New ICE Detainee Transfer Policy

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Policy 11022.1: Detainee Transfers

Issue Date: January 4, 2012

Effective Date: January 4, 2012

Superseded: All Immigration and Customs Enforcement (ICE) documents that reference or provide guidance related to detainee transfers must be revised in accordance with this Directive.

Federal Enterprise Architecture Number: 306-112-002b

1. Purpose

Background. This Directive establishes new prioritized transfer determinations that are meant to minimize, to the extent possible, detainee transfers outside the area of responsibility and to provide cost savings to the agency.

This Directive consolidates and revises existing policies on how field offices make detainee transfer determinations and conducts transfers out of the Area of Responsibility (AOR). Transfers of detainees within the AOR are not covered by this Directive.

This Directive establishes responsibilities and procedures for ICE employees who perform detainee transfers and does not govern contract staff. ICE employees are advised that responsibilities and procedures for contract staff can be found in their respective vendor agreements

Policy. All detainee transfers and transfer determinations will be based on a thorough and systematic review of the most current information available.

Definitions. The following definitions apply for purposes oft his Directive only.

3.1. Area of Responsibility (AOR). The geographic area of responsibility under the authority of a Field Office Director (FOD).

3.2. Detainee transfer. The transfer of a detainee from one AOR to another. The term does not include intake processing, or the transfer of aliens from facilities that are authorized for less than 72 hours, hold rooms, u.s. Customs and Border Protection Border Patrol stations, or Ports of Entry. The term detainee transfer does not include the transfer of aliens to staging areas or facilities for the purpose of facilitating a scheduled final removal of aliens from the United States, nor does it include the final removal of aliens from the United States.

3.3. Immediate family. This may include: mothers, fathers, step-parents, foster parents, brothers, sisters, stepbrothers, stepsisters, biological and adopted children, stepchildren, foster children, and spouses, including common-law marriage or civil unions and cohabitating domestic partnerships legally recognized by a state or other governmental entity (e.g. District of Columbia, Puerto Rico, Guam).

3.4. Workday(s). Monday through Friday excluding holidays or other local Enforcement and Removal Operations (ERO)/Executive Office for Immigration Review (EOIR) office closures.

4. Responsibilities.

4.1. FODs, Supervisory Immigration Officers, Attorneys, Immigration Officers and Medical Staff are responsible for complying with the policy and procedures set forth in this Directive.

4.2. FODs are responsible for disseminating and enforcing this Directive and in conjunction with the Office of the Principal Legal Advisor (OPLA), developing protocols with EOIR court administrators within their AOR that ensure a regular exchange of timely and accurate hearing and detainee transfer schedule information.

5. Procedures.

5.1. Filing of the Notice to Appear (NTA) for Transfers. Unless impracticable because of logistical or other compelling factors that delay submission on a temporary or ongoing basis, NTAs will be submitted to EOIR within five (5) workdays of the NTA being served on the alien, or upon the alien entering ICE custody, whichever is later. Proper submission of an NTA does not require delivery confirmation, receipt or further action by EOIR. NTAs mailed to EOIR will only require postmark within the five (5) workdays to be considered timely. All NTAs mailed will utilize a service which tracks mailing and receipt dates.

As a general rule, detainees will not be transferred without the A-Files, T-Files, or work folders. If an A-File, T-File, or work folder does not accompany the transferred alien, the five (5) workdays provided for submitting the NTA to EOIR will not begin until the appropriate case officer, agent or other ICE employee who submits NT As to EOIR receives the A-File, T-File or work folder.

5.2. Transfer Determinations.

1) Unless a transfer is deemed necessary by a FOD or his or her designee under paragraph (3) of this section, ICE Supervisory Immigration Officer(s) will not transfer a detainee when there is documentation to support the following:

a) Immediate family within the AOR;

b) An attorney of record (Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative on file) within the AOR;

c) Pending or on-going removal proceedings, where notification of such proceedings

has been given, within the AOR; or

d) Been granted bond or has been scheduled for a bond hearing.

2) The Immigration Officer will conduct a review to determine whether any of these factors exist. Before a transfer is made in a case where one or more of these factors exist, the transfer must be approved at the Assistant Field Office Director level or higher, and the reasons for the transfer must be documented in the detainee’s A-File.

3) A transfer may be deemed necessary by a FOD or his or her designee for any of the following reasons:

a) To provide appropriate medical or mental health care to the detainee.

b) To fulfill an approved transfer request by the detainee.

c) For the safety and security of the detainee, other detainees, detention personnel or any ICE employee.

d) At ICE’s discretion, for the convenience of the agency when the venue of EOIR proceedings is different than the venue in which the alien is detained.

e) To transfer to a more appropriate detention facility based on the detainee’s individual circumstances and risk factors.

f) Termination of facility use due to failure to meet ICE detention standards, lack of sufficient use of the facility by ICE, or emergent situations.

g) To relieve or prevent facility overcrowding; in such cases, efforts should first be made to identify for transfer those detainees who do not meet any of the criteria listed in section 5.2(1).

4) Orantes Class Members.

a) ICE is prohibited from transferring Salvadoran class members who are not represented by counsel, from the judicial district of their apprehension for at least seven days to afford them the opportunity to secure counsel.

i) The only exception to this rule applies to class members who are subject to expedited removal final orders. See Orantes-Hernandez v. Gonzales, No. 8201107, Modified Consolidated Injunction, at paragraph l1.b. (C.D. Cal. Nov. 26,2007).

b) Salvadoran class members who are represented by counselor obtain representation within the seven-day period can be transferred to other locations, but venue remains in the judicial district where each member’s counsel is located.

c) For any questions regarding the treatment of Salvadoran nationals in ICE custody, pursuant to the requirements of the Orantes settlement agreement, please contact the local ICE Office of Chief Counsel.

5) ICE Supervisory Immigration Officers will conduct a thorough review of the most current information available to make all detainee transfer determinations.

5.3. Notifications in the Event of a Detainee Transfer.

1) ICE will ensure that all necessary notifications are made to detainees and their attorneys when detainees are transferred. ICE is not required to notify family members or other third parties of a transfer.

2) Attorney notification. If a detainee has an attorney of record (Form 0-28 on file), the sending field office will:

a) Notify the attorney that the detainee is being transferred and include the reason for the transfer and the name, location, and telephone number of the new facility as soon as practicable on the day of the transfer, but in no circumstances later than twenty four (24) hours after the transfer occurs.

b) Document the notification in:

i) The Detainee Transfer Check List; and

ii) The appropriate comments screen in ENFORCE.

c) Delay the notification when there are special security concerns, but only for the period of time justified by those concerns.

d) Appropriately document concerns in the detainee’s A-File and the appropriate comments screen in ENFORCE.

