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Letters of the Week: November 30 - December 4

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  1. Nolan Rappaport's Avatar
    Roger wrote an article on the Syrian refugee situation that includes comments which attribute the republican objectives in writing the bill to me. The following comment is my response to his comments.

    Roger seems to have misunderstood my criticism of the Republican attempt to improve the screening process for Syrian refugees. Yes, "criticism." It's a poorly thought out, poorly written bill that will not achieve any OF THE REPUBLICAN OBJECTIVES. NOT MINE. Read the following short paragraphs from my article and you should see what I mean:

    "H.R. 4038 does not address the difficulty investigators have in obtaining background information from Syria. In fact, it does not address any of the problems that the Republicans have expressed concern about in the Homeland Security Committee?s recent report, ?The Syrian Refugee Flow.? Instead, without providing any guidance, it would require the FBI to ensure that each covered alien has received a thorough background investigation and certify to the DHS secretary and the Director of National Intelligence that the background investigation was sufficient to determine whether he/she is a threat to the security of the United States. It provides further that a covered alien cannot be admitted to the United States as a refugee without unanimous concurrence from the FBI director, the DHS Secretary, and the Director of National Intelligence that he/she is not a threat to the security of the United States.

    What standard is the FBI director supposed to use to decide whether background investigations are sufficient to determine whether covered aliens are security threats? H.R. 4038 does not offer any guidance on what that standard should be. The Republicans have provided statements from key government officials who indicate that they are not satisfied with the current security investigations, but President Barack Obama would review their policy decisions on this standard. He would make the final decision on what the standard would be, and he has said repeatedly that he is satisfied with the sufficiency of the background investigations already being performed. He almost certainly would tell the FBI and the other agency heads to make the required certification if they are satisfied that the current background investigation process was performed, and I would expect future presidents to do the same thing. Without guidance on what the standard should be, they will exercise their own judgments, which is what they would do if there were no certification requirement. So what would this bill accomplish?"

    -Nolan
  2. Nolan Rappaport's Avatar
    Report from George Washington University on, "ISIS in America." Forward by Jane Harman, former Democratic Chair of the Intelligence Committee, available at https://cchs.gwu.edu/sites/cchs.gwu.edu/files/downloads/ISIS%20in%20America%20-%20Full%20Report.pdf
  3. Marko Milakovich's Avatar
    Congress makes the laws, which are specified in Public Laws (P.L.s) and ACTS and are codified in the United States Codes (U.S.C.s). U.S. Government Agencies apply their expertise and experience to create Regulations (C.F.R.s) to implement the laws. The Agencies do not have the authority to alter, modify, change, or add to the Laws. USCIS has violated this responsibility and is adjudicating applications based on their CFRs, which are not accurate representations of the Law. When this is done, it is an aberration of the Law and constitutes an injustice to the American public, the adopting parents and the innocent children who have been adopted.


    EXPLANATION

    INA 101(b)(1) ?(E)?, ?(F)? and ?(G)? identify three scenarios concerning a foreign adoption of a child. Basically, ?(E)? concerns an adopted child where the adopting parents have legal custody and the child resided with the adopting parents for at least two (2) years and the I-130 application is required; ?(F)? concerns an orphan child with NO parents (including abandonment ) and that an I-600 application is the required application; and, ?(G)? concerns an adopted child with one parent (including abandonment) who was adopted in a Hague Convention signatory country and an I-800 application is required. USCIS 8 CFR 204.3 specifically addresses ?(F)? and ?(G)? and contain the specification that:
    Form I-600 may not be filed under this section on or after the Convention effective date, as defined in 8 CFR 204.301, on behalf of a child who is habitually resident in a Convention country, as defined in 8 CFR 204.301. On or after the Convention effective date, USCIS may approve a Form -600 on behalf of a child who is habitually resident in a Convention country only if the Form I-600A or Form I-600 was filed before the Convention effective date.
    USCIS 8 CFR 204.300(b) states that:
    On or after the Convention effective date, no form I-600A or I-600 may be filed under section 101(b)(1)(F) of the Act and 8 CFR 204.3 in relation to an adoption of a child who is habitually resident in a Convention Country...
    USCIS Interoffice Memorandum HQ DOMO 70/6.1.1-P, paragraph 21.5(6) states:
    The Hague Adoption convention and the implementing regulations 8 CFR 204.300 through 204.314, generally apply to a case if the child is adopted on or after April 1, 2008. If the Convention and these regulations apply to a case, then the child may not immigrate as a ?orphan? under section 101(b)(1)(F) of the Act.
    While the USCIS Interoffice Memorandum uses the term ?generally apply?, the two referenced and quoted CFRs that contain the specification that that if the child is in a Hague Convention country an I-600 may NOT be filed. HOWEVER, this CFR specification is NOT in section 101(b)(1)(F) of the Act. THEREFORE, any categorical denial of an I-600 application for an adopted child in a Hague Convention signatory country is illegal.


