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Carl Shusterman's Immigration Update

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  1. CSPA Oral Arguments Before the Supreme Court

    http://shusterman.com/images/CSPA-Oral-Arguments-Supreme-Court.jpg
    On December 10, 2013, the Supreme Court of the United States heard oral arguments concerning who benefits from the “Retention of Priority Date” clause of the Child Status Protection Act (CSPA).

    Hopefully, in the next few months, this matter will be settled once and for all, and sons and daughters of parents who immigrated years ago will, at last, be permitted to rejoin their families in the U.S.


    Government’s Argument

    The government, having lost in the Court of Appeals, first addressed the Court:

    The Board of Immigration Appeals reasonably interpreted Section 1153(h)(3) when it ruled that creation of a new petition by a new petitioner did not qualify as automatic conversion of an existing petition to an appropriate family-sponsored category…”

    However, various Justices let the government know that they were not persuaded:

    Justice Ginsburg: “What about all the time this one child has been waiting? It gets no credit for that?”

    Justice Alito: “…your reading of this statute gives (h)(3) a very, very narrow scope.”

    Justice Breyer: “…it's just unlikely that Congress meant (3) to apply to a…little molecule when there's the whole ocean.”

    Justice Sotomayor: “It would have been much, much simpler to say this is limited to F2A beneficiaries than to write it the way they did and say this is to everybody who ages out.”

    Justice Kagan: “…it seems as though you shouldn't be entitled to Chevron deference on that question, given what Wang said about it.”

    The government attempted to counter each of the above statements. It argued that the Court recognized that “deference is particularly appropriate in immigration contexts.”

    The government expressed concern about delays to persons waiting in the F2B line, but when questioned by Justice Breyer, it revealed that it was impossible to calculate how much of a delay that these persons would experience if the respondent’s prevailed in this lawsuit.


    Chevron Test

    The issue in this case is whether the Court must give “Chevron deference” to an administrative decision interpreting a law, in this case, the Board of Immigration Appeals (BIA) decision in Matter of Wang. Here, the Court uses the following two-step test:

    Step 1"First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

    Step 2 – [I]“f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).


    Respondent’s Argument

    http://www.wilmerhale.com/uploadedImages/Shared_Content/Images/People/Attorney/Fleming_Mark_lo.jpgWhen it was his turn to address the Court, Mark Fleming, the attorney arguing the matter on behalf of the immigrant families, stated:

    “The government began at Step 2 of Chevron, but I would submit that this case can and should be resolved at Step 1. The government is asking this Court to read the statute in a highly disfavored way such that it is not harmonious but at war with itself, and nothing in the language requires that...”

    “…provision (h)(3) consists of one sentence, and that sentence consists of two parts separated by a comma. Before the comma, the language sets forth one and only one eligibility criterion. After the comma, the language sets forth two things that shall be done if the eligibility criterion is satisfied. Now, importantly, the government does not contend that there is any ambiguity in the language before the comma. Everyone agrees that it contemplates and includes all derivative beneficiaries. There's no dispute about that. And a bedrock rule at the Step 1 inquiry is that the Court reads the statute as a harmonious whole. That goes double when we're talking about a single sentence. So if there is a possible reading of this sentence that is harmonious with the clear opening clause that applies to all derivative beneficiaries under Step 1 of Chevron, that is the reading the Court gives to the statute.”

    _____________________________________________________________________________________

    Section 203(h)(3) - RETENTION OF PRIORITY DATE - If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
    ____________________________________________________________________________________

    Justices Kennedy and Scalia questioned how “automatic conversion” would operate. Justice Scalia was concerned that respondent’s interpretation of the clause would permit an adult son or daughter to immigrate to the U.S. over his or her parent’s objections.

    Mr. Fleming explained that in the highly unlikely event that the parent did not want his son or daughter to join him in the U.S., he could refuse to sign an affidavit of support and they would not be able to immigrate.

    Justice Kagan: “Based on -- another understanding of Chevron is sometimes Congress writes confusing statutes that point in two different directions at once, and then there's a choice. Does the Court make the best of it or does the agency make the best of it? And the agency knows a lot about the subject matter, and especially this agency, and so irrespective of whether Congress meant to delegate something in some very self-conscious way, this is a confusing statute, it's a kind of the muddle. The agency gets to do it.”

