”  Shabaj, slip op. at 4.

As the Second Circuit indicated in Shabaj, there is a specific provision in the second subparagraph of section 212(i) stating that “[n]o court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver [of inadmissibility] under paragraph (1).”  8 U.S.C. § 1182(i)(2).  There is also a more general provision regarding judicial review of discretionary relief, 8 U.S.C. § 1252(a)(2)(B), which provides that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under” various sections of the INA providing for discretionary relief, including INA § 212(i).  Shabaj sought to rely on the exception provided by 8 U.S.C. § 1252(a)(2)(D) that preserves jurisdiction over “constitutional claims or questions of law,” but the Second Circuit rejected this argument because § 1252(a)(2)(D) applies to “constitutional claims or questions of law raised upon a petition for review filed in an appropriate court of appeals”; Shabaj had raised his arguments about the denial of his § 212(i) waiver not in a petition for review (his earlier petition for review from the Visa Waiver Program removal order against him having been denied previously, see Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010)), but in a suit before the district court.  Thus, because Shabaj, having participated in the Visa Waiver Program with his false Italian passport, was unable to seek to reopen his removal order and file a new petition for review, he could not obtain judicial review of the asserted legal errors in the USCIS denial of his § 212(i) waiver and adjustment application.

At first glance, there might appear to be a conflict between Shabaj and the decision of the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005).  Gummersindho Pinho, the plaintiff in that case, had been arrested and charged with three counts relating to possession of cocaine and intent to distribute it.  His application for New Jersey’s “Pre-Trial Intervention” (PTI) program was rejected because of a subsequently invalidated policy “against accepting into PTI any defendant against whom there was a viable case for possession with intent to distribute drugs at or near a school”,id. at 196, and in 1992 he pled guilty topossession of cocaine. He then sought post-conviction relief in 1997 based on the ineffective assistance of his criminal defense counsel.  At the hearing on Pinho’s ineffective-assistance claim, pursuant to prior discussions between Pinho’s then-counsel and the state prosecutor, it was explained that Pinho had been accepted into PTI, and his conviction was vacated and the charges dismissed.  Nonetheless, Pinho’s 2000 application for adjustment of status was denied by the then-INSon the theory that his 1992 guilty plea met the INA definition of a “conviction” despite having been vacated, rendering him inadmissible and ineligible for adjustment of status.

Pinho was not placed in removal proceedings, and so sought review of the denial of his adjustment application through a lawsuit in District Court “seeking a declaratory judgment that the denial of his adjustment of status was arbitrary, capricious and unlawful because his vacated state conviction should no longer be a bar to his eligibility for adjustment.”  422 F.3d at 198.  Despite the statutory bar on review of discretionary decisions, including the denial of an application for adjustment of status under INA § 245 (which is specifically mentioned among the types of discretionary relief covered by § 1252(a)(2)(B)), the Third Circuit found that the District Court had jurisdiction over this suit.  As the Third Circuit explained:

It is important to distinguish carefully between a denial of an application to adjust status, and a determination that an immigrant is legally ineligible for adjustment of status. This distinction is central to the question of subject-matter jurisdiction, and is easy to elide. Indeed, such distinctions are crucial to administrative law generally; the framework of judicial review of agency action that has evolved over the past half-century is grounded in a sharp distinction between decisions committed to agency discretion, and decisions, whether ‘ministerial’ or ‘purely legal,’ governed directly by the applicable statute or regulation. . . . Whatever the label, our case law distinguishes between actions which an agency official may freely decide to take or not to take, and those which he is obligated by law to take or not to take. In the case of adjustment of status, an eligible immigrant may have his application denied within the discretion of the agency. But the immigrant's eligibility itself is determined by statute. To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.
. . . .

Determination of eligibility for adjustment of status — unlike the granting of adjustment itself —is a purely legal question and does not implicate agency discretion. . . . . The determination at issue here is precisely such a determination: whether under the applicable statutory language as interpreted by the BIA, Pinho was “convicted” so as to render him ineligible for adjustment of status. This is a legal question, not one committed to agency discretion.

Pinho, 422 F.3d at 203-204.  That is, the Third Circuit found that a District Court had jurisdiction over the claim that Pinho had been found ineligible for adjustment of status based on a legal error, even outside the context of removal proceedings.  At first glance, this would seem to reach the opposite result as Shabaj, under analogous circumstances.

