They Know It When They See It

Supreme Court Justice Potter Stewart

The US economy wants, needs, and desires the services of highly skilled and highly trained people.  To that end, Congress added special visa categories to the Immigration and Nationality Act [INA] just for such individuals.  They are the Person of Extraordinary Ability, Person of Exceptional Ability, and Outstanding Researcher and Professor categories.  These categories are reserved for individuals that are operating at a level beyond mere mortals, such as those who hold Doctor of Philosophy degrees and are conducting cutting edge research; Nobel Prize winners, and those who can hit a 100 mph fastball over the Green Monster in Fenway Park.

Shortly after Congress created these visa categories, the immigration service wrote regulations interpreting the statutes.  The US Citizenship & Immigration Service wrote regulations where they defined the kind of evidence they would accept in adjudication of this visa petition.  This evidence includes:

·      Receipt of International or Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence

·      Membership in Associations that Require Outstanding Achievements from their members;

·      Published Materials about the applicant in professional or major trade publications;

·      Evidence that the applicant has served as the judge of the work of others in his or her field;

·      Evidence of original scholarly, scientific, artistic, athletic or business related contributions of major significance;

·      Publication of scholarly articles in the field of endeavor in major trade or other media;

·      Performance in a leading or critical role for an organization that has a distinguished reputation;

·      Evidence that the applicant has commanded a high salary; and

·      Evidence of commercial success in the field of endeavor.

USCIS conducts a two-step analysis of the evidence.  First they review the evidence meets the criteria listed above.  Then, in an effort to limit the extraordinary ability visa category to the crème de la crème, CIS conducts a meta level analysis of all the evidence submitted to determine if the applicant has both a “level of expertise indicating that the individual is one of that small percentage who have risen to the very top of their field of endeavor” and that have “sustained national and international acclaim’.  Click here to read the entire regulation.

The difficulty with this two step analysis is that there is no clear test to determine what constitutes an individual who is in the small percentage that have risen to the top of their endeavor.  It is easy to determine if an applicant has the threshold evidence.  USCIS’ rules for determining who is at the top of their field are a little more enigmatic.  CIS instructs its adjudicators to “consider all of the evidence to make a final merit determination of whether or not the petitioner has, by a preponderance of the evidence, shown that the beneficiary is at a degree of expertise significantly above that ordinarily encountered.”   The difficulty with this standard is that a CIS adjudicator is probably not competent to evaluate the evidence presented.

Without clearer guidance to the CIS adjudicator (and by extension, the applicant pool), this the two-step analysis is akin to Supreme Court Justice Potter Stewart’s definition of obscenity:  I know it when I see it.   

Until recently CIS’ two-step analysis has not fared well in court.  See Muni v. INS, 891 F.Supp 440 N.D. Ill. 1995 and Grimson v. INS, 934 F.Supp 965 (N.D. Ill 1996)(INS improperly discounted the evidence of NHL Hockey Players) and Buletini v. INS, 860 F.Supp 1222 (E.D. Mish 1994)(Immigration Service improperly discounted evidence of physician).  However, CIS’ two-step analysis has recently gained traction.  In Kazarin v. USCIS, the Ninth Circuit Court of Appeals upheld the denial of an extraordinary ability visa petition for a theoretical physicist.  CIS has interpreted this decision as judicial affirmance of their analysis.   Click here to read CIS’s interim guidance memo.

Individuals contemplating filing these petitions consult immigration lawyers to discuss their options, the merits of their application and likelihood of success of a visa petition.  CIS’ new two-step analysis injects a level of arbitrariness does a dis-service to potential immigrants and by extension, the American economy.

BALCA: UTB Falls Down the Rabbit Hole

The Immigration and Nationality Act allows employers to petition for employees to receive permanent residence based on an offer of employment.  Most employment based immigrants must seek a “labor certification” or determination from the U.S. Department of Labor’s Employment and Training Division (DOLETA) that there are no U.S. citizens or permanent resident aliens that are ready, willing, and able to do the job the employer wants to offer the potential immigrant. 