    Mr. Fleming responded that it was clear that (h)(3) applies to all derivative beneficiaries, and that it was very possible for the agency to interpret the words “retention” and “automatic conversion” in a matter which would implement the intent of Congress. Furthermore, “retention” and “automatic conversion” are deemed separate and distinct benefits by the statute. Even if the agency decided that automatic conversion was not possible in selected cases, the son or daughter would still be able to “retain” the priority date of the original F3 or F4 petition.

    Justice Scalia: “Well, this is all upside down. I thought it's the agency that we deferred to. If it can be read in the way the agency wants, we affirm the agency's position.”

    In response to a comment by Justice Scalia that the two benefits, retention and automatic conversion, were conjunctive, not disjunctive, Mr. Fleming revealed that the government had, despite its arguments, been denying automatic conversion, but not retention, to F2A derivative beneficiaries from the date that CSPA was enacted (August 6, 2002) until 6 days before the government submitted its reply brief. This, he said, demonstrated that retention and automatic conversion can, and have been, implemented as separate benefits.

    Justice Scalia remained unpersuaded.

    Mr. Fleming ended his argument by declaring that even under Step 2 of Chevron, the BIA decision failed to draw a rational line between 2B beneficiaries, treating those with familial relationships with permanent residents more favorably than those with relationships with both U.S. citizens and permanent residents.


    Government’s Reply

    “The Respondents were trying to put far too heavy a burden on the government in the Chevron deference case. So long as the agency has arrived at a reasonable reading of this very complicated statute, the agency is entitled to deference here.”

    “The government also expresses its concern with the possibility that a derivative beneficiary could “have a priority date somehow in their pocket that they could walk around with and use 20 years later when somebody filed a different petition on their behalf, an employment petition…”

    Chief Justice Roberts: “Well, it's not so odd to say they've got a priority date in their pocket when the statute says the original priority date - they'll retain the original priority date.”


    Conclusion

    While it is impossible to predict the final outcome of a case based solely on the oral arguments, I remain cautiously optimistic that the Supreme Court will ultimately agree with both the 5th and the 9th Circuit Courts of Appeals that the statute is unambiguous and that there is no need to defer to the flawed BIA decision in Matter of Wang. A decision may be forthcoming as early as February or March.

    As recognized by many of the Justices, the government is arguing for a very restrictive reading of CSPA. Yes, the DOJ instead portrays itself as the defender of those in the F2B line and categorizes our clients as “line-jumpers”.

    What the DOJ conveniently overlooks is that CSPA created (h)(1) to allow all qualifying derivative beneficiaries who would, in the past, have “aged-out” and lost their place in line to immigrate together with their parents in a particular preference category. Under the government’s reasoning, why are they are not “line-jumpers”? Congress simply made a policy decision to give sons and daughters who have waited for years in line for permanent residence together with their parents credit for their wait, and not send them to the back of the line. If is clear that (h)(3) extends this same credit to unmarried sons and daughters of permanent residents.

    Could it be that the DOJ simply disagrees with these policy decisions?

    If so, they should lobby Congress, not the Supreme Court, to change the law.

    Updated 12-20-2013 at 01:45 PM by CShusterman

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  2. Senators Weigh in on CSPA Lawsuit


    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremebuilding.jpg When Congress passed the Child Status Protection Act (CSPA) in 2002, there was wide bipartisan support concerning the need to change the immigration law to prevent the separation of families during the waiting process.

    Both the Senate and the House of Representatives passed the legislation unanimously, and it was signed into law by President Bush. One of the flaws in the immigration law that CSPA was designed to remedy was that when children turned 21 years old while waiting with their families for their green cards to be issued, they were no longer able to immigrate to the U.S. with their parents despite that the fact that they had waited in line for many years, even decades.

    Congress established a two-step solution to this problem. First, in order to avoid family separation due to administrative delays, the number of days that a visa petition was pending would be subtracted from the child’s age. If the resulting age was less that 21, the child could immigrate together with his parents. Second, if after this calculation the child’s age was over 21, the child would retain the priority date of the original petition. That is, he would be given credit for the years spent waiting in line. Also, the petition would automatically convert to the appropriate category. In most cases, this would be the family-based 2B category, since the child was now the unmarried adult son or daughter of a permanent resident.

