Posted by Angelo A. Paparelli on June 26, 2009

Immigration Gaming - USCIS Style

The first rule of gambling is that the odds always favor the house. U.S. Citizenship & Immigration Services (USCIS), the unit within Homeland Security tasked with conferring or refusing requests for immigration benefits, has started its own casino of sorts. And the house, not surprisingly, is winning.

As business and family petitioners have come to hear from their shell-shocked immigration lawyers, USCIS regional service centers (RSCs) have been spewing forth Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) and Denial Notices faster than a baseball-pitching machine at a funhouse. Have companies and families all of a sudden become less qualified en masse for immigration benefits than in prior years? The odds are that the answer is no. Rather, the rules of play have changed, but the house's management has not officially announced them.

In short, boilerplate bad-news correspondence, especially in the employment-based visa categories of the H-1B, O-1 and L-1, set forth new rules, typically without citation to authority, under which what once was clearly approvable is now suspect, disbelieved and deniable or denied. The USCIS adjudicators issue their edicts in ipse dixit fashion, ignoring statutes, legislative history, regulations and decades-old headquarters policy guidance.

Seasoned observers are puzzled at the reasons prompting this sea change in applying the rules of play. Some suspect that agency personnel, so reliant on user fees for day-to-day operations, may act (even if only subconsciously) in the knowledge that denials lead to more fee revenues from motions to reopen and administrative appeals. The cynics point to the recent USCIS reinstatement of its Premium Processing Service for most employment-based immigrant visas, at $1,000 extra a pop, and predict the result to be faster denials and more motion and appeal revenues.

Others doubt that fee-churning is the root cause. Instead, they point to the foregone conclusion, stoked by a flawed internal report, that fraud and technical violations are rampant. The meme that fraud is everywhere has spooked adjudicators into suspecting every petitioner, no matter how reputable and worthy, by demanding more and more documentary evidence which is scanned for the smallest inconsistency. The perceived inconsistency then allows the adjudicator to claim that all of the submitted evidence may also be doubted.

But surely cooler heads will prevail, you say. Undoubtedly, you assume, the Administrative Appeals Office (AAO) will overturn unjustified or unjust decisions.

It's difficult to be confident that the AAO, another USCIS unit, will reverse decisions of their compatriots. The AAO publishes no rules of procedure, or statistics on the rate that adjudicator decisions are overturned, and does not require that the "jurists" in this administrative tribunal be admitted to the bar or adhere to a code of judicial conduct.

Moreover, foreign nationals who've been denied immigration benefits in most cases have no legal standing to appeal or be heard, but instead must rely on a sponsoring employer or family member who, as the "petitioner," has the right to appeal. If the petitioner takes the case to the AAO, USCIS house rules make the stakes for the foreign citizen very high. If they wait in the U.S. to see whether the AAO overturns the adjudicator's decision, the wait comes with harsh consequences. During the waiting period, they have no right to work, and worse yet, if the AAO rubber-stamps the RSC adjudicator's decision, the penalty for losing is a determination that the foreign citizen -- merely for waiting in the hope that justice will be served -- is in a condition of "unlawful presence" and (once they leave the U.S.) is barred from returning for anywhere from three to ten years. The House of USCIS will not apply the unlawful-presence bar, however, if the AAO reverses the adjudicator's denial of immigration benefits. This may tempt some foolhardy foreign citizens to try and wait out an appeal, however remote the chance of success, in the hope that Lady Liberty and Lady Luck are with them.

The stakes of justice and the rule of law ought not be so high as to require a ten-year ante.

Posted by Angelo A. Paparelli on June 18, 2009

Iran, Obama, Congress and Immigration: "Hoping for a Little More Audacity"

In the same month that the world commemorates the 20th anniversary of the bloody showdown in China's Tieneman Square, we are again witnessing (this time, through the samizdat of Twitter and YouTube) what may become another defeat for democratic freedoms in a different Asian country, Iran.

For a sixth straight day, Iranian citizens of every demographic, including a growing cohort of Islamic clerics, have marched in the streets and braved the bludgeon of the militia and the police to protest the outcome of last week's disputed Presidential election. No one can predict the outcome, although Time Magazine suggests four plausible endgames. As the world watches, Iranians desperately plead for America's help. A letter to President Obama, circulating in the Iranian-American community from an anonymous writer in Iran, poignantly places in stark relief the urgency and fear of the small "d" democrats of Iran:

Dear Mr. President,

. . .