    THE MEANING OF ?OR?

    What is the meaning of the word ?OR?? Why did Congress choose to use this word? INA 101(b)(1) ?(E)?, ?(F)? and ?(G)? are connected by the word ?OR?. There are no qualifiers on the each of these subparagraphs which deny one of the others, yet USCIS has chosen to do so, with its addition to the ACT. Specifically, if 101(b)(1)(E) specifications are met the I-130 is the proper application procedure. But if the adoption was in a Hague Convention country, the ?(E)?/I-130 process still stands. Contrast this with the situation when 101(b)(1)(F) specifications are met, the I-600 is the proper application procedure, except, if the adoption was in a Hague Convention country, then according to the USCIS CFRs, the 101(b)(1)(G) trumps the ?(F)? and exclusively applies and the I-800 is the proper applications procedure. HOWEVER, there is NO trumping or exclusivity specifications in the ACT.

    Again, what is the Congressional meaning of the word ?OR?? Plain English reading would indicate that subparagraphs ?(E)?, ?(F)? and ?(G)? may each be equally considered if the specification in each subparagraph were met.

    Therefore, it may be concluded that if the specifications in each of the subparagraphs ?(F)? and ?(G)? are individually satisfied, one may choose either because of the connecting word ?OR?. This is according to the ACT, but USCIS has disallowed this in their CFRs, thus thwarting the will of Congress.


    THE LEGAL STANDING OF THE HAGUE CONVENTION

    On November 16, 2007, the President, acting on the advice and consent of the Senate, ratified the Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption (?Hague Adoption Convention?). The Hague Adoption Convention entered into force for the United States on April 1, 2008. On the same day, title III of the Inter-country Adoption Act (?IAA?), Public Law 106-279 , and the Hague Adoption Convention regulations, 8 CFR 204 , subpart C, also entered into force. Title III of the IAA, in section 302, enacted new sections 101(b)(1)(G) and 204(d)(2) of the Immigration and Nationality Act (?Act?), which govern the immigration of an alien child who is habitually resident in a country that is a party to the Hague Adoption Convention and who seeks to immigrate based on the child?s adoption by a United States citizen habitually resident in the United States. NOTE: New sections of the Immigration and Nationality Act (?ACT?) were enacted. At issue is the accuracy of the USCIS CFRs, which implement the ACT. This paper asserts that USCIS improperly modified and added specifications to the ACT.

    An agreement ratified by the United States has the force of a U.S. Statue. This applies to the Hague Convention. No Agency may alter the meaning of a Statute.


    THE HAGUE CONVENTION EXCEPTION

    The Hague Convention contains Articles which specify the specific requirements, which any country who is a signatory to the Hague Convention must comply. Once a country ratifies the Hague Convention, all of the provisions and Articles are accepted and none may be altered or modified, as stated in Article 40, ?No reservation to the Convention shall be permitted.?

    Contained in the Hague Convention are Articles, which specify and delineate EXCEPTIONS when the Hague Convention Articles do not apply for a Country which has ratified the Hague Convention. One circumstance is when a country has one or more territorial units which have a different system of law. Articles 36, 37, 38 and 45 address this circumstance.

    Please note that while there is no conflict between the Hague Convention Articles and the existing INA 101(b)(1) ?(E)?, ?(F)? and ?(G)?, there IS A CONFLICT with the USCIS implementing CFRs, because they have modified the statues.