    Seems simple enough, but nevertheless, we have been litigating this issue in the federal courts since 2008. The government maintains that the relevant provision is ambiguous and that courts should defer to a very restrictive interpretation of the law promulgated by the Board of Immigration Appeals (BIA) in Matter of Wang in 2009. The BIA held that while the first step of the formula applies to derivative beneficiaries of all family-based and employment-based preference categories, the second step applies only to a tiny subset of family-based beneficiaries. This is a curious interpretation since both subsections of the law clearly apply to the same people. The only difference is that the first step applies to persons whose age, after performing the formula, is under 21 while the second step applies to those whose age is over 21.

    The three U.S. Courts of Appeals which have issued precedential decisions regarding this issue all agree the language of the statute is unambiguous and, hence, there is no need to defer the BIA’s decision. However, two courts (the Fifth Circuit in Texas and the Ninth Circuit in California) ruled that the statute unambiguously foreclosed the BIA’s approach, whereas the other (the Second Circuit in New York) held that the statute unambiguously required it. The Solicitor General sought Supreme Court review, arguing that the law’s language is ambiguous and that courts should defer to the BIA.

    The language in dispute was first drafted by the Senate. The BIA, in Matter of Wang, curiously omitted any quotes from Senators when discussing the meaning of the disputed sentence. Wouldn’t it be helpful if Senators from both parties could speak directly to the Justices of the Supreme Court as to the meaning of the statute that they authored?

    On November 4, exactly that occurred. A bipartisan coalition of current and former U.S. Senators — former Senator (now Governor) Brownback (R-KS), and Senators Feinstein (D-CA), Hatch (R-UT), McCain (R-AZ), Menendez (D-NJ) and Schumer (D-NY) submitted a legal brief to the Supreme Court. What does the brief say?

    The Senators carefully explain Congress’ reasons for passing the CSPA, and clearly demonstrate the disputed subsection requires that the agency extend its benefits to all derivative beneficiary children.

    The following quotes from the brief are helpful in understanding the purpose of the law.

    On page 9, the Senators explain that

    “Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had already waited.”

    and

    “The Solicitor General’s argument that the CSPA covers only beneficiaries of F2A petitions directly conflicts with the primary purpose for which the law was enacted. In enacting this legislation, Congress meant to correct the inequities of the pre-CSPA regime in full.”

    On page 16, the Senators dismiss the Solicitor General’s ambiguity argument in the strongest terms:

    “The Solicitor General’s Attempt To Manufacture Ambiguity Erodes Congress’s Ability To Effect Its Will Through Clear, Unambiguous Draftsmanship.”

    On page 18, the Senators condemn the executive branch’s attempt to rewrite the CSPA:

    “The Solicitor General’s continuing insistence that the CSPA is ambiguous raises serious institutional concerns. While Congress can and often does rely on agency expertise to fill intentionally placed gaps in statutory language, it does not typically give an agency carte blanche to rewrite statutory language that is clear simply because the agency declares that the statute contains ‘tension.’ The Solicitor General’s attempt to read ambiguity into a statute simply because the requirements of the statute diverge from preexisting agency procedures undermines the authority of Congress. This Court should reject that attempt and reaffirm the agency’s duty to carry out the mandates of a congressional statute.”

    Finally, on page 19, the Senators conclude that

    “In the face of such an unambiguous congressional mandate, the existence of alleged ‘tension’ between the statute and preferred agency procedure is not sufficient to generate ambiguity where none exists. Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”

    The Senators’ brief is both forceful and convincing. Families which are impacted by this section of CSPA may wish to read the full brief of the Senators as well as the amicus briefs submitted by the Catholic Legal Immigration Network and by Immigration Advocacy Organizations.

    The Solicitor General has until November 27 to submit a reply brief.

    Our firm is co-counsel in the case, and the case will be argued in the Supreme Court by Mark Fleming, who specializes in appellate litigation at WilmerHale. The Supreme Court will hear oral argument on December 10, and a decision is expected in early 2014.

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    Updated 11-20-2013 at 11:10 AM by CShusterman

  3. Supreme Court Agrees to Review CSPA Victory in the Court of Appeals

    http://wiki.lexisnexis.com/academic/images/7/76/Us_supreme_court_seal.png On June 24, the Supreme Court of the United States granted the Department of Justice's Petition for a Writ of Certiori, agreeing to review the decision of the U.S. Court of Appeals for the 9th Circuit in the CSPA case of DeOsorio v. Mayorkas.