3) Detainee notification. Immediately prior to transfer, the sending field office will ensure that the detainee is informed, in a language or manner he/she can understand, that he/she is being transferred to another facility and is not being removed (if applicable).

a) To ensure the safety of ICE personnel, ICE-will ensure that specific plans and time schedules are not discussed with detainees and that following notification, the detainee:

i) Is not permitted to make or receive any telephone calls until the detainee reaches the destination facility;

ii) Does not have contact with any detainee in the general population until the detainee reaches the destination facility; and

iii) Is notified that upon admission into the receiving facility, the detainee may place a domestic phone call, at no expense to the detainee.

b) The sending office will ensure that the detainee notification is documented in:

i) The Detainee Transfer Notification form; and

ii) The appropriate comments screen in ENFORCE.

c) At the time of the transfer, ICE will provide the detainee, in writing, the name, address, and telephone number of the facility to which they are being transferred, using the Detainee Transfer Notification form. ICE place a copy of the form in the detainee’s A-File.

d) ICE will make sure that the detainee acknowledges, in writing, that they have received the transfer destination information and that it is their responsibility to notify family members if so desired, upon admission into the receiving facility.

4) EOIR notification. If a detainee has pending proceedings before EOIR, ICE must submit Form I-830, Notice to EOIR: Alien Address. If the alien has an appeal pending with Bureau of Immigration Appeals (BIA), the BIA must be notified. In all cases, a copy of Form I-830 will be placed in the A-file.

5.4. Requests for Bed/Designation Transfers from Field Office to Field Office.

1) FODs or their designees are responsible for ensuring that field offices which routinely transfer cases:

a) Establish a means of communication so that receiving field offices provide sending field offices daily information regarding available bed space; and

b) Provide the names and contact numbers of staff responsible for handling transfers.

2) While field offices are encouraged to communicate directly regarding available bed space, the headquarters Removal Management Division (RMD) is available to assist a field office that has unsuccessfully attempted to locate space.

3) Field offices seeking bed space in other field office jurisdictions should phone the request (or e-mail with a follow-up phone call) with sufficient details of the case to the designated field office contact. ‘

4) Once a field office has preliminarily agreed to accept a detainee from another office, ICE will ensure that:

a) The Form 1-216, Record of Persons and Property Transfer is completed;

b) Complete information detailing the alien’s criminal history, medical or mental health concerns, or security risks is provided.

c) Medical or mental health problems or prescribed medications are documented, either on Form USM-553 (or equivalent), Medical Summary ofFederal Prisoner/Alien in Transit, or Form 1-794, In-Processing Health Screening, and the form accompanies Form 1-216;

d) Security concerns are outlined on a separate page and attached to Form 1-216; and

e) A copy of the age verification documentation is attached if it is suspected that the detainee is a juvenile.

5) The FOD(s) or their designee(s) will arrange a method of providing medical histories to Intergovernmental Service Agreement (IGSA) facilities if the IGSA requires that the medical unit review medical histories prior to accepting a transfer.

6) The receiving field office will ensure that Form 1-216 is reviewed for consistency with information previously communicated. If there are issues that were not previously relayed to the receiving field office, ICE Supervisory Immigration Officers at the receiving field office will ensure that the sending field office is notified that the transfer request may be declined unless the issues are resolved.

7) Once the receiving field office has agreed to accept the transfer of the detainee on Form 1-216, the sending field office will communicate a mutually agreeable estimated time of arrival. The sending field office may not substitute any detainee on Form 1216 without prior approval of the receiving field office.

5.5. Detainee Transfer Checklist and Transfer Notification Form.

1) ICE will ensure that both the Detainee Transfer Checklist and Transfer Notification Form are completed and placed in the detainee’s A-File or work folder; and that the A-File or work folder accompanies the detainee to the receiving facility.

2) If the Detainee Transfer Checklist cannot be completed prior to transfer, the detainee may be transferred only ifthe authorized receiving FOD or his or her designee has expressly waived that procedure. The sending field office will note any such waiver in the A-File.

5.6. A-File.

1) Prior to transfer, the sending field office will ensure that the A-File is obtained and, in accordance with the appropriate procedures of the rCE Policy Directive titled, “Alien Registration File (A-File) Creation, Maintenance, Organization, and Disclosure of Information” :

a) Forward the A-File to uscrs for consolidation; and

b) Attach all documents and forms on the proper side of the A-File.

2) The sending field office will ensure that the A-File includes copies of the following properly executed documents, fastened in the file: a) 1-216 and appropriate copies of Form 1-77, Baggage Check (or IGSA equivalent); b) Form USM-553 or local Medical Transfer Summary form; c) Copy of Form 1-213, Record a/Deportable Alien Form; d) Original or photocopy of Form 1-203/203A, Order to Detain/Release Alien; e) Detainee Transfer Checklist; f) Age verification documents (if applicable); g) A copy or printout of all previous Post Order Custody Reviews (POCRs) and travel document requests in a property envelope fastened to the file; h) Classification sheet; i) Charging documents/records of proceedings; j) Certified copies of convictions; k) Fingerprint cards; 1) Photographs; and, m) Printouts from the Central Index System (CIS), ENFORCE and the FBI NCIC database.

3) If the sending field office is unable to obtain the A-File (and does not have a fully documented Temporary File), the detainee may not be transferred unless the receiving

Detainee Transfers

field office, before the transfer takes place, accepts a work folder created by the sending field office that includes, at a minimum:

a) Certified copies of convictions or information as addressed in section 5.8;

b) Printouts from the Central Index System (CIS), ENFORCE, and the Federal Bureau of Investigation’s (FBI) National Crime Information Center (NCIC) database;

c) Charging documents/copies of the EOIR record of proceedings;

d) Photographs and fingerprints;

e) A Computer Linked Application Information Management System (CLAIMS)

printout;

f) A Treasury Enforcement Communications System (TECS) printout; and

g) Any other documents reasonably requested by the receiving field office.

4) The sending field office will ensure that the A-File or work folder accompanies the transfer, except for cases where the receiving field office requests that the A-File or
work folder be mailed by overnight express to a particular location. If requested, the sending field office will ensure that it is mailed no later than the following business day.

5) The sending field office shall communicate as soon as possible any anticipated significant delays in the arrival time of the detainees or their files.

5.7.Charging Documents/Record of Proceeding.

