AMERICA’S ROLE IN SYRIA AFTER THE CHEMICAL WEAPONS ATTACK AND IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

After hearing about the horrific killing of civilians in Syria in a chemical weapon attack, President Obama stated:  “We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.” The United States may resort to this military action alone, even though Britain has backed out, although France too believes that there must be a serious deterrent to discourage the use of chemical weapons again. The potential use of force against another country brings up the specter of Iraq, when we went to went to war on false information that Saddam Hussein had weapons of mass destruction. This time it is different. There is conclusive proof of a chemical weapons attack, and it is sad to see images of rows of bodies of innocent children, which was most likely perpetrated by the Assad regime in Syria.

Still, people are legitimately questioning America’s role and whether it is legal for America to use force without a Security Council resolution. It is a foregone conclusion that Russia, which is a steadfast ally of the Assad regime, will veto any proposal in the Security Council to militarily intervene through a UN force to protect the Syrian people from future chemical weapon attacks. The United States, along with France, is attempting to assert and develop a new legal doctrine to bypass the Security Council, which is that a country can use force to protect the citizens of another country that have been killed, such as in the Syrian chemical weapon attack.  They use the recent example of NATO’s use of force during the Kosovo crisis in 1999 and bypassing the Security Council in the face of a Russia veto, that prevented Milosevic from further slaughtering the Albanians, and which resulted in his downfall. Today, Serbia is a member of the European Union and Kosovo is an independent country. Kosovo is a successful example of countries intervening through force to stop a humanitarian disaster. On the other hand, the world stood by when there was genocide of unimaginable proportions in Rwanda.

No matter what people think, but America still remains the superpower and is expected to lead the rest of the world during such a crises. America will never win universal admiration as a superpower and it will make terrible mistakes, like the Iraq invasion, whose specter still haunts us and inhibits countries today from intervening in the affairs of another sovereign state even in the face of an actual chemical weapon attack that has resulted in the slaughter of thousands of innocents (including 400 children) like insects killed by pesticide.

If America, as a superpower, continues to play the role of a cop in world affairs by virtue of its superpower status, it will have more moral legitimacy to do so if it embraces people from the world through a humane and compassionate immigration system.  It is a system that allows immigrants to quickly integrate and become part of America regardless of their nationality, religion or ethnicity. Even though our immigration system is presently broken and does not permit all deserving people to become legal, American has not en mass deported its 10 million undocumented immigrants.   The world would much rather prefer America as a superpower that embraces immigration than a rising superpower such as China, which may not in the same way as America. In the same vein, if America is trying to develop a new international legal norm, which is the right to protect people and bypass the moribund Security Council, even if one does not agree whether use of force is the only way to protect, America will have more legitimacy to do that if it is still looked upon as the beacon for hope through its immigration system.  

At the dawn of the American Republic, Thomas Paine in Common Sense rightly and most proudly proclaimed that “the cause of America is in a great measure the cause of all mankind.” In this fateful hour of decision, with history and our conscience the only sure guide, surely the reverse must be true.  From the time that Thomas Jefferson in the Declaration of Independence attacked King George III for interfering with immigration, since the first Congress enacted the Naturalization Act of 1790, our immigration system has been a symbol of what kind of a people we are and what manner of nation we seek to become.  The many ideological grounds of exclusion in the 1952 Immigration Act eloquently reflected the anxieties and prejudices of the Cold War.  The abolition of the national origins quota in 1965, passed the same year as the Voting Rights Act, testified to the nation’s belief in the promise of equality for all. The Refugee Act of 1980 was the embodiment of our continued commitment to the preservation and promise of America as a refuge for the persecuted and the oppressed. The Immigration Act of 1990 by tripling the number of employment-based visas and creating the national interest waiver reflected a growing national realization that participation in a global economy required an enhanced readiness to accept and admit the best and the brightest from all nations regardless of nationality. An American that readily  embraces immigrants from around the world will be more likely to better understand the world. 