    In that ruling, an en banc Court rejected the government's restrictive interpretation of the "automatic conversion" clause of the Child Status Protection Act (CSPA). That clause created section 203(h)(3) of the Immigration and Nationality Act, which states as follows:

    "RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

    Paragraph (1) allows sons and daughters of persons coming to the U.S. as employment-based and family-based immigrants to subtract the length of time that the visa petition (I-130, I-140, etc.) filed on their behalf was pending from their ages as of the date that their priority dates became current. If the resulting age is less than 21 years old, they are permitted to immigrate, or adjust their status, together with their parents. If the resulting age is 21 years or over, paragraph (3), the automatic conversion clause, must be applied.

    Although the language of CSPA makes it perfectly clear that paragraph (3) applies only if the child has "aged-out" despite the mathematical formula in paragraph (1), the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) held that paragraph (3) applies only to a tiny subset of children who age-out under paragraph (1). Not only is this interpretation unsupported by the language of the statute and by the legislative history of CSPA, but failing to apply both paragraphs to the same set of beneficiaries would lead to absurd results.

    Consider the case of Rosalina DeOsorio, the lead plantiff in the lawsuit. In 1998, her mother, a U.S. citizen, sponsored Rosalina and her 13-year-old son for green cards. However, by the time that their priority date became current, Rosalina's son had recently turned 21-years-old. Because her mother's visa petition was quickly approved by the government, the formula in paragraph (1) did not reduce her son's age below 21 which would have permitted him to immigrate to the U.S. together with his mother. Instead, they have remained separated for 8 years because the government which readily concedes that paragraph (1) applies to him, contends that paragraph (3) does not.

    Such a restrictive interpretation results in some rather bizarre outcomes.

    Imagine for a moment that Rosalina had a sister. Let's call her Suerte. Suerte also has a son, born 3 years before Rosalina's son. In 1998, their U.S. citizen mother sponsored both Rosalina and Suerte and their sons. Clearly, if Rosalina's son aged-out in 2005, Suerte's son being 3 years older, would have aged-out in 2002 and would not have been able to accompany his mother to the U.S., right? Not so fast. Remember that the operation of paragraph (1) depends on how long the visa petition was pending. Let's suppose that in the case of the petition for Suerte, her mother forgot to attach some required paperwork. The government issued a request for evidence. Although the mother mailed it to the government, the petition got lost in the shuffle, and was not approved until 2002. When their priority date became current in 2005, Suerte's son was already 24-years-old. However, because the petition was pending for 4 years, his CSPA age under paragraph (1) was only 20-years-old, thus allowing him to immigrate to the U.S. with his mother.

    In this not-so-far-fetched scenario, Suerte's 24-year-old son is able to immigrate together with his mother while his 21-year-old cousin remains separated from his mother for almost a decade with no end in sight. Clearly, whether one qualifies as a child under paragraph (1) depends totally upon luck. The longer the government takes to approve your petition, the luckier you are. It is no surprise then that Congress provided benefits under paragraph (3) for those who did not qualify under paragraph (1). However, if the government's argument is correct, and 99% of the children who age-out are ineligible for benefits under paragraph (3), thousands of families will be forced to remain separated due to circumstances beyond their control.

    The government's interpretation, which would force Rosalina's son, but not Suerte's son, to go to the back of the line, clearly leads to a ridiculous result. Allowing Rosalina's son credit for the years that he stood in line together with his mother, as provided for in paragraph (3), both comports with existing laws and regulations regarding the retention of priority dates when a person moves from one preference category to another and insures that the system is just and reasonable.

    Our immigration system was created to insure family unity. In drafting CSPA, Congress intended to design a rational system rather one which is arbitrary. Refusing to read paragraph (1) and paragraph (3) as applying to the same set of sons and daughters would turn our immigration system into something akin to a Las Vegas craps game.

    P.S. - If Rosalina and her son were born in Mexico (which they were not), the wait for him to be able to join her in the U.S. would be 115 1/2 years under the per-country quota system! This is because there are over 200,000 unmarried sons and daughters of permanent residents from Mexico waiting in line in the 2B preference category, but only 1,841 are permitted to immigrate in a single year. So, for Mexicans, adopting the government's argument is not simply ordering a child to go to the back of the line. It is more like forcing him to walk the plank.

