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Rami Fakhoury and Mark Levey
Copyright @2010 Fakhoury Law Group/Rami Fakhoury
D. Litigation Issues - Non-Discretionary Grounds of Appeal
1. Background to Constitutional Claims - The Yick Wo Case (1886)
When Agency misadministration reaches the level of constitutional harm, grounds for appeal separate and above abuse of discretion arises. As the Fragomen v. USDOL case shows, where suits against agencies are competently presented, the courts have begun to assert jurisdiction over questions of law and constitutional issues. While Congress has stripped the courts of power to review many types of discretionary USCIS and Immigration Court determinations, business immigration is not off-limits to litigation.
The Equal Protection Clause of 14th Amendment has been held to attach to companies and commercial activities for many decades. Commercial activities, and the rights of those who operate them, are particularly favored under American law. Discrimination against certain types of businesses because of their foreign ownership has been held to be unconstitutional going back to the Chinese laundries case of 1886. Yick Wo v. Hopkins, 118 US 356 . In that seminal decision, the Supreme Court ruled that a law regulating business that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause and thus lacks a "rational basis". Justice Matthews joined by a unanimous court found:
The necessary tendency, if not the specific purpose, of this ordinance, and of enforcing it in the manner indicated in the record, is to drive out of business all the numerous small laundries, especially those owned by Chinese, and give a monopoly of the business to the large institutions established and carried on by means of large associated Caucasian capital. [ . . . ]
[I]t seems to us that there has been a wide departure from the principles that have heretofore been supposed to guard and protect the rights, property, and liberties of the American people. And if, by an ordinance general in its terms and form, like the one in question, by reserving an arbitrary discretion in the enacting body to grant or deny permission to engage in a proper and necessary calling, a discrimination against any class can be made in its execution, thereby evading and in effect nullifying the provisions of the national constitution, then the insertion of provisions to guard the rights of every class and person in that instrument was a vain and futile act.
The period of the late 1880s was in some ways very much like that today. Following a massive expansion of U.S. industry and communications lines built largely with immigrant labor, tens of thousands of Chinese workers who had laid the tracks for the Union Pacific Railroad began to establish lives for themselves and their families in their adopted land. Many settled and opened small shops and businesses in San Francisco, the port city where they had initially arrived.
One of the more popular entrepreneurial ventures of Bay Area citizens from China was laundry and tailoring.
About two-thirds of the laundry's owners and almost 90 percent of the city's laundry workers were then of Chinese origin. This did not always sit well with their neighbors. In 1880, the city of San Francisco passed an ordinance that persons could not operate a laundry in a wooden building without a permit from the Board of Supervisors. The ordinance conferred upon the Board of Supervisors to grant or withhold these permits at their discretion.
After passage of that ordinance, of the wooden building laundry owners who applied for a permit, not a single permit was granted to a Chinese owner, while only one out of some eighty non-Chinese applicants was denied a permit.
Lee Yick, who had operated a laundry in the same wooden building for many years and held a valid license to operate his laundry previously issued by the Board of Fire-Wardens. He continued to operate his laundry without further license from the supervisors, and was convicted and fined $10.00, which he refused to pay. He sued for a writ of habeaus corpus after he was imprisoned.
2. There is no Discretion to Discriminate: Are Indian Outsourcing Companies being Treated as the Chinese Laundries of the 21st Century?
The Yick Wo decision was a powerful statement about equality under American law, at a time that was not universally respected, and Jim Crow racial discrimination was proliferating. Justice Matthews did not disguise the indignation the Court felt at the fact that government power was used to put a particular type of business owned and operated by non-citizens out of business in order to advance native economic interests:
'The effect of the execution of this ordinance in the manner indicated in the record would seem to be necessarily to close up the many Chinese laundries now existing, or compel their owners to pull down their present buildings and reconstruct of brick or stone, or to drive them outside the city and county of San Francisco . . . beyond the convenient reach of customers, either of which results would be little short of absolute confiscation of the large amount of property . . .. If this would not be depriving such parties of their property without due process of law, it would be difficult to say what would effect that prohibited result. The necessary tendency, if not the specific purpose, of this ordinance, and of enforcing it in the manner indicated in the record, is to drive out of business all the numerous small laundries, especially those owned by Chinese, and give a monopoly of the business to the large institutions established and carried on by means of large associated Caucasian capital.
3. THE CHENERY II "INFORMED DISCRETION" STANDARD: Rulemaking by Adjudication Valid Only When the Agency Exercises Expert Judgment Applied to Limited Cases.