The jurisdiction of the Second Circuit includes New York, Connecticut, and Vermont, while the jurisdiction of the Third Circuit includes New Jersey, Pennsylvania, and Delaware, as well as the U.S. Virgin Islands.  If there is a split between the Second and Third Circuits on this issue, therefore, it would mean that adjustment applicants in New York would have less access to judicial review than adjustment applicants in New Jersey.  There may, however, be a way to read Shabaj and Pinho in harmony with one another.

Although it is not entirely clear from the decision in Shabaj what sort of legal error was alleged, there does not seem to have been any dispute that Mr. Shabaj required a waiver of inadmissibility due to his past fraud, or that his U.S. citizen wife was actually his wife and was actually a U.S. citizen.  Rather, the dispute was over whether he had sufficiently established that his wife would suffer extreme hardship if he were removed—a decision that the Second Circuit had held to be discretionary, see Camara v. Dep’t of Homeland Sec., 497 F. 3d. 121 (2d Cir. 2007).  In Pinho, on the other hand, the dispute was over whether Mr. Pinho was inadmissible at all.  The disputed determination of eligibility for adjustment in Pinho was, one might say, logically prior to the discretionary decision on the ultimate adjustment application, while the disputed determination of hardship in Shabaj was itself one that is deemed discretionary.

In the context of § 1252(a)(2)(D) jurisdiction over constitutional claims and questions of law raised on a petition for review, it is possible for a reviewable legal error to exist even within a discretionary determination, if the adjudicating authority has used an incorrect legal standard or has committed some other legal error in making the discretionary determination.  In Pareja v. Att’y Gen., 615 F.3d 180 (3d Cir. 2010) (in which this author was counsel for the petitioner), for example, the Third Circuit found jurisdiction to hold that the agency could not consider the petitioner’s number of qualifying relatives as a factor necessarily weighing against her ability to establish exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal under INA § 240A(b)(1)(D).  Similarly, the Second Circuit in Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009), found that the agency had made an error of law in its determination of exceptional and extremely unusual hardship “where . . . some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized,” id. at 323.  Shabaj may stand for the proposition that the sort of legal error at issue in Pareja or Mendez, which is a part of the hardship analysis or other discretionary analysis, cannot be the basis of a lawsuit in district court; this is not necessarily inconsistent with the idea that a legal error like that at issue in Pinho, which is part of an eligibility determination logically prior to the discretionary analysis, can be the basis of such a lawsuit.  One could certainly argue with some force that the Pareja/Mendez type of error should also be cognizable in district court, on the ground that the agency has no discretion to commit a legal error of any sort, but there is a potential distinction between the two sorts of legal error that could allow one to read Shabaj and Pinho as consistent with one another.

In any event, whether or not one reads Shabaj to conflict with Pinho, it is at least clear that Shabaj should not prevent judicial review of USCIS denials of petitions or applications that are not made discretionary by statute.The decision to deny an immigrant petition for a relative or prospective employee (an I-130 petition, I-140 petition, or I-360 petition for a religious worker), for example, is not discretionary, because INA 204(b) states that the Attorney General “shall” approve the petition if he determines that the facts in the petition are true, and the alien for whom the petition is filed is an immediate relative as defined by statute or is eligible for the requested preference.  (This decision is normally now made by the Secretary of Homeland Security and her delegates within USCIS, although a BIA decision on an administrative appeal regarding an I-130 petition is still under the authority of the Attorney General.)  Thus, district courts have jurisdiction to review the denial of such petitions, as has been held in such cases as Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009);Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008); and Soltane v. U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004).  Similarly, district courts should have jurisdiction to review denials of H-1B and other nonimmigrant visa petitions, as described in an earliest post on this blog by Cyrus D. Mehta, because the decision on those petitions as well is not specified by the statute to be in the discretion of the Attorney General: INA § 214(c)(1) states that “the question of importing any alien as a nonimmigrant under [various subparagraphs] shall be determined by the Attorney General, after consultation with appropriate agencies of the government, upon petition of the importing employer.” In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court made clear that only decisions actually declared discretionary by statute can be immunized from judicial review, superseding some earlier Court of Appeals decisions which had suggested that decisions made discretionary by regulation could also be immune from review.  (At least one such pre-Kucana decision, CDI Information Services Inc., v. Reno, 278 F.3d 616 (6th Cir 2002), had refused on that basis to review the denial of an H-1B application for extension of stay.)

