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On October 28, 2011, the House Judiciary Committee approved a proposal brought forward by Tea Party favorite Congressman Jason Chaffetz(R-UT) with the support of Rep. Zoe Loefgren (D-Cal), an ardent advocate for more immigration, and Rep. Lamar Smith (R-Tx), not previously known for his pro-immigration stands. Such diverse parentage suggests this is one bill that might actually go places. So, it might be worth a few moments to find out what it says.
Right now, the INA permits the issuance of 140,000 employment-based immigrant visas each fiscal year with the nationals of any one country limited to 7% of that total. Under HR 3012, the so-called Fairness for High-Skilled Workers Act, would remove the per country cap on EB migration entirely, raise the cap on family migration to 15%, and stop taking 1,000 numbers from EB-2 China to compensate for the Chinese Student Protection Act. There are transitional rules for Fiscal Years 2012(October 1, 2011-September 30, 2012) through FY 2014 under which a certain percentage of immigrant visas would go to nationals who are natives of a foreign state or dependent area that was not one of two countries with the largest number of natives obtaining LPR status in that fiscal year. In FY 2012, this percentage would be 15% and would decline to 10% for the following two fiscal years.
According to the report issued by the Office of Immigration Statistics in late October, Mexico sent more immigrants than any other country(3.3 million or 26%) followed by the Philippines (560,000 or 4.4%) after which came China (550,000 or 4.4%), India (500,000 or 4.0%) and then the Dominican Republic(440,000 or 3.5%). The top 10 sending countries, including Cuba, Canada, El Salvador, Vietnam and the United Kingdom, accounted for 55 % of all permanent residents in FY 2010.
The motives behind HR 3012 are laudable, to end the chronic backlogs in EB-3 and EB-2 migration from China and India; to allow highly-skilled scientists and engineers to make the US economy more competitive; and to avoid having to send this top talent to our competitors abroad so that more white collar jobs can flee these shores. Amen to all that! The IT industry and the immigration bar are in hog heaven as we used to say in Flatbush. So, what's not to like? Isn't this what we all want and have been asking for?
The current system discriminates against nationals of China and India based on their country of origin. It is essentially an unintended but no less brutally effective revival of the hated national origins quota enacted in 1924 to keep Jews and Catholics from coming to the United States. Now we keep out highly educated STEM Degree holders from China and India. What would the end result of lifting the cap on EB per country migration be? It would mean that those born in these two countries would virtually monopolize all available EB visa numbers each fiscal year. By ending the inanity and inequity of treating Chinese and Swiss nationals the same, Congress would be effectively creating an equally pernicious regime that will admittedly treat everyone equally but, in practice, would keep out nationals of every country save for India and China. Everyone else would be infinitely worse off than they are now. The yawning EB backlogs for China and India would disappear to be replaced by equally discouraging queues for the rest of the world.
Do we really want to create an employment-based green card system that only works for India and China? Should discrimination against an educated workforce from these two countries be shelved only to discriminate against no less talented professionals from everywhere else? Why would those who favor diversity in college admission and employment hiring not recognize its value in immigration quotas? Doubtless advocates would contend that spreading the pain around is the best, maybe the only way, to get Congress to enlarge our manifestly inadequate EB quotas and they could be right. Before we join in the chorus for this radical move away from geographic neutrality, why not consider an alternative such as giving China and India a preferred position but not scrapping EB per country limits entirely? Remember the old adage: Beware of What You Wish For- You May Get It!
My guru on the law of removal, the learned Salvador Colon of Houston, is worried. Why you ask? It is because he wonders if the Fifth Circuit decision in Martinez v. Mukasey can survive a future Supreme Court ruling in Vartelas v Holder. Now, this may seem very much like inside baseball trivia to the uninitiated but it actually can have real life consequences. Permit me to explain.