Therefore, while the Obama Administration and Congress are involved with Syria, they must not lose focus on Comprehensive Immigration Reform. The Senate Bill, S. 744, which has already passed the Senate, will expand pathways for people to come to the US, and will also legalize more than 10 million people. If the House passes a similar version of S. 744, a reformed immigration system will continue to burnish America’s role in the world.  Perhaps, no other country would have legalized 10 million of its undocumented population ever, regardless of where they have come from, and put them on the path towards becoming Americans. The significance and impact of such an immigration measure would give America more moral legitimacy to speak on behalf of the world and to seek to establish new international legal norms that would protect vulnerable populations from future humanitarian disasters such as the chemical weapons attack we witnessed in Syria. Now, it is our turn to decide if our policy abroad and our actions at home will honor Dr. King’s teaching that “the arc of history is long but it bends towards justice.”

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

NEARLY 12 YEARS AFTER 9/11 APPLICANTS PERCEIVED AS MUSLIMS STILL TARGETED UNDER A SECRET IMMIGRATION PROGRAM

By Cyrus D. Mehta

After the 9/11 attacks, anything and everything concerning immigration has been viewed through the prism of national security. Even a straightforward bona fide marriage between a US citizen and foreign national spouse will only be approved after every aspect of the spouse's information is extensively checked against humongous and error-prone national data bases. In the immediate aftermath of 9/11, 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.

The Bush Administration in 2003 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.

One would like to think that in 2013, this wholesale profiling against people because of their nationality or religion would have stopped, but a little known program known as Controlled Application Review and Resolution Program or CARRP since 2008 has been targeting some  applicants who are Muslim or perceived as Muslim for immigration benefits from Arab, Middle Eastern, Muslim and South Asian communities, resulting in their applications languishing in limbo or being denied for reasons other than merit. Immigration attorneys have always suspected this all along, but thanks to the ACLU, there is now a damming report that has unearthed the workings of CARRP, which according to the ACLU is code for “Muslims Need Not Apply.”

CAARP essentially discourages the granting of an application, whether it is for citizenship or for another immigration benefit, to anyone who presents a national security concern. CAARP, an unusual acronym in its own right has engendered other peculiar acronyms and terms, many with devastating consequences for the applicant. An applicant may be identified as a national security concern if she is a Known or Suspected Terrorist (KST) or a Non-Known or Suspected Terrorist (Non-KST). A KST is someone whose name has been thrown into the over-inclusive Terrorist Watch List. One need not be suspected of terrorist activity for one’s name to be included in the Terrorist Watch List.

If the person is not a KST, then CARRP directs immigration officers to look to any other relevant sources to find whether an applicant is a national security concern, and thus a Non-KST. First, CAARP directs officers to examine the security and terrorism grounds of  inadmissibility and deportability under INA Sections 212(a)(3)(A), (B), (F) and 237(a)(4)(A) and (B) to determine whether the applicant’s association with any persons or associations can render him a Non-KST. Second, CAARP instructs that the assessment under these overbroad INA provisions do not need to satisfy the legal standard for determining admissibility or removability in order to designate an applicant as a national security concern. As a result of this directive, many Muslim applicants who may have given donations to charitable organizations that have later been designated as terrorist organizations have become national security concerns even though they did not know of the designation. Such a person cannot have provided “material support” to a terrorist organization if he or she “did not know or should not have reasonably known” of it and cannot be found inadmissible or removable. Still, CAARP allows officers to implicate applicants under these provisions as national security concerns even though they are not technically admissible or removable.

CAARP allows officers to even look beyond the parameters of these provisions through “other suspicious activities” such as unusual travel patterns, large scale transfers or receipt of funds, or membership or participation in organizations outlined in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the INA.   Finally CAARP allows officers to wander much further to look at whether the applicant has a family member or “close associate” who is a national security concern. Such a “close associate” could be a roommate, co-worker, employee, owner, partner, affiliate or friend.  

