WILL KAZARIAN CHANGE THE 0-1 VISA?

By Gary Endelman and Cyrus D. Mehta

The value of the O-1 visa is its flexibility, an adaptive quality that enables it to respond to the different needs of different petitioners. Any formulaic approach that restricts the full and open expression of such subtlety not only reduces the value of the O-1 but undermines its bedrock utility. That is why the stated willingness of the USCIS to apply a subjective Kazarian-style final merits analysis in the O-1 context, even after the applicant has satisfied the evidentiary criteria, should arouse our most serious concern. This is true for several reasons. Not only does such a constricted view of the O-1 prevent it from being all that it can be, but it blurs the distinction between the O-1 and the EB1-1 extraordinary ability immigrant petition, two different visa categories with different purposes. Just as the approval of an O-1 nonimmigrant petition does not ensure similar approval of an EB1-1 immigrant petition, the analytical tools used by USCIS examiners to evaluate the merits of these distinct categories must themselves remain separate.

With this as our starting point, what do the regulations tell us about the O-1? The O-1 visa is a useful visa for people, under INA §101(a)(15)(o), who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics. Unlike the H-1B visa, it is not subject to an annual cap. It can also be availed of by artists and entertainers, people who are traditionally self-employed, as long as an agent serves as a sponsor. Although the “extraordinary ability” standard is a high one, artists can prove their eligibility under a lower “distinction” standard pursuant to INA §101(a)(46). Those qualifying for an O-1 visa in the motion pictures or television industry have to demonstrate extraordinary achievement, rather than extraordinary ability. There are thus three different standards under the O-1 visa. 

Extraordinary ability in science, education, business or athletics means “a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field of endeavor.” 8 CFR 214.2(o)(3)(ii). 

The extraordinary criteria, as set forth in 8 CFR 214.2(o)(iii), are as follows:

(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media. 

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility.

Extraordinary Achievement in the motion pictures and television means a “very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered.” 8 CFR 214.2(o)(3)(ii). 

As already noted, an O-1 in the arts has to prove only distinction. While “extraordinary achievement” and “distinction” may appear to be two separate standards, the criteria for demonstrating extraordinary achievement in the motion picture or TV industry or distinction in the arts are almost identical, and  set forth at 8 CFR 214.2(o)(3)(iv) and (v), which are as follows: 

(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;

(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the alien's achievements; or

(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

If the above criteria do not readily apply, only those establishing distinction in the arts can submit comparable evidence. People trying to qualify for an O-1 visa under the extraordinary achievement standard for motion pictures and the TV industry cannot submit comparable evidence. 

All O-1 petitions must be accompanied by consultations from the appropriate unions, and if they do not exist, may contain opinions from expert sources. 

Recent unpublished decisions from the Appeals Administrative Office are applying the two-part approach in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). When Kazarian was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability under a green card category pursuant to INA § 203(b)(1)(A)(i) would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary. We point readers to Cyrus Mehta’s blog, How Extraordinary Does One Have to Be to Qualify as a Person of Extraordinary Ability, for a detailed analysis of the Kazarian decision and how the USICS has interpreted it. 

In its December 22, 2010 Policy Memorandum, ("Policy Memorandum"), United States Citizen and Immigration Services (USCIS) implemented a "two-part adjudicative approach" for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. Here is the first, but unfortunately not the last, indication of a desire by the USCIS to utilize the final merits methodology of Kazarian in case types not mentioned in or justified by Kazarian itself. While the USCIS doubtless may view the extension of Kazarian to the O-1 as a logical expansion of its prior application to EB1-(2) outstanding researcher and EB-2 exceptional ability cases, skeptics may properly question whether this ever-widening deployment signifies not a greater precision but a lack of programmatic restraint.  The Service cites Kazarian as the basis for modifying the Adjudicator's Field Manual to   include a second step in the adjudication process, the "final merits determination." Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (v), the Service seized on the following excerpts in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors' citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and

(2) ... [W]hile the AAO's analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added). 

