Visa Bulletin For November 2014

Visa Bulletin For November 2014

Number 74
Volume IX
Washington, D.C

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A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during November. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by October 8th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 08JUN07 08JUN07  08JUN07 08JUL94 01NOV04
F2A 01MAR13 01MAR13 01MAR13 22SEP12 01MAR13
F2B 01JAN08 01JAN08 01JAN08 08SEP94  01JAN04
F3 08DEC03 08DEC03 08DEC03 01NOV93 08JUN93
F4 08FEB02 08FEB02 08FEB02 15FEB97 01MAY91

*NOTE:  For November, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP12.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP12 and earlier than 01MAR13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08DEC09 15FEB05 C C
3rd 01JUN12 01JAN10 22NOV03 01JUN12 01JUN12
Other Workers 01JUN12 22JUL05 22NOV03 01JUN12 01JUN12
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF NOVEMBER
 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 14,200 Except:
Egypt:     6,800
Ethiopia:  7,800
ASIA 2,950

EUROPE 9,900
NORTH AMERICA (BAHAMAS) 3
OCEANIA 500
SOUTH AMERICA,
and the CARIBBEAN
650

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN DECEMBER

For December, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 17,000 Except:
Egypt:      7,500
Ethiopia:   9,000
ASIA 3,200
EUROPE 11,600
NORTH AMERICA (BAHAMAS) 3
OCEANIA 650
SOUTH AMERICA,
and the CARIBBEAN
725

D.  INDIA EMPLOYMENT SECOND PREFERENCE

Increased demand in the INDIA Employment-based Second preference category has required the retrogression of this cut-off date to hold number use within the fiscal year 2015 annual limit.

E.  VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:

F1:   Two to three weeks
F2A: Three to five weeks
F2B: Six to eight weeks
F3:   One to three weeks
F4:   Two or four weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second

Worldwide: Current
China:        Three to five weeks
India:         No forward movement

Employment Third:

Worldwide: Continued rapid forward movement for the next several months. After such rapid advance of the cut-off date applicant demand for number use, particularly for adjustment of status cases, is expected to increase significantly. Once such demand begins to materialize at a greater rate it will impact this cut-off date situation. 

China:       Rapid forward movement. Such movement is likely to result in increased demand which may require "corrective" action possibly as early as February.

India:        Little if any movement
Mexico:      Will remain at the worldwide date
Philippines: Will remain at the worldwide date. Increased demand may require "corrective" action at some point later in the fiscal year. 

Employment Fourth: Current

Employment Fifth: Current

The above projections for the Family and Employment categories indicate what is likely to happen during each of the next three months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. 

F.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   October 9, 2014

Visa Bulletin For November 2014

Posted in November 2014 Visa Bulletin, Visa Bulletin | Leave a comment

Visa Bulletin For October 2014

Visa Bulletin For October 2014

Number 73
Volume IX
Washington, D.C

View as Printer Friendly PDF

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during October. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by September 8th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 22MAY07 22MAY07  22MAY07 22JUN94 01SEP04
F2A 01FEB13 01FEB13 01FEB13 22JUL12 01FEB13
F2B 01NOV07 01NOV07 01NOV07 01AUG94  15DEC03
F3 01DEC03 01DEC03 01DEC03 22OCT93 01JUN93
F4 22JAN02 22JAN02 22JAN02 01FEB97 08APR91

*NOTE:  For October, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22JUL12.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUL12 and earlier than 01FEB13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 15NOV09 01MAY09 C C
3rd 01OCT11 01APR09 15NOV03 01OCT11 01OCT11
Other Workers 01OCT11 22JUL05 15NOV03 01OCT11 01OCT11
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF OCTOBER
 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For October, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 8,000 Except:
Egypt:     6,000
Ethiopia:  7,000
ASIA 2,500

EUROPE 8,500
NORTH AMERICA (BAHAMAS) 3
OCEANIA 400
SOUTH AMERICA,
and the CARIBBEAN
550

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN NOVEMBER

For November, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 14,200 Except:
Egypt:      6,800
Ethiopia:   7,800
ASIA 2,950
EUROPE 9,900
NORTH AMERICA (BAHAMAS) 3
OCEANIA 500
SOUTH AMERICA,
and the CARIBBEAN
650

D.  VISA AVAILABILITY IN THE COMING MONTHS

INDIA Employment-based Second Preference: Increased demand will require the retrogression of this cut-off date, possibly in November, to hold number use within the fiscal year 2015 annual limit.

E.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514

Visa Bulletin For October 2014

Posted in Visa Bulletin | Tagged | Leave a comment

E-3 Specialty Occupation Professionals from Australia

Who qualifies for the E3 visa?

The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation. The spouse and children need not be Australian citizens. However the U.S. does not recognize De Facto relationships for the purposes of immigration, and to qualify as a spouse you will need a marriage certificate.

I am a permanent resident of Australia but don’t have citizenship. Can I apply for an E-3 visa?

No. E-3 visas are only available for Australian nationals. If you are a new Australian citizen or are in the process of becoming one, please note that you will need to possess an Australian passport by the time of your visa interview.

I do not hold a bachelor’s degree or higher. Can I apply for the E-3 visa based on my work experience?

U.S. Code of Federal Regulations, 8 CFR 214.2(h)(4)(iii)(D), describes the kind and amount of experience which can be used to establish the equivalency of a university degree. As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. This means you would need to show 12 years experience in the field you are applying to work in. During their visa interviews, applicants for U.S. work visas should be prepared to provide documentation outlining their work history, education, and training. A consular officer will determine whether the educational and employment information provided meets the eligibility requirements for a U.S. visa.

(D) Equivalence to completion of a college degree. For purposes of paragraph (h)(4)(iii)(C)(4) of this section, equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:

(1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and/or work experience;
214.2(h)(4)(iii)(D)(1)

(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
214.2(h)(4)(iii)(D)(2)

(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;
214.2(h)(4)(iii)(D)(3)

(4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;
214.2(h)(4)(iii)(D)(4)

(5) A determination by the Service that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation. 214.2(h)(4)(iii)(D)(5)(i)-(v)

Do I need a license for a specialty occupation?

An E-3 applicant must meet academic and occupational requirements, including licensure in Australia where appropriate. In certain cases where a U.S. license or other official permission is required to perform the duties described in the visa application, but such permission or license is not available prior to entry into the United States, the applicant must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.

I am a skilled tradesperson with qualifications and experience in plumbing/electrical work/carpentry for example. Do these kind of trades qualify as specialty occupations for the E-3 visa?

Not generally, because a requirement of the E-3 visa is that the job in the United States requires a minimum of a bachelor’s degree in a specialty occupation. As very few trade positions require a degree, they are not appropriate for the E-3 visa.

I have a degree and have found a job in a related profession in the U.S. Do I qualify for the E-3 visa?

The job will qualify provided that it requires a minimum of a bachelor’s degree in a specialty occupation. It is not enough that an E-3 applicant holds a particular degree; the job itself must also require a bachelor-level or higher qualification. For example, someone with a degree in Business Studies planning to work as a Personal Assistant would not be eligible for the E-3 unless the job actually required a bachelor-level qualification.

Specialty occupation skills/Professions/Occupations

Types of Jobs and Professions that qualify for Specialty occupation skills

“Theoretical” and “Practical” application of specialty occupation skills. For a profession to meet h1b or e3 visa requirements, it has to demand the “application of specialized knowledge” — the kind of knowledge that you get from a Bachelor’s degree or extensive work experience.

U.S. immigration law states that a specialty occupation must require a bachelor’s degree as the minimum for entry into the occupation, and that the applicant has a bachelor’s degree that is related to the occupation. However, the regulations allow for the applicant to have the equivalent of a U.S. bachelor’s degree.

The definition of “specialty occupation” is one that requires:

– A theoretical and practical application of a body of specialized knowledge; and

– The attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

In determining whether an occupation qualifies as a “specialty occupation,” follow the definition contained in the Immigration and Nationality Act (INA) 214 (i)(1) for H-1B nonimmigrants and applicable standards and criteria determined by the Department of Homeland Security (DHS) and United States Citizenship and Immigration Service (USCIS). Please see the USCIS page for more information.

Although there is no definitive list of occupations eligible for the E3 visa, a useful general guide for applicants to check if their occupation might be considered a graduate specialty profession and thus might be eligible for an E3 visa, is the Occupational Information Network website O*NET Online.

A 4-year bachelor’s degree from an accredited or recognized foreign university or college will generally be considered equivalent to a U.S. bachelor’s degree. If you have less than a 4 year degree you can combine the years of your degree/diploma with years of study completed on a post-baccalaureate diploma, master’s degree or other studies. The regulations also allow you to combine progressive work experience in the field with university study, or in some cases use work experience only, to meet the equivalency requirement. The regulations specifically state that for H-1B purposes three (3) years of progressive work experience in the field will be considered the equivalent of one year of U.S. university study.

In many cases, unless your education was completed in the U.S., a Credentials Evaluation showing an equivalency to a U.S. bachelor’s degree is required for an H-1B visa. If you are seeking a credential evaluation for H-1B visa purposes the USCIS only requires that the report include an equivalency statement of the diplomas/degrees along with brief information on the institution where the studies were completed.