In addition to not precluding judicial review of denials of petitions or applications that are not explicitly made discretionary, Shabaj may not preclude judicial review of a USCIS denial of a discretionary waiver or adjustment application when the denial relates to an applicant who at that time or subsequently is the subject of an otherwise reviewable order of removal, even if the discretionary waiver or adjustment denial comes from USCIS rather than the immigration courts and the BIA—as could happen with many “arriving aliens” whose adjustment applications fall outside immigration court jurisdiction.  As the Shabaj opinion explained in footnote 4:

Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.

Shabaj v. Holder, slip op. at 6 n.4.  The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order,to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

Even if an arriving alien is already the subject of an order of removal when their adjustment application or related waiver application is denied by USCIS, it should be possible to seek judicial review of that denial despite Shabaj, so long as there is no order under the Visa Waiver Program (or at least no valid order, since such orders are sometimes issued in error and can then be set aside on a petition for review).  As previously explained in an article by this author on our firm’s website, denial of an adjustment application made by an arriving alien against whom an order of removal is already outstanding could be analogized to the denial of an asylum application by an applicant who has been ordered removed under the Visa Waiver Program.  In both cases, the denial of the outstanding application enables the removal of the applicant, even though the denial is in some technical sense not a removal order.  Thus, just as the Second Circuit has found jurisdiction over a petition for review of the denial of an asylum application in asylum-only proceedings because such a denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006), it should find jurisdiction over a petition for review of the denial of an adjustment application by an arriving alien against whom there is a final order of removal.  Alternatively, under Shabaj footnote 4, it may be possible for such an arriving alien to seek reopening of the removal proceedings to pursue such an arriving-alien adjustment application, which would presumably be denied under Matter of Yauri, 25 I&N Dec. 103 (BIA 2009) (in which the BIA held that it would not reopen proceedings for an arriving alien to apply for adjustment before USCIS because such reopening was not necessary to allow adjustment), and then petition for review of the denial of reopening and seek review of any adjustment or waiver denial in the context of that petition.

HOW VIABLE IS THE POINTS SYSTEM?

By Felicia Zeidman

Editor's Note: While we will soon be deliberating about the merits of various proposals to comprehensively reform the US immigration system, the Canadian-based points system may be proposed as it was part of earlier comprehensive immigration reform proposals, especially the 2007 compromise Senate bill. Under existing US immigration law, an employer generally sponsors a foreign national based on a need and is required to test the US labor market through labor certification.  This week, guest blogger Felicia Zeidman will examine Canada’s points assessment and explore whether it can fit into a US immigration reform proposal. One of the criticisms of the points system is that it  fails to match the prospective immigrant to an employer, and there are cases of many Ph.Ds ending up driving taxis. The question, however, is whether employability should be the sole determining factor or whether it should assess the immigrant's overall ability to successfully adapt in the new country?  Ms. Zeidman is a U.S. and Canadian-licensed lawyer practicing from New York and New Jersey, and can be reached at  646 789 2224 or in Canada at 416 459 8958, email Felicia_Zeidman@visaserve.com

Canada maintains immigration legislation with an objective to pursue the social, cultural and economic benefits of immigration. The method of achieving this goal is consistently being tweaked by policy-makers and legislators and subject to collected data that will shape the type of immigration Canada will seek in any particular period. While Canadians might argue about the assessment of data and what conclusions should be drawn from it for the creation of current policy, the background ethos of the nation includes a strong gratitude to the waves of immigration that arrived and successfully built sectors of industry while influencing all manner of next-generation development. These background factors in policy-making will not strike Americans as particularly unique and are grounded in common 19th and 20th century experiences in the U.S. and Canada. This article will discuss the 'points test' of the Canadian immigration procedure, the likes of which is not utilized in U.S. immigration practice and provides an illustration of how procedure, if not policy, between the two heavily industrialized nation-neighbours is in fact different.

Canada has utilized a points system for the partial assessment of certain classes of applicants in its recent immigration programs. A points system breaks down what are perceived to be the most important of the applicant's abilities so that the his/her overall likelihood of success – both for his/her own integration and the meeting Canada's needs – can be determined. The more points an applicant gets, the stronger his/her application. The system awards point for age, with more points awarded for youthful workers; it awards points for education; it awards points for language ability; work experience; a job offer; and similar experiences of a spouse. Most recently the points system was an integrated part of the federal skilled worker program, building on the requirement that a worker be in one of 29 particular occupations, with a year of experience in the profession. The federal skilled worker program awarded permanent residency before the individual even landed on Canadian soil, a significant benefit which will be referenced later in this article.