Kazarian v. USCIS, 596 F.3d at 1121. 

Under this two part test as it applies to an EB-1(1) extraordinary ability petition, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this extra evidentiary factor into consideration, namely, the lack of reaction in the research community, during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS can still do under the “final merits determination.” 

The authors question whether it is appropriate for the AAO to adopt the Kazarian two step analysis to O-1 petitions. Kazarian involved an extraordinary ability petition under INA § 203(b) (1)(A)(i), which is the employment-based first preference category (EB-1), through which an alien obtains lawful permanent residence. While the extraordinary ability criteria under the EB-1 may be identical to the O-1 extraordinary criteria for science, education, business and athletics, the criteria for extraordinary achievement in the motion picture and TV industry and for distinction in the arts are markedly different. Moreover, the O-1 visa petition requires a consultation from a union or expert opinion. A favorable opinion from the relevant union for an artist ought to be given deference by the USICS.   Injecting Kazarian into the O-1 visa adds needless subjectivity into the decision making process.   

Kazarian’ s two-part test and final merits determination analysis runs counter to  prior decisions such as, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, "[o]nce it is established that the alien's evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234. Similarly, in Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995), a federal court reversed a denial for a professional hockey player where INS did not apply the proper criteria for extraordinary ability, and based its decision  on the ground that he was not an all-star or one of the highest paid players. Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. In fact, such a burden shifting approach is not unknown in other aspects of immigration law. If the Kazarian final merits determination analysis was deployed at that time, both Muni and Buletini, a leading physician in Albania, may have suffered a different fate.  As our colleague David Isaacson has pointed out, in the asylum context, an applicant who demonstrates that he or she has suffered past persecution on account of a protected ground is rebuttably presumed to have a reasonable fear of future persecution on that same ground.  8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).  In such cases, by regulation, “the Service shall bear the burden of establishing by a preponderance of the evidence” that a change in circumstances, or the reasonable possibility of relocating within the country of persecution, should lead to a denial of asylum.  8 C.F.R. §§ 208.13(b)(1)(ii), 1208.13(b)(1).  

Moreover the USCIS Policy Memorandum, which invented this two-part test from its interpretation of Kazarian, does not indicate that it would apply this test to O-1 visa adjudications, even though it has extended the two-art test to outstanding professors and researchers and aliens of exceptional ability.  On the other hand, the USCIS Adjudicator’s Field Manual (AFM) section on O-1s ( 33. 4(d))  states, as follows:

For an O-1 or O-2 case, the adjudicator must determine whether the alien meets the standards as outlined in the regulations cited above; however, he/she cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation mentioned. It must be a decision based on whether the total evidence submitted establishes that the alien of extraordinary ability has sustained national or international acclaim and recognition in his field of endeavor; or in the case of an alien of extraordinary ability in the arts and extraordinary achievement in the motion picture or television industry, whether he or she has a demonstrated record of high level accomplishment or a high level of achievement (or “distinction”).

However, it is not clear from this passage whether the USCIS intended to specifically apply the Kazarian “final merits determination” approach. The USCIS, and the predecessor Immigration and Naturalization Service, has always insisted that the alien overall meet the standard of extraordinary ability, but this was never meant to be as expansive as the Kazarian final merits determination. Rather, under the Buletini standard, the burden was on the government to the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability. 