In 2004, DOLETA published regulations on permanent labor certifications.  These regulations are intended to interpret the Immigration and Nationality Act and instruct employers and their potential employees on the process of obtaining a permanent labor certification.  The general public was invited to comment on the regulations. Click here to view the regulations in a pdf format.

In 2007, the DOLETA implemented the regulations and rolled out the PERM process of obtaining a labor certification.  Upon implementation, the DOL released a series of Frequently Asked Questions or FAQs.  Click here to read the FAQs.  These FAQs are detailed instructions on how to go about applying for a labor certification.  In reality, these FAQs amount to the DOLETA’s interpretation of DOLETA’s regulations that interpret the Immigration and Nationality Act.  Confused yet?

On July 20, 2011 the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of the University of Texas at Brownsville.  UTB filed an application for labor certification for one of its professors.  As a part of the test of the labor market and to fulfill its requirements under the PERM regulations, UTB ran an ad for the professor’s position in the Chronicle of Higher Education.  Like many professional journals and some newspapers, the Chronicle of Higher Education is an online only journal.

DOLETA’s Certifying Officer denied UTB’s application.  In the denial, the CO stated cited the FAQ section that states that if an employer is going to advertise a job in a professional journal, the employer must use a print journal.  UTB appealed to BALCA.  Upon review BALCA held that the PERM regulations are silent on the use of paper versus online only journals, and that DOLETA cannot create a substantive rule through publication of a FAQ.  BALCA found that DOLETA's FAQs are helpful interpretations of the regulations, but do not in and of themselves have the force of law because they have not complied with the Administrative Procedure Act’s notice and comment requirements.  BALCA determined that the CO abused his discretion by relying on the FAQ as a substantive rule to deny UTB's application.  BALCA reversed and sent the case back to CO for additional consideration.

Labor certification is complicated.  Employers and potential immigrants need skillful advocates to deal with governmental agencies that write their own rules and then write rules to interpret their rules.  Sometimes the only way out of the rabbit hole that is labor certification is to question the authority of the rules upon which the agency used to make its adverse decision.


Copyright 2011 Richard M. Green, All Rights Reserved

What Goes Around Comes Around

Rick's Russian Visa

In the summer of 2008 my extended family and I went on a cruise on the Baltic Sea.  One of the ports of call on the cruise was Saint Petersburg, Russia.  Unlike all the other ports on the cruise, Russia had a visa requirement for US citizens.  In order to disembark from the ship for the three days we would be docked in Saint Petersburg, my family members and I would require a Russian visa.

When my family learned of the visa requirement for Russia, they called me, the immigration lawyer.  They concluded that I knew how to get people US visas.  I should be able to get my family members Russian visas.  Right?

My adventure in Russian immigration law started with the Russian Embassy’s website, where I downloaded the visa application form.  This looked easy I thought.  It was a half page form seeking pretty basic biographic information and two inch by two inch photograph.  I then read the instructions and realized I had the wrong form.  There was a separate form for US citizens.  I then downloaded the US citizen form, took a look at the form and laughed.  The Russian visa application for US citizens was a word for word copy of the US visa application forms Russian citizens (and any other foreign national) completes to get a visa to come to the USA. Click here here here and here to view a sample of the DS-160 (the current US visa application) and the DS-156, DS-157, and DS-157 (prior version) of the visa application forms.

Reciprocity or treating foreign nationals the same way that nation treats your citizens is a fundamental principle of international relations.  I had to labor through ten pages of application forms per family member because Russians had to labor through ten pages of application forms.  My family was compelled to disclose all kinds of trivia including my father’s service in the US Navy in the 1950’s and my service in the US Coast Guard Auxiliary because Russian visa applicants had to make similar disclosures.

Similarly, US citizens pay the Brazilian government $135 upon arrival.  Similarly, other nations force US citizens to either obtain visas or pay fees upon arrival in their nations because the US government has similar requirements on their nationals.

Yesterday, US and Russia agreed on a reciprocal basis to grant each others citizens multiple entry visitors visas valid for 36 months.  That’s a lot better deal than I got in 2008.  My Russian visa was valid for only four days.