Once an applicant is designated as a national security concern, CAARP introduces another strange term, but again with adverse consequences for the applicant, called “Deconfliction.” Deconfliction means coordination between USCIS and any investigative agency, which is the owner of the national security information “to ensure that planned adjudicative activities (e.g. interview, request for evidence, site visit, decision to grant or deny a benefit or timing of the decision) do not compromise or impede an ongoing investigation.” This subjects the application to even more mind boggling bureaucratic procedures reflective of a post 9/11 paranoid national security apparatus such as internal vetting/eligibility assessment, external vetting and adjudication (aka denial).  It is not difficult to imagine that “Deconfliction” allows another agency such as the FBI to control the adjudicative process, resulting in the pretextual denial of the immigration benefit if the national security concern is not resolved. Attorneys have seen denials of naturalization applications, especially involving Muslims, where the applicant has not listed “membership” or “association” with every organization or group. The overbroad question on the Form N-400 asks –“Have you ever been a member of or associated with any organization, association, fund, foundation, party, club, society or similar group in the United States or in any other place?” It is likely that a Muslim applicant could get denied for inadvertently failing to list his association with a religious group, but a Christian applicant may not face a similar denial for failing to list her church.  

With the revelation of CAARP, attorneys can explain to clients why applications have been delayed for so long, as well as take steps to protect their clients from pretextual denials if they have been designated as national security concerns. It would be worthwhile to accompany all clients for interviews who could be potentially CAARPed as well as insist that the USCIS video tape their interviews. It is also incumbent to advise the client on how to answer the overbroad question regarding his or her membership in associations or organizations on the Form N-400 or other applications, and it is best to err on the side of caution and interpret this question broadly to also include organizations to which the applicant may have made a charitable contribution. If the client forgets to provide information at the interview, it is important to provide that information as soon as possible in order to avoid a denial based on a misrepresentation to obtain benefits. An attorney can also challenge a denial if the client was not provided adverse information prior to the denial or for not being given the opportunity to contest a CARRP determination. Finally, an applicant subject to CAARP will not only face a denial, but the government may also find a way to place her in removal proceedings or even initiate a criminal prosecution. It is important to protect the client by being familiar with her history, and to pay attention to irregularities, which even if minor and may be overlooked for others, could result in the institution of removal proceedings or criminal proceedings.

While there are still legitimate concerns regarding national security, our government should not be encouraged to use secret programs like CAARP to deny the legitimate and meritorious applications of certain people applying for citizenship, green cards and other benefits for which they are legally eligible. If there is truly a national security concern, the non-citizen should be charged with removability or inadmissibility under Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA. Moreover, it the government has evidence, it also has the tools to criminally prosecute an individual.  The reason for not doing so is that the government does not have sufficient evidence, and instead, delays or denies the application for an immigration benefit.   Such policies do not in any way prevent terrorism; rather they alienate communities and people who are aspiring to become Americans. Just like Special Registration turned out to be a colossal failure and waste of government money, CAARP too is heading that way.  The USCIS should cancel this program and ensure that all applications be adjudicated in conformance with existing immigration law, as well as adhere to basic standards of fairness and due process.  

THE LAZARUS EFFECT: HOW COMPREHENSIVE IMMIGRATION REFORM CAN SURVIVE THE HOUSE GOP AND COME BACK TO LIFE

By Gary Endelman and Cyrus D. Mehta

“The only true test of leadership is the ability to lead and lead vigorously”

President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.  

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections.  What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members.  It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party.  First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small.  It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways.  It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of  S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN.  Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or  dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of  all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized)  may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.).  Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

The President cannot grant more L-1 intra-company transferee visas but he can restore the relevancy of those that now exist by ending the war on claims of specialized knowledge. No new allowances for extraordinary ability can come through the stroke of a pen but an enlightened decision to banish the suffocating Kazarian final merits determination would give new hope to aliens who now have none but otherwise satisfy what the law requires.  Only Congress can exempt green card categories from the tender mercies of PERM but no legislative sanction is required to halt the use of audits as a tool of intimidation. The need for change should not blind us to the ample opportunities for remediation that the present law affords.  As valuable as comprehensive reform is, as badly needed as the benefits it will bring most surely are, no law will succeed if those who enforce and interpret it lack the moral courage and political will to usher in a newer world. As that fan of Tudor prerogative told us long ago in no less contentious times, “the fault dear Brutus is not in our stars but in ourselves.”