Below is a list of all the Jobs / Occupations that qualify to get issued an H1B visa (they are Not listed in any specific preference or order)

Occupations In Architecture, Engineering, And Surveying
Architectural Occupations,
Aeronautical Engineering Occupations,
Electrical/ Electronics Engineering Occupations,
Civil Engineering Occupations,
Ceramic Engineering Occupations,
Mechanical Engineering Occupations,
Chemical Engineering Occupations,
Mining And Petroleum Engineering Occupations,
Metallurgy And Metallurgical Engineering Occupations,
Industrial Engineering Occupations,
Agricultural Engineering Occupations,
Marine Engineering Occupations,
Nuclear Engineering Occupations,
Drafters,
Surveying/ Cartographic Occupations,
Other Occupations In Architecture, Engineering, And Surveying.

Occupations In Mathematics And Physical Sciences
Occupations In Mathematics,
Occupations In Astronomy,
Occupations In Chemistry,
Occupations In Physics,
Occupations In Geology,
Occupations In Meteorology,
Other Occupations In Mathematics And Physical Science.

Computer Science & IT, and Telecom Occupations
Occupations In Systems Analysis And Programming,
Occupations In Data Communications And Networks,
Occupations In Computer System User Support,
Occupations In Computer System Technical Support,
Other Computer-Related Occupations

Occupations In Life Sciences
Occupations In Agricultural Sciences,
Occupations In Biological Sciences,
Occupations In Psychology,
Other Occupations In Life Sciences

Occupations In Medicine And Health
Physicians And Surgeons,
Osteopaths,
Dentists,
Veterinarians,
Pharmacists,
Registered Nurses,
Therapists,
Dieticians,
Occupations In Medical And Dental Technology,
Other Occupations In Medicine And Health

Occupations In Education & Research
Occupations In College And University Education,
Occupations In Secondary School Education,
Occupations In Preschool, Primary School, And Kindergarten Education,
Occupations In Education Of Persons With Disabilities,
Home Economists And Farm Advisers,
Occupations In Vocational Education,
Other Occupations In Education

Occupations in Writing and Languages
Writers,
Editors: Publication, Broadcast, And Script,
Other Occupations In Writing

Occupations in Finance and Administrative Specializations
Accountants, Auditors, And Related Occupations,
Budget And Management Systems Analysis Occupations,
Purchasing Management Occupations,
Sales And Distribution Management Occupations,
Advertising Management Occupations,
Public Relations Management Occupations,
Personnel Administration Occupations,
Inspectors And Investigators, Managerial And Public Service,
Other Administrative Occupations

Occupations in Business Management & Administration
Agriculture, Forestry And Fishing Industry Managers And Officials,
Mining Industry Managers And Officials,
Construction Industry Managers And Officials,
Manufacturing Industry Managers And Officials,
Transportation, Communication, And Utilities Industry Managers And Officials,
Wholesale And Retail Trade Managers And Officials,
Finance, Insurance, And Real Estate Managers And Officials
Service Industry Managers And Officials,
Public Administration Managers And Officials,
Miscellaneous Managers And Officials

OTHER Specialty Occupations as listed below
Occupations In Economics,
Occupations In Political Science,
Occupations In History,
Occupations In Sociology,
Occupations In Anthropology,
Other Occupations In Social Sciences,
Librarians,
Archivists,
Museum Curators And Related Occupations,
Other Occupations In Museum, Library, And Archival Sciences,
Lawyers,
Judges,
Other Occupations In Law And Jurisprudence,
Clergy,
Other Occupations In Religion And Theology,
Commercial Artists: Designers And Illustrators, Graphic Arts,
Environmental, Product, And Related Designers,
Other Occupations In Art,
Occupations In Music,
Other Occupations In Entertainment And RecreationEligibility Criteria

To qualify for an E-3 visa, you must demonstrate that you:

  • Are a national of Australia
  • Have a legitimate offer of employment in the United States
  • Possess the necessary academic or other qualifying credentials
  • Will fill a position that qualifies as a specialty occupation

________________________________________________________

Applying for an E-3 Visa from Within the United States

The Form I-129, Petition for Nonimmigrant Worker is used to apply for a change of status to obtain E-3 nonimmigrant temporary worker classification.

Supporting Documents

Your Form I-129 must include the following documents:

  • A Labor Condition Application (LCA) which cannot be the same application used in a previous H-1B application. Until the Department of Labor develops a new LCA for an E-3, the applicant should use the standard ETA-9035 and ask that it be annotated as an E-3 LCA
  • Academic or other credentials demonstrating qualifications for the position
  • Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
  • If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation

Applying for a Visa With a U.S. Embassy or Consulate

If your petition Form I-129 is approved, USCIS will forward a Form I-797, Notice of Action/Approval to the employer, who in turn will forward it to you. A Form I-797 approval notice is not a U.S. visa, as the visa must be obtained at a U.S. embassy or consulate abroad. After Form I-129 is approved by USCIS, the next step is to apply for a U.S. visa at a U.S. embassy or consulate, generally in your country of residence abroad.

  • Initial Period of Stay, 2 years
  • Extension of Stay 2 years: Up to 2 years per extension; no maximum number of extensions, with some exceptions.
  • Change of Employment: Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less.

Note: Form I-129 is used to apply for an extension of stay or change of employment.

Family of E-3 Visa Holders

Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but not your children. To apply for work authorization as a spouse of an E-3 nonimmigrant, your spouse would file a Form I-765, Application for Employment Authorization.

E-3 Specialty Occupation Professionals from Australia

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CA7 upholds ineligibility for cancellation of removal due to misdemeanor “aggravated felony” conviction for “sexual abuse of a minor”

VELASCO-GIRON had been convicted in California in 2005 of engaging in sexual intercourse with a girl who was not yet 18 and was more than three years younger than he. Velasco was 18 at the time; the girl was 15, but the Board of Immigration Appeals did not consider the ages of either party to the sexual relationship. It relied entirely on the fact that the girl was under 18 and he more than three years older. She could have been one day short of her eighteenth birthday on the day when the relationship began and that day could have been his twenty-first birthday. The crime was punished as a misdemeanor under California law and according to his uncontradicted affidavit his only punishment was unsupervised probation. The crime was reported by the girl’s father and the defendant pleaded guilty on his nineteenth birthday; the sexual relationship had been brief and consensual; that is another fact the Board ignored.

A removable alien who has lived in the U.S. for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an “aggravated felony.” 8 U.S.C. 1229b(a)(3). Velasco, a citizen of Mexico who was admitted for permanent residence, became removable after multiple criminal convictions. An immigration judge concluded that one of these convictions was for “sexual abuse of a minor”, which 8 U.S.C.1101(a)(43)(A) classifies as an aggravated felony, and that Velasco was, therefore, ineligible for cancellation of removal. The BIA affirmed, citing the definition of “sexual abuse” in 18 U.S.C. 3509(a)(8) rather than the one in 18 U.S.C. 2243(a). The conviction at issue was under Cal. Penal Code 261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. Deferring to the BIA, the Seventh Circuit affirmed.

Judge Posner in his dissent concluded that the majority opinion misread Rodriguez-Rodriguez as having adopted a rule that governs this case. The same misreading invalidates the Board’s decision in this case. The Board, according to Posner, has never laid down a rule that any unlawful sexual activity involving a minor, however trivial, is an aggravated felony. “The inadequacy of the Board’s analysis would not be fatal if the correctness of the conclusion could not be questioned. It could not be questioned if, for example, the petitioner had been convicted of a violent rape. But voluntary sexual intercourse between a just-turned 21 year old and an about-to-turn 18 year old (the premise of the Board’s opinion, for it declined to consider the actual facts of the petitioner’s misdemeanor) is illegal in only ten states; in the other forty states, the age of consent is either 16 or 17. The petitioner’s sentence to unsupervised probation should tell us what California, though one of the ten, thinks of the gravity of his offense. The age of consent is 16 in a majority of the states (31) as well as in the Model Penal Code, § 213.3(1)(a). What century is the Board of Immigration Appeals living in? By age 17, 40 percent of American girls have had sexual intercourse.”

_________________________________________________
ALBERTO VELASCO-GIRON, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 12-2353.

United States Court of Appeals, Seventh Circuit.
Argued: November 29, 2012.
Decided September 26, 2014.

Before POSNER, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

A removable alien who has lived in the United States for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an “aggravated felony.” 8 U.S.C. §1229b(a)(3). Alberto Velasco-Giron, a citizen of Mexico who was admitted to the United States for permanent residence, became removable after multiple criminal convictions. An immigration judge, seconded by the Board of Immigration Appeals, concluded that one of these convictions is for “sexual abuse of a minor”, which 8 U.S.C. §1101(a)(43)(A) classifies as an aggravated felony, and that Velasco-Giron therefore is ineligible even to be considered for cancellation of removal. In reaching that conclusion, the agency used as a guide the definition of “sexual abuse” in 18 U.S.C. §3509(a)(8) rather than the one in 18 U.S.C. §2243(a). See Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) (en banc); Matter of V-F-D, 23 I&N Dec. 859 (BIA 2006).

The conviction in question is for violating Cal. Penal Code §261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. The Board has held that this offense constitutes “sexual abuse of a minor”. Velasco-Giron was 18 at the time; the girl was 15; but the Board makes nothing of these ages, and it asks (so we too must ask) whether the crime is categorically “sexual abuse of a minor.” The Board’s affirmative answer stems from §3509(a)(8), which defines “sexual abuse” as “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children”. Elsewhere the Criminal Code defines a “minor” as a person under 18. See 18 U.S.C. §§ 2256(1), 2423(a).