The positive aspect of Kazarian, which established that the USCIS cannot create extra-regulatory criteria during the adjudication of a visa petition,  without formally amending the regulation through notice and comment to stakeholders, ought to be applicable to all visa petitions. On the other hand, introducing the vague and subjective “final merits determination” to O-1 visas will needlessly add subjectivity to the process, when Congress specifically required that O-1 visa petitions be accompanied by union consultations and expert opinions. Kazarian was also a decision that deals with the extraordinary criteria under the EB-1, while the O-1 visa has three different standards – extraordinary ability, extraordinary achievement and distinction. The guidance fails to alert USCIS adjudicators on how they could specifically apply the “final merits determination” standard to extraordinary achievement and distinction.  It is also important to restrict the application of the Kazarian final merits determination to other visa adjudications, or else there will be no limitation to the reach of the final merits determination. Will is also impact H-1B and L visa adjudications?  The long-range impact of what charitably be called “doctrine creep” is not hard to fathom. If the USCIS were to use the Kazarian final merits exercise much as it now deploys the Neufeld Memo, the meaning of “extraordinary ability” would be transformed beyond all ready recognition, much as the right of control has evolved beyond the imagination of the regulation that created it. When Congress enacted the standards for visa petitions, it intended adjudicators to faithfully apply those standards to either approve or deny the petitions. The infusion of the Kazarian “final merits determination” to visa adjudications would allow USCIS adjudicators to impermissibly stray from those standards.  

Beyond that, to wrap the O-1 in an analytical straitjacket is yet another disturbing example of legislation through interpretation by the USCIS. While the INA itself does not change, what it means most certainly does change. All this comes about without the assent of Congress, whether expressed or implied, and in the absence of any notice and comment rulemaking mandated by the Administrative Procedures Act, thus eliminating the possibility of participation by concerned stakeholders. We all remember how the Administrative Appeals Unit decision in the New York State Department of Transportation case completely changed the meaning and practice of the National Interest Waiver. More recently, the USCIS jihad against the L-1B visa category and what amounts to a de facto rejection of the very concept of specialized knowledge has, in practice, repealed this visa provision to a very large extent. Is the O-1 now to suffer the same fate? What may be the most hard to detect damage resulting from invoking Kazarian in the O-1 arena is the fact that the evidence submitted by an O-1 petitioner is now to be judged by criteria that cannot be defined or even anticipated in advance Any attempt by the USCIS to use Kazarian to complicate the O-1 must be resisted. Complexity that exists for its own sake, not as an aid to an intellectually honest assessment but as a substitute for it does not advance the national interest. In a democratic society, the logic of any successful national policy must be transparently obvious to those who have to obey and support it. That is why the blurring of distinction between the O-1 and the Kazarian final merits determination is not only of little benefit to its intended beneficiaries, but actually frustrates any coherent attempt to make the system more amenable to consistent interpretation and effective enforcement.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)

IMMIGRANT POWER: NATURALIZED AMERICAN WINS BOSTON MARATHON

By Cyrus D. Mehta

Today is a day to celebrate. One year after the devastating bombings at the Boston Marathon, Meb Keflezighi won the Boston marathon. Keflezighi is a naturalized American. "I'm blessed to be an American and God bless America and God bless Boston for this special day," Keflezighi said.

Read more here: http://www.star-telegram.com/2014/04/21/5753571/american-meb-keflezighi-wins-boston.html#storylink=cpy

This victory resonates much stronger as it comes one year after the horrific bombs resulted in 3 deaths and over 260 injured. The surviving bombing suspect, Dzhokar Tsarnaev, is also a naturalized American. His brother, Tamerlan Tsarnaev, who got killed in the shootout last year, unsuccessfully tried to naturalize.

In the immediate aftermath of last year's bombings, Senator Grassley cynically attempted to tie the Boston marathon attacks to immigration reform. “We appreciate this opportunity to talk about immigration reform in light of all that has been happening in Massachusetts, ” said Senator Grassley. Fortunately, the Senate immigration reform bill, S. 744, still got passed, but it included provisions that would make it more difficult for people to get registered provisional status depending on their country of origin as a result of additional security screening,  and another provision would lead to the revocation of asylum or refugee status if the person visited his or her country of persecution without good cause.