(Guest author Gary Endelman is Senior Counsel at FosterQuan)

HOW CALIFORNIA'S AB 1159 WILL HURT IMMIGRATION LAWYERS AND THEIR CLIENTS: A NEW YORK IMMIGRATION LAWYER'S PERSPECTIVE

By Cyrus D. Mehta

The California State Legislature is about to pass a bill to protect its residents from immigration fraud. The bill, which if passed will take effect on January 1, 2014, is also supported by the State Bar of California. While a bill to protect people against immigration fraud is always laudable, California’s Immigration Reform Act, AB 1159, will not meet this objective. Indeed, many of its provisions are so onerous, and interfere so radically with the attorney-client relationship, that it will likely drive away good and ethical attorneys from representing clients in California leaving it to unscrupulous unauthorized and unregulated practitioners to prey upon them. 

I write as a New York attorney since AB 1159 may also impact out of state attorneys like me if we choose to represent people in California in immigration matters. As a New York attorney, I will also point out how New York’s Rules of Professional Conduct already govern my ability to provide ethical services to clients and may also be in direct conflict with the requirements under AB 1159. 

Although the American Immigration Lawyers Association has justifiably opposed the bill on policy grounds, I focus on some of the specific provisions that target immigration attorneys in order to show how we have been singled out among other lawyers, and how impossible it will be for us to effectively assist immigrants. Many immigration attorneys have chosen this area of practice because it is most noble and gratifying to make a meaningful difference in the lives of people rather than for the money. It is therefore disappointing to see that this bill extends a pre-existing law that has regulated immigration consultants, and unfairly presupposes that immigration attorneys must be more regulated than other attorneys even though all attorneys are already bound by their state bar rules of ethical conduct.   In addition, immigration attorneys can also be sanctioned under the disciplinary rules promulgated by the Department of Homeland Security and Executive Office for Immigration Review at 8 CFR 1003.102. 

AB 1159 contemplates that if  the Border, Security, Economic Opportunity, and Immigration Modernization Act, S. 744 (BSEOIMA) becomes law, an attorney who provides “immigration reform act services” will have to register with the State Bar of California and file a bond of $100,000. This bond shall be payable to the State of California, and shall be for the benefit of “any person damaged by any fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the immigration reform act services of the attorney or the agents, representatives, or employees of the attorney, while acting within the scope of their employment or agency.” One can only wonder what standards will be set for someone to prove damages, and whether it will be comparable to the malpractice standard in a court of law. Given the underlying complexity in any new immigration law, along with the evolving standards and interpretations, it is hoped that immigration attorneys will not be held needlessly liable for an alleged “failure” to provide services when the denial was due to other extraneous reasons. 

AB 1159 impacts California attorneys who will provide immigration reform act services as well as out of state lawyers who are authorized under 8 CFR 1.2 and 8 CFR 1001.1(f) to represent persons before the Department of Homeland Security or the Executive Office for Immigration Review, but only if this out of state attorney is providing immigration reform act services in an office or business in California. While it is clear that AB 1159  will apply to a non-California attorney who works in a law office or is in house counsel in a corporation in California; if interpreted broadly, it could also include an out of state attorney who represents a client at an interview in a USCIS office or Immigration Court in California. It should clearly not be interpreted to apply to an out of state attorney who files an application with a centralized USCIS office in California, such as the California Service Center, while practicing in an office outside California. 