    It is simple logic that if the citizen adoptive parent establishes that the child?s adoption and immigration are not governed by the Hague Convention then INA 101(b)(1)(G) would not apply and only INA 101(b)(1)(F) is applicable. However, USCIS makes no provision for this in their CFRs, thus creating a significant conflict and hardship for the few applicants submitting an I-600 under Section 101(b)(1)(F) of the ACT. This is because USCIS doggedly clings to the modified CFR as a prevailing authority over the ACT and will not acknowledge the existence of the Hague Convention exceptions.


    MODIFYING STATUES REBUKED BY THE COURTS

    A CFR that parrots an ACT and modifies it, regardless of the appearance, has NO deference over the ACT or statute. The following is noted in the Supreme Court?s decision in Gonzales v Oregon, 546 US 243, 257 (2006):
    Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.

    INA 101(b)(1) ?(E)?, ?(F)? and ?(G)? must operate in harmony with other provisions of the INA. If Congress meant to create qualifying specifications when a provision applies or does not apply, it would have plainly said so. Congress would not have left open scenarios where the provision of the INA could be contravened or abrogated by a CFR. Therefore, interpreting a statue though its plain meaning trumps all other cannons of interpretation, and the following quotes from notable Supreme Court decisions are worth noting.
    [I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there."Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.
    Rubin v. United States, 449 U. S. 424, 430 (1981).


    REVISITING MESSINA vs. USCIS
    (Ref: http://www.ilw.com/articles/2010,1028-yacob.shtm)

    NOTE: The following information is extracted from the referenced article and is highlighted here because of its applicability to the topic of adjudication.

    MESSINA vs. U.S. CITIZENSHIP AND IMMIGRATION SERVICE underscores the basic administrative law tenet, which applies to every regulatory agency, that an adjudicator may not only look to evidence which supports the adverse decision but rather, must consider the entire record, make specific findings, and reach cogent conclusions concerning all relevant claims which have a bearing on the outcome of the decision. MESSINA vs. U.S. CITIZENSHIP AND IMMIGRATION SERVICE, Civil Action No. 05-CV-73409-DT, February 16, 2006, UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 2006 U.S. Dist. Lexis 10292, 2006 W.L. 374564, not reported in F. Supp. 2d, (ED. Mich., 2006).

    Agency action may be reversed under the arbitrary and capricious standard only if the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." U.S.C. ? 706(2)(A) (2001); Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002)
    Moreover, an abuse of discretion may be found where the agency decision is based on an improper understanding of the law. Occidental Engineering Co. v. INS, 753 F.2d 766, 768 (9th Cir. 1985) Where, as here, the court must review an agency's construction of a statute which it administers, the court must consider first whether Congress has directly addressed the 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." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).

    "However, the underlying agency action may be set aside only if 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Family Inc. v. U.S. Citizenship & Immigration Servs. 469 F.3d 1313, 1315 (9th Cir. 2006) (quoting 5 U.S.C. ? 706(2)(A)). "We have held it an abuse of discretion for the Service to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law." TongatapuWoodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) (internal quotations omitted).

    "[a]t a minimum, [the arbitrary, capricious, abuse of discretion] standard requires the agency to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C. Cir. 2001),

    An administrative agency may not "ignore evidence placed before it by interested parties.". Consumers Union of United States, Inc. v. Consumer Prod. Safety Comm'n, 491 F.2d 810, 812 (2nd Cir. 1974).

    The courts will not substitute the findings of fact by the USCIS, however, if the agency fails to consider the evidence and make the proper findings on all relevant issues, the court will oblige and make findings which may not be palatable to the agency. Messina vs. USCIS


    SPECIFIC EXAMPLE

    Regarding the case of the I-600, Petition to Classify Orphan as an Immediate Relative, for Likia Z. Milakovich, an abandoned child, who was adopted in India, a Hague Convention signatory country. The I-600 application was submitted with a plethora of supporting documentation, including (1) Tribal adoption letter; (2) Indian court Deed of Adoption citing the authority of the Constitution of India, Article 371A; (3) Indian Birth Certificate showing the petitioners as father and mother (both U.S. citizens) of the abandoned child, (4) Florida State court order for adoption; (5) Florida State Birth Certificate for foreign birth showing the petitioners as father and mother; (6) Copy of the Hague Convention Articles related to the exceptions; (7) Copy of the Constitution of India, Article 371A; and considerable more supporting documentation.