Federal agencies are generally required to provide notice of proposed rules and consider comments about those rules. 5 U.S.C. ß 553. However, "interpretive" rules are exempt from this process. 5 U.S.C. 553(b)(3)(A); Gunderson v. Hood, 268 F.3d 1149, 1155 (9th Cir. 2001). Interpretive rules generally clarify or explain, but cannot be inconsistent with or amend an existing rule. Gunderson, 268 F.3d at 1155.
Where the courts have allowed agencies an exception to the APA "publication and comment" requirement to permit rulemaking by adjudication, the courts have imposed limits on that practice. First, the agency must exercise expert judgment in an individualized determination. This gives rise to the "informed discretion" standard articulated in the landmark Chenery II case and the line of cases that follow it. Furthermore, the agency can only substitute its own informed discretion for normal rulemaking in limited circumstances where the need for a published rule could not be foreseen. Once an issue is decided upon, the agency must publish its rule, and may not broadly apply ad hoc rules without publication.
Sixty years after Yick Wo, the Court issued another landmark decision limiting the powers of government to arbitrarily shut down business. In SEC V. CHENERY CORP., 332 U. S. 194 (1947)("Chenery II") an case brought in the immediate wake of the Administrative Procedures Act (APA), involved management of a publicly-traded water company accused of illegal stock manipulation. The first time this case made it to the Supreme Court (Chenery I), the Court held that the acts committed by the company did not amount to common law fraud and therefore the SEC's stated rationale for the charges could not be sustained.
On remand, the SEC charged the company's officials on different grounds, under its own enabling act. The court used the case as an opportunity to discuss the merits of policymaking through adjudication and retroactive rule-making by federal agencies.
The court stated that policymaking through administrative adjudication is not necessarily wrong and may be desirable, but only under limited circumstances. Adjudication may be more flexible than rule-making and allows policy to be made on an ad hoc basis. This flexibility is important where there may be unforeseeable problems, inexperience with the problem, or the problem is so specialized in varied that a general rule would be impossible. Therefore, the choice between rule-making and adjudication lies in the informed discretion of the agency.
Chenery II is often cited to illustrate the deference under the APA that courts have long shown to agency's powers to exercise policy-making by adjudication, and an agency may sometimes substitute its own "informed discretion" based in agency expertise for judicial decisions, where the two may conflict. However, Chenery II and the line of decisions that follow it stand for a third major principle of Administrative Law and that is: "informed discretion" implies a requirement for application of expert judgment and reasoned analysis to individual cases rather than a blanket application of policy. Rule-making by adjudication is an exceptional practice involving decision-making of the highest standard. Decision-making in lieu of published rule must be of the highest standard; thus, per curium application of de facto rules is an abuse of discretion:
administrative judgments are entitled to the greatest amount of weight by appellate courts . . . [if the product of] administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts. It is the type of judgment which administrative agencies are best equipped to make and which justifies the use of the administrative process. See Republic Aviation Corporation v. Labor Board, 324 U. S. 793, 324 U. S. 800.
4. Chenery II: Change in Substantial Agency Rules Without Notice and Comment is Restricted to a Case the Administrative Agency "Could Not Reasonably Foresee"
Chenery II also laid restrictions on the circumstances under which agencies could change their rules through adjudications. Rule-making through adjudications give an agency flexibility but, the Court held, it is acceptable in lieu of normal APA "publication and comment" procedures strictly in the context of novel circumstances:
[P]roblems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or
Page 332 U. S. 203
the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency. See Columbia Broadcasting System v. United States, 316 U. S. 407, 316 U. S. 421.
Where similar issues arise over and over again over a longer period of time, Chenery II is clearly telling us, published regulations are mandatory when the rule is amenable to general application or the rule made by adjudication will not receive deference.
 II, Ibid., 332, http://supreme.justia.com/us/332/194/case.html
Recently, the Federation for American Immigration Reform (FAIR) released a report called Refugee and Asylum Policy Reform. Last week, I wrote about some problems with the report's methodology. Since it's a new year, I wanted to do something more positive, so for today's post, I will discuss some recommendations in the report that I agree with.
The Cuban Adjustment Act
The report recommends that the Cuban Adjustment Act be scrapped as a Cold War anachronism:
The exemption of Cubans in the United States from being required to justify a well-founded fear of persecution if sent back to Cuba is a political rather than humanitarian provision that encourages illegal immigration from Cuba. The Cuban Adjustment Act should be repealed and the "wet-foot-dry-foot" policy that paroles Cubans into the country should be rescinded by the president.