Do You Hear Me Now?

One of the little known ‘checks and balances’ in the American system of government is a court’s jurisdiction.  Jurisdiction is the power of a court to hear and decide a controversy.  Article III section I of the Constitution establishes the federal judiciary and place the power to create inferior or lower courts in the hands of Congress.  “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article I section 8 clause 9 of the Constitution confirms Congress’ power to constitute tribunals inferior to the Supreme court.   Since Congress has the power to constitute courts, it has the power to limit a court’s jurisdiction.  In other word, since Congress has the power to create courts, it has the power to tell the court what cases it can and can’t hear and what statutes it can review and what statutes it can’t. 

Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress has attempted to strip the federal courts of jurisdiction or the power to review the decisions of the immigration bureaucracy made under the Immigration and Nationality Act [INA].  INA section 242 [8 USC §1252] is a prime example of Congress’ attempt to limit the judicial review of immigration decisions.  This statute purports to strip the court of the power to review removal orders. 

In an attempt to slam the courthouse door in the alien’s face, the Attorney General frequently argues that the court does not have the power to review the immigration service’s decision because Congress has stripped the court of jurisdiction.  Faced with a challenge to their power, federal judges sometimes go to great length to find that they have the power to review a decision, even when Congress says that they don’t.  The effect of Congress’ jurisdiction stripping legislation is that most immigration related judicial opinions have a sometimes-lengthy discussion on jurisdiction.  This includes the Tenth Circuit’s recent decision in Jimenez-Guzman v. Holder.

Jimenez-Guzman is a native and citizen of Mexico and lawful permanent resident in the United States.  In 2009, the Department of Homeland Security [DHS] commenced removal proceedings against Jimenez-Guzman.  DHS alleged that Jimenez-Guzman was removable from the United States due to conviction of a drug crime in Colorado.  Jimenez-Guzman asked for and received several continuances from the Immigration Judge [IJ] so that he could attempt to set aside his state court conviction. Relieved of the conviction, Jimenez-Guzman would no longer be removable.

On April 7, 2010, at a hearing in Immigration Court, Jimenez-Guzman informed the IJ that his attempts to set aside his drug conviction were unsuccessful.  He asked the court for another continuance so he may pursue an appeal of the state trial court’s decision to deny relief from his drug conviction.  Citing the length of time Jimenez-Guzman’s case had sat on the court's docket, the IJ refused to grant another continuance.  The IJ found Jimenez-Guzman removable and ordered him removed to Mexico. The Board of Immigration Appeals summarily dismissed Jimenez-Guzman’s appeal, and Jimenez-Guzman sought review of the IJ’s and BIA’s decision in the US Court of Appeals for the Tenth Circuit. 

The Attorney General argued that the Immigration and Nationality Act stripped the court of the power to review the IJ’s decision.  The court disagreed.  The IJ’s power to grant continuances comes from the court’s regulation and not the INA.  Citing Kucana v. Holder, __ U.S. ___, 130 S. Ct. 827 (2010), the court held it has the power to review IJ decisions that originate from regulations. “The Supreme Court … recently held that decisions made discretionary by regulation do not come within [the INA’s] statutory bar and are reviewable.”  Since the power to grant continuances of hearings is granted to the IJ by regulation and not by the INA, the INA’s jurisdiction stripping statutes do not apply.

The court then applied the rational basis test to the IJ’s decision to deny the continuance.  Under the rational basis standard, the court will overturn an IJ decision only if there is no rational explanation behind the IJ’s decision.  Since courts have held that an individual in removal proceedings does not have the right to stay removal proceedings while the respondent commences a collateral attack on the underlying criminal conviction, the IJ’s decision to deny the continuance based on the age of the removal case is rational.  The court denied the petition for review and allowed the IJ’s order to stand.