1) Before the transfer, all charging documents will be issued and signed by the individual with signatory authority for the sending field office.

2) If applicable, prior to transfer, all charging documents will be served on the detainee, including, but not limited to:

a) Form 1-862, Notice to Appear;

b) Form I-200, Warrant of Arrest;

c) Form 1-205, Warrant of Removal;

d) Form 1-286, Notification of Custody Decision; and

e) Form 1-826, Notice of Rights.

3) ICE will answer that original charging documents or copies, if the originals have been submitted to EOIR (indicating proper service), are included in the A-File. A copy of the charging documents will be provided to the detainee.

5.8. Certified Copies of Convictions. A detainee may not be transferred if the certified copies of conviction relating to the charging document are not included in the A-File or work folder, unless the receiving field office has agreed in writing in advance to accept the case. In such instances, the sending field office will provide the Detainee Transfer Checklist point-of-contact names and phone numbers provided for:

1) The person at the sending field office responsible for obtaining the conviction record; and

2) An individual at the respective court or clerk’s office where the record is located.

5.9. Fingerprint Cards. The sending field office will send the completed fingerprint cards in the A-File or work folder as noted below:

1) The cards will be signed by the alien and the official taking the fingerprints;

2) The cards will be completely filled out except for the address block requesting a disposition from the FBI;

3) The completed cards will be left in the A-File or work folder for the receiving field office to fill in the response address block and submit to the FBI and DHS Biometrics Support Center (when appropriate), unless the detainee is a Room-and-Board case (short-term staging); and

4) One fingerprint card should remain in the A-File or work folder at all times.

5.10. Photographs. The sending field office will take four (1 sheet of 4) new, standard booking-size photographs on photo quality paper and include any photos not needed for the transfer in the A-File or work folder.

5.11. . Medical Procedures and Information Required for Transfer.

1) In advance of the transfer, ICE will ensure that the receiving facility is provided the USM-553 (facsimile or email is acceptable)

2) Transfer of the Detainee’s Medical Record.

a) When a detainee is transferred within the ICE Health Service Corps (IHSC) system, IHSC will provide:

i) Form USM-553, or equivalent Medical Transfer Summary, and a copy of the detainee’s full medical record; and

ii) The full medical record in a sealed envelope or other container labeled with the detainee’s name and A-number and marked “MEDICAL CONFIDENTIAL. ”

b) When a detainee is transferred to an IGSA detention facility, ICE will ensure that the Transfer Summary will accompany the detainee. Whenever possible, a copy of the full medical record should accompany each detainee during transfer. If the full medical record is not available, it must be sent as soon as possible. FODs will work with IGSAs to make arrangement for the transfer of the full medical record.

3) Medical Transfer Summary.

a) The sending facility’s medical staff will prepare a Medical Transfer Summary that must accompany the detainee. Either Form USM-553 or a facility-specific form may be used, provided it shows:

i) Tuberculosis (TB) clearance, including Purified Protein Derivative (PPD) with the test dates, and chest x-ray results if the detainee has received a positive PPD reading;

ii) Current mental and physical health status, including all significant health Issues;

iii) Current medications, with specific instructions for medications that must be administered en route; and

iv) The name and contact information of the transferring medical official.

b) The transporting officer may not transport a detainee without the Medical Transfer Summary.

c) The transporting officer will review the information for completeness and make sure that he or she has the in-transit supplies required to provide to the detainee as indicated on the USM-553 or equivalent Medical Transfer Summary.

d) Medical information is available to staff only on a need-to-know basis.

i) Any officer who reviews the Medical Transfer Summary will protect the privacy of the detainee’s medical information to the greatest extent possible.

ii) Personnel may not share medical information unless necessary to safely fulfill transportation responsibilities.

e) The transporting officer will deliver the Medical Transfer Summary to medical personnel, if practicable, or other staff at the receiving facility and will advise them of any medications provided to the detainee in transit.

4) Medical or Psychiatric Alert.

a) Appropriate medical staff will notify the facility administrator when they determine that a detainee’s physical or mental condition requires:

i) Clearance by the medical staff prior to transfer; or

ii) Medical escort and specialized care (e.g. dialysis) during transfer.

5) Medications.

a) Prior to transfer, medical staff will provide the transporting officers instructions and, if applicable, medication(s) for the detainee’s care in transit.

b) Medical staff will ensure that the detainee is transferred with, at a minimum, seven (7) days worth of prescription medications (for TB medications, up to 15 days’ supply) to guarantee the continuity of care throughout the transfer and subsequent intake process.

c) ICE will ensure that medications:

i) Are placed in a property envelope labeled with the detainee’s name and Anumber and appropriate administration instructions;

ii) Accompany the transfer; and

iii) If unused, are turned over to the receiving medical personnel.

5.12. Other Transfer Paperwork.

1) ICE will ensure that no detainee is transferred without a properly executed Form G391, 1-213, 1-216, 1-203/1-203A, or equivalent. IGSA facilities may use a local form as long as the form provides the required information.

2) ICE Supervisory Immigration Officers will ensure that records are checked to ascertain if the alien has a criminal history, is dangerous, or has an escape record or medical condition. Any information of an adverse nature must be clearly indicated on the Form G-391, 1-216, 1-203, or equivalent, and the escorting officers will be notified of the risk and warned to take the necessary precautions.

3) Before beginning the transfer or the detail, the escorting and transportation officers will read their instructions and clearly understand the purpose for which the detainee

is being removed from the facility. The officers will also discuss emergency contingency plans with a supervisor and/or authorized ICE official before departure. 4) ICE will ensure that Form 1-216: a) Includes the detainee’s name, A-number and detention category;

b) Indicates if the detainee has a criminal conviction, a history of violence, is an escape risk, or has a medical condition that may require attention during the transfer;

c) Notes whether the detainee is on prescription medication; and d) Indicates the time of arrival estimated by the sending field office. 5) ICE will ensure that Form G-391, 1-203/1-203A, or equivalent: a) Is properly signed and clearly indicates the name and A-number of the detainee( s); b) Indicates the place or places to be escorted; and c) Notes the purpose of the trip and other information necessary to efficiently carry out the transfer, or detail. 6) The receiving field office may request that copies of Form 1-203/1-203A or 1-213 be transmitted directly from the sending field office to the receiving facility.

5.13. Property.

1) Before transfer, the sending facility will ensure that all funds and small valuables are properly documented and closed out on Form G-589/1-77 (or local IGSA property receipt form).