The Board equates “child” with “minor”; Velasco-Giron does not argue otherwise. Instead he contends that the Board should use §2243(a), which defines “sexual abuse of a minor” as engaging in a “sexual act” (a phrase that includes fondling as well as intercourse) with a person between the ages of 12 and 15, if the offender is at least four years older. The offense under Cal. Penal Code §261.5(c) does not satisfy that definition categorically—and Velasco-Giron’s acts don’t satisfy it specifically (the age gap of 18 to 15 is three years).

If the Immigration and Nationality Act supplied its own definition of “sexual abuse of a minor,” ours would be an easy case. But it does not. That’s why the Board had to choose, and the possibilities include §3509(a)(8), §2243(a), a few other sections in the Criminal Code, and a definition of the Board’s invention. Section 1101(a)(43)(A) specifies that the category “aggravated felony” includes “murder, rape, or sexual abuse of a minor”. The Board noted in Rodriguez-Rodriguez that Congress could have written something like “murder, rape, or sexual abuse of a minor (as defined in section 2243 of title 18)” but did not do so—though other sections do designate specific federal statutes. See, e.g., 8 U.S.C. §1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18)”. The Board stated that, because Congress chose to use a standard rather than a cross-reference, it would be inappropriate for the Board to adopt §2243(a) as the sole definition; §3509(a)(8) is more open-ended, which the Board saw as a better match given the legislative decision not to limit the definition by cross-reference.

A case such as Velasco-Giron’s shows one reason why. The offense under Cal. Penal Code §261.5(c) is a member of a set that used to be called “statutory rape”; it fits comfortably next to “rape” in §1101(a)(43)(A); but adopting §2243(a) as an exclusive definition would make that impossible. What’s more, to adopt §2243(a) as the only definition would be to eliminate the possibility that crimes against persons aged 11 and under, or 16 or 17, could be “sexual abuse of a minor.” (Recall that §2243(a) deals only with victims aged 12 to 15.)

When resolving ambiguities in the Immigration and Nationality Act—and “sexual abuse of a minor” deserves the label “ambiguous”—the Board has the benefit of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), under which the judiciary must respect an agency’s reasonable resolution. See, e.g., Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014); INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). We have considered the Board’s approach to “sexual abuse of a minor” five times, and each time we have held that Rodriguez-Rodriguez takes a reasonable approach to the issue. See Lara-Ruiz v. INS, 241 F.3d 934, 939-42 (7th Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727, 735 n.3 (7th Cir. 2001) (also accepting the Board’s conclusion that a crime that a state classifies as a misdemeanor may be an “aggravated felony” for federal purposes); Espinoza-Franco v. Ashcroft, 394 F.3d 461 (7th Cir. 2004); Gattem v. Gonzales, 412 F.3d 758, 762-66 (7th Cir. 2005); Gaiskov v. Holder, 567 F.3d 832, 838 (7th Cir. 2009).

Velasco-Giron maintains that sexual intercourse with a person under 18, by someone else at least three years older, is not “sexual abuse of a minor.” We could reach that conclusion, however, only if the Board exceeded its authority in Rodriguez-Rodriguez by looking to 18 U.S.C. §3509(a)(8) as the starting point for understanding “sexual abuse” and to 18 U.S.C. §§ 2256(1), 2423(a) for the definition of a “minor” as a person under 18. Our five decisions holding that the approach of Rodriguez-Rodriguez is within the Board’s discretion foreclose Velasco-Giron’s arguments, unless we are prepared to overrule them all—which he asks us to do.

He relies principally on Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), which held that the Board erred in treating a violation of Cal. Penal Code §261.5(c) as “sexual abuse of a minor.” Estrada-Espinoza reached this conclusion because §261.5(c) does not satisfy the definition in 18 U.S.C. §2243(a), which requires a victim under the age of 16 and a four-year age difference. To justify adopting the definition in §2243(a), the Ninth Circuit rejected the Board’s approach in Rodriguez-Rodriguez, holding, 546 F.3d at 1157 n.7, that it flunks Step One of Chevron—that is to say, an agency lacks discretion if Congress has made the decision and left no ambiguity for the agency to resolve. That’s circular, however. If the court has already decided that the only proper definition comes from §2243(a), then of course there’s no discretion for the Board to exercise. But the phrase “sexual abuse of a minor” that the Board must administer appears in 8 U.S.C. §1101(a)(43)(A), not 18 U.S.C. §2243(a), and §1101(a)(43)(A) is open-ended. Precision is vital in a criminal statute; it is less important in a civil statute such as §1101(a)(43)(A), and the Board was entitled to find that Congress omitted a statutory reference from §1101(a)(43)(A) precisely in order to leave discretion for the agency.

The Ninth Circuit also concluded that Chevron is inapplicable to Rodriguez-Rodriguez because the Board adopted a standard rather than a rule. We’ll come back to this, but for now two points stand out. First, the Ninth Circuit did not identify any authority for its view that Chevron is limited to rules. It did cite Christensen v. Harris County, 529 U.S. 576 (2000), which holds that an opinion letter from an agency does not come within Chevron, but that’s a different point. Christensen is a precursor of United States v. Mead Corp., 533 U.S. 218 (2001), which concluded that only regulations and administrative adjudications come within Chevron. Rodriguez-Rodriguez is an administrative adjudication with precedential effect; it is part of Chevron’s domain. Second, the Ninth Circuit’s view that Rodriguez-Rodriguez did not adopt a “rule” misunderstands what the Board did. It decided to take the definition in §3509(a)(8) as its guide. The agency could have issued a regulation pointing to §3509(a)(8) or repeating its language verbatim, and it is hard to imagine that a court then would have said “not precise enough.” True, §3509(a)(8) itself is open-ended; the Board needs to classify one state statute at a time, and the statutory language leaves room for debate about whether a particular state crime is in or out. Yet many statutes and regulations adopt criteria that leave lots of cases uncertain. If §3509(a)(8) is good enough to be part of the United States Code, why would an agency be forbidden to adopt its approach?

At all events, it would not be possible for us to follow Estrada-Espinoza without overruling Lara-Ruiz and its four successors, for they hold that Rodriguez-Rodriguez is indeed entitled to respect under Chevron and is a permissible exercise of the Board’s discretion. Nor are we the only circuit to reach that conclusion. Oouch v. Department of Homeland Security, 633 F.3d 119, 122 (2d Cir. 2011); Mugalli v. Ashcroft, 258 F.3d 52, 60 (2d Cir. 2001); and Restrepo v. Attorney General, 617 F.3d 787, 796 (3d Cir. 2010), all hold that Rodriguez-Rodriguez is entitled to Chevron deference. Bahar v. Ashcroft, 264 F.3d 1309, 1312 (11th Cir. 2001), also accepts Rodriguez-Rodriguez, though without explicit reliance on Chevron. Meanwhile the Fifth Circuit has held that, as a matter of federal law under the Sentencing Guidelines, a “minor” in the phrase “sexual abuse of a minor” is a person under the age of 18. United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc). If that’s so, then it would be hard to see a problem in using the same age line to identify “sexual abuse of a minor” for immigration purposes.

Our dissenting colleague observes (see page 16) that most states treat persons 16 and older as adults for the purpose of defining sex offenses. Yet 18 U.S.C. §2256(1) and §2423(a) define 18 as adulthood. A federal court may set aside administrative decisions that are contrary to law, but nothing permits us to reject agency decisions that follow the United States Code, no matter how many states use a different age demarcation. Our colleague’s view that “[t]he question the Board should be addressing is the gravity of particular sexual offenses involving minors” (page 16) amounts to a conclusion that the Board’s approach in Rodriguez-Rodriguez is a substantively bad policy. As we have observed, however, Chevron permits the Board to establish its own doctrines when implementing ambiguous statutes.

The dissent also maintains that the Board has departed from its own precedent by supposing that Rodriguez-Rodriguez adopted §3509(a)(8) as an exclusive test, rather than (as the Board put it in Rodriguez-Rodriguez) as a “guide.” Yet the Board’s decision in this case states that §3509(a)(8) is being used “as a guide in identifying the types of crimes that we would consider to constitute sexual abuse of a minor” (emphasis added). If the Board in some other case had classified Cal. Penal Code §261.5(c) (or another materially similar law) as not constituting “sexual abuse of a minor,” then there would be a genuine concern about administrative inconsistency, but our dissenting colleague does not identify any such divergence.

Nor does Velasco-Giron, who (unlike the dissent) does not contend that the Board has been self-contradictory or that it erred by choosing 18 as the age of majority. Quite the contrary, Velasco-Giron writes that the Board’s disposition here “flowed. . . from” Rodriguez-Rodriguez. He acknowledges that the Board has followed its own precedent, which it established years before (in a decision enforced by Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006)), that a violation of Cal. Penal Code §261.5(c) entails “sexual abuse of a minor.” That’s why Velasco-Giron asks us to reject Rodriguez-Rodriguez and all of its sequels, as the Ninth Circuit did in Estrada-Espinoza (which overruled Afridi).