It is not convincing now to stand by and watch on the pretext that you don’t want to interfere in the internal politics of Iran. Concern is not enough. Watching to see if demonstrations gain momentum is not enough. Interviewing a few conservative analysts is not enough. We are watching but may not be there to judge you when this is over. Will you abide by the dictates of your conscience and take a stance in [favor] of a nation that is at the mercy of a soul-less system? Or will you all stand by and watch only to say, in a decade or two, that you made a grave mistake? I’m pleading to your heart, Barack Obama, because I believe you are sincere. Please say what you mean and mean what you say.

Sadly, the world hears a tone-deaf President Obama respond with so little empathy that it would surely embarrass his prospective Supreme Court nominee. Answering a question from the New York Times and CNBC, the president sounded an out-of-character, discordant note by observing on Tuesday that from an American national security perspective, there was little daylight between Iranian President Mahmoud Ahmadinejad and his prime opponent, Mir Hussein Moussavi:

“Either way,” Mr. Obama said, the United States is “going to be dealing with an Iranian regime that has historically been hostile to the United States, that has caused some problems in the neighborhood and is pursuing nuclear weapons.”

What do the democratic stirrings in Iran and a reticent president have to do with a blog on the dysfunctions of America's immigration system?

Harken back to the fallout from the Chinese Communists' quelling of democracy with tanks and bloodshed in Tieneman Square. The Congress and the first President Bush took two-and-a-half years to protect the Chinese citizens who feared return to the Peoples Republic by passing the Chinese Student Protection Act of 1992. That law allowed a generation of primarily young Chinese to obtain permanent residence in the U.S., and probably contributed significantly to the decade of innovation and prosperity that followed. However President Obama decides to respond to events on the ground in Iran, the Congress should immediately hold hearings and speedily enact legislation, much like CSPA '92, that would allow the thousands of Iranian citizens now in the U.S. to apply for permanent residence.

Secretary of State Hillary Clinton could also take a page from history by easing the standard for granting U.S. nonimmigrant visas to Iranians as State did when many pro-Western Iranians were fleeing Iran with the fall of the Shah. As memory serves, State instructed consular officers to apply the requirement that a visa applicant must intend to return to the person's country of residence by considering, in the case of Iranians, whether the person would be likely to return to Iran if and when the political instability there were to ease.

In short, President Obama had it right when he offered his Persian New Year message to the people and leaders of Iran:

The United States wants the Islamic Republic of Iran to take its rightful place in the community of nations. You have that right -- but it comes with real responsibilities, and that place cannot be reached through terror or arms, but rather through peaceful actions that demonstrate the true greatness of the Iranian people and civilization. And the measure of that greatness is not the capacity to destroy, it is your demonstrated ability to build and create.

So on the occasion of your New Year, I want you, the people and leaders of Iran, to understand the future that we seek. It's a future with renewed exchanges among our people, and greater opportunities for partnership and commerce. It's a future where the old divisions are overcome, where you and all of your neighbors and the wider world can live in greater security and greater peace.

The time for actions to back up these words, by the President and Congress, is now. Or, as Bill Maher laid down in his New Rules segment last week:

I'm glad Obama is president, but the "audacity of hope" part is over. Right now, I'm hoping for a little more audacity.

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Posted by Angelo A. Paparelli on June 11, 2009

Immigration Agency Denies Monk Green Card for Unauthorized Buddhism

Few people would ever confuse the sultry Blanche DuBois of Tennessee Wiliams' Streetcar Named Desire with a Buddhist monk. Despite their very different appearances and stations in life, they share one survival skill. As Blanche explained to the play's protagonist, Stanley Kowalski, Blanche (and so too the follower of Siddhartha Gautama) have "always depended on the kindness of strangers."

As the Wall Street Journal reported on June 9, however, the U.S. Citizenship and Immigration Services (USCIS) apparently equates the acceptance of kindness from strangers with "unauthorized employment" ("Buddhist Monk Faces Worldly Green-Card Matters - Mr. Jomthong, Who Says His Job Is to 'Promote Peace and Harmony,' Gets Ensnared in U.S. Immigration Bureaucracy [subscription required]").