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    Updated 12-02-2013 at 01:04 PM by CShusterman

  4. The Battle over CSPA Heads to the Supreme Court


    http://0.tqn.com/d/dc/1/0/9/F/1/6_Supreme_Court_2010.jpg On January 25, the U.S. Department of Justice submitted a 150-page Petition for a Writ of Certiorari to the Supreme Court requesting the Court to review our victory in DeOsorio v. Mayorkas in the U.S. Court of Appeals for the 9th Circuit.

    Since we originally challenged the government's failure to implement the "automatic conversation" clause of the Child Status Protection Act in 2008, it looks like this litigation may drag on for yet another year.

    What follows is an article which explains the "automatic conversion" clause, and summarizes the federal litigation in this matter:


    1. What is the automatic conversion clause?

    It was written into the law by Congress in 2002, but has never been implemented. In fact, until almost a year after multiple lawsuits were filed in Federal District Court, the government never even attempted to explain what the clause meant and what its benefits were.

    It is codified as section 203(h)(3) of the Immigration and Nationality Act, and reads as follows:

    "RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

    2. What does the automatic clause mean in simple English?

    Here one example is worth 1,000 words.

    Maria Garcia was born in Mexico. In 1983, her U.S. citizen aunt submitted I-130 visa petition for her mother under the family-based 4th preference category. The petition was approved on the same day that it was filed. At that time, Maria was 9 years and was entitled to benefit under this petition as a "derivative beneficiary", that is, as her mother's child.

    However, by the time that a visa number became current in 1996, Maria had "aged-out". That is, she was over 21-years-old and under the pre-CSPA law, was no longer eligible to adjust her status to permanent resident along with her mother. Her mother filed a 2B visa petition for Maria in 1997.

    Maria applied for adjustment of status under section 245i in 1997. The INS/USCIS held on to her application until 2004, two years after the enactment of CSPA, when it denied her application and placed her under removal proceedings.

    In 2005, Maria, still unmarried and 32 years of age, renewed her application to adjust status in Court. The Immigration Judge ruled that she was no longer her mother's "child" and denied her application. He held that CSPA did not apply to visa petitions filed prior to the day of the law's enactment on August 6, 2002.

    Maria appealed the Judge's decision to the Board of Immigration Appeals (BIA) which ruled unanimously in her favor. The BIA ruled that CSPA, by its very words, applies to applications for adjustment of status which were pending on the date that the law was enacted.

    With regard to the automatic conversion clause, the panel held that Maria was entitled to "retain" the original 1983 priority date and as the unmarried, adult daughter of a lawful permanent resident, her mother's petition for her was "automatically converted" to 2B category, and she was permitted to adjust her status.

    This case was published by the BIA as a nonprecedential case, Matter of Garcia.

    3. Why were we forced to sue the USCIS in 2008?

    We had filed a number of I-130 petitions under the 2B category on behalf of children who "aged-out" after waiting for many years in line with their parents under the family-based 3rd (married sons and daughters of U.S. citizens) and 4th (brothers and sisters of U.S. citizens) preference categories.

    In each case, we requested that the government apply the automatic conversion clause of CSPA, and accord these sons and daughters the priority date of the original 3rd or 4th preference petitions. However, the government refused to do so, and did not promulgate regulations under CSPA or even issue a memo explaining their interpretation of the automatic conversion clause.

    Again, an example illustrates the problem: Elizabeth Magpantay, a Filipina, was petitioned by her father, a U.S. citizen, in 1991. At that time, she and her husband had 4 small children. However, by the time her priority date became current in 2005, 3 of her children had aged-out and she was forced to leave them behind when she immigrated to the U.S. Although, she has petitioned for them to join the rest of their family under the 2B category, the USCIS has refused to follow CSPA and accord her children the 1991 priority date. Unless the government does so, her children will not be able to join the family in the U.S. for over 20 years. It would be even worse if the family were from Mexico since the wait for Mexicans exceeds 100 years!

    On June 2008, Reeves & Associates filed a class action lawsuit against the USCIS for not granting benefits under the automatic conversion clause. The same month, our law firm filed a similar lawsuit. Later, both lawsuits were consolidated.