The tension between two co-equal branches of government finds it way into the world of immigration. Congress’ goals of make the immigration system as efficient and as streamlined as possible collide with the judiciary’s responsibility to review the decisions of the immigration system.  Nobody likes to be told “no”, especially life tenured, Senate confirmed federal judges. Congress attempts to strip the judiciary of the power to review immigration decisions gives the government and immigrants one more thing to argue about in court.

Copyright 2011, Richard M. Green All Rights Reserved

False Claim to US Citizenship: The Death Penalty of Immigration

Roger Williams

In January 1636, Roger Williams was banished from the Massachusetts Bay Colony. US immigration law has a similar fate for those who falsely claim to be a US citizen.  The Immigration and Nationality Act (INA) renders inadmissible or forbids entry into the United States any alien who falsely claims to be a US citizen.  It states

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.  INA 212(a)(6)(ii).

Unlike other grounds of inadmissibility, there is no waiver available.  This means that the government cannot overlook and cannot forgive and admit an alien who falsely claims to be a US citizen even if the government wanted to.

On June 14, 2011, the US Court of Appeals for the Eighth Circuit in St. Paul, Minnesota handed down its decision in Sandoval v. Holder and wrestled to apply this statute to unaccompanied alien minors who falsely claim to be US citizens.

Alejandra Sandoval was born in Mexico in 1981.   As a small child, she illegally entered the United States with her family, settling in Minneapolis, Minnesota.  In January 1998, Sandoval returned to Mexico by air to visit relatives.  On January 10, 1998, Sandoval attempted to enter the United States at the Dallas/Ft. Worth Airport using the US birth certificate and Minnesota ID card of her US citizen sister.  Sandoval was 16 years old.  Sandoval’s deception was discovered by immigration at the airport, and she was returned to Mexico as an alien who has made a false claim to US citizenship. 

Sandoval then entered the US with the assistance of a smuggler and resumed her life.  Sandoval graduated from high school, got married, and gave birth to a child.  Her US citizen husband filed an immigrant petition, and Sandoval attempted to adjust status to lawful permanent resident (green card holder) when the incident at DFW came back to haunt her.  The Department of Homeland Security (DHS) denied Sandoval’s adjustment, and commenced removal proceedings alleging that she is an inadmissible alien who made a false claim to US citizenship.

Sandoval sought review of DHS’ inadmissibility determination before the Immigration Judge (IJ).  She argued that the false claim grounds of inadmissibility should not apply to her because she was an unaccompanied minor at the time of the false claim.  Analogizing a false claim to a capital crime, and citing Roper v. Simmons, 543 U.S. 551 (2005) Sandoval argued that the false claim grounds of inadmissibility should not apply to her because capital punishment is not meted out to minors who commit capital crimes.  The government argued that the false claim statute does not discriminate based on age, and should be applied equally to all aliens regardless of age.

The IJ was sympathetic to Sandoval, and calld the false claim permanent bar to admissibility the ‘immigration version of the death penalty’.  The IJ ruled that an unaccompanied minor cannot be rendered inadmissible for making a false claim to US citizenship because minors ‘lack sufficient maturity to understand the scope and ramifications of [this] misconduct.”  The IJ overturned the DHS’ inadmissibility determination and granted Sandoval’s adjustment.

DHS appealed the IJ’s decision to the Board of Immigration Appeals [BIA].  A single member of the BIA reversed the IJ’s decision and remanded the case back to the IJ. The BIA addresses Sandoval's legal argument with a single sentence of legal analysis.  “We find no legal authority or support for the Immigration Judge’s ‘bright line rule’ that persons under the age of 18 categorically lack maturity and mental capacity to falsely claim US citizenship”.

On remand from the BIA, the IJ denied Sandoval’s adjustment, holding that she is an alien who made a false claim to US citizenship.  Sandoval appealed to the BIA who summarily dismissed her appeal.  Sandoval then appealed the Eight Circuit Court of Appeal. 