In my last blog, I discussed Vartelas v Holder, 620 F. 3d 108 (2d Cir. 2010), cert. granted sept. 27, 2011 (No. 10-1211). Here, an LPR had plead guilty in 1994 to the crime of possessing or making bogus securities. At that time, IIRIRA was not yet a gleam in the eye of the most fervent nativist. Why is this relevant? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the Second Circuit both held that the applicaitn of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same question reached by the Ninth Circuit in Camins v. Gonzales, 500 F. 3d 872(9th Cir. 2007) and the Fourth Circuit in Olatunji v. Ashcroft, 387 F. ed 3838(4th Cir. 2004). Perhaps, given this conflict among the circuits, the Supreme Court granted certiorari to determine whether the current INA 101(a)(13)(C)(v) can be applied retroactively.
Doubtless, the conceptual framework that will govern such constitutional exegesis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 U.S. 244 (1984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101 (a)(13)(C)(v) will contradict basic notions of proper notice and upset "settled expectations" on which the actor "reasonably relied." Interestingly, IIRIRA's temporal reach cannot be circumscribed simply because "it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law." Landgraf, 511 US at 269. When in doubt, retroactivity is disfavored. The Supreme Court got it right: " Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Landgraf, 511 US at 265,
All of the above brings us, and brought sensei Chava Colon, to consider what might be the fate of the Fifth Circuit's enlightend ruling in Martinez v. Mukasey, 519 US F.3d 532(5t Cir. 2008) . This case held that the bar against INA 212(h) waivers for permanent residents who have committed aggravated felonies or have resided in the USA less than 7 years does not apply to one who adjusted status within the USA rather than having entered on an immigrant visa after consular processing. A cogent and incisive analysis of this case was offered by my learned colleague David Isaacson in this same space. http://www.ilw.com/articles/2008,0930-isaacson.shtm . Now, Chava Colon had the inspired thought that a Supreme Court affirmation of IIRIRA retroactivity in Vartelas v Holder might undermine the distinction between adjustment of status and admission on which Martinez v. Mukasey rests. Once the Supemes start tinkering with the notion of "admission", there is no way to predict where they or we will end up. Any Supreme Court pronouncement in Vartelas could well conflate the two ways of becoming an LPR that the Fifth Circuit in Martinez v Mukasey was so careful to keep separate and apart.
So, a decision how far back the IIRIRA notion of "admission" goes could wind up leaving an alien who needs 212(h) relief with no hope. When, to borrow a happy phrase from Einstein, the Supreme Court starts to play dice with the universe, mere mortals can only hope that the last laugh will not be on them or their clients.
It has been a long time since the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") introduced the concept of "admission" now codified at INA Section 101(a)(13)(C) yet arguments have continued to rage as to what it means and who has the burden of proof when it comes to a returning permanent resident. Now, at long last, the Board of Immigration Appeals has brought clarity to this muddled picture, or so it seems. If the United States Supreme Court upsets this transquility, those charged with the responsibility of advising clients may once again find themselves searching for answers.
Before IIRIRA, the INA defined "entry" in these terms: " any coming of an alien into the United States...except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if...his departure to a foreign port or place...was not intended..." 8 USC Section 1101(a)(13). This is, to put it charitably, not the most artful or easily digestible drafting so it was not clear what Congress meant. Happily, the Supreme Court told us in Rosenberg v. Fleuti, 374 US 449 462 (1963) which held that a lawful permanent resident was not making an entry if his or her departure was "brief, casual and innocent." Comes along April 1, 1997 and "entry" a la Fleuti is no longer, replaced now by IIRIRA Section 101(a)(13)(C) "admission" pursuant to which an LPR shall not be regarded as seeking admission "unless" he or she met 6 specific criteria, including having been absent for a continuous period in excess of 180 days or having abandoned or relinquished LPR status while away. Not content to stop there, IIRIRA also introduced INA 240(c)(2), 8 USC Section 1229a(c)(2) that requires an applicant for admission to prove by "clear and convincing evidence" that he or she is "lawfully present in the US pursuant to a prior admission." The burden is on the applicant for admission to demosntrate "clearly and beyond doubt" that he or she is not inadmissible. At the same time, IIRIRA also lowered the burden on the government as the charging party in removal proceedings to establish deportability b y "clear and convincing" evidence replacing the "clear, unequivocal and convincing" evidence test articulated by the Supreme Court in Woodby v. INS, 385 US 276,286 (1966). Following hard on the heels of IIRIRA, which did not explicitly abrogate Fleuti, the Board of Immigration Appeals held in Matter of Collado-Munoz, 21 I&N Dec.1061, 1065(BIA 1997) that "the Fleuti doctrine, with its origins in the no longer existent definition of 'entry' in the Act , does not survive the enactment of the IIRIRA as judicial doctrine." Farewell Fleuti!