    4. What happened in the Federal District Court?

    After we both filed our complaints, the government moved to dismiss both lawsuits. The government also requested, in the alternative, that the Judge hold the cases "in abeyance" because they had knowledge that the BIA was about to issue a precedent decision regarding CSPA's automatic conversion clause. The Judge postponed the cases for many months during which the BIA failed to issue a decision. Finally, just after the Judge placed the cases back on his calendar, the BIA issued its decision in Matter of Wang which failed to follow the Board's earlier non-precedent decision in*Matter of Garcia and which greatly restricted the operation of the automatic conversion clause. The Federal Judge deferred to Matter of Wang, and dismissed both lawsuits as well as several other similar lawsuits. We appealed the Judge's decision to the U.S. Court of Appeals for the 9th Circuit.

    5. What happened in the Court of Appeals?

    Initially, a three-judge panel dismissed the consolidated lawsuit in 2011 and deferred to the Board's decision in Matter of Wang. However, less than a week after this ruling, the U.S. Court of Appeals for the 5th Circuit in Texas, in Khalid v. Holder, ruled for the immigrant in an automatic conversion case, creating a circuit split.

    We then submitted a Petition for a Rehearing En Banc to the 9th*Circuit (The government did the same in the 5th Circuit, but their motion was denied.) which was granted. We participated in Oral Arguments in June 2012 and on September 26th, the Court ruled in our favor.

    However, on January 25, 2013, the U.S. Department of Justice submitted a Petition for a Writ of Certiorari with the Supreme Court of the United States.

    6. What is the government's argument to the Supreme Court?

    The government argues that the language of the statute is unclear despite the fact that all three U.S. Courts of Appeals that have ruled on this issue have held that the language is clear and unambiguous. Two of the three circuits, the 5th and the 9th Circuit, ruled for the immigrants, while the 2nd Circuit, in Li v. Renaud, ruled for the government.

    It is well-established that the existence of a Circuit split does not necessary render the words of a statute ambiguous. Per the 9th Circuit opinion in DeOsorio v. Mayorkas:

    "The existence of a circuit split does not itself establish ambiguity in the text of the CSPA.See, e.g., Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350 (2012) (holding that § 906(c) of the Longshore and Harbor Workers' Compensation Act is unambiguous notwithstanding disagreement between the Fifth, Ninth, and Eleventh Circuits about its meaning);Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (holding that the term "individual" as used in the Torture Victim Protection Act unambiguously encompasses only natural persons despite disagreement among several Circuits);see also Reno v. Koray, 515 U.S. 50, 64-65 (1995) ("A statute is not 'ambiguous for purposes of lenity merely because' there is 'a division of judicial authority' over its proper construction." (quoting Moskal v. United States, 498 U.S. 103, 108 (1990))."

    However, assuming the government were able to convince the Justices that the language of section 203(h)(3) is ambiguous, they would then urge the Court to defer to the BIA's decision in Matter of Wang.

    This would also be a hard sell since none of the three Courts of Appeals which considered this issue deferred to Matter of Wang. The holding in Wang is deficient in many respects. The two-step Chevron test which the Federal Courts apply when an administrative agency has ruled on an issue is as follows:

    Step #1 - "First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

    Step #2 - "[I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute."

    In my opinion, applying the Chevron analysis spells big trouble for the government. First, because the so-called ambiguity in the statute according to the BIA was that it did not specify what petitions section 203(h)(3) of the INA applies to. However, the 9th Circuit and the 5th Circuit clearly demonstrated that section 203(h), when read as a whole, applies to all family-based and employment-based visa petitions.

    Second, even if government persuades the Justices to reach Chevron, Step #2, there is no reason to expect the Court to defer to a decision as deeply flawed as Matter of Wang.

    Both Wang, and the Justice Department, misstate the intent of Congress in passing CSPA. CSPA is not designed merely to rectify "administrative delays", but also to grant benefits to those who experience delays in waiting for their priority dates to become current. Both the BIA and the DOJ selectively quote from the legislative history of CSPA. They neglect to mention that Senator Feinstein, in introducing CSPA in the Senate, specifically referred to "growing immigration backlogs" in addition to administrative delays as the rationale behind CSPA. They also ignore section 6 of CSPA which allows sons and daughters to "opt-out" of the 1st preference category if the 2B line would be shorter even though their parents have naturalized. This certainly has nothing to do with "administrative delays".