    Likia Z. Milakovich was abandoned upon birth and became a ward of the Kiyevi Village Council, a statutory authority. Shortly after her second birthday she was first tribally adopted by the Milakovichs, and later this was reaffirmed in an Indian court, which cited the Constitution of India, Article 371A as the governing authority which gives full recognition to all tribal customary laws and practices in the Indian State of Nagaland. The Article 371A established a different legal system for the tribal peoples of Nagaland that is different than the rest of India.

    The Hague Convention contains exceptions to its applicability in the cases were a signatory country has a territorial unit with a different legal system, which prevails over the laws in the rest of the country. This was the case for the adoption of Likia Z. Milakovich who was first tribally adopted by the Milakovichs, who were both members of Kiyevi Village, whose Village Council became her ward. Thus, the adoption met the requirements for an exception to the Hague Convention, which no longer applied. Thus, an I-600 application according to INA 101(b)(1)(F) was applicable and not INA 101(b)(1)(G), which was for Hague Convention adoptions where the I-800 application would be the proper application.

    The USCIS ?Rejection Notice? cited the reason for the Rejection was Title 8 CFR 204.300(b) Orphan cases states:
    On or after the Convention effective date, no Form I-600A or I-600 may be filed under section 101(b)(1)(F) of the Act and 8 CFR 204.3 in relation to an adoption of a child who is habitually resident in a Convention Country..
    And, that:
    A review of you case reveals that the Deed of Adoption was dated March 7, 2015. India entered into force with the Hague Convention in 2007. After April 1, 2008, all applications for countries party to the Hague Convention must be filed on Form I-800A. Therefore, this adoption fall under Hague Convention rules.
    Please note that no mention was made concerning the exceptions to the Hague convention.

    Relief from the USCIS Rejection has been sought from the USCIS Ombudsman. In addition, assistance has been requested from Florida Senators Marco Rubio and Bill Nelson, as well as U.S. Representative Alan Grayson.

    As of this date, 30 November 2015, there has been no resolution and Likia Z. Milakovich remains in Northeast India living with her Aunt and Uncle and their two young daughters. Her Aunt is my wife?s sister. It has been nine (9) months since she was adopted and in two (2) more months she will turn three (3) years old ? one year since she was adopted. When will Likia be able to join her parents?


    CONCLUDING THOUGHTS

    There is a potential for an aberration of justice each time an Agency fails to faithfully implement a statute, which articulates the will and judgment of Congress. This danger may be further propagated like cancer in Agency memorandums, policy letters, and guidance such as contained in the USCIS Adjudicator?s Field Manual (AFM). Then unsuspecting, innocent Adjudicators implement the CFRs and guidance in the AFM in good faith, thinking that this is the ?law?. The reality is that it may be or may not be!. The only criteria to determine if it really is a valid implementation of the law is to compare it to the source, namely the statutes.

    In the case articulated herein, USCIS has clearly distorted the ?law? and then propagates the distortion. In this case USCIS has clearly failed to exercise it?s responsibility and did not consider the plain English documentation regarding the Hague Convention exceptions and the Constitution of India, Article 371A regarding a different legal system in the Indian State of Nagaland. All relevant information on this was contained in Likia?s I-600 application, but was apparently ignored or considered irrelevant compared to the flawed CFRs which modified the Congressional Statues.

    Honor, integrity and competence are expected attributes for the government of ?We The People?, yet this seems to be illusive and difficult to obtain. The obvious result is a loss of respect and confidence in our government. To remain silent is to tolerate incompetence and be a willing endorser of the flaws. And I am compelled to speak through this letter.



    Marko Milakovich Biography
    Marko is an Electrical Engineer who has spent most of his career in the communications field. He is a retired USAF officer, a Vietnam Veteran (two Bronze Stars) and traveled the world in technical jobs. After the military he held several positions in major corporate organizations and more recently spent 3 ? years in the Middle East as a contract civilian embedded with the USAF. He previously adopted the two sons of his wife?s deceased brother and submitted an I-600 for them, which USCIS refused to process, resulting in hardships, which still exist today. Recently, he adopted a child and submitted an I-600,which USCIS rejected, for the same reasons as before. This is his current battle, which has prompted him to prepare this study. He may be contacted at vssmarko@gmail.com
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