The Eight Circuit blasts the BIA for failing to consider Sandoval’s argument and to articulate reasons why Sandoval’s argument was denied.  One sentence of legal analysis was not sufficient to satisfy the Court.  “Judicial deference is by no means a substitute for the Board’s duty to provide a reasoned, intelligible analysis for its decision.”  The Court remands or send Sandoval’s case back to the BIA with instructions to clarify the standards is uses in applying the false claim statute to unaccompanied minors and to articulate the reasons Sandoval deserves no relief under that standard.  This remand gives the BIA a third opportunity to adduce reasons the false claim statute should be applied to Sandoval. 


The Immigration Judge's analogy to capital punishment is apt.  Inadmissibility without waiver is the functional equivalent to banishment. Roger Williams illustrates that banishment is the second most severe punishment meted out by a court.  The most severe is death.  The rise of modern immigration laws has de-criminalized banishment and placed it squarely in the realm of civil immigration law.  The Sandoval court told the the BIA that is needs to use more than one sentence before banishing someone.

Expect a decision on the Sandoval remand upcoming months.  Given the level of criticism leveled by the Court, expect the BIA to issue a lengthily and well-reasoned decision.  Given the absence of law from the BIA in this area, the Sandoval decision could possibly be issued as a precedent decision.  Either way, expect more than one sentence out of the BIA.


Copyright 2011 Richard M. Green, All Rights Reserved

When Circuit Court Judges Disagree

Supreme Court Building

This week’s blog post is coming from San Diego, California and the 2011 American Immigration Lawyers Association Annual Conference.

On May 23, 2011 the U.S. Supreme Court granted a petition for a writ of certiorari in a Ninth Circuit case entitled Kawashima v. Holder. Click here to read the docket from the U.S. Supreme Court.  This case offers a glimpse into the interpretation of immigration and tax law and the functioning of the highest court in the land.

In 1997, Akio Kawashima, a citizen of Japan and lawful permanent resident, plead guilty to subscribing a false statement on a tax return in violation of 26 U.S.C. 7206(1).  This false statement caused a total tax loss to the government of $244,126.

 In 2001, the government commenced removal proceedings against Mr. Kawashima.  In the notice to appear before an Immigration Judge, the government charged Mr. Kawashima as an aggravated felon under the Immigration and Nationality Act (INA) because he is an alien that has been convicted of a crime that involves fraud or deceit where the loss to the victim is more than $10,000.

The government argued that subscribing a false statement on a tax return is a crime that involves fraud and deceit, and that the victim in this case is the US government. Citing a Third Circuit case entitled Ki Se Lee v. Ashcroft, Mr. Kawashima argued that the INA’s “fraud and deceit” aggravated felony definition did not apply to tax cases because the INA’s aggravated felony definition has a separate tax crime section.  Under the INA, an alien is an aggravated felon if they are convicted of tax evasion under 26 USC 7201.  Since Mr. Kawashima was not convicted of tax evasion, he is not an aggravated felon. 

The Immigration Judge and the Board of Immigration Appeals agreed with the government, and the Ninth Circuit in San Francisco, California dismissed Mr. Kawashima’s petition for review, agreeing that there is no reason to exclude tax crimes from the “fraud and deceit” definition of an aggravated felony.

This decision has created a split in the circuits.  Lower courts are bound to follow the decisions of higher courts.  Under the present state of the law, geography plays a factor in the outcome of a deportation case involving subscribing a false statement on a tax return.  An individual who is placed into removal proceedings in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is not an aggravated felon.  An individual in removal proceedings in the nine western states that compose the jurisdiction of the Ninth Circuit Court of Appeal is an aggravated felon.  The US Supreme Court has stepped in to resolve the split in the circuits and give a ruling on the issue that binds all courts across the entire country.

How will the Supreme Court rule on this case?  It’s difficult to say.  On the one hand, some say that the Ninth Circuit Court of Appeal is the most reversed court of appeal in the United States.  On the other hand, one Third Circuit justice on the Ki See Lee panel dissented from the majority opinion.  This justice thought subscribing a false tax return was a “fraud and deceit” aggravated felony that should result in deportation.  The dissenter was Samuel Alito.  Expect oral argument in the fall and a decision next spring.