In addition to the professional experience requirements of the federal skilled worker program, the applicant had to score 67 points on the test out of a possible 100, without any one element of the test absolutely requiring achievement, and officer discretion was available should an applicant score under 67 points. The 67-point rule made some difficult-to-accomplish test elements (getting a job offer, for instance, which garnered 10 points) possible to abrogate by achieving high points in another part (perhaps taking all 24 points available for language ability in English and French). Some parts of the test were in practice nearly impossible to abrogate, as points for education and age, for example, were such a large percentage of the overall test.

It should be noted the points system is likely being revamped as is Canada's federal skilled worker program which encourages the immigration of certain professionals. Over the last decade, the program has gone from relying entirely on a points assessment to requirements that the applicant also be experienced in a certain profession. The federal skilled worker program has been altered several times over the last few years, and this year is no different as the program has been 'closed for renovation' since July 2012 with an opening date of May 2013. Announcements from the government have clarified that the revamped federal skilled worker program which opens in May will include, amongst others, a renewed emphasis on youthful workers, language ability of the applicant and spouse, and in-Canada experience. It is unknown whether the points test will continue to be a central assessment tool but the concept of stressing certain factors does appear to remain.

A U.S. Immigration lawyer would label the Canadian system outlined above as 'self-sponsorship'. This is because the U.S. System does not have a program that includes a points and professions test in order to find an individual immigration-worthy; an individual seeking to immigrate to the U.S. without relying on family sponsorship is most likely to rely upon very high-level expertise or in-country, ongoing work experience. (The overall procedural distinctions are for another article). It can be argued that the Canadian system, where it relies on points, assesses a more raw potential in applicants: age; education; language; experience. How do we ferret out elements of the U.S. System that might include assessments similar to a points test? We look at the elements of the points test as they are embedded in an individual's capacity for and achievement of ongoing employment. In other words, insofar as professional experience and education (awarding many points on the Canadian test) has made a potential immigrant employable, he/she can proceed down the employment and perhaps the permanent residency paths of the United States.

The Canadian assessment is larger-scale. In the Canadian assessment, being employable is a significant element of the points test; one needs to consider only that it is part of the federal skilled worker program assessment. However, the federal skilled worker is awarded permanent residency before the individual lands on Canadian soil, so it makes sense to integrate raw potential for overall success in and contributions likely to Canada. For example, the spouse's adaptability factor may not impact job success, but it is part of the points test because it impacts overall family adaptability. An age assessment of under 50 will not be important for many potential jobs, but it is a significant part of the points test because it will impact on Canada's future work force and the test is meant to bring in younger workers.

This is the interesting part about the integration of a points test. It doesn't have to be strictly related to any one class of immigration and can be part of a much larger policy. Although many would argue that employment and employability are the most critical factor in an immigrant, and there are dozens of Canadian immigration programs which are indeed employment-driven, the points test takes into elements outside of success at any one job and seeks to bring an immigrant with overall likelihood of success and contribution capacity. The question for policy-makers is whether or not this larger assessment fits in with the country's immigration practice.

 

THE IRRELEVANCY OF ANTI-IMMIGRATION MOVEMENTS

By Cyrus D. Mehta

America has been founded on the noble notion of welcoming immigrants. Even the American Declaration of Independence cites this as one of the failings of England’s monarch King George III, and thus a justification for the revolution: “He  has endeavored to prevent the Population of these States; for the purpose obstructing the Laws of Naturalization of Foreigners, refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.” George Washington loftily viewed the United States as “an asylum to the oppressed and the needy of the earth.” 

Yet, there has always been an historical ambivalence towards immigrants. After each group of immigrants settled in the new country, they pulled up the draw bridge and felt that newcomers would not be as worthy as them. Thus, anti-immigration movements have always existed throughout the nation’s history and continue to exist today through groups such as Federation of American Immigration Reform, Center for Immigrant Studies and NumbersUSA. Individual anti-immigration leaders such as Kris Kobach, the architect of the Arizona and other restrictive immigration state laws, have also existed from time immemorial. This is the bad news. Anti-immigration groups and leaders will continue to exist.

The good news, however, judging from history, is that each anti-immigration group or movement has never survived for too long. They soon became irrelevant while the inexorable flow of immigrants into the United States has continued and continues even today. America’s greatness has been the triumph of immigrants who have gone on to benefit the country over the forces that have opposed them.