We promised to return to the question whether, as the Ninth Circuit believes, Chevron is inapplicable to standards. We cannot locate any such doctrine in the Supreme Court’s decisions. Just this year, for example, the Court held that the EPA’s implementation of a statute requiring each state to take account of how its emissions affect other states is covered by Chevron, even though the EPA’s approach calls for the balancing of multiple factors, including cost. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). Many similar examples could be given, including the National Labor Relation Board’s vague (and shifting) specification of “unfair labor practices,” which the Board has tried vainly since its creation in 1935 to reduce to a rule. The Board’s definition of an “unfair labor practice” remains a standard, and ambulatory even by the standard of standards, but for all that one to which the Supreme Court consistently defers.

If more support were needed, Aguirre-Aguirre provides it. That decision reversed the Ninth Circuit for failing to accord Chevron deference to one of the Board’s interpretive standards. An alien who committed a “serious nonpolitical crime” before entering the United States is ineligible for asylum. 8 U.S.C. §1231(b)(3)(B)(iii) (formerly §1253(h)(2)(C)). The Board has approached “serious nonpolitical crime” in common-law fashion, ruling one crime at a time that an offense does, or doesn’t, meet this standard. It has not attempted to formulate a rule that would dictate the classification of all crimes. The Ninth Circuit was dissatisfied with the Board’s approach, but the Supreme Court held it entitled to respect under Chevron. If the Board can define “serious nonpolitical crime” one case at a time, why can’t it define “sexual abuse of a minor” one case at a time? Actually Rodriguez-Rodriguez does better than that, by drawing a precise age line at 18 and using §3509(a)(8) as a guide.

If what the Board did in Aguirre-Aguirre was enough, what it did in Rodriguez-Rodriguez was enough. When an agency chooses to address topics through adjudication, it may proceed incrementally; it need not resolve every variant (or even several variants) in order to resolve one variant. See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 203 (1947); Heckler v. Ringer, 466 U.S. 602, 617 (1984). This is “one of the earliest principles developed in American administrative law”. Almy v. Sebelius, 679 F.3d 297, 303 (4th Cir. 2012).

Many judges dislike administrative adjudication because they think standards generated in common-law fashion are poorly theorized and too uncertain to give adequate notice to persons subject to regulation. Judge Friendly once held, for these reasons and others, that the NLRB must replace adjudication with rulemaking when it wants to announce rules of general application. Bell Aerospace Co. v. NLRB, 475 F.2d 485 (2d Cir. 1973). But the Supreme Court was not persuaded and unanimously concluded that an agency can choose freely between rules and standards, between rulemaking and adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Since Bell Aerospace “[t]he Court has not even suggested that a court can constrain an agency’s choice between rulemaking and adjudication”. Richard J. Pierce, Jr., I Administrative Law Treatise §6.9 at 510 (5th ed. 2010).

Velasco-Giron proposes a more ambitious doctrine than the one Judge Friendly favored. He wants the Board not only to replace standards with rules but also to adopt rules that are complete and self-contained. In Velasco-Giron’s view, until the Board has solved every interpretive problem in the phrase “sexual abuse of a minor,” and shown how every possible state crime must be classified, it cannot decide how any state conviction can be classified. That requirement would be inconsistent with Aguirre-Aguirre and would send the Board on an impossible quest.

Immigration statutes are full of vague words, such as “persecution,” and vague phrases such as “crime of moral turpitude.” The Board has not found a way to solve every interpretive problem in these phrases and has chosen the common-law approach. Judges have failed to turn tort law into a set of rules; Holmes declared in The Common Law that they were bound to do so eventually, but more than 130 years have passed without the goal being nearer. Perhaps “sexual abuse of a minor” will prove equally intractable. Judges are not entitled to require the impossible, or even the answer they think best. Like the NLRB, the FTC, the SEC, and many another agency, the BIA is a policy-making institution as well as a judicial one. It may choose standards as the best achievable policies. Just as judges do every day, the Board is entitled to muddle through.

The petition for review is denied.

POSNER, Circuit Judge, dissenting.

The ground on which the petitioner was denied cancellation of removal (he does not deny that he was removable, because of a conviction for harassment and for violating an order of protection, see 8 U.S.C. §§ 1227(a)(2)(E)(i), (ii)) was that he had been convicted in California in 2005 of engaging in sexual intercourse with a girl who was not yet 18 and was more than three years younger than he. Cal. Penal Code § 261.5(c). She was in fact 15 and he 18, but the Board of Immigration Appeals did not consider the ages of either party to the sexual relationship. It relied entirely on the fact that the girl was under 18 and he more than three years older. She could have been one day short of her eighteenth birthday on the day when the relationship began and that day could have been his twentyfirst birthday. The crime was punished as a misdemeanor under California law and according to his uncontradicted affidavit his only punishment was unsupervised probation. The crime was reported by the girl’s father and the defendant pleaded guilty on his nineteenth birthday; the sexual relationship had been brief and consensual; that is another fact the Board ignored.

Now 26 years old, the petitioner has lived in the United States since the age of 14 and is a lawful permanent resident. The immigration judge said that “there are some extremely strong equities in this case.” But the immigration statute precludes cancellation of removal of an alien who has been convicted of an “aggravated felony,” defined (for this purpose) as including “murder, rape, or sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), and the immigration judge ruled that the California misdemeanor was “sexual abuse of a minor” and therefore a categorical bar to cancellation of removal. The Board of Immigration Appeals affirmed.

So what is “sexual abuse of a minor”? We are obliged to give a large measure of deference to the Board’s definition of a term appearing in the immigration statutes. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir. 2011) But the Board has not defined “sexual abuse of a minor.” True, it said in this case, quoting In re Rodriguez-Rodriguez, 22 I & N. Dec. 991, 995 (1999), that it has defined the term—defined it “as encompassing any offense that involves `the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.'”

Rejecting a very narrow definition (advocated by Rodriguez-Rodriguez) of “sexual abuse of a minor” elsewhere in the federal criminal code, see 18 U.S.C. § 2243, the Board in Rodriguez-Rodriguez had taken the definition verbatim from a provision of the federal criminal code that defines the rights of child victims as witnesses. 18 U.S.C. § 3509(a)(8); see also id., § 3509(a)(9), defining “sexually explicit conduct” very broadly. Read literally, the definition would encompass the petitioner’s misdemeanor, because obviously he induced the girl to have sex with him. So if Rodriguez-Rodriguez had adopted the definition in section 3509(a)(8), as the Board in the present case said it had done (while also saying, as we’ll see, that it hadn’t), as the definition of “sexual abuse of a minor” in the immigration statute, that would be the end of this case. But Rodriguez-Rodriguez had gone on to say that “in defining the term `sexual abuse of a minor,’ we are not obliged to adopt a federal or state statutory provision” and “we are not adopting this statute as a definitive standard or definition but invoke it as a guide in identifying the types of crimes we would consider to be sexual abuse of a minor.” 22 I & N Doc. at 994, 996. In other words, the Board found the definition useful given the facts of the Rodriguez-Rodriguez case (which are very different from the facts of the present case), but did not adopt it as the canonical definition of “sexual abuse of a minor.”

The Board repeated these points, qualifying the status of the definition it had used in the earlier case, in the present case, and added that to derive the meaning of the words “sexual,” “minor,” and “abuse” in the aggravated-felony provision of the immigration statute it would look to the “ordinary, contemporary, and common meaning of the words” (and for this it cited our decision in Espinoza-Franco v. Ashcroft, 395 F.3d 461, 464-65 (7th Cir. 2005), quoting United States v. Martinez-Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001)). So neither in this case nor in Rodriguez-Rodriguez did the Board adopt either the definition in the federal criminal code or an alternative definition.

In Rodriguez-Rodriguez the specific offense of which the petitioner had been convicted was “indecency with a child by exposure” in violation of Texas law, and the Board had pointed to “the severity of the penalty” that the petitioner had received—10 years’ imprisonment, the statutory maximum—as “demonstrat[ing] that Texas considers the crime to be serious. In consideration of these factors, we find that indecent exposure in the presence of a child by one intent on sexual arousal is clearly sexual abuse of a minor within the meaning of” the immigration statute. 22 I & N Doc. at 996.

So Rodriguez-Rodriguez did not define “sexual abuse of a minor” in the immigration statute to encompass every criminal sexual activity involving a minor, as section 3509(a)(8) of the federal criminal code seems to do. Instead it gave reasons pertinent to the case before it, in particular the severity of the punishment meted out by the state court, for concluding that the petitioner’s particular criminal offense had been serious enough to merit designation as sexual abuse of a minor for purposes of immigration law. In the present case the Board gave no reason for its similar, but less plausible, conclusion. Given the language it quoted in this case from the earlier decision, it couldn’t have thought that Rodriguez-Rodriguez had adopted the text of section 3509(a)(8) as the definition of “sexual abuse of a minor” in the immigration statute. But if it did think in its opinion in this case that Rodriguez-Rodriguez had done that, it was wrong, and was therefore misapplying Board precedent, and for that reason (among others) its decision could not stand. Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008); Ssali v. Gonzales, 424 F.3d 556, 564-66 (7th Cir. 2005); Hernandez v. Ashcroft, 345 F.3d 824, 846-47 (9th Cir. 2003). Treating the federal statute as merely a guide obliged the Board in this case to go beyond the definition of sexual abuse in the federal criminal code, and it failed to do that, the critical omission being a failure to consider the gravity of the petitioner’s crime and punishment in relation to the crime and punishment in Rodriguez-Rodriguez.