Since most immigration attorneys are solo or part of small firms, the $100,000 bond requirement will immediately preclude attorneys from providing competent and diligent services, which they are mandated to do under their professional responsibility obligations. If BSEOIMA becomes law, there will likely be a shortage of competent attorneys who will be required to represent the millions of applicants who may become eligible for Registered Provisional Immigrant status. The $100,000 bond requirement will further exacerbate the shortage. Employees of organizations that are qualified to provide free legal services or of non-profit tax exempt organizations will be exempt from the $100,000 and the other provisions of AB 1511, but many of the legitimate non-profits providing legal services work with private attorneys to provide pro bono services, and this is particularly true upon the implementation of a new immigration benefit, as was the case with the Deferred Action for Childhood Arrivals (DACA) program, where non-profits leveraged off thousands of pro bono lawyers to effectively represent young applicants throughout the country. Such pro bono efforts, which will need to be scaled up upon the passage of BSEOIMA, will not be possible in California under AB 1159. Then, on top of the $100,000 bond, section 6247 authorizes the California State Bar to collect additional fees from attorneys for the reasonable costs of administering and enforcing the statute. 

Another provision of AB 1159, section 6246, is particularly problematic as it makes it unlawful for an attorney to accept payment for any immigration reform act services before the enactment of BSEOIMA. While one can understand the concern behind this provision about preventing an unscrupulous attorney to speculatively charge fees for a filing, which does not yet exist, it is clearly part of competent representation for an attorney to advise a client in advance regarding changes in law. For instance, a client may wish to know whether he or she is hypothetically eligible for RPI status with criminal convictions, and the diligent attorney may recommend that a disqualifying felony conviction under the new law be expunged, if at all that is possible. Again, interpreting section 6246 broadly, an attorney may be penalized for legitimately charging a fee for providing such strategic advice. Similarly, a corporate client may wish to know how BSEOIMA may affect its ability to file new H-1B petitions on behalf of its existing employees and new employees. Providing advice in contemplation of a change in law would enable such a company to restructure its personnel prior to the law taking effect so that it is not deemed an H-1B dependent employer under BSEOIMA, as well as file labor certifications on behalf of employees so that they become “intending immigrants,” and are thus not part of the dependency calculation.  

It is worth noting that the Connecticut Bar Association’s Professional Ethics Committee addressed a similar question in 2012 when an attorney requested guidance on whether it was ethically appropriate to be retained and perform work for a client in anticipation of the enactment of the federal regulations pertaining to the I-601A Provisional Waiver. Referencing Connecticut Rules of Professional Conduct 1.4 and 1.0 pertaining to client communication and informed consent, this opinion concluded that it was, so long as clients are fully informed of the costs, risks and potential benefits of preparing the case without a guarantee that the law will be enacted. See Informal Opinion 2012-04, Work Performed in Anticipation of New Federal Regulation. Connecticut Bar Association Professional Ethics Committee, May 9, 2012. In contrast, section 6246 prohibits any kind of service that can be provided in advance of a law becoming effective, even if otherwise ethical and which would clearly benefit the client. 

In the interests of brevity required in a blog, I will not pick on each and every onerous provision of AB 1159, but must finally note that the bill would require attorneys providing immigration reform act services in California to put all funds received form a client in an attorney trust account, and only withdraw these funds when the services have been completed. Most immigration attorneys charge flat fees and such flat fees if not unreasonable generally benefit the client as they provide certainty at the outset of the representation. An immigration practitioner’s typical retainer agreement defines the various steps required in an immigration case, and the fee pertaining to each step. The initial payment from the client thus is not an advance; rather it is paid for starting work towards the case such as research, strategy, inputting information, and gathering of evidence in preparation of an application. The next payment is made prior to filing the application and the next could be for preparation and appearance at an interview or hearing, and so on.  According to NYC Bar Opinion 1991-3: 

A "flat fee" is a stated amount for the representation contemplated, to be paid regardless of the actual hours that are ultimately required. The agreement might provide for an additional fee if the representation extends to an additional phase (e.g., the case goes to trial or there is an appeal). The flat fee reflects a sharing of risks between lawyer and client and generally provides the client with the security or comfort of a known cost for a particular service. 