Today, after Keflezighi's spectacular win, against all odds, no one can and should link immigrants to terrorism. Most immigrants are like Keflezighi, who aspire success for themselves and their families. This is the story of immigration, which is also an Americans story, told over and over again.

Even after the 9/11 attacks, and despite the unfortunate profiling of immigrants from certain countries in the immediate aftermath, immigrants still won. Although  immigration benefits, including obtaining a green card through a marriage with a US citizen, are now viewed through the prism of national security, the immigration system was never radically altered. There was no diminishing of the already meager quotas, and immigrants still came and continue to come to America to make it richer and more diverse.

In this context, Keflezighi's win is most powerful. An American, who was born in Eritrea,  has won the Boston marathon after Lisa Larsen Weidenbach won in 1985 and Greg Meyer in 1983. While an immigrant has won for America today, millions of  immigrants, through their achievements big and small, win for America all the time.

The urgency to reform our broken immigration system is felt more so today when we can be attracting many more Mebs who will not only excel in sports, but also in scientific achievements and creating innovative companies.  The marathon began last year when the Senate deliberated on and passed a comprehensive immigration reform bill. When will the House joins the race to reach the finishing line and help us all win big time for America?

WHY WE SHOULD ALL BE MAD ABOUT THE H-1B VISA CAP

By Cyrus D. Mehta

The USCIS announced today, April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B regular cap and the  20,000 additional cap for graduates with advanced degrees from US universities. This is much more than the 124,000 H-1B visa petitions the USCIS received in 2014. The H-1B cap makes no sense, and here are 10 good reasons why we should all really be more upset about it this year for the simple reason is that we face the cap each year, and nothing ever changes. Enough is enough! 

The first reason to be mad about the H-1B cap is that it forces employers to scramble way before the start of the 2015 fiscal year, which is October 1, to file for H-1B visas, only to get rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in legal and filing fees, along with all the steps they need to take in being in compliance. The whole concept of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style of lottery into the process, just rubs salt into an oozing old wound. 

Second, one can only feel for all the foreign national prospective employees, who all need to qualify to work in a specialty occupation, as defined under the H-1B visa law. Out of the 172,500 H-1B cases received, 87,500 people will get rejected. That is 87,500 hopes and dreams dashed. Many who are in the United States after graduating from American universities may have to leave. Others won't be able to set foot into the United States to take up their prized job offers. 

Third, imagine if all of these 87,500  who will be rejected could  actually come and work in the United States. Their employers would benefit and become more globally competitive - and could have less reason to outsource work to other countries. They would have also been productive workers, and spent money in the US economy, including buying houses and paying taxes. The H-1B cap has robbed the economy of this wonderful cascading effect. 

Fourth, the USCIS has taken pains to encourage entrepreneurs to establish startups in the United States because of the potential of creating new technologies resulting in more jobs,  and keeping the country competitive. The entrepreneur portal encourages entrepreneurs to use the H-1B visa to sponsor themselves through their own startups. What a pity to lose out on that entrepreneur who could create the next Google or Tesla electric car. 

Fifth, immigration attorneys and their staff who toiled away hard for the past few weeks will feel really bad for their clients, and also for themselves that their labor will not come into fruition. 

Sixth, people who have lost the lottery will try to come to the United States under other options, which are much harder. They may also resort more to the B-1 business visa, and although the business visa is ambiguous enough to cover activities that go beyond a business meeting, many will fall afoul of the visa wittingly or unwittingly. Using the B-1 visa when the H-1B visa is not available is like engaging in risky unprotected sex. People will get into trouble at some point in time and the party will be over. 

Seventh, the While House very recently announced that it would allow a limited number of spouses on H-4 visas the ability to work. The whole purpose is to encourage highly skilled people to work in the United States on H-1B visas. What is the purpose of such an announcement when the cap eliminates the ability of people to enter the United States on H-1B visas in the first place. It all feels like a joke, rather like flatulence, on this day when it was announced that 172,500 people applied for a meager 85,000 visas. 