Characteristically (see, e.g., Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir. 2009); Miljkovic v. Ashcroft, 376 F.3d 754, 756-57 (7th Cir. 2004)), the Justice Department tries to remedy the deficiencies of the Board’s analysis by supplying reasons (including references to social science data) why the petitioner’s offense should be regarded as grave; in doing so the Department invites us to flout SEC v. Chenery Corp., 318 U.S. 80 (1943).

The inadequacy of the Board’s analysis would not be fatal if the correctness of the conclusion could not be questioned. (For then the Board’s error would be harmless.) It could not be questioned if, for example, the petitioner had been convicted of a violent rape. But voluntary sexual intercourse between a just-turned 21 year old and an about-to-turn 18 year old (the premise of the Board’s opinion, for it declined to consider the actual facts of the petitioner’s misdemeanor) is illegal in only ten states; in the other forty states, the age of consent is either 16 or 17. The petitioner’s sentence to unsupervised probation should tell us what California, though one of the ten, thinks of the gravity of his offense. The age of consent is 16 in a majority of the states (31) as well as in the Model Penal Code, § 213.3(1)(a). What century is the Board of Immigration Appeals living in? By age 17, 40 percent of American girls have had sexual intercourse. Guttmacher Institute, Fact Sheet, “American Teens’ Sexual and Reproductive Health: Sexual Activity,” May 2014, www. guttmacher.org/pubs/FB-ATSRH.html (visited Sept. 3, 2014).

One might have expected the Board to go with the majority view of the states. For remember that the Board does not regard the definition of sexual abuse in the federal criminal code as a straitjacket. It is merely a guide and all the other potential sources of guidance point in the opposite direction to the Board’s ruling in this case. Besides the sources of guidance just mentioned, see, e.g., United States v. Osborne, 551 F.3d 718, 720-21 (7th Cir. 2009); United States v. Lopez-Solis, 447 F.3d 1201, 1207, 1209 (9th Cir. 2006). If a 10-year prison sentence informs the Board’s judgment of whether a sexual offense involving a minor should be deemed an aggravated felony, as we learn from Rodriguez-Rodriguez that it does, then a sentence of unsupervised probation should inform the Board’s judgment as well, yet is not mentioned in the Board’s opinion in this case.

Nor is this a case in which the immigration judge provided the analysis and the Board relied on it. The immigration judge provided no analysis but said merely that she was bound by Rodriguez-Rodriguez and that the petitioner’s conviction “constitutes sexual abuse of a minor and although treated as a misdemeanor, under state law and in [Velasco-Giron's] case by its terms constitutes an aggravated felony under” the immigration statute. The passage I’ve just quoted is garbled, but implies that the Board has laid down a rule that any unlawful sexual activity involving a minor, however trivial, is an aggravated felony. It has never laid down such a rule.

The majority opinion misreads Rodriguez-Rodriguez as having adopted a rule that governs this case. The same misreading invalidates the Board’s decision in this case.

CA7 upholds ineligibility for cancellation of removal due to misdemeanor “aggravated felony” conviction for “sexual abuse of a minor”–VELASCO-GIRON v. Holder, Court of Appeals, 7th Circuit 2014

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Aggravated felony, Cancellation of Removal, “sexual abuse of a minor” | Leave a comment

CA7 upholds reliance on Form I-213 and denial of request to cross-examine the maker

DHS initiated removal proceedings, charging Antia with removability under 8 U.S.C. 1182(a)(6)(A)(i) as an alien present without being admitted or paroled and alleging that Antia had been convicted of “indecent liberties with a child,” a crime of moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I). The Form I‐213, a “Record of Deportable/Inadmissible Alien” prepared by DHS “typically a record of an immigration inspector’s conversation with an alien who will probably be subject to removal,” stated that Antia “voluntarily admitted” that he was not a citizen or U.S. national and was a citizen of Columbia. Chicago Police Department rap sheets indicated that Antia was born in Puerto Rico. Antia retained counsel and, before an IJ, declined to admit or deny the allegations against him or to designate Colombia as the country of removal. The IJ scheduled a contested hearing, but denied Antia’s request for subpoenas for the makers of “all Government documents that are coming in.” As the only witness, Antia refused to answer questions. Antia’s counsel reiterated his request to subpoena the preparers of the documents. The IJ again denied the request as overly broad; denied a request to cross‐examine the preparer of the I‐213; and rejected Antia’s challenge to the government’s failure to produce any other witnesses. The BIA affirmed. The Seventh Circuit denied a petition for review, finding none of the challenged rulings erroneous.

Antia-Perea submitted an application for cancellation of removal, on which he left unanswered the questions about his birthplace, nationality, current citizenship, and his entry into the United States. Counsel indicated that Antia-Perea “would refer to the record that was submitted previously by the Government.” Counsel also informed the IJ that Antia-Perea’s son, then a student at John Marshall Law School, was preparing documentation “seeking a pardon of the things that would bar, perhaps statutorily, Mr. Antia from receiving cancellation.” Counsel asked the IJ for a six-month continuance “for us to try to obtain a pardon from the governor, expressing to the governor the need for urgency here.”

Antia-Perea refused to answer the IJ’s questions about his application for cancellation of removal. Counsel told the IJ that he believed that Antia-Perea could establish a prima facie case for relief without testifying. The IJ disagreed. The IJ addressed Antia-Perea directly and told him that his application for cancellation of removal was inadequate in its present state. The IJ also advised Antia-Perea that he as the applicant for cancellation of removal bore the burden of showing an entitlement to relief. The IJ gave Antia-Perea a one-week continuance to discuss the matter with counsel. “Then you can come back to court next week with a completed application, and you have to be prepared to testify in support of your application next week. If you choose not to testify, then I’ll make a decision whether your application can be granted or not.” The IJ denied Antia-Perea’s requested continuance to allow for the processing of the pardon application, however, reasoning that the grant of a pardon was “too speculative” to warrant a continuation of the already protracted proceedings.

Antia-Perea contended that the IJ erred in (1) admitting the Form I-213 into evidence; (2) denying his request to cross-examine the maker of the Form I-213; (3) ruling that the Government had established alienage; (4) ordering him deported; and (5) denying his request for a continuance to seek a gubernatorial pardon. Antia-Perea also asserted that the IJ was biased in favor of the Government and against him, and denied him his right to due process.

_____________________________________

ANTIA-PEREA v. Holder, Court of Appeals, 7th Circuit 2014

RAUL ANTIA-PEREA, Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES Respondent.
Nos. 12-3641, 13-1228, 13-1895 & 13-2737.

United States Court of Appeals, Seventh Circuit.
Argued April 25, 2014.
Decided September 25, 2014.

Before KANNE and ROVNER, Circuit Judges, and DOW, District Judge.[*]

DOW, District Judge.

According to the Form I-213 that the Department of Homeland Security (“DHS” or “the Government”) presented at his removal hearing, Petitioner Raul Antia-Perea is a native and citizen of Colombia who was not properly admitted to the United States. Antia-Perea sought to subpoena the DHS agent who prepared the I-213 but did not otherwise challenge the contents of the I-213 or present any evidence in his own behalf at the removal stage of the proceedings. An immigration judge (“IJ”) denied Antia-Perea’s subpoena request, and, relying on the I-213, found him removable to Colombia. The IJ also denied Antia-Perea’s request for a six-month continuance to seek a gubernatorial pardon and found him ineligible for cancellation of removal. The Board of Immigration Appeals (“BIA” or “Board”) affirmed the IJ’s decision and later denied Antia-Perea’s motion for reconsideration. The BIA subsequently denied Antia-Perea’s motion to reopen, as well as his request for reconsideration of that ruling.

Antia-Perea now seeks relief from all four of the BIA’s decisions in this consolidated petition for review. Antia-Perea contends that the IJ wrongfully denied his requests to subpoena and cross-examine the DHS agent who prepared the I-213, improperly concluded that the Government could and did satisfy its burden of proving alienage with documentary evidence alone, and erroneously denied his request for a continuance to seek a pardon. Antia-Perea further submits that the IJ was biased against him and that the BIA erred in denying his motion to reopen and in denying his motion to reconsider that ruling. Because we conclude that none of the challenged rulings by the IJ or BIA was erroneous, we deny the consolidated petition for review.

I.

A. Removal Proceedings. DHS initiated removal proceedings against Antia-Perea on August 20, 2010 by serving him with a Notice to Appear (“NTA”). The NTA alleged that Antia-Perea was a citizen and native of Colombia who had entered the United States at an unknown place and time without being admitted or paroled by an immigration officer. It charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. The NTA further alleged that Antia-Perea had been convicted of “indecent liberties with a child,” a crime of moral turpitude, and charged him with removability on that basis as well. See 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Antia-Perea appeared pro se before an IJ twice before he retained counsel. The only substantive occurrence at those hearings was that the Government filed and tendered to Antia-Perea “several documents in this case pertaining to allegations in the Notice to Appear.” Those documents included a copy of a Form I-213, a “Record of Deportable/Inadmissible Alien” prepared by DHS “that is typically a record of an immigration inspector’s conversation with an alien who will probably be subject to removal.” Pouhova v. Holder, 726 F.3d 1007, 1013 (7th Cir. 2013). The I-213 stated that Antia-Perea came into DHS custody on August 20, 2010, and at that time “voluntarily admitted” to DHS agent Yesenia Ochoa that he was not a citizen or national of the United States. According to the I-213, Antia-Perea was “a native and citizen of Colombia” and “ma[d]e[] no claim to United States citizenship.” The documents tendered to Antia-Perea also included a Chicago Police Department “rap sheet,” and a “newer iClear Rap Sheet.” Both rap sheets indicated that Antia-Perea was born in Puerto Rico.