Copyright 2011 Richard M. Green, All Rights Reserved

The Appeal's in the Mail!

If an appeal of an order of removal arrives at the Board of Immigration Appeals (BIA) a day late due to an error made by the post office, should the alien be deported?  That is the question in Irigoyen-Briones v. Holder, a recent decision from U.S. Court of Appeals for the Ninth Circuit in San Francisco.

On December 18, 2006, Mr. Irigoyen-Briones was ordered deported by an Immigration Judge (IJ).  At the conclusion of the deportation hearing, Mr. Irigoyen-Briones was instructed that if he wished to appeal the IJ’s decision, his notice of appeal must be filed with the Board of Immigration Appeals in Virginia in 30 days.  This means that Mr. Irigoyen-Briones’ paper notice of appeal must physically arrive at the BIA’s office in Falls Church, Virginia by January 17, 2007.  If the notice of appeal does not arrive by the proscribed date, Mr. Irigoyen-Briones’ order of deportation becomes final.

Following this hearing, Mr. Irigoyen-Briones consulted with and retained an attorney.  The attorney went to the Immigration Court to review the record of the deportation case and conducted legal research.  On January 16, 2007, the attorney mailed the notice of appeal to the BIA using the postal service’s express mail overnight delivery service.  The BIA rejected the Irigoyen-Briones’s appeal because the postal service delivered the notice of appeal on January 18, 2007, one day late.  Irigoyen-Briones appealed the BIA’s decision to reject his appeal to the Ninth Circuit Court of Appeal.

BIA appeals arriving one day late due to an error made by an overnight delivery service has been the subject of a fair amount of litigation.  In 2005, the Ninth Circuit and the Second Circuit Courts of Appeal reversed the BIA’s decision to reject these appeals, ruling that the principles of equity or fundamental fairness apply to appeals that arrive at the BIA one day late due to an error outside the control of the alien.  Click here and here to read those decisions.  In 2006, the BIA held that it does not have the jurisdiction or the authority to accept a late filed appeal.  The BIA held that the statute governing the time and process for filing an appeal does not permit the BIA to accept a late appeal no matter whose fault it is that the appeal arrived late.  Click here to read that decision in a pdf format.

The BIA advanced this argument in Irigoyen-Briones, and the court was unimpressed.  The court held that the statute governing BIA appeals is not jurisdictional because Congress did not limit the authority of the BIA to accept appeals, and the BIA’s regulation does not state that it considers the regulation jurisdictional.  The court observed that the statute governing the manner of appeals simply states that the BIA may set regulations governing the acceptance of appeals. 

The BIA also argued that it has an interest in the fair administration of justice by strictly enforcing its 30 day deadline.  The court dismissed this argument too, holding that solo practitioners and not large law firms typically litigate immigration appeals.  Thirty days is not a long time to prepare an appeal, and that the alien should not bear so high a price (deportation) for an error outside their control.  The court also observes that the BIA controls the manner the acceptance of appeals, and that the BIA is free to adopt filing methods that do not rely on papersuch as electronic filing.   The alien should be assured that when he or she exercises reasonable diligence by depositing a notice of appeal with an overnight delivery service on day 29, that the BIA will accept the appeal even if it arrives on day 31.

Finally, the BIA argued that it does not have a “mailbox rule” or postmarked deadline.  A mailbox rule allows an individual to comply with a deadline by ensuring that the post office postmarks their application by the proscribed date.  The court dismisses this argument saying that Irigoyen-Briones does not argue that the BIA has a mailbox rule.  Irigoyen-Briones argues that it is fundamentally unfair to be punished with deportation for an error outside of his control.

The court reversed its decision to reject the Irigoyen-Briones appeal and remanded it to the BIA to either accept the appeal or find another reason to reject it. The lesson to be learned from this case is that the immigration agencies do not think that the principles of equity apply to them.  They do not consider what is fair and what is right in its decision-making process.  They are happy to strictly adhere to their self authored rules, and are willing to transfer the risk of late delivery on the back of the applicant.

Copyright 2011 Richard M. Green, All Rights Reserved