Has the burden of proof shifted after IIRIRA fora an LPR who seeks admission to the US? If so, what burden applied? It is true, after all, that Woodby was not a constitutional decision and did not create a separate law on abandonment as opposed to all deportation cases. As my learned colleague Cyrus Mehta and I wrote in "Home Is Where The Card Is: How to Preserve Lawful Permanent Status In A Global Economy," 13 Bender's Immigration Bulletin 849,856 notes 37-41 (July 1, 2008), even after IIRIRA, both the BIA and the Circuit Courts continued to place the traditional burden on the government when the applicant has a colorable claim to LPR status.
Enter Matter of Benno Rivens, 25 I&N Dec. 623,625(BIA Oct. 19, 2011) which settles the matter or should unless the Supreme Court unsettles it, but more on that disturbing possibility later. Keep reading! In Benno Rivens, the Board of Immigration Appeals tells us what we all wanted to hear ( unless of course we work for CBP!) : " As a matter of first impression with respect to the application of section 101(a)(13)(C) of the Act,we find no reason to depart from our longstanding case law holding that DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seekind admission." Interestingly, the Board cites Matter of Huang, 19 I&N Dec. 749, 754(BIA 1988) which, in turn, had cited Woodby even though Congress eleced not to include the phrase " unequivocal" in IIRIRA INA 240(c)(3)(A). Did this omission mean a lesser standard? The BIA has " no occasion to determine whether, or to what degree, this has effected a substantive change." Benno Rivens, 25 I&N Dec. at 626. Now that is frustrating, maybe even a tad annoying. Would not we all like to know ?
So what's not to like? Isn't this enough even for a disgruntled yet zealous advocate? Allow me to introduce Vartelas V. Holder, 620 F.3d 108 (2d Cir. 2010), cert. granted Sept. 27, 2011 (No. 10-1211). Here, an LPR had pled guilty in 1994 to the crime of possessing or making counterfeit securities. At that time, IIRIRA had not yet been enacted. How is IIRIRA relevant here? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the 2nd Circuit both ruled that the application of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same issue reached by the 9th Circuit in Camins v. Gonzales, 500 F. 3d 872 (9th Cir. 2007) and the 4th Circuit in Olatunji v. Ashcroft , 387 F.3d 383(4th Cir. 2004). Perhaps to resolve this conflict among the different circuits, the Supreme Court has granted certiorari to review this narrow question of whether the current INA 101(a)(13)(C)(v) can be applied retroactively. Doubtless, the conceptual framework that will shape its analysis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 US 244( 984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a0(13)(C)(v) will contradict basic notions of proper notice and upset "settled expectations" on which the actor in question "reasonably relied." Interestingly, IIRIRA's temporal effect cannot be circumscribed simply because "it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." Landgraf, 511 US at 269. When in doubt, retroactivity is not favored. Chang v United States, 327 F.3d 99,920 (9th Cir. 2003). The Supreme Court said it best: " Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expecations shoujld not be lightly disrupted." See Landgraf, 511 US at 265.