Antia-Perea eventually retained counsel, who sought and received two continuances to review the documents, make Freedom of Information Act requests, and generally get up to speed with the case. The matter was reassigned to a different IJ, and Antia-Perea and counsel appeared before the new IJ on May 24, 2011. On the advice of counsel, Antia-Perea declined to admit or deny the NTA’s allegations against him. Antia-Perea further declined to designate Colombia as the country of removal. He requested that the Government be put to its burden of proving his alienage and removability. Antia-Perea also asked that “the Government be put to its burden of proving removability before we get to the relief stage.” The IJ granted these requests and scheduled the matter for a contested hearing on the issue of removability. However, the IJ denied Antia-Perea’s request “for subpoenas for the makers of any and all Government documents that are coming in.” The IJ advised Antia-Perea that this request was “too broad” and told him that he would “have to identify what it is that you’re seeking and specify the nature of the request.” The IJ directed the Government to serve counsel with the documents it planned to use no later than 15 days before the contested hearing, which was set for June 28, 2011. The IJ also directed the Government to have all of its witnesses available for the hearing so that the case could proceed in an orderly fashion.

At the contested hearing, the Government called Antia-Perea as its sole witness. Antia-Perea refused to answer any of the Government’s questions. In light of Antia-Perea’s silence, the Government requested that the IJ make a finding of removability on the documentary evidence it had submitted: the I-213, the rap sheets, and a few other documents pertaining to Antia-Perea’s convictions. The Government argued that the I-213 “establishes that he did advise an Immigration Officer that he’s a native and citizen of Colombia.” The Government did not call to the IJ’s attention the discrepancy between the I-213, which reported Colombia as Antia-Perea’s birthplace, and the rap sheets, which identified Puerto Rico as Antia-Perea’s birthplace. Neither did Antia-Perea or his counsel.

Instead, Antia-Perea’s counsel advised the IJ that Antia-Perea refused to testify as to the authenticity or the accuracy of the I-213 and reiterated his request to subpoena the preparer of that and the Government’s other documents. The IJ again denied the request as overly broad. The IJ also denied Antia-Perea’s request to cross-examine the preparer of the I-213, rejecting Antia-Perea’s contention that he had a right to do so under Malave v. Holder, 610 F.3d 483 (7th Cir. 2010), and 8 U.S.C. § 1229a(b)(4)(B). The IJ further rejected Antia-Perea’s challenge to the Government’s failure to produce any witnesses aside from Antia-Perea himself. The IJ explained that the Government “does not have to present any witness to establish removability. They could do it solely from documentary evidence.” The IJ gave Antia-Perea an opportunity to “challeng[e] the documentary evidence, through testimony or affidavits or something else” on rebuttal, but Antia-Perea declined. He expressly stated that he objected to the use of the I-213 solely on the ground that “we’re not being permitted to cross-examine the maker of this document.”

Ultimately, the IJ concluded that the I-213 was a reliable document that “clearly establishe[d] the respondent’s alienage” and that Antia-Perea failed to show that “the time, manner, and place of his entry” were such that his presence in the United States was authorized. The IJ therefore found that Antia-Perea was removable under § 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). At the same time, the IJ concluded that the Government’s evidence was insufficient to establish removability on the NTA’s second charge. The IJ did not address the fact that the rap sheets listed Puerto Rico as Antia-Perea’s birthplace. Neither did counsel for either side.

Antia-Perea’s counsel did request a continuance to file various requests for relief from removability and an application for cancellation of removal. The IJ granted this request over the Government’s objection to allow Antia-Perea to “file any applications that you want me to consider in your case.” The IJ set the matter for a hearing on September 13, 2011.

At the September 13 hearing, Antia-Perea submitted an application for cancellation of removal, on which he left unanswered the questions about his birthplace, nationality, current citizenship, and his entry into the United States. Counsel indicated that Antia-Perea “would refer to the record that was submitted previously by the Government.” Counsel also informed the IJ that Antia-Perea’s son, then a student at John Marshall Law School, was preparing documentation “seeking a pardon of the things that would bar, perhaps statutorily, Mr. Antia from receiving cancellation.” Counsel asked the IJ for a six-month continuance “for us to try to obtain a pardon from the governor, expressing to the governor the need for urgency here.”

Antia-Perea “respectfully refus[ed]” to answer the IJ’s questions about his application for cancellation of removal. Counsel told the IJ that he believed that Antia-Perea could establish a prima facie case for relief without testifying. The IJ disagreed. The IJ addressed Antia-Perea directly and told him that his application for cancellation of removal was inadequate in its present state. The IJ also advised Antia-Perea that he as the applicant for cancellation of removal bore the burden of showing an entitlement to relief. The IJ gave Antia-Perea a one-week continuance to discuss the matter with counsel. “Then you can come back to court next week with a completed application, and you have to be prepared to testify in support of your application next week. If you choose not to testify, then I’ll make a decision whether your application can be granted or not.” The IJ denied Antia-Perea’s requested continuance to allow for the processing of the pardon application, however, reasoning that the grant of a pardon was “too speculative” to warrant a continuation of the already protracted proceedings.

At the continued hearing a week later, counsel presented the IJ with several documents in support of Antia-Perea’s application for cancellation of removal, including his wife’s naturalization papers, tourist cards issued by the Colombian consulate listing Puerto Rico as Antia-Perea’s place of birth, and birth certificates of Antia-Perea’s adult children that said the same. Antia-Perea did not testify, nor did he seek any other type of relief, such as voluntary departure.

The IJ issued a written decision on September 26, 2011. The IJ found that the Government had carried its burden of proving Antia-Perea removable by clear and convincing evidence by way of the I-213. The IJ cited Seventh Circuit case law for the proposition that the I-213 is “presumptively reliable” such that it is admissible as evidence of the truth of its contents barring any countervailing evidence of inaccuracy or duress. The IJ also explained that he denied Antia-Perea’s subpoena request for lack of good cause “because he did not present any evidence undermining the accuracy of the document or the methods by which it was obtained.” The IJ rejected Antia-Perea’s reliance on Malave and concluded that without some evidence impugning the I-213, “it is not apparent what information the respondent would elicit through cross-examination of its author.” He ruled that “[t]he regulations governing subpoenas require at least that much,” and cited in support 8 C.F.R. § 1003.35(b)(2), which by its terms requires a party applying for a subpoena “to state in writing or at the proceeding, what he or she expects to prove by such witnesses or documentary evidence, and to show affirmatively that he or she has made diligent effort, without success, to produce the same.”

The IJ also formally denied Antia-Perea’s request for cancellation of removal. The IJ found that, in light of the rap sheets, which Antia-Perea conceded were applicable to him, “there is at least a `reasonable indicat[ion]‘ that the respondent is barred from cancellation of removal by section 240A(b)(1)(C),” 8 U.S.C. § 1229b(b)(1)(C). The IJ further noted that Antia-Perea had sought a continuance to seek a pardon but that he had denied the request because he did not want to “delay proceedings and finds the respondent’s request too speculative.”

B. Appeal to the BIA. Antia-Perea timely appealed the IJ’s decision to the BIA. He contended that the IJ erred in (1) admitting the Form I-213 into evidence; (2) denying his request to cross-examine the maker of the Form I-213; (3) ruling that the Government had established alienage; (4) ordering him deported; and (5) denying his request for a continuance to seek a gubernatorial pardon. Antia-Perea also asserted that the IJ was biased in favor of the Government and against him, and denied him his right to due process.

The BIA dismissed the appeal after reviewing the IJ’s findings of fact for clear error and all other issues de novo. Especially pertinent here, the BIA agreed with the IJ that DHS met its burden of establishing alienage and removability based on the Form I-213. The BIA found that “[t]here is nothing facially suspect about the Form I-213,” and that absent some evidence or even allegations that an I-213 is inaccurate, it may be considered inherently reliable and can be sufficient to establish alienage. Notwithstanding Antia-Perea’s failure to raise the issue before the IJ, the BIA acknowledged that the rap sheets in the record indicated that Antia-Perea was born in Puerto Rico. It accorded these documents little weight, however, reasoning that “[i]nformation such as place of birth for such documents is typically provided by the individual to whom they pertain, rather than an independent or verified source.” The BIA also agreed with the IJ that “[w]hether and when the respondent may be granted pardon is too speculative to provide good cause for a continuance.” Additionally, the BIA found that Antia-Perea “has not shown he was prejudiced by the denial of a continuance” to seek a pardon, because “[t]he finding of removability was not based on his convictions, and the lack of a disqualifying conviction is only one of several statutory factors for cancellation of removal that the respondent did not demonstrate.” The BIA rejected Antia-Perea’s assertions of bias out of hand for failure to cite specific examples of impropriety.

C. First Motion for Reconsideration. Antia-Perea timely petitioned this Court for review of the BIA’s decision (No. 12-3641). While his petition was pending, he filed a motion asking the BIA to reconsider its decision. He essentially reiterated the contentions that he made on initial review and asserted that the BIA erred in rejecting his requests for relief.