    Also, both Wang and DOJ, despite the obvious anti-immigrant implications of their interpretation of the law, claim that their purpose is rather to protect those persons waiting patiently in the 2B line for their green cards. This, of course, is a policy argument entrusted to the legislature rather than to the judicial branch of government.

    As stated above, the opt-out provision of CSPA allows persons in the 1st preference line to immigrate under the 2B category. This undercuts Wang's conclusion that to apply the automatic conversion to all family-based visa petitions would unlawfully allow certain sons and daughters of permanent residents to cut in line. Congress has the authority to allow persons to change categories and be given credit for the time that they stood in another line. In fact, the various regulations cited by BIA in Wang and by the DOJ in their petition allow persons to convert from one category to another and be given credit for the time that they already stood in line. This not only includes 8 C.F.R. 204.2(i) and (a)(4), but is also required by a host of immigration laws citied in our legal briefs: the Western Hemisphere Savings Clause, the Patriot Act, the Immigration Nursing Relief Act and the Violence Against Women Act.

    Finally, we have spent much of the past 4 ˝ years arguing with the government over the meaning of "automatic conversion" and "retention". We won't do so here. Suffice to say that the both the BIA in Wang and the DOJ would regard both as magic words with fixed and unchanging meanings based on a particular regulation. Congress, in their view, has no authority to innovate. We believe no such thing, and using the usual rules of statutory construction, both the 9th and the 5th Circuits agree.

    One can only wonder why an Administration which recently promulgated the new Provisional Waiver policy in order to minimize the separation of immigrant families would continue to fight for restrictive interpretations of pro-immigrant family laws in the Federal Courts?

    This is anyone's guess, but perhaps the final few pages of the DOJ's petition provide a clue. The petition pleads with the Supreme Court to reverse the 9th Circuit's ruling. The ruling would "place a tremendous administrative burden on the responsible agencies". Ah, ha! Unless the Supreme Court intervenes, the immigration agencies will be forced to do their job under the law.

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  5. New I-601A Provisional Waiver Regulation


    https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcTAOs9Z3wwB46u6Qwtl-vWs4WQvbf7uiX4vgv1uzFvx87nkR0PVFA On January 3, 2013, the DHS published a regulation which will, as of March 4, 2013, allow persons who entered the U.S. without inspection (or who are otherwise ineligible to adjust their status in the U.S.) to apply for "form I-601A provisional waivers" to excuse their unlawful presence in the U.S. Once their waivers are approved by the USCIS, they will be eligible to attend their appointments for immigrant visas ("green cards") abroad.

    The aim of this new program is to avoid having immediate relatives submit I-601 waivers abroad, and then be separated from their families for months or even years while their waivers are pending. Instead, they will obtain their waivers before leaving the U.S., be interviewed abroad and return to their families in the U.S. within a few days. The following set of Frequently Asked Questions (FAQ) explains many of the complications involved in the new provisional waiver process:

    1. Who qualifies to submit a provisional waiver in the United States?

    To qualify, a person must be at least 17 years old, and be the beneficiary of an approved I-130 visa petition as an "immediate relative" of a U.S. citizen. Immediate relatives are spouses, parents and children of U.S. citizens. To be considered a "parent", the sponsoring son or daughter must be at least 21 years of age. To be considered a "child", the person must be under 21 years of age, although many persons over 21 years of age may still be classified as children under the Child Status Protection Act (CSPA). The law requires that in order to obtain an waiver, the applicant must demonstrate "extreme hardship" to a qualifying relative. Qualifying relatives must be spouses or parents who are U.S. citizens or lawful permanent residents (LPRs). However, a person with only an LPR spouse or parent, while eligible to apply for a regular I-601 waiver abroad, is ineligible to qualify for an I-601A provisional waiver in the U.S.

    Persons who are in the numerically-limited family or employment-based preference categories do not qualify for provisional waivers, although the USCIS indicates that the program could be expanded at some point in the future.

    2. What grounds of inadmissibility does the waiver apply to?

    The waiver applies solely to inadmissibility based on "unlawful presence" in the U.S. Applicants must be subject to either the 3-year or the 10-year bar once they leave the U.S. Persons subject to the "permanent bar" can not submit a waiver application until they have remained outside the U.S. for 10 years. Hence, they are ineligible for provisional waivers. Persons who are inadmissible under another section of the law (e.g.fraud, criminal convictions, etc.) are also ineligible for provisional waivers.