In New York, a lawyer can deposit such a flat fee, or other variations of non-hourly fees such as an advance retainer, in the lawyer’s own account. In fact, according to N.Y. State Bar Op. 816 (2007), if the parties agree to treat advance fees as the lawyer’s own, then a lawyer is required to deposit such fees in the business account and not in the attorney trust account as the latter would “constitute impermissible commingling.” Even if such a flat fee is deposited in the lawyer’s own account, it is seldom considered non-refundable. If the client terminates the lawyer’s services or vice versa prior to the completion of the agreed representation, the lawyer is still required to refund the unearned portion of the fee even if it was deposited in the lawyer’s own account. Whether a fee is considered an advance towards unearned legal fees, and thus required to be deposited in a trust account, or a fee immediately earned by the lawyer, is subject to much ambiguity and varying interpretations in different states. Texas, for example, according to Robert Alcorn may require flat fees to be put in a trust account unless they are non-refundable, although it is not clear whether the Texas ethics opinions cited in the forthcoming article involved unearned fees or fees charged for commencing work on defined steps as in an immigration case.  See A Perfect Storm – CIR and IOLTA by Robert Alcorn, Bender’s Immigration Bulletin, August 15, 2013. Clearly, treating a fee as an advance towards future fees (even when it is not and agreed as such by attorney and client), and thus requiring strict accounting of deposits and withdrawals from the trust account (along with significant additional expenses), will likely force lawyers to engage in hourly billings so as to ensure accounting accuracy, which in turn will result in less predictability and comfort for the client. 

It is hard to understand why the State Bar of California is behind such a bill aimed at immigration lawyers. In New York, for example, bar associations such the New York City Bar look to the immigration bar in working jointly together to assist immigrants and to also fill unmet needs through pro bono projects. In addition to immigration lawyers being regulated by their own state bar rules and special immigration rules, they will also be subject to criminal sanctions under BSEOIMA for knowingly filing fraudulent applications. Thus, the new provisions in AB 1159 are totally unnecessary.  Instead of supporting such a pernicious and ill-conceived law targeting immigration lawyers, the California State Bar can better focus its efforts in launching programs that facilitate mentoring, education, and pro bono collaborations among immigration lawyers, which will result in the more effective delivery of legal services to millions of people who will truly need them if immigration reform becomes a reality.

Update - Improved Markup of AB 1159

Since the blog was posted, AILA InfoNet posted an amended version of the bill, which substantially improves some of the provisions. For instance,  pro bono attorneys will no longer be subject to the provisions of the bill. The immigration reform related services provision is limited to preparing applications for undocumented immigrants who will be able to apply under legalization provisions of BSEOIMA or future versions of this law. A certified legal specialist in California who maintains a professional liability policy of $100,000 per occurrence and a general aggregate limit of $350,000 is also exempt. Most important, a non-exempt attorney may maintain a professional liability policy in an amount of not less than $100,000 per occurrence and a general aggregate limit of $350,000 or a bond of $100,000. Hence, a bond of $100,000 is not required if the attorney has the requisite professional liability insurance. It appears that AILA's advocacy efforts have born fruit, but the bill still needs to be further improved before the immigration bar can support it. Notwithstanding these modest improvements, AILA leader Annaluisa Padilla, who is spearheading this effort in California,  asks these pertinent questions: "Is further state regulation of immigration attorneys specifically acceptable to us? In the sense that in addition to to already existing requirements, is further regulation needed in this particular area of the law? Will these regulations actually prevent fraud on immigrants? If so, are not immigrants likely to be defrauded in other areas of the law?"

WAIVING GOODBYE TO UNAPPEALABLE DECISIONS: INDIRECT AAO JURISDICTION, OR WHY HAVING YOUR APPEAL DISMISSED CAN SOMETIMES BE A GOOD THING

By David A. Isaacson

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as many AAO decisions state, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.) 

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisions from 2012; 2010; February, March, April and June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from January and March of 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi”, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009 and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4. 

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11) applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.