2) If the receiving facility does not accept excess, oversized or bulky belongings (including, but not limited to, suitcases, cartons, televisions, etc.), the sending facility will: .

a) Arrange to store the property elsewhere; or

b) Process the excess property in accordance with the ICE National Detention Standards (NDS) or Performance Based National Detention Standards (PBNDS) related to the destruction of contraband or abandoned property.

3) If the detainee refuses to provide an appropriate mailing address, or is financially able but unwilling to pay for shipping, ERO may dispose of the property after providing the detainee written notice in accordance with the ICE National Detention Standards (NDS) or Performance Based National Detention Standards (PBNDS) related to the destruction of contraband or abandoned property.

5.14. Movements via ICE-Managed Aircraft. When detainees are being transported by the ERO Flight Operations Unit, ICE will adhere to protocols established for ICE chartered removals

5.15. Post Transfer Activities.

1) Detainee Phone Calls. a) After admission into the receiving facility the FOD will ensure that all detainees are given the opportunity to make a phone call at the government’s expense. 2) ENFORCE. a) The sending field office will ensure that appropriate screens in ENFORCE are complete, updated, and accurate. b) Once the detainee reaches his or her destination, the receiving field office will update the appropriate screens in ENFORCE.

5.16. Quality Assurance Review. Consistent with the terms of this Directive, the FOD shall maintain statistics on transfers and have a quality assurance process in place to monitor all transfer decisions.

6. Authorities/References.

6.1. Immigration and Nationality Act, Pub. L. No. 82-414, §236(a) (1952) (codified as amended at 8 U.S.C. §§ 1101 et seq).

6.2. ICE Policy Directive No. 1-32.0, “Alien Registration File (A-File) Creation, Maintenance, Organization, and Disclosure of Information” (Oct. 2, 2009).

7. Attachments.

7.1. Detainee Transfer Notification.

Detainee Transfer Checklist.

No Private Right Statement. This Directive is an internal policy statement of ICE. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

J~
Director
U.S. Immigration and Customs Enforcement

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How do the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return?

In Rosenberg v. Fleuti (1963) a lawful permanent resident from Switzerland visited Mexico for a few hours and, upon his return, was charged with being excludable because he had committed a “crime involving moral turpitude” before he left the country; the U.S. government later claimed that he was also excludable because he was homosexual.  To avoid a harsh result, as well as to avoid deciding difficult constitutional questions, the Supreme Court interpreted the immigration statute to mean that Fleuti’s “innocent, casual, and brief” departure from the United States was not “meaningfully interruptive” of his lawful permanent residence and thus he was not seeking “entry” (and thus admission) into the country.  Under the Court’s reasoning, Fleuti therefore could not be denied admission on the exclusion grounds applicable to initial entrants.

On January 18 2012, in Vartelas v. Holder the Court will hear oral arguments in a removal case that raises an issue that has confounded the courts, namely, how the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return.

In 1979, Panagis Vartelas, a native of Greece, came to the United States on a student visa to attend Queens College.  After marrying a U.S. citizen in 1985, he became a lawful permanent resident in 1989.  Vartelas and his wife, who later divorced, had two U.S. citizen children.  He owned an auto body shop in Queens, New York.  After his arrest on charges that he had assisted his business partner in preparing counterfeit traveler’s checks – conduct for which he did not receive any economic benefit, he pleaded guilty in 1994 to conspiring to make or possess a counterfeit security in violation of federal law and was sentenced to imprisonment for four months.

In 1996, Congress added Section 101(a)(13)(C)(v) to the INA.  That statute provides that a lawful permanent resident who returns from a trip out of the United States “shall not be regarded as seeking an admission” unless he “has committed an offense identified in” Section 212(a)(2) of the INA, which includes crimes involving moral turpitude.  The change in the law helped lawful permanent residents without criminal convictions who traveled abroad because it did not treat them as seeking admission (and thus like initial entrants subject to the inadmissibility grounds).  The amendment was no help to Vartelas, however.  Because counterfeiting is a crime of moral turpitude, a ground for inadmissibility, Vartelas was inadmissible under Section 101(a)(13)(C)(v) of the INA.

On January 29, 2003, Vartelas returned to the United States from a week-long trip to Greece, where he had gone to assist his parents with their business.  An immigration inspector questioned him about his 1994 criminal conviction.  Vartelas later was served with a notice to appear for removal proceedings on the ground that he was inadmissible as an alien who sought entry into the United States after being convicted of a crime of moral turpitude.  Under the applicable law, he would not have been subject to deportation if he had remained in the United States and had not left the country to visit his parents in Greece.

The immigration court ordered Vartelas removed from the United States.  The Board of Immigration Appeals (BIA) agreed.   The Second Circuit denied the petition for review of the BIA ruling. The court of appeals agreed with the Board that the 1996 amendments had abrogated the Court’s holding in Rosenberg v. Fleuti.  The Second Circuit further concluded that application of Section 101(a)(13)(C) (v) to Vartelas’s 2003 trip to Greece was not impermissibly retroactive.  In so doing, the court of appeals recognized that its holding was contrary to that of the Fourth and Ninth Circuits.

Docket No. Op. Below Argument Opinion Vote Author Term
10-1211 2d Cir. Jan 18, 2012 TBD TBD TBD OT 2011

Issue: Whether 8 U.S.C. § 1101(a)(13)(C)(v), which removes a lawful permanent resident of his right, under Rosenberg v. Fleuti, 374 U.S. 449 (1963), to make “innocent, casual, and brief” trips abroad without fear that he will be denied reentry, applies retroactively to a guilty plea taken prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act.

Briefs and Documents

Merits Briefs for the Petitioner

Amicus Briefs in Support of the Petitioner

Merits Briefs for the Respondent

Certiorari-stage documents

Posted in 8 U.S.C. § 1101(a)(13)(C)(v), and brief” departure, Rights of lawful permanent residents, Rosenberg v. Fleuti, U.S. Supreme Court | Tagged | Leave a comment

Proposed Rule Change Will Unify Families Subject to 3 and 10 Year Bars: Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens

On January 6, 2012 the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to streamline the application process for the spouses and children of U.S. citizens currently eligible for legal permanent resident status, minimizing the amount of time that applicants would have to be separated from their families.  Under current procedures, thousands of persons who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering for 3 or 10 years if they have been unlawfully present in the U.S. for more than 180 days.  Many are eligible for a family unity waiver, but under current rules (not law), the waiver can only be applied for from overseas.  Because that process can often take many months and even years, it is believed that many otherwise eligible applicants do not apply for legal permanent resident status, remaining unauthorized in the U.S. rather than risk lengthy separation from their families. Regulatory changes will allow certain immediate relatives of U.S. citizens to request provisional waivers under section
212(a)(9)(B)(v) 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the U.S. United States for consular processing of their immigrant visa applications.