Eight, even the lucky ones who have gotten selected are by no means guaranteed that their H-1B cases will get approved. The USCIS applies rigidly impossible standards, and also reviews the cases unevenly, the California Service Center being far more cruel than the Vermont Service Center. And even those whose H-1B visa petitions get approved may not be issued visas at the US Consulates overseas, especially consuls in India who use the visa process as a trade barrier to curb the flow of Indian IT professionals from making it to the United States.  Then, those who finally make it will also likely get subjected to oppressive green card quotas down the road.

Ninth, one should also really be incensed at Congress for not doing anything about the 65,000 cap since 2003. 

Tenth and lastly, even when Congress does get into the act of doing something, it may make things worse rather than better. The H-1B proposals in the Senate bill, S. 744, make the H-1B visa far more difficult to use and have an outer limit of 180,000. In other words, Congress may not be capable of fixing the problem.

Postscript:  I am actually an optimist, but the only way we can bring about positive change to the H-1B visa cap problem, is to collectively get mad about it!

OBAMA'S PARADOXICAL DEPORTATION POLICIES

By Cyrus D. Mehta

President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young.

A revealing article in the Los Angeles Times shows that the high number of deportations is largely misleading. The likelihood of an undocumented individual already in the United States who has developed ties being deported has lessened considerably under President Obama. Even people with removal orders can seek a stay of removal if they establish that they are deserving of prosecutorial discretion under the Morton June 17, 2011 Memo.  Young immigrants who arrived in the United States prior to the age of 16 and who meet other conditions can apply for deferred action, along with work authorization, under the Deferred Action for Childhood Arrivals (DACA) program.

The people who are being deported, and are part of the increased statistics, are those who recently crossed the border without inspection and are apprehended within 100 miles from the border. Under previous administrations, such people were informally bused back outside the United States in what was known as “voluntary returns.” Under the Obama administration, these people are fingerprinted and issued formal deportation orders. INA section 235(b)(1), which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, granted authority to expeditiously remove persons at the border who are deemed inadmissible under INA sections 212(a)(6)(C) for making a material misrepresentation or 212(a)(7) for not possessing valid visa documents. On August 11, 2004, DHS promulgated a rule to expand expedited removal to persons who are present in the United States without having been admitted or paroled and who are apprehended within 100 miles from the southern border and who also cannot prove that they were physically present in the country continuously for the preceding 14 days. This rule was expanded to all borders on January 30, 2006.

This is not to suggest that the increased use of expedited removal to recent border crossers does not have devastating effects and should not be remedied through immigration reform measures, since many of these crossers are entering the United States to join family members. Still, it is the expanded use of expedited removal that has resulted in an increase of deportations, when under prior administrations, such persons were informally returned from the United States without terming them as deportations. Once a recent border crosser is expeditiously removed, a reentry into the United States also carries severe criminal penalties unlike a ‘voluntary return.” On the other hand, a person who has been in the United States for a longer period is less likely be placed in the removal proceedings, and even if this person is issued a Notice to Appear before an Immigration Judge, he or she can have a shot at requesting prosecutorial discretion under President Obama’s administration than before, which will result in either administrative closure or termination of the case. Unfortunately, the majority of people who came to the attention of the immigration enforcement authorities within the interior, resulting in deportation proceedings,  are those who got arrested for minor offenses. 