In effect, this is the conclusion drawn earlier this year by an immigration adjudications officer at the USCIS Nebraska Service Center (NSC) in denying a green card to Venerable Phra Bunphithak Jomthong, a Buddhist Monk assigned to the Wat Buddhapanya Temple in Pomona, California. The NSC refused a green card to Ven. Jomthong, who long ago made perpetual vows of voluntary poverty and the eschewal of money, because -- as the adjudicator claimed -- the monk had been "remunerated since [his] admission [to the U.S.], albeit on a modest, non-salaried basis". The modest remuneration he receives is the food and subsistence needs that members of his faith community give him.

Without solicitation of money on Ven. Jomthong's part, disciples of Buddhism who attend temple services voluntarily provide him with what we learned in law school is a gift. The Internal Revenue Service defines a gift as "[a]ny transfer to an individual, either directly or indirectly, where full consideration (measured in money or money's worth) is not received in return." For a gift to be legally effective, there must be "donative intent" (the conscious desire to make a gift) and the gift must be completed. A completed gift is one "in which the dominion and control of the property is placed beyond the donor's reach."

Because the acceptance of an unsolicited gift is not "employment" under the Immigration and Nationality Act (INA) or USCIS regulations, my Seyfarth Shaw colleague, Catherine Meek, and I took on the pro bono representation of Ven. Jomthong. We filed a complaint and petition for review in federal district court in Los Angeles asking the court to put the burden on the government (as required under the Religious Freedom Restoration Act) to demonstrate a compelling governmental interest in denying the monk a green card, and to show that the green card denial is the least burdensome way to enforce the government's immigration policies. The government has about a month to answer the federal court complaint and petition for review. Trial in district court is set for August 18.

After the complaint was filed, a Supervisor at the NSC issued Ven. Jomthong a Notice to Appear before an immigration judge for a removal hearing (at a date and time to be specified in the future).

Blanche (however unjustly) ended in an insane asylum. Let's hope Ven. Jomthong fares much better. Stay tuned.

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Posted by Angelo A. Paparelli on June 04, 2009

Immigration Gaming in Las Vegas - Day 1 of the AILA Annual Conference

It's Groundhog Day in Las Vegas, as immigration attorneys convene for the first day of the annual conference of the American Immigration Lawyers Association -- for many of us, regrettably, a victory of hope over experience. This is not intended as a smackdown of AILA. On the contrary, AILA has assembled an all star cast of speakers and is offering a collection of cutting-edge immigration topics. Rather, the reference to the film is more a commentary on the annual uttering of unhelpful, straight-faced responses by most (but not all) of the agency officials on the dais to the pressing concerns of the lawyers on behalf of their clients. As regular AILA conference attendees can attest, the typical government representative's spiel involves an unctuous appreciation of the importance of meeting with lawyers to share information. This is followed by the recognition that while there are problems, the situation is not as bad as it once was. The recitation then ends with the assurance that a regulation or policy memorandum addressing and resolving the lawyers' concerns will be issued in the near future, but meantime the government representative is not at liberty to suggest what the new regulation or memorandum will say or when it will be published. As the sage American philopher -- Yogi Berra -- would say, if he were here: "It's like déjà vu all over again." The furor du jour on the first day of the conference is about the proliferation of government requests (mostly from U.S. Citizenship and Immigration Services [USCIS]) for additional evidence (RFEs). The RFEs often run to several pages. A comparison of the RFEs reveals that many are boilerplate demands made without reference to the facts in the particular case. As reported today at the AILA conference, even publicly traded, long established, and financially sound companies are ordered to produce voluminous evidence proving their existence and viability or risk denial of their petitions. The viral spread of extravagant RFEs is an effront to USCIS Headquarters policy (as reflected in a Feb. 16, 2005 policy memorandum):
A RFE [sic] is most appropriate when a particular piece or pieces of necessary evidence are missing, and the highest quality RFE is one that limits the request to the missing evidence. Generally it is unacceptable to issue a RFE for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is still required. “Broad brush” RFEs tend to generate “broad brush” responses (and initial filings) that overburden our customers, over-document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents. While it is sensible to use well articulated templates that set out an array of common components of RFEs for a particular case type, it is not normally appropriate to “dump” the entire template in a RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent, using the relevant portion from the template. The RFE should set forth what is required in a comprehensible manner so that the filer is sufficiently informed of what is required.
As the first day of the AILA conference drew to a close, I bumped into a podcaster (Dan Kowalski, Editor of Bender's Immigration Bulletin). He noticed a chagrined look on my face and asked what was bothering me. Here then is my podcasted rant on unruly RFEs, the unsupervised adjudicators who issue them and the agency officials who defend the practice from the podium rather than uphold their own headquarters policies. --------