Published in the Federal Register today, the proposal—or, at this point, a “notice of intent to issue a rule”— recognizes this Catch-22 by revising the procedures for determining the family unity waivers for spouses and children of U.S. citizens. However, the rule change will not cover spouses and children of legal permanent residents. Under this “in-country processing” proposal, which must still go through the formal rule-making process, spouses and children of U.S. citizens who apply for legal permanent residence and need a family unity waiver to re-enter the U.S. will be allowed to apply for the waiver without first leaving.  This process does not alter or revise eligibility standards and only affects persons whose sole need for a waiver is based on having been in the U.S. without authorization.

This “in-country processing” proposal would permit USCIS to grant a provisional waiver, eliminating the often prolonged wait that many applicants currently face when they seek a waiver outside the U.S.  Although applicants would still be required to depart from the U.S. before receiving final approval on their application, pre-processing of the family unity waiver will encourage applicants to come forward and create a faster and safer means for processing applications.

The emphasis on safety is particularly important, given the large number of applications processed in Ciudad Juarez, Mexico, a city that has been wracked with violence in recent years.  Numerous cases of violence against persons waiting for their waivers have been reported, increasing the urgency of implementing the new rule quickly.  For other applicants, the streamlined process will minimize the time away from family members, reducing the possibility of economic and other hardships caused by long separations.

Our current immigration laws are riddled with inconsistent and conflicting provisions which have the absurd result of discouraging legal immigration.  Some of the most notorious are the bars to returning to the U.S. after a period of unlawful presence, even if a person has a legitimate relationship to a U.S. citizen.   Today’s announcement does not eliminate the bars, but it recognizes that there is no practical reason for forcing the spouses and children of U.S. citizens to wait outside the country for months or even years while their application for a waiver is pending.

According to Benjamin Johnson, Executive Director of the American Immigration Council, “By proposing new rules for processing waiver applications for spouses and children of U.S. citizens, USCIS has shown a commitment to addressing one of the most notorious implementation problems in our current immigration system.  Improving this system, within the framework of the law, is the legitimate role of any administration.  We commend USCIS for embarking on this rule change and its other attempts to bring efficiencies and fairness to the immigration system.”

_____________________________

USCIS to Propose Changing the Process for Certain Waivers

 Introduction

On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States.  Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain period of unlawful presence in the United States, and have to leave the country as part of the legal immigration process, are barred from returning to their families for as long as 3 or 10 years.  They can receive a waiver to allow them to return to their families by showing that their U.S. citizen family member would face extreme hardship as a result of the separation.  This proposal would streamline the processing of these individuals’ waiver applications based on unlawful presence; USCIS proposes to process their waiver applications in the United States before any American family faces separation.  The process would only apply to immigrants who are eligible for a visa.

Under the proposed process, the spouses and children of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence in order to obtain that visa expeditiously, would apply for a provisional waiver before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad (as they must pursuant to law).  The notice limits the streamlined process to those individuals who are inadmissible based solely on having accrued a period of unlawful presence and – pursuant to statutory requirements – who can demonstrate extreme hardship to their U.S. citizen relative.  All individuals affected by this streamlined process would need to meet all legal requirements for admission to the United States, including the requirement that they process their visa application at a U.S. consulate abroad.

With the change outlined in the notice, individuals who currently qualify for a waiver of inadmissibility under the existing eligibility standards, and who can demonstrate that separation from their U.S. citizen spouse or parent would cause extreme hardship to that relative, would be allowed to apply for a waiver while still in the U.S.

By allowing these individuals to apply for waivers in the U.S. and making a provisional determination of waiver eligibility before the individuals must depart the country for visa processing, USCIS would provide a more predictable and transparent process and improved processing times, minimizing the separation of U.S. citizens from their families. The change would also streamline the process for both USCIS and the Department of State (DOS) when handling requests for these waivers.  As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.

Following publication of this notice, USCIS will undertake further analysis and collaborate with the Department of State to develop the streamlined process in greater detail.  USCIS plans to publish a notice of proposed rulemaking in the coming months that will provide additional details and allow the opportunity for public comment.  A final rule will then be published to implement the streamlined process.  The rule will not modify the underlying standard for assessing whether denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent of such individuals.  It would modify only the process by which these applications may be filed and accepted by USCIS for processing.

Questions and Answers

Q. Why is USCIS proposing the change?

A. This proposed change will reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States.  Under current policy, individuals who wish to apply for a waiver of inadmissibility for unlawful presence must leave the U.S. and apply for a waiver at a U.S. consular office outside the United States.  This process can be lengthy and discourages individuals who may be eligible for this waiver from applying, which delays their ability to lawfully reenter the U.S.  The proposed change would reduce the amount of time that U.S. citizens would be separated from their spouses and children while the process to obtain a visa to immigrate takes place.  This reflects the Administration’s strong commitment to efficiency in the administration of immigration law and facilitation of legal immigration.

Q. How is the proposed process different from the current process?

A.Currently, U.S. citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the U.S., that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed.  The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver.  Nor does it change the requirement that the spouse or child of a U.S. citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad.  The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the U.S. and receive a provisional decision on that waiver before departing the U.S. for consular processing of their immigrant visa applications.  Currently, applicants can only file for a waiver after having been determined inadmissible by the U.S. consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case.  The proposal limits the extent to which the process forces the lengthy separation of families.

Q. When will this streamlined process be implemented?

A. The process will be implemented only after USCIS issues a final rule.  In the coming months, USCIS plans to publish a notice of proposed rulemaking and will consider the comments received as part of that process before publishing a final rule.  The current process will remain in place until a final rule goes into effect.  No one should file an application with USCIS based on this proposed change in process.  Any applications filed with USCIS based on this notice will be rejected and the application package returned to the applicant, including any fees until the final rule is issued and the change becomes effective.

Q. Who would be eligible for a provisional waiver?

A.Spouses and children of a U.S. citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard.  Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver.

Q. Why is this proposed streamlined process limited to the spouses and children of U.S. citizens?

A.The policy objective of this proposed process change is to alleviate extreme hardship suffered by U.S. citizens.  USCIS has thus identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change.  In addition, their immigrant visas, which are not subject to annual limitations, are always immediately available.  The focus on U.S. citizens and their immediate relatives is consistent with Congress’ prioritization in the immigration laws of family unification.  This proposal meets the goals of both improving efficiency and reducing the length of time that American families are unnecessarily separated.