As that immortal baseball philosopher Leroy Satchell Paige so wisely said: "Don't look back. Something might be gaining on you."
Thinking of applying for naturalization? Before you file your N-400, you might want to kick back and spend a few moments to imbibe the lessons imparted by Khamooshpour v Holder, No. CV-10-01266-PHX-NVW(D.Ariz. Feb. 14, 2011). Money laundering in violation of the Iranian Embargo Controls and failing to report foreign bank accounts will make it pretty darn difficult to show good moral character. This is true even if the conduct took place beyond the five year period for which GMC must be shown so long as the conviction itself took place within the charmed circle of time. The way the USCIS interprets 8 CFR 316.10(a), the need to prove you are worthy of becoming a citizen starts from five years before the N-400 comes on stream and continues until the applicant takes the sacred final oath. Nor are you home free if the USCIS cannot pin the dreaded CMT tag on you. Even if 8 CFR 316.10(b)(2)(i) does not apply, the USCIS can still say a loud "NYET!" by finding that the challenged actions "relecetd adversely " on your moral character . 8 CFR 316.10(b)(3)(iii) makes it legal. That is a pretty broad catch-all phrase when they want to turn thumbs down.
Deliberate violation of the Iranian Embargo will not be lightly dismissed as a malum prohibitum regulatory offense. If you want to grease the skids to pass back and forth between New York and Tehran, best to get a license from your friendly Office of Foreign Assets Control. Similarly, if you have a foreign bank account worth more than $10,000, failing to report it to Uncle Sam is going to be seen as a willful omission making you one bad actor. So, don't try to exchange money without a license, report your hefty foreign bank accounts and you too can get that shiny new naturalization certificate. Forewarned is forearmed, as they say. Now, you can apply!
There is a fascinating observation in a recent column by noted demographer Michael Barone. Listen to what he says:
"The 2010 Census tells something else that may prove important: There's been a slowdown of immigration since the recession began in 2007 and even some reverse migration. If you look at the Census results for Hispanic immigrant entry points -- East Los Angeles and Santa Ana, Calif., the east side of Houston, the Pilsen neighborhood in Chicago -- you find that the Hispanic population has dropped sharply since 2000.
One reason is the business cycle. The 2000 Census was taken on April 1, 2000, less than a month after the peak of the tech boom. Unemployment was low, immigration was high, and entry-point houses and apartments were crammed with large families.
The 2010 Census was taken after two years of recession, when immigration had slackened off. We simply don't know whether this was just a temporary response to the business cycle or the beginning of a permanent decline in migration.
Past mass migrations, which most experts expected to continue indefinitely, in fact ended abruptly. Net Puerto Rican migration to New York City stopped in 1961, and the huge movement of Southern blacks to Northern cities ended in 1965. Those who extrapolate current trends far into the future end up being wrong sooner or later."
What makes this so intriguing is the fact that conventional wisdom holds precisely the opposite, namely that the US is subject to never-end waves of unlawful migration to which we can offer no meaningful resistance. Yet, this is not all. While it is certainly true, whether we are speaking of the 1930's or the 21st Century, that hard times makes many Americans less receptive to calls for more immigration, the influence of dismal economic forces will, over time, diminish these same demographic trends. Reinforcing the basic truth that, at bottom, migration is an economic phenomenon, it is the business cycle and not government policies that have the most powerful and sustained impact on who and how many come to America.
One final thought. Since the American public does not distinguish between legal and illegal migration, and tends to support the former while opposing the latter, particularly if we speak of high-end migration with advanced education, it may be that the pain we are all going through now in the Great Recession of the last few years will, in the end, make enactment of comprehensive immigration reform more, not less, likely. If migration outside the law ebbs, then perhaps the American people will be less prone to see all immigration as a threat and consider the case for letting more of the best and brightest come on its own merits. That is a conversation that America needs. As the great philosopher Mel Allen of Yankee Broadcaster fame in yesteryear used to say " How 'Bout That!"