The Staff Report of the Select Commission On Immigration And Refugee Policy, US Immigration Policy And The National Interest (1981), provides a vivid glimpse of the anti-immigration movements from the past. I draw liberally from this report to make my point.  Between 1830 and 1860, when there was virtually unrestricted immigration, 4.5 million immigrants arrived into the United States. Amongst them were Irish and Germans who were Catholic, and there was an over simplified view that Catholics would never be good citizens as they were beholden to the Pope and subject to the orders from the church. Samuel Morse, well known as the inventor of the telegraph and Morse code, was also a nutty xenophobe, who warned:

How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

This is the time when political parties such as the Know Nothing movement emerged with the objective of preventing foreigners from participating in national affairs. One of the pamphlets of the Know Nothing party warned:

It is notorious that the grossest frauds have been practiced on our naturalization laws, and that thousands and tens of thousands have every year deposited votes in the ballot box, who could not only not read them, and knew nothing of the nature of the business in which they were engaged, but who had not been six months in the country, and, in many cases, hardly six days.

Yet, immigrants kept on marching into the US. After the Civil War, the demand for labor increased and about 2.5 million Europeans came each decade from 1860-1880. During the 1880s, the number doubled to 5.25 million and another 16 million immigrants entered over the next quarter century. The Germans and Irish were by now assimilated, and the Know Nothing party had disappeared, but newer immigrants became the scapegoats as they appeared more foreign than the older immigrants. Jews and Italians became the targets of accusations that they could never become 100 percent Americans. A leading sociologist of his time Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.” Towards the end of his life, Ross moved away from these views.

Hardworking Chinese immigrants were also accused of never being able to assimilate. Indeed, similar to Arizona today leading the anti-immigrant movement against the influx of Mexicans in recent years; in 1876, a California State Senate Committee described the Chinese as follows:

They fail to comprehend our system of government; they perform no duties of citizenship..They do not comprehend or appreciate our social ideas…The great mass of the Chinese…are not amenable to our laws…They do not recognize the sanctity of an oath.. 

In 1907, when the flow of immigrants reached a high water mark, Congress appointed the Dillingham Commission, which premised its work on racist theories of superior and inferior people, and that the newer immigrants from southern and eastern Europe were not capable of becoming successful immigrants. The Dillingham Commission concluded, somewhat similar to the rationale for the existence of today’s anti-immigrant organizations (although without the blatant racist overtones that cannot be expressed in a more politically correct era):

• 20th century immigration differed markedly from earlier movements of people to the United States;
• The new immigration was dominated by the so-called inferior peoples – those who were physically, mentally and linguistically different, and therefore, less desirable thaneither native-born or early immigrant groups; and
• Because of the inferiority of these people, the United States no longer benefited from a liberal immigration admissions policy and should, therefore, impose new restrictions on entry.

The anti-immigration movements and commissions from the 19th and early 20th centuries have been completely discredited, and reading some of their diatribe against the immigrants from those days makes one hold one’s nose. 2013 promises to herald immigration reform. After the reelection of President Obama in 2012 based on support from the burgeoning Latino population and other minorities, it has dawned upon even some opponents of immigration about the need to reform the broken immigration system thus blunting some of the rhetoric of the anti-immigration groups. As our elected representatives go on with their deliberations to propose reform legislation, they will continue to be pressured by today’s KnowNothings with their false view that today’s immigrants cannot assimilate and will undermine America. If history is any guide, be sure that today’s anti-immigration groups, along with their views on immigration, will likely become irrelevant as their counterparts from yesteryears. A group that exists solely to hate, fear, suspect and create negative attitudes about certain people cannot last for too long. Indeed, it is the views of those who stood up against the anti-immigration forces that have held up through the passage of time, and will continue to remain more forceful and triumphant.

In conclusion, Lincoln’s letter to Joshua Speed in 1855 when he was wrongly accused of being a member of the Know Nothing party is worth noting:

I am not a Know-Nothing. That is certain. How could I be? How can anyone who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we begin by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes." When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty-to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

USCIS ISSUES PROVISIONAL WAIVER FINAL RULE: BEGINNING IN MARCH, SOME WAIVERS OF THE 3- OR 10-YEAR BARS MAY BE SOUGHT BEFORE DEPARTING THE UNITED STATES

By David A. Isaacson

One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States.  It has been a long wait for the final rule, as USCIS needed to allow time to receive public comments (one of which was submitted by our firm) and then took a substantial amount of time to analyze the comments and determine what changes to make to the proposal, but the wait is finally over.USCIS first announced the final rule and made an advance copy available on January 2, 2013, and the final rule was officially published in the Federal Register on January 3.  The rule will take effect on March 4, 2013, and sometime before then USCIS will publish the Form I-601A that is to be used to apply for a provisional waiver. 