    3. What if a person is already outside the U.S. or is scheduled for an immigrant visa interview outside the U.S.?

    Such persons are ineligible to submit provisional waivers.

    4. What if a person is currently in removal proceedings or is subject to a final order of removal?

    Such a person may participate in the provisional waiver program only if his removal proceedings have been "administratively closed" and have not been recalendared as of the time that the waiver is submitted to the USCIS. Persons in removal proceedings who have applied for Deferred Action (DACA) may apply for provisional waivers after USCIS grants their DACA applications, but only if they meet all the requirements for filing a provisional waiver and their removal proceedings have been administratively closed. If the USCIS approves a provisional waiver for a person in removal proceedings, the person must seek termination or dismissal of the removal proceedings by the Executive Office for Immigration Review (EOIR), and this must be granted before the person departs the U.S. for their immigrant visa interview abroad. Failure to do so could prevent the person from obtaining an immigrant visa and returning to the U.S.

    Persons under final orders of removal are ineligible to participate in the provisional waiver program.

    5. Can a person who had a previously scheduled immigrant visa interview (scheduled by the State Department prior to January 3, 2013) abroad that he did not attend submit a provisional waiver?

    The answer is usually no. However, there are exceptions. Here we quote the DHS:

    "An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner."

    "DOS" in the above paragraph stands for the "U.S. Department of State".

    6. Is it possible to waive the fees for an I-601A provisional waiver ($585) or for the biometrics ($85)?

    No.

    7. Is premium processing available for an I-601A waiver?

    No, but applicants can request expedited adjudication of a provisional waiver in accordance with current USCIS expedite guidance. Generally, the USCIS takes about 4-6 months to approve an I-601 waiver. With an expected influx of many thousands of I-601A provisional waivers, expect waiting times to increase, perhaps dramatically, since the USCIS has no plans to boost the number of officers adjudicating hardship waivers.

    8. If a person's I-601A waiver is denied, is it possible to appeal?

    No.

    However, although it is not possible to appeal an I-601A denial or submit a Motion to Reopen (The USCIS reserves the right to reopen or reconsider an I-601A denial on its own motion.), it is possible to refile a waiver after a denial. Again, we quote the DHS:

    "If an individual's provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A, in accordance with the form instructions and the required fees. The applicant's case must still be pending with DOS, and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already undertaken steps to adjudicate the case."

    "Alternatively, an individual who withdraws his or her Form I-601A filing or whose Form I-601A is denied can reapply for a Form I-601 Application for Waiver of Grounds of Inadmissibility,with the USCIS Lockbox,after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible. If the ground(s) of inadmissibility identified by the DOS consular officer can be waived, the individual can file a Form I-601 along with any supporting documentation or evidence needed to demonstrate eligibility for the waiver and ultimately the immigrant visa..."

    "Applicants and their attorneys or accredited representatives also are reminded that they may address or correct mistakes by supplementing a pending Form I-601A waiver request with additional evidence or correcting the request before USCIS makes a final decision in the case. USCIS will take into consideration any evidence received when making the decision."

    9. Can a person who submits an I-601A waiver be placed in removal proceedings?

    Although the USCIS states that it "does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication", it reserves the right to do so if the person is considered to be a "DHS enforcement priority - that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety."

    "DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: (1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion."

    10. What are the chances that your I-601A waiver will be granted? This, of course, depends on the facts of your case, and how well your I-601A waiver is documented to demonstrate "extreme hardship" to your qualifying relatives. Do not submit 5 or 6 exhibits and expect to receive an approval. Here, it is absolutely essential that your attorney know the legal basis for establishing "extreme hardship", and that he or she has prepared many successful I-601 waiver applications. Extreme hardship can be emotional, financial, medical, etc. and hopefully a combination of these and many other factors. Last year, the USCIS denied 34%, or a little more than one out of every three, I-601 waivers. Persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for the child(ren). Also, many of those denied by the USCIS prepared their applications on their own or used the services of a notario or an immigration "consultant". This is not a wise course of action. Hire an experienced immigration attorney.

    But how do you choose the right attorney to prepare your I-601A waiver? A good place to start is by watching the following video.

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    Updated 12-02-2013 at 05:11 PM by CShusterman

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