While I oppose the Cuban Adjustment Act, Cuba's loss has been our gain: Rapper Cuban Link
This policy has never made much sense to me, especially since the end of the Cold War. I've represented Cubans who gained their residency in the U.S. through the Cuban Adjustment Act, and they have all been very nice people. But they were not political dissidents or people who faced persecution in Cuba. Maybe the original idea behind the Act was to score a propaganda victory against Cuba, but after 50 years of the "Revolution," I don't know that it's done much good (on the other hand, all those Cubans coming to the U.S. have greatly enhanced our country). Rather than allow any Cuban who reaches the U.S. to remain here, we would do better to require each person to prove that he has a well-founded fear of persecution in Cuba, just like asylum seekers from other countries.
Coercive Family Planning
Congress has defined the term "refugee" to include victims of China's coercive family planning policies. The FAIR report recommends that the "expansion of the definition of a refugee to include coercive family planning policies should be reversed." "It deviates from international practice and encourages illegal immigration from China."
I have always felt that it is unfair to condemn China for its one-child policy. That country faces a very real and very dangerous population crisis, and the government instituted a policy (however unpalatable) to avoid disaster. The law that FAIR opposes is more narrowly written than the report indicates, but it is still over-broad. INA ß 101(a)(42)(B) defines "refugee" as follows:
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
The law appropriately defines "refugees" to include past victims and possible future victims of forced abortion and forced sterilization. However, those who "resist" the family planning policy are also covered. I would limit the definition of "refugee" to include only those who suffer from the coercive policies, not those who merely oppose such policies (though in my understanding, asylum is not given willy-nilly to anyone who expresses opposition to the one-child policy, and in this respect, I think FAIR's concern is a bit over-blown).
The FAIR report is concerned with "combating the documented fraud in the asylum system." Fraud is a problem in the asylum system, and it is one I have written about before in a post creatively titled Fraud and Asylum. I believe the most effective method to combat fraud-and I did not see this mentioned in the FAIR report-is to aggressively go after attorneys and notarios who engage in fraudulent practices. To quote my own blog on this point:
Another option is to identify attorneys and notarios who prepare claims deemed suspicious. Such people should be investigated and, if evidence of fraud is uncovered, prosecuted. This, to me, is the easiest and most effective solution. The DHS attorneys generally know who is producing and/or facilitating fraudulent claims. Why not send an undercover investigator posing as a client to the suspected attorney? If the attorney suggests that the "client" engage in fraud, the attorney could be charged with a crime.... Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.
So, I am pleased to have found a few points of agreement with the FAIR report. In a future post, I will discuss some areas of disagreement. Happy New Year.
Originally posted on the Asylumist: www.Asylumist.com.
The big news is that the masters cap was hit as of December 24th. I had been predicting since last summer that this 20,000 quota would be hit in the last week of the year and the pace of usage stayed extremely consistent. The general quota has 7,700 visas of 65,000 remaining as of December 31st and the rolling four week average is now running at just over 1500. We have seen a modest up tick in usage since the masters cap ran out, but not as much as might be expected. It looks like we've got five to six weeks until the cap is reached if the pace of usage remains the same.
When historians try and get in to the nitty gritty of how the Republican Party went the way of the Whigs, they might have a chapter on the GOP's pushing of this issue. There is ZERO chance birthright citizenship is going to be stripped from the Constitution. The reason it is being considered is to score points with far right wackos and don't they always vote Republican anyway? Ah, but in the days when the wackos can dump a moderate GOP member in a primary, there's really no choice is there?
A lot of thoughtful conservatives are pretty conflicted on this issue and just about everyone from the middle to the left is unified in their collective horror that this is even being discussed. Democrats can't really screw this one up as long as they stick together and make sure their party gets the credit for standing behind Latinos (and all Americans who actually think the Constitution is a pretty good thing).
The grown ups in the GOP may privately be appalled that their party has moved in this direction, but they also have largely cowered when it has come to reigning in the xenophobes. They'll pay a terrible price over the next few years for their silence as their party has to deal with the demographics of a changing America. Picking up a lot of seats in the middle of the worst economic decline since the Great Depression may give them a false sense of security that they're now safe, but in "normal" election years, they've got huge challenges awaiting them. As America moves to a minority majority country, having the largest racial and ethnic minorities lined up uniformly against you is not a recipe for maintaining a majority.
-----------------IMMIGRATION DAILY FROM ILW.COM------------------
January 4, 2011
1. Comment: Many Items - This issue of Immigration Daily carries
the latest entries by our bloggers Joel Stewart, Greg Siskind and
Chris Musillo. We also have news from USCIS, DOS and DOJ, in
addition to help wanted ads and a comingsNgoings announcement.
Erratum: In yesterday's issue of Immigration Daily, the article
"Rethinking Employment-Based Immigration: Stop the GOP's Slide
toward Socialism" written by Angelo Paparelli was mistakenly
linked to another article, this has now been corrected.