The BIA denied Antia-Perea’s motion to reconsider without engaging in new analysis. Antia-Perea timely filed a petition for review of this decision (No. 13-1228).

D. Motion to Reopen. In January 2013, Antia-Perea filed a motion requesting that the BIA reopen his proceedings pursuant to 8 C.F.R. § 1003.2(c)(1) and remand them to a different IJ. His motion presented virtually all of the arguments that the BIA previously rejected. In the final paragraphs of his motion, he raised for the first time an alleged fear of deportation to Colombia and sought a hearing “on his request for political asylum, withholding of removal, and/or protection under the United Nations Convention Against Torture.” In support of this request for relief, he cited a 60 Minutes report on the “Super Cartel” in Colombia and submitted affidavit testimony that he feared “for [his] life if [he is] deported to Colombia because the Super Cartel may want to retaliate against [him] if they were to find out [his] daughter is an [Immigration and Customs Enforcement] ICE agent.” Antia-Perea later supplemented this motion with a transcript of the segment on the Super Cartel.

The BIA denied Antia-Perea’s motion to reopen on April 12, 2013. It noted that “[m]ost of the issues raised in the respondent’s motion to reopen were adequately addressed in our October 22, 2012, decision or were addressed in our January 18, 2013, decision.” Accordingly, the BIA substantively addressed only Antia-Perea’s requests for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). It did so briefly, concluding that Antia-Perea failed to “show prima facie eligibility for asylum and withholding of removal” because he failed to show that “the Super Cartel would likely become aware upon his return to Colombia (or after) that his daughter is an ICE agent.” Because his CAT claim was based on the same evidence, the BIA summarily denied that claim as well. Antia-Perea petitioned for review of the BIA’s decision (No. 13-1895).

E. Second Motion for Reconsideration. On May 9, 2013, Antia-Perea filed with the BIA a motion to reconsider its denial of his motion requesting relief from removal. He argued that “the evidence he provided the BIA was sufficient to demonstrate that his fear of persecution is both subjectively genuine and grounded in an objectively reasonable basis.” He also claimed that the BIA’s failure to grant him a hearing infringed his due process rights and “that to remove him to Colombia would be violative of the International obligations of the United States.” Antia-Perea added for the BIA’s consideration two news articles about ICE agents and informants getting killed by Mexican drug cartels in East El Paso, Texas.

The BIA denied Antia-Perea’s motion, which it treated as a motion to reopen in light of the newly appended articles. It concluded that there was “little commonality” between Antia-Perea’s fear and the fear expressed by one of the subjects in the 60 Minutes segment. The BIA considered Antia-Perea’s two news articles and concluded that he was “not similarly situated to ICE agents, Texas Rangers, or informants for ICE.” Antia-Perea filed a fourth petition seeking review of this decision (No. 13-2737).

II.

There is no dispute that all four of Antia-Perea’s petitions for review concern final decisions, were timely submitted, and are properly before this Court. See El-Gazawy v. Holder, 690 F.3d 852, 857 (7th Cir. 2012). Our jurisdiction to review the petitions, which assert legal and constitutional claims, is secure. See 8 U.S.C. § 1252(a)(2)(D). Accordingly, we address in turn the arguments that Antia-Perea has properly presented and preserved throughout the administrative process.

A.

Antia-Perea first contends that the IJ and BIA violated his due process rights by denying him an opportunity to crossexamine the DHS agent who drafted the I-213.

Aliens in removal proceedings are entitled to due process of law under the Fifth Amendment. Reno v. Flores, 507 U.S. 292, 306 (1993). Statutory provisions also impose procedural requirements on removal proceedings. See 8 U.S.C. § 1229a(b)(4). Any proceeding that meets the requirements of the statute also satisfies the requirements of constitutional due process. Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006). Because Antia-Perea does not challenge the constitutional adequacy of the statutory rights, we focus our analysis on those statutory rights. See Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011); Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010)

Section 1229a(b)(4)(B) provides that an alien in removal proceedings “shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” An alien who challenges a removal order by claiming a violation of these rights must show both that the proceeding did not meet these requirements and that he was prejudiced as a result. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007).

The Government must demonstrate removability by clear and convincing evidence. 8 U.S.C. § 1229a(c)(3). The Federal Rules of Evidence do not apply in immigration proceedings. Doumbia v. Gonzales, 472 F.3d 957, 962 (7th Cir. 2007). Evidence is admissible “so long as it is probative and its admission is fundamentally fair.” Barradas v Holder, 582 F.3d 754, 762 (7th Cir. 2009). The fairness of an evidentiary submission depends in part on its reliability. Duad v. United States, 556 F.3d 592, 596 (7th Cir. 2009).

As Antia-Perea concedes, it is well established that the I-213 is a presumptively reliable and admissible document. Indeed, “[a]s a general rule, a Form I-213 is treated as inherently trustworthy and admissible even without the testimony of the officer who prepared it.” Pouhova v. Holder, 726 F.3d 1007, 1013 (7th Cir. 2013) (emphasis added); see also Gutierrez-Berdin v. Holder, 618 F.3d 647, 653 (7th Cir. 2010) (“Form I-213 is a presumptively reliable administrative document.”). This is because when the information sought to be admitted was “recorded by a[ ] [DHS] agent in a public record,” the absent agent “cannot be presumed to be an unfriendly witness or other than an accurate recorder.” Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009) (quoting Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.1995)). Accordingly, we have held that an I-213 is reliable unless there is some indication that the information it contains is manifestly incorrect or was obtained by duress. Id.

Antia-Perea did not introduce any evidence or make any argument challenging the contents, creation, or reliability of the I-213 at the removal stage of his proceedings. He nonetheless contends that his case is closely analogous to Pouhova v. Holder, 726 F.3d 1007 (7th Cir. 2013), in which we held that an alien improperly was denied the opportunity to cross-examine the drafter of an I-213 notwithstanding the general rule to the contrary. We respectfully disagree. In Pouhova, the Government attempted to prove that the petitioner assisted an alien who was trying to enter the United States illegally by submitting a transcript of an agent’s interview with the alleged smuglee—not the petitioner—and an I-213 that was prepared seven years later purportedly documenting that conversation. Pouhova challenged the admission of the transcript and the I-213, arguing that she was prejudiced without the opportunity to cross-examine the interviewee. We held that the I-213 “exhibit[ed] several shortcomings that undermine the usual presumption of reliability, none of which were addressed by the Board,” including the seven-year lapse of time between the interview and the Form’s creation, its significant divergence from [the interviewee's] statement, its reliance on untranslated testimony, and the fact that it “recorded a conversation not with Pouhova, who was the subject of the form and the removal proceedings, but with [another individual].” Id. at 1014; see also id. at 1015 (“This I-213 therefore was not inherently reliable because it was recorded seven years late, its critical information was obtained from someone other than the subject of the form, and it contradicts the other written account of its source.”). We expressly noted that “[i]n a more typical case, the subject herself will have some basis to contest the statements in the document. She will have been present for the conversation that is reported.” Id.

This case is distinguishable from Pouhova in two significant respects. First, there is no indication that the I-213 was prepared years after the fact like the one in Pouhova. To the contrary, it was prepared on the same day that Agent Ochoa interviewed Antia-Perea. Second, and more importantly, Antia-Perea was present for the interview recorded in the I-213 and accordingly could have challenged its contents or creation himself. Pouhova does not hold that an alleged alien always must be given an opportunity to examine the maker of an I-213; Pouhova instead holds that it is fundamentally unfair for an IJ to admit and rely upon a belatedly prepared I-213 documenting an interview with someone other than the respondent without giving the respondent an opportunity to cross-examine the interviewee or the DHS agent who conducted the interview. Here, Antia-Perea—who was the interviewee—could have chosen to tell his side of the story or otherwise called into question the circumstances surrounding the I-213’s creation. He declined every opportunity to do so, and the IJ did not err by drawing adverse inferences from Antia-Perea’s silence. See Gutierrez-Berdin v. Holder, 618 F.3d 647, 656 (7th Cir. 2010); Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir. 2001).

Antia-Perea also relies heavily on Malave v. Holder, 610 F.3d 483 (7th Cir. 2010), for the proposition that he “is entitled to cross-examine witnesses of the government, whether the evidence comes in orally or in writing.” But Malave, like Pouhova, is distinguishable. In Malave, we held that an alien’s right to due process at her removal hearing was violated when she did not have the opportunity to cross-examine her estranged husband, whose statement the Government relied upon to prove a sham marriage. Like the statement in Pouhova, however, the statement in Malave was made by someone other than the respondent. While it is true that DHS cannot nullify aliens’ right to cross-examination by presenting written declarations rather than live testimony, Malave, 610 F.3d at 487, the individual whose statements were recorded in the I-213 was Antia-Perea himself. And Antia-Perea elected not to challenge the contents of the I-213 or the circumstances surrounding its creation. He also elected not to reiterate his request for a subpoena, or conform it to the specifications of 8 C.F.R. § 1003.35(b)(2). Antia-Perea received all of the process to which he was entitled with respect to the I-213.

B.