Q. How would the proposed process affect existing standards related to unlawful presence and the extreme hardship standard?

A.It would not.  The proposed process retains all of the legal standards and policies related to unlawful presence determinations and establishing extreme hardship.  It would simply provide for the processing of these waivers in the United States instead of abroad.

Q. Will individuals who recieve the waiver be able to adjust their status without leaving the United States?

A. No.  The visa process itself is not changing.  Individuals who receive a provisional wavier would still be required to depart the United States to apply for their immigrant visa.

Q. Is everyone who has accrued more than 180 days of unlawful presence subject to a three- or 10-year bar from entering the U.S.?

A.Yes; however, some aliens do not accrue unlawful presence if they fall into certain categories.  For example, children under the age of 18 do not accrue unlawful presence for any period of time before their 18th birthday.  Similarly, under current law, certain victims of crime and aliens with pending asylum applications do not accrue unlawful presence while their application is pending.

Q. If an individual already filed a Form I-601 from outside the U.S., would the proposed process affect him or her?

A.No.  It would only affect individuals who have not yet filed a Form I-601 and who will file a waiver request after a final rule is published.

Q. Would USCIS collect biometrics as part of the streamlined process?

A.Yes.  It is contemplated that applicants in the United States would be scheduled for biometrics collection at a USCIS Application Support Center.

Q. Why does USCIS refer to the waiver as “provisional?”

A.In the proposed process, USCIS would grant the provisional waiver before the applicant departs the U.S. for consular processing of their immigrant visa applications.  The provisional waiver, however, would not take effect until the individual departs from the United States and triggers the covered ground of inadmissibility.  Moreover, the provisional waiver covers only the unlawful presence grounds of inadmissibility.  If the consular officer finds during the immigrant visa interview that the individual is subject to another ground of inadmissibility, the individual would need to file another waiver application with USCIS.

Q. What would happen at the consular interview?

A.If DOS found the individual otherwise eligible for the immigrant visa, the consular officer would then issue the visa, allowing the individual to immigrate to the U.S.

Q. What would happen to individuals who are not eligible to file a waiver under the proposed process?

A.They would continue to follow current agency processes for filing waiver requests after a determination of inadmissibility is made by a U.S. consular officer overseas.

Q. What would happen to individuals who are denied waivers under the proposed process?

A.They would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA).  For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.

USCIS Federal Register Announcements

___________________________________

[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Proposed Rules]
[Pages 1040-1043]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-140]

========================================================================
Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 77, No. 5 / Monday, January 9, 2012 /
Proposed Rules

[[Page 1040]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

RIN 1615-ZB10

Provisional Waivers of Inadmissibility for Certain Immediate
Relatives of U.S. Citizens

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Notice of intent.

———————————————————————–

SUMMARY: U.S. Citizenship and Immigration Services (USCIS) intends to
change its current process for filing and adjudication of certain
applications for waivers of inadmissibility filed in connection with an
immediate relative immigrant visa application. Specifically, USCIS is
considering regulatory changes that will allow certain immediate
relatives of U.S. citizens to request provisional waivers under section
212(a)(9)(B)(v) of the Immigration and Nationality Act of 1952, as
amended (INA or Act), 8 U.S.C. 1182(a)(9)(B)(v), prior to departing the
United States for consular processing of their immigrant visa
applications. An alien would be able to obtain such a waiver only if a
Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on
his or her behalf and that petition has been approved, thereby
classifying the alien as an “immediate relative” for purposes of the
immigration laws, and he or she demonstrates that the denial of the
waiver would result in extreme hardship to the alien’s U.S. citizen
spouse or parent “qualifying relative.” The qualifying relative for
purposes of the waiver is not necessarily the immediate relative who
filed the immigrant visa petition on the alien relative’s behalf.

FOR FURTHER INFORMATION CONTACT: Roselyn Brown-Frei, Office of Policy
and Strategy, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-
2099, telephone (202) 272-1470 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

The proposed process is intended to reduce the time that U.S.
citizens are separated from immediate relatives who are required to
remain outside the United States for immigrant visa application
processing and during the adjudication of waivers of inadmissibility.
Through this change, USCIS does not intend to modify the standard for
assessing eligibility for these waivers, including whether the denial
of the waiver would result in extreme hardship to a U.S. citizen spouse
or parent (“qualifying relative”). For purposes of the waiver under
section 212(a)(9)(B)(v) of the Act, a “qualifying relative” is a U.S.
citizen spouse or parent or a lawful permanent resident spouse or
parent who would suffer extreme hardship if their relative were not
allowed to immigrate. For purposes of this provisional waiver program,
DHS intends to limit who may participate in this program to immediate
relatives who can demonstrate extreme hardship to a U.S. citizen spouse
or parent. Even if they obtain a provisional waiver, eligible aliens
who are required to obtain a visa through consular processing would
still be required to depart from the United States to apply for an
immigrant visa. The purpose of the new process is to reduce the time
that U.S. families remain separated while their relative proceeds
through the immigrant visa process.

Certain grounds of inadmissibility can bar aliens from being
admitted to the United States or obtaining an immigrant visa,
preventing U.S. citizens from reuniting with their immediate relatives.
However, the Secretary of Homeland Security, through USCIS, may waive
some of those grounds. An alien who is subject to one or more grounds
of inadmissibility must obtain a waiver, if available, from USCIS
before he or she may be issued an immigrant visa by a Department of
State consular officer at a U.S. embassy or consulate overseas.

The bars to admission under section 212(a)(9)(B)(i)(I) and (II) of
the INA, 8 U.S.C. 1182(a)(9)(B)(i)(I) and (II), based on accrual of
unlawful presence in the United States, comprise one such ground.
Typically, under current processes, aliens who are immediate relatives
of U.S. citizens applying for immigrant visas at Department of State
consular posts must apply for waivers of unlawful presence while
outside the United States after a finding of inadmissibility is made by
a Department of State consular officer in conjunction with their
immigrant visa applications. As a result, U.S. citizen petitioners are
often separated for long periods of time from their immediate relatives
who are applying for immigrant visas and have accrued a certain period
of unlawful presence in the United States. This revised process, which
eliminates the time-consuming interchange between the Department of
State and USCIS, would significantly reduce the amount of time that
American families will be separated from their immediate relatives.
USCIS also believes that efficiencies can be gained through this
revised process for both the U.S. Government and most applicants.