2. Bloggings: PERM: FAQ Clarifies 10 Days Posting Requirement by
3. Bloggings: Anti-Immigration Center For Immigration Studies
Suggests Willingness To Compromise On Dream Act by Greg Siskind
4. Bloggings: H-1B Cap To Be Reached by Chris Musillo
5. News: USCIS Announces Implementation Of Help HAITI Act Of 2010
6. News: USCIS Releases Interim Memo For Comment On Implementation
Of The Help HAITI Act Of 2010
7. News: DOS Announces Redesigned Birth Abroad Certificate
8. News: DOJ Office Of Immigration Litigation Bulletin: August
9. Focus: THE PERM BOOK
The outline of THE PERM BOOK, 2nd Edition is as follows:
PART I. PERM RULE, ANALYSIS, AND COMMENTS
A. PERM Regulation
B. Articles by PERM Writers
C. Editor's Comments to the PERM Rule
PART II. FAQ, STAKEHOLDER & LIAISON MEMORANDA
A. Frequently Asked Questions (FAQ) by Lawrence Rudnick
B. Summary of DOL PERM Stakeholders Meetings by Lorna Rogers
C. Frequently Asked Questions
PART III. ETA FORMS, OLD AND NEW
A. The New 9089 PERM Form by Linda Rose
B. What DOL told OMB about PERM by Jay Solomon
C. New ETA Form 9089 and Instructions, Application for Permanent
D. Old ETA Form 9089, Application for Permanent Employment
E. Old ETA Form 9089, Instructions
F. Old ETA Form 9089 Electronic Filing Instructions
G. ETA Form 750A
H. ETA Form 750B
I. ETA Form 750 A and B, Instructions
J. ETA Form 9127, Foreign Labor Certification (FLC) Quarterly
PART IV. ROADMAPS AND CHECKLISTS
A. Overview of PERM Cases
B. Overall PERM Flow Chart
C. Employer Checklist
D. Alien Checklist
E. Job Offer Checklist
F. Attorney/Agent Checklist
G. Prevailing Wage Preparation Checklist
H. Prevailing Wage Quick Guide
I. Recruitment Checklist
J. Express SVP Checklist
K. PERM Audit Checklist: 10 Important Points
L. Real and Virtual PERM Addresses
M. What do PERM and H-1B Visas Have in Common?
N. Attorney Competency Self-Test
O. Sample PERM Cases
PART V. BALCA HANDBOOK
A. Introduction to BALCA by Joel Stewart
B. BALCA PERM Quick Reference Guide by Joel Stewart
C. BALCA En Banc Quick Reference Guide by Joel Stewart
D. BALCA Hearing Procedures
PART VI. FEDERAL LITIGATION GUIDE
A. Introduction to Federal Court Litigation by Sam Udani
B. Exhaustion of Administrative Review by Michael E. Piston
C. Federal Court Litigation-PERM by David B. Pakula
D. Sample Pleading by Michael E. Piston
PART VII: PREVAILING WAGE REVIEW
A. Prevailing Wage Survey & Overview by Jane Goldblum
B. Wage Worksheet Simple Systems 1 by Jane Goldblum
C. Wage Worksheet Simple Systems 2 by Jane Goldblum
D. 656.40 Perm Reg. Determination of PW
E. 656.41 Perm Reg. Certifying Officer Review of PW
F. Prevailing Wage FAQ
G. Appendix A By Alphabetical Order
H. Appendix A By SOC Classification Order
PART VIII: SWA SUMMARY STATE BY STATE
All 50 states + 4 territories (Guam, District of Columbia, US
Virgin Islands, and Puerto Rico)
PART IX: PERM RESOURCES ON CD-ROM
Hundreds of files
For more info or to place your order, please see here.
For the fax document, see here.
10. Headline: CLE Seminar: The Art of Visa Adjudication. Sign up
11. Headline: Perfect storm hits legal aid http://ow.ly/3y5pu
12. Headline: @azitaco thank you for following us remember we
offer every 100th new follower a FREE book on immigrants!! so pls
let ur friends know.
13. Headline: Taking away immigrant students' chance to 'Dream' -
http://wapo.st/ft5igA DREAMAct Maryland instatetuition
14. Headline: When Reason Fades: From Undocumented Immigration to
Jeffrey Sachs http://ow.ly/3y1dF
15. Headline: NYTimes Immigration Explorer with interactive map
16. Headline: ICE to increase deportations in 2011
http://ow.ly/3xI3o Obama believes in enforcement first - just
like GOP does! stopICE
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ComingsNGoings: Immigration Event - Washington, DC, December
13 - The Migration Policy Institute is pleased to present 'Does
Low-Skilled Immigration Hurt the US Economy? Assessing the
Evidence'. Speakers include Harry Holzer, Doris Meissner,
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