The provisional waiver rule does not change the substantive standard that one must satisfy in order to obtain a waiver of the 3- or 10-year bar that one incurs upon accruing more than 180 days or a year of unlawful presence respectively.  In order to obtain a waiver of the 3- or 10-year bars under section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA), it is always necessary to show that the waiver applicant’s spouse or parent, who is a U.S. citizen or Lawful Permanent Resident (LPR) of the United States, will suffer extreme hardship if the applicant is not permitted to remain in the United States.  However, under the new rule, certain applicants will be able to make this showing before they depart the United States to apply for a visa, which should dramatically shorten the amount of time that they need to spend abroad.  If an applicant is seeking a waiver of the 3- or 10-year bars based extreme hardship to a U.S. citizen qualifying relative (rather than an LPR), and has an approved petition as an “immediate relative” of a U.S. citizen – that is, as the U.S. citizen’s spouse, parent, or unmarried child (under the age of 21 while taking into account the Child Status Protection Act, although only applicants age 17 or older may seek provisional waivers and younger applicants would not need them because unlawful presence for these purposes does not accrue until age 18)– then the applicant may seek a provisional waiver before departing from the United States, and only go abroad to apply for an immigrant visa after the provisional waiver has already been issued.  This process is subject to various restrictions, some of which are discussed further below, but that is the basic idea. 

By allowing some waiver applications to be adjudicated while the applicant remains within the United States, the provisional waiver process should significantly reduce the period of time when the U.S. citizen relative of a successful waiver applicant is subject to the cruel irony that inheres in the current process.  Under the current system, where the waiver application is filed while the applicant is abroad after an immigrant visa interview, and the applicant then remains abroad during the months it takes to adjudicate the waiver application, the qualifying relative must undergo months of the very same extreme hardship that the waiver is intended to avoid!  At least with regard to U.S. citizen qualifying relatives of applicants who are immediate relatives of U.S. citizens, and who face no other ground of inadmissibility besides unlawful presence, this new provisional waiver process should remove much of that cruel irony.  It should also encourage applications by some waiver applicants who were unwilling to travel outside the United States to apply for a waiver because of the risk of long-term separation if the waiver were denied. 

One detail to keep in mind is that the U.S. citizen relative to whom extreme hardship is shown in a provisional waiver application need not necessarily be the same U.S. citizen relative who has petitioned for an applicant.  Indeed, the U.S. citizen petitioner need not even be a possible qualifying relative for the 212(a)(9)(B)(v) waiver.  A child is not a qualifying relative for purposes of obtaining a waiver of the 3- or 10-year bars, but an applicant who is sponsored by a U.S. citizen son or daughter over twenty-one years of age, and thus qualifies as an immediate relative, would be able to qualify for a provisional waiver if he or she could show extreme hardship to a U.S. citizen parent in the event that the applicant were not allowed to return to the United States-- even though a U.S. citizen parent cannot sponsor an adult son or daughter as an immediate relative.  Or, an applicant with a U.S. citizen spouse, who cannot show that his or her spouse will suffer extreme hardship if the applicant is not allowed to return to the United States, could instead obtain a provisional waiver by showing that a U.S. citizen parent will suffer extreme hardship in the applicant’s absence.  

Another important detail, which has been changed from the proposed rule, is that applicants in removal proceedings will be able to seek a provisional waiver if their proceedings are administratively closed and have not been recalendered.  Administrative closure, most recently addressed by the Board of Immigration Appeals (BIA) in Matter of Avetisyan, is a process in which a case is taken off the active calendar of an Immigration Court or the BIA without actually being terminated; one might compare it to an indefinite continuance of the case.  Traditionally, it has occurred with the consent of the Department of Homeland Security (DHS), although Avetisyan allows for it to be sought without DHS consent, a possibility which might prove useful in the provisional-waiver context.  Administrative closure has often occurred recently in the contextof the DHS exercise of prosecutorial discretion in favor of those who are lower priorities for removal so that DHS can focus its efforts on removing those who are its higher priorities for removal, such as those with serious criminal convictions—the process discussed in a June 17, 2011 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton.It is admirable that USCIS realized, upon reviewing comments on the proposed rule, that no purpose would be served by denying the opportunity to apply for a provisional waiver to those whom ICE is not actively seeking to remove in any event. 