USCIS intends to limit consideration for the provisional waiver to
aliens who qualify for classification as immediate relatives of U.S.
citizens, who have a U.S. citizen spouse or parent who would suffer
extreme hardship if the waiver were denied, and for whom the sole basis
for inadmissibility is unlawful presence in the United States of more
than 180 days. USCIS would grant a provisional waiver if the alien
meets the eligibility requirements described in this Notice, including
demonstrating that the applicant’s qualifying U.S. citizen spouse or
parent would suffer extreme hardship and that the applicant warrants a
favorable exercise of discretion. The provisional waiver would be
granted before the alien leaves the United States to attend his or her
immigrant visa interview with a consular officer. The provisional
waiver, however, would not become effective unless and until the alien
departs from the United States. If the alien is otherwise eligible for
the immigrant visa, the consular officer may then approve the issuance
of the visa so that the alien may proceed to immigrate to the United
States for permanent residence.

This notice of intent generally describes the proposal that USCIS
is considering. USCIS will further develop, and ultimately finalize,
this proposal through the rulemaking process. This effort is consistent
with

[[Page 1041]]

Executive Order 13563’s call for agencies to “consider how best to
promote retrospective analysis of rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.” Do not send an application requesting a provisional waiver
under the procedures under consideration in this notice. Any
application requesting this new process will be rejected, and the
application package returned to the applicant, including any fees,
until a final rule is issued and the change becomes effective.

B. Authority

The Homeland Security Act of 2002, Public Law 107-296, section 102,
116 Stat. 2135, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C.
1103, charge the Secretary of Homeland Security with administration and
enforcement of the immigration and naturalization laws. The Secretary
would effectuate these proposed changes under the broad authority to
administer the Department of Homeland Security and the authorities
provided under the Homeland Security Act of 2002, the immigration and
nationality laws, and other delegated authority.

C. Grounds of Inadmissibility

U.S. immigration laws provide mechanisms for U.S. citizens to
petition for certain family members for admission to the United States
for purposes of family reunification. At the same time, however, the
immigration laws prescribe acts, conditions, and conduct that bar
aliens, including immediate relatives of U.S. citizens, from being
admitted to the United States or obtaining an immigrant visa. Such
acts, conditions, and conduct include certain criminal offenses, public
health concerns, fraud, misrepresentation, failure to possess proper
documents, accrual of more than 180 days of unlawful presence in the
United States, and terrorism. The grounds of inadmissibility are set
forth in section 212(a) of the INA, 8 U.S.C. 1182(a).

The Secretary of Homeland Security has the discretion to waive
certain inadmissibility grounds, upon the filing of a request by an
alien who meets the relevant statutory requirements. If the Secretary,
through USCIS, grants such a waiver, the waived ground will no longer
bar the alien’s admission, readmission, or immigrant visa eligibility
based on that specific ground of inadmissibility.

One of the inadmissibility grounds is described in section
212(a)(9)(B)(i) of the Act, 8 U.S.C. 1182(a)(9)(B)(i). Under part (I)
of this provision, an alien who was unlawfully present in the United
States for more than 180 days but less than one year, and who then
departs voluntarily from the United States before the commencement of
removal proceedings, will be inadmissible for three years from the date
of departure. Under part (II) of the same provision, an alien who was
unlawfully present for one year or more and then departs before,
during, or after removal proceedings, will be inadmissible for ten
years from the date of the departure.

The three- and ten-year unlawful presence bars do not take effect
unless and until an alien departs from the United States. By statute,
aliens are not considered to be accruing unlawful presence for purposes
of section 212(a)(9)(B)(i) if they fall into certain categories. For
example, aliens do not accrue unlawful presence while they are under 18
years of age. See INA section 212(a)(9)(B)(iii)(I), 8 U.S.C.
1182(a)(9)(B)(i)(iii)(I). Similarly, individuals with pending asylum
claims generally are not considered to be accruing unlawful presence
while their applications are pending. See INA section
212(a)(9)(B)(iii)(II), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(II). Battered
women and children and victims of a severe form of trafficking in
persons are not subject to the section 212(a)(9)(B)(i) ground of
inadmissibility at all if they demonstrate that there was a substantial
connection between their victimization and their unlawful presence. See
INA 212(a)(9)(B)(iii)(IV)-(V), 8 U.S.C. 1182(a)(9)(B)(i)(iii)(IV)-(V).
Aliens who are subject to the unlawful presence bars must apply for and
be granted a waiver in order to receive an immigrant visa and be
admitted to the United States.

The Secretary of Homeland Security has the discretion to waive the
three- and ten-year unlawful presence bars if the alien is seeking
admission as an immigrant and if the alien demonstrates that the denial
of his or her admission to the United States would cause “extreme
hardship” to the alien’s qualifying relative. See INA section
212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). The qualifying relative for
purposes of the waiver is not necessarily the relative who filed the
immigrant visa petition on the alien relative’s behalf. For example, an
alien applicant’s U.S. citizen spouse may have filed the immigrant visa
petition on the applicant’s behalf, but the applicant’s unlawful
presence waiver application may be based on extreme hardship to the
applicant’s U.S. citizen parent. Because the granting of a waiver is
discretionary, the alien also must establish that he or she merits a
favorable exercise of discretion.

D. Current Process and Problems

An alien who must apply for permanent residence through consular
immigrant visa processing outside the United States must appear for an
interview with a Department of State consular officer abroad.
Currently, if the consular officer determines that the alien is subject
to the three- or ten-year bar, the consular officer advises the alien
that he or she is eligible to apply for a section 212(a)(9)(B)(v)
waiver by filing a Form I-601, Application for Waiver of Grounds of
Inadmissibility, with USCIS. Under current rules, an individual is not
permitted to apply for the section 212(a)(9)(B)(v) waiver before the
consular officer has made the inadmissibility determination.

Once the Form I-601 is filed, in most cases, the file is
transferred from the Department of State to USCIS. USCIS adjudicates
that waiver request while the alien remains outside the United States
and awaits a decision. If USCIS approves the waiver, USCIS notifies the
Department of State, and the Department of State may then issue the
immigrant visa if the applicant is otherwise eligible. If the waiver is
denied, the alien may appeal the decision to the USCIS Administrative
Appeals Office and, if the denial is upheld, the alien must remain
outside the United States for three or ten years before being able to
reapply for an immigrant visa. However, a denial does not preclude the
alien from filing another Form I-601 in the future.