Antia-Perea next argues that the rap sheets and the documents that he submitted at the relief stage of his proceedings—the incomplete application for cancellation of removal, the travel card, his wife’s naturalization papers, and his children’s birth certificates—undermined the inherent reliability of the I-213 and rendered it insufficient to establish that he was an alien. The IJ considered only the I-213 and found it sufficient to establish Antia-Perea’s alienage. In reviewing the IJ’s decision, the BIA also took into account the rap sheets and documents that Antia-Perea submitted in support of his application for cancellation of removal. The BIA nonetheless concluded that “the totality of the evidence” was sufficient to establish Antia-Perea’s alienage. Antia-Perea contends that the IJ and BIA erred as a matter of law.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.” Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review findings of fact for substantial evidence and reverse only if the evidence compels a different result. Young Dong Kim v. Holder, 737 F.3d 1181, 1184 (7th Cir. 2013). “We review questions of law de novo, deferring to the Board’s reasonable interpretation set forth in precedential opinions interpreting the statute.” Id.

We cannot conclude that the IJ or BIA erred under any standard. “In the case of a respondent charged as being in the United States without being admitted or paroled, the [Government] must first establish the alienage of the respondent.” 8 C.F.R. § 1240.8(c); see also Mozdzen v. Holder, 622 F.3d 680, 683 (7th Cir. 2010); Gutierrez-Berdin, 618 F.3d at 657. Once the Government makes that showing, the burden shifts to the respondent to prove that he is lawfully present in the United States pursuant to a prior admission. 8 C.F.R. § 1240.8; Mozdzen, 622 F.3d at 683. Here, during the removal stage of the proceedings, which were bifurcated at Antia-Perea’s request, the Government came forward with an I-213 stating that Antia-Perea had “voluntarily admitted that he is not a citizen of the United States” and that he was “a native and citizen of Colombia.” Antia-Perea declined to raise any challenge to the contents or creation of the I-213. He likewise neglected to point out the discrepancies between the rap sheets and the I-213 or proffer the documents that he later submitted during the relief stage of the proceedings. Accordingly, the IJ had no reason not to afford the I-213 the standard presumption of reliability. Nor did the IJ have a basis to deviate from our precedent, which holds that a “sparse” record consisting of an NTA and I-213 can be sufficient to establish alienage where the alien remains silent and fails to dispute the Government’s evidence. See Gutierrez-Berdin, 618 F.3d at 656-57. The IJ properly concluded that the burden of proof shifted to Antia-Perea, and there is no question that he failed to carry it.

The BIA’s supplemental (and apparently sua sponte, as Antia-Perea did not argue that the rap sheets or his documents undermined the I-213) consideration of the rap sheets and the submissions that Antia-Perea made at the relief stage led it to the same conclusion that the IJ reached. The BIA weighed Antia-Perea’s silence and selectively incomplete application for cancellation of removal against the documents indicating that he was a citizen of Puerto Rico and found the former more persuasive than the latter. We find no error in this assessment. Immigration courts are permitted to draw adverse inferences from a person’s refusal to answer questions about his origin during a hearing, Gutierrez-Berdin, 618 F.3d at 656, and Antia-Perea has not demonstrated that such inferences were unwarranted here.

C.

Antia-Perea next contends that the IJ violated his due process rights by denying his request for continuance to allow him to seek a gubernatorial pardon. He asserts that the Board erred when it agreed that pursuit of a pardon was too speculative to provide good cause for a continuance, because 8 U.S.C. § 1227(a)(2)(A)(vi) expressly provides that an alien may not be adjudicated removable on the basis of a criminal conviction if he receives a full and unconditional pardon for the offense. Not only do these contentions miss the mark because Antia-Perea was not found removable based on his convictions, they do not establish a due process violation.

To establish a due process violation, Antia-Perea must demonstrate that he had a protected liberty or property interest in seeking the continuance. Adame v. Holder, ___ F.3d ___, 2014 WL 3909115, at *2 (7th Cir. Aug. 12, 2014) (citing Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987)). He cannot do so. “While a noncitizen has a protected liberty interest in remaining in the United States, that interest does not encompass a right to favorable decisions that would allow the petitioner to seek discretionary relief.” Id.; see also Darif v. Holder, 739 F.3d 329, 336 (7th Cir. 2014) (holding that the right to due process “does not extend to discretionary forms of relief from removal” and that “the opportunity for discretionary relief from removal is not a protected liberty interest because aliens do not have a legitimate claim of entitlement to it”). A gubernatorial pardon is a quintessential form of discretionary relief. “There is no Fourteenth Amendment property or liberty interest in obtaining a pardon in Illinois—no substantive entitlement, in other words—and so no ground for a claim of denial of due process.” Bowens v. Quinn, 561 F.3d 671, 673 (7th Cir. 2009). Accordingly, neither the Board nor the IJ violated Antia-Perea’s due process rights by denying the continuance.

D.

Antia-Perea next contends that the BIA erred in denying his motion to reopen because it “lump[ed] together in one broad brush each of Petitioner’s claims for asylum, withholding of removal, and protection under CAT” rather giving each its due consideration. We will uphold the BIA’s denial of a motion to reopen “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Munoz-Avila v. Holder, 716 F.3d 976, 982 (7th Cir. 2013).

Generally, the Board may deny an applicant’s motion to reopen if the applicant fails to establish a prima facie case of eligibility for the underlying relief sought. Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 2004). That is the basis on which the BIA denied Antia-Perea’s motion. Antia-Perea contends that the Board’s analysis was flawed, however, because it did not separately parse his requests for asylum, withholding of removal, and protection under the CAT. Although we have recognized that it may be “problematic” for the Board to analyze distinct claims for relief in a single stroke, we have nonetheless denied petitions for relief predicated on this “error” when we are able to discern the BIA’s reasoning for its decision as to each claim. See Munoz-Avila v. Holder, 716 F.3d 976, 982 (7th Cir. 2013). We likewise have recognized that there is significant overlap among claims for asylum, withholding of removal, and relief under the CAT such that an unsuccessful asylum claim may doom related claims for withholding of removal or protection under the CAT, as those types of relief have “more stringent” requirements. See Hassan v. Holder, 571 F.3d 631, 644 (7th Cir. 2009).

The Board’s analysis in this regard was less than stellar. Although it demonstrated that it had considered Antia-Perea’s evidentiary submissions, the Board neglected to set forth the standards against which those submissions were measured for each form of relief. Nonetheless, it is clear from the Board’s discussion that it denied Antia-Perea’s requests for asylum and withholding of removal because it concluded that the harm Antia-Perea feared was too speculative to merit relief. This is a valid and rational basis on which to deny both types of claim. Asylum applicants who have not been persecuted in the past may demonstrate eligibility for relief only by showing a fear of future persecution “that is subjectively genuine and objectively reasonable.” Georgieva v. Holder, 751 F.3d 514, 522 (7th Cir. 2014). The objective component requires the applicant to prove either a reasonable probability that he will be singled out for persecution or a pattern or practice against a particular group to which he belongs. Id. at 522-23. Similarly, an applicant seeking withholding of removal must demonstrate a “clear probability” of harm by showing that it is “more likely than not” that he will suffer persecution if removed. Hassan, 571 F.3d at 644. This “clear probability” requirement is “more stringent” than the requirements for asylum eligibility. Id. Thus, the Board’s conclusion that Antia-Perea’s evidence did not demonstrate that the Super Cartel was likely to become aware of his daughter’s employment with ICE necessarily undermined both of these claims.

As we have recognized in Hassan and elsewhere, the burden of proof for CAT protection is more stringent still than that for asylum or withholding of removal, as the applicant must show that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); Hassan, 571 F.3d at 644. Here, the Board rationally, albeit summarily, concluded that Antia-Perea’s evidence—which, notwithstanding his current contentions was the same for all three types of relief—could not support a likelihood of torture if it was too speculative to demonstrate persecution. See Bathula v. Holder, 723 F.3d 889, 903 (7th Cir. 2013). The harsh definition of “torture,” see 8 C.F.R. § 208.18, “sets a high bar for relief,” Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011), and the Board did not abuse its discretion in concluding that Antia-Perea could not clear it with his evidence concerning the Super Cartel.

E.

Antia-Perea finally contends that his due process rights were violated because the IJ was not fair and impartial. The BIA rejected this argument during Antia-Perea’s first appeal because he failed to offer any evidence of bias aside from the adverse rulings against him, and declined to revisit its decision on reconsideration. We find no error in these rulings.

The Fifth Amendment’s due process clause guarantees the right to an impartial decisionmaker, Firishchak v. Holder, 636 F.3d 305, 309 (7th Cir. 2011), but “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). And judicial rulings are all that Antia-Perea is able to point to; he contends that the IJ erred in denying his subpoena request, in finding the I-213 reliable, and in denying his request for continuance. Antia-Perea has not demonstrated how the IJ’s procedurally and legally correct rulings evince bias. The Board did not err in rejecting Antia-Perea’s underdeveloped assertions of bias in the first instance or abuse its discretion in denying his motion to reconsider. See Muratoski v. Holder, 622 F.3d 824, 830 (7th Cir. 2010).

III.

For all of the reasons stated above, Antia-Perea has not demonstrated that the IJ or the Board legally erred or denied him due process. Accordingly, his consolidated petition for review is DENIED.

[*] The Honorable Robert M. Dow, Jr., of the Northern District of Illinois, sitting by designation.

CA7 allows Form I-213 into evidence and denies request to cross-examine the maker

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Form I-213 | Leave a comment