As an aside and consistent with the topic of this article, there are instances when it can be more beneficial for a person to be placed in removal proceedings than not. Pursuant to INA section 240A(b), an individual who meets 10 years of physical presence, good moral character for this entire period and can demonstrate exceptional and extremely unusual hardship to qualifying relatives who are either citizens or permanent residents can obtain cancellation of removal, leading to lawful permanent resident status. The hardship standard is extremely high and needs to be substantially beyond the hardship that would ordinarily be expected to result from the alien’s deportation, as demonstrated in cases such as Matter of Monreal, 23 I&N Dec. 53 (BIA 2001); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) where cancellation was denied; and Matter of Recinas, 23 I&N  Dec. 467 (BIA 2002) where it was granted. Another advantage of being in removal proceedings is to escape the 3 year bar based on unlawful presence of more than 180 days but less than 1 year pursuant to INA section 212(a)(9)(B)(i)(I). Departing the United States under a grant of voluntary departure, which is issued prior to the alien accruing 1 year of unlawful presence, and after the commencement of proceedings, may allow this alien to reenter the United States without being subject to the 3-year bar. Finally, another tactical advantage to being placed in removal proceedings is when an application for adjustment of status is denied, and the best way to get a second chance is to have an Immigration Judge review the adjustment application de novo in proceedings. The irony is that ICE is often  reluctant to put a person under these circumstances in removal proceedings because it is does not have the resources, and is also of the view that as an enforcement agency,  it is contrary to the agency’s mission to place someone in removal so that he or she can ultimately secure an immigration benefit.  One note of caution is that those who came into the United States on a visa waiver should not consider requesting a removal proceeding as they have waived their right to a removal hearing under INA section 217(b). 

President Obama used the increased deportation statistics to show that he was enforcing the law, but this has backfired among his critics. Those who favor stricter enforcement are not satisfied with the record increase in deportations by pointing to the Administration’s expanded prosecutorial discretion policies that has resulted in the deferring of thousands of deportations. Enforcement advocates in Congress use the President’s expanded prosecutorial discretion policies, while conveniently ignoring the spike in deportations, as an excuse to delay immigration reform and cooperating with the President.  At the same time, immigration advocates and allies have criticized President Obama for increasing deportations without truly bringing about genuine immigration reform. After the passage of the S. 744, the Senate’s immigration reform bill last year, there is now a stalemate where the prospects of immigration reform in the House have almost evaporated despite unanimous agreement that the immigration system is broken.

If President Obama desires to cement his legacy with respect to immigration reform, he may not be able to achieve it through this Congress. In the past, President Obama has indicated that he does not have the authority to further expand prosecutorial discretion, but this may have to change. The only way for the President to fulfill the promise he has made to so many who voted for him is to go about it on his own through administrative policy changes. The Executive branch can expand deferred action to a broader group of people, which could include family members of DACA recipients and those who have US citizen children. The prosecutorial discretion guidelines under the Morton Memo ought to be further strengthened to ensure that they are not ignored by ICE officials, as many are wont to do. The parole in place policy for relatives of military personnel can be expanded to benefit those who are on the pathway to permanent residency if they are beneficiaries of employment and family immigrant visa petitions. In an eloquent New York Times editorial entitled Yes He Can, On Immigration, the following is worth extracting:

Mr. Obama may argue that he can’t be too aggressive in halting deportations because that will make the Republicans go crazy, and there’s always hope for a legislative solution. He has often seemed like a bystander to the immigration stalemate, watching the wheels spin, giving speeches and hoping for the best.

It’s hard to know when he will finally stir himself to do something big and consequential.

The President must no longer fear doing something big and consequential on the immigration front. Some may justifiably fear that if the President ameliorates the plight of undocumented people through administrative reform measures, another President can quickly undo them; and therefore it is best for Congress to enact immigration reform. Administrative remedies are clearly no substitute for comprehensive immigration reform passed through Congress, but it would be hard for a future President to undo wise administrative reform measures that provide a fix to a broken immigration system. For example, DACA benefits have already been granted to hundreds of thousands of young immigrants who have been able to graduate from college and find jobs. It would be politically imprudent for a future President to undo DACA. Indeed, S. 744, the bipartisan reform bill that was passed by the Senate, incorporates DACA and places DACA recipients on a faster track to permanent residency. If President Obama implements bold administrative measures, it would be difficult for a future administration to undo them, and it is likely that a future Congress will have no choice but to readily adopt them into law.