One interesting consequence of this new eligibility for those with administratively closed removal cases relates to the process created by the Court of Appeals for the Second Circuit in its October 16, 2012 opinion entitled In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit.  The Court of Appeals for the Second Circuit, in order to avoid having to spend court time unnecessarily reviewing a removal order in cases where ICE would anyway not seek to execute the order, has created an automatic 90-day waiting period during the processing of petitions for review (although one which can be ended early by either side) to allow for discussion of whether the exercise of prosecutorial discretion is appropriate.  In cases where the Office of Immigration Litigation that is representing the government on the petition for review determines in consultation with ICE that a case is low-priority and suitable for the exercise of prosecutorial discretion, the case will be remanded to the BIA for administrative closure.  Thus, at least in the Second Circuit, and perhaps in other Circuits which may come to follow the lead of the Second Circuit, some who have already received final orders of removal, but who would be eligible for a provisional waiver absent such final order and have petitioned for review of the order, should be able to return their case to an administratively closed state under the new process and then apply for a provisional waiver. 

In another positive development, the final rule has retreated somewhat from the initial USCIS position that the provisional waiver process would only allow for what one might call a single bite at the apple, permitting neither appeal nor re-filing, so that an applicant who was denied a provisional waiver could only proceed with the process by departing from the United States and re-applying for a conventional waiver from abroad.  Although an administrative appeal is still not available, an applicant whose application for a provisional waiver is denied will be permitted under the final rule to file a new application (with the appropriate filing fee). 

Not all the news from the final rule is good news, however.  Unfortunately, despite the urging of many commenters, the provisional waiver process will not be available to those who are currently in removal proceedings, unless their proceedings have been administratively closed and not recalendared.  It will also not be available to those who are currently subject to a final removal or deportation or exclusion order—even though those subject to such orders have long been able to file a stand-alone I-212 application for advance permission to reapply for admission prior to departure from the United States, under 8 C.F.R. § 212.2(j).  Unless those subject to a final order can get the case reopened and administratively closed (as for example could be possible on remand from a Court of Appeals), it appears they will need to follow the conventional waiver process from abroad, despite the resulting hardship to qualifying relatives. 

The provisional waiver process also will not apply to those who are inadmissible for reasons other than the 3- or 10-year bar resulting from previous unlawful presence.  Although the above-mentioned previous post on this blog, and our official comment submitted to USCIS along the same lines, advocated that provisional waivers should be available in contexts such as alleged fraud for which a waiver is needed under INA section 212(i), USCIS chose not to accept that suggestion.  However, USCIS has held out the possibility of perhaps extending the provisional waiver process to other contexts once it has had a chance to observe how the initial, narrower version of the provisional waiver process works in practice. 

Another restriction worth noting is that the provisional waiver will not be available to those who have already been scheduled for an immigrant visa interview as of January 3, 2013.  The key question is not when the interview was scheduled to take place, or whether the applicant attended the interview, but whether the Department of State’s National Visa Center (NVC) had already acted to schedule a consular interview by January 3.  If the NVC had scheduled a visa interview by January 3, the provisional waiver process will not be available.  If the NVC had not acted to schedule an interview by January 3, then the subsequent scheduling of an interview will not remove one’s eligibility for the provisional waiver, although in the interest of efficiency prospective waiver applicants with a case before the NVC are advised to notify the NVC of their intent to seek a provisional waiver before an interview is scheduled.  The NVC has already begun sending emails to some prospective visa applicants advising them that they must inform the NVC of their intent to seek a provisional waiver, by sending an email to NVCI601A@state.gov, and that failure to do so would delay the visa application. 

For additional background on the final provisional waiver rule, interested readers may wish to review posts about it on the “AILA Leadership Blog” of the  American Immigration Lawyers’ Association and the “Lifted Lamp” blog of Benach Ragland LLP.  The New York Times has also reported on the new provisional waiver rules.  Despite all of its imperfections, the final provisional waiver rule is a very positive development, an important step along the road of reducing unnecessary hardship to the qualifying relatives of waiver applicants.