The three- and ten-year unlawful presence bars under section
212(a)(9)(B)(i)(I) and (II) of the Act do not apply unless and until
the applicant departs from the United States. At the same time, many
aliens who would trigger these bars if they depart from the United
States are, for other reasons, statutorily ineligible to apply for
adjustment of status to lawful permanent residence while remaining in
the United States. Consequently, they must depart to regularize their
immigration status by applying for their immigrant visas at a U.S.
embassy or consulate abroad. The action required to regularize the
status of an alien, departure from the United States, therefore is the
very action that triggers the section 212(a)(9)(B)(i) inadmissibility
that bars that alien from obtaining the immigrant visa.

[[Page 1042]]

II. Proposed Waiver Process

A. Proposed Process

The proposed change would create a more streamlined and efficient
process for waiver applicants whose sole inadmissibility ground is
unlawful presence, while simultaneously minimizing family separation.
If the waiver determination, with respect to unlawful presence, were
made in advance of the immigrant visa interview and the applicant
otherwise were eligible for the immigrant visa, the consular officer
could simply issue the immigrant visa at the time of the visa
interview. The new process thus will reduce the movement of the case
back and forth between the Department of State and USCIS, which
significantly prolongs the overall process and increases the time that
U.S. citizens are separated from their immediate family members.
Additionally, the new process would reduce U.S. Government costs
associated with the movement of cases, and provide a more efficient
visa process overall.

B. Affected Visa Categories

USCIS intends to limit this process change to aliens who are
immediate relatives of U.S. citizens, as defined in section
201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart
from the United States to obtain immigrant visas, and whose U.S.
citizen spouse or parent would suffer extreme hardship if the applicant
were denied admission to the United States. The term “immediate
relative” means the spouse, parent or child (unmarried and under 21
years old) of a U.S. citizen, except that, in the case of a parent, the
U.S. citizen son or daughter petitioning for an immigrant visa must be
at least 21 years old. Certain self-petitioners (i.e., widows/widowers
of U.S. citizen and their minor unmarried children) may also be
considered immediate relatives. See INA 201(b)(2)(A)(i), 8 U.S.C.
1151(b)(2)(A)(i). Individuals applying for a waiver must also establish
that the grant of the provisional waiver is warranted as a matter of
discretion.
Because the focus on family unification of U.S. citizens and their
immediate relatives is consistent with Congress’ prioritization in the
immigration laws, USCIS has identified immediate relatives of U.S.
citizens as the class of aliens to consider for this procedural change.
In addition, Congress did not set an annual limitation for the number
of immediate relatives of U.S. citizens admitted to the United States.
Therefore, these relatives always have an immigrant visa immediately
available, and the visa thus can be processed immediately upon
approval.

C. Ground of Inadmissibility Considered for Provisional Waiver

USCIS intends to further limit this procedural change to waivers
filed by immediate relatives of U.S. citizens whose only ground of
inadmissibility is the three- or ten-year unlawful presence bar under
section 212(a)(9)(B)(i)(I) or (II) of the Act, 8 U.S.C.
1182(a)(9)(B)(i)(I) or (II). Aliens who require waivers for one or more
additional grounds of inadmissibility, such as fraud or willful
misrepresentation (section 212(i) waiver) or certain criminal offenses
(section 212(h) waiver), in conjunction with their immigrant visa
applications must continue to file a Form I-601 while outside of the
United States in accordance with the existing process.
To qualify for the provisional waiver process, an applicant must
establish not only that he or she is the immediate relative of a U.S.
citizen, but also that denial of the waiver would result in extreme
hardship to a qualifying relative. The qualifying relative must be a
U.S. citizen spouse or parent but does not need to be the U.S. citizen
petitioner. Only extreme hardship from the denial of a waiver to a
qualifying U.S. citizen relative makes an alien eligible for the
provisional waiver process; extreme hardship to the alien himself or
herself as a result of denial does not make the alien eligible. An
alien whose waiver application is based on extreme hardship to a lawful
permanent resident spouse or parent must continue to apply for the
waiver from outside the United States in accordance with existing
procedures. Eligible aliens, furthermore, must be the beneficiaries of
petitions classifying them as immediate relatives of U.S. citizens, and
thus have visas immediately available. Because the granting of a waiver
is discretionary, eligible aliens also must establish that they merit a
favorable exercise of discretion. The standard for assessing whether
denial of the waiver would result in extreme hardship to the U.S.
citizen spouse or parent of such aliens will remain unchanged.

D. Adjudication and Decisions

After filing the Form I-601 with USCIS, DHS envisions that an alien
seeking a provisional waiver would be required to undergo biometrics
collection. USCIS would deny the application for a provisional waiver
if other possible grounds of inadmissibility are found or arise during
adjudication.

If the application is approved, USCIS would notify the Department
of State and the alien of the provisional approval. In all instances, a
Department of State consular officer would make the formal
inadmissibility finding during or following the immigrant visa
interview abroad, and if no other grounds of inadmissibility arise, the
provisional waiver under section 212(a)(9)(B)(v) of the Act granted by
USCIS would facilitate immigrant visa issuance. If, however, the
consular officer finds during adjudication of the immigrant visa
application that the individual is subject to another ground of
inadmissibility that can be waived, the alien would need to file
another waiver application with USCIS.

This process would not alter the requirement that an alien depart
from the United States to apply for an immigrant visa. An alien who
receives a provisional waiver under section 212(a)(9)(B)(v) of the Act
for the three- or ten-year bar under section 212(a)(9)(B)(i)(I) or (II)
of the Act would not gain the benefit of such waiver unless he or she
departs from the United States. The departure from the United States
would have to take place to activate the provisional waiver under
section 212(a)(9)(B)(v) of the Act.

E. Excluded Visa Categories

Aliens who would not be eligible for this provisional waiver
adjudication process and aliens who are denied provisional approval of
their waiver requests would continue to follow current agency processes
for filing and adjudication of waiver requests. Aliens who fall under
any other family- or employment-based or other visa category or whose
section 212(a)(9)(B)(v) waiver eligibility would be based on extreme
hardship to a lawful permanent resident alien relative would not be
considered for provisional waivers. Aliens who are subject to other
grounds of inadmissibility or removal also would not be considered for
provisional waivers. Further, aliens with waiver applications under
section 212(a)(9)(B)(v) of the Act currently pending in either
administrative or judicial proceedings would not qualify for this new
process.

III. Conclusion

This document outlines the key elements of USCIS’s proposed change
to its current process for filing and adjudication of waivers of
inadmissibility for unlawful presence for immediate relative of U.S.
citizens. The focus on family unification of U.S. citizens and their
immediate relatives is consistent with Congress’s prioritization

[[Page 1043]]

in the immigration laws; the new process will reduce the movement of
the case back and forth between the Department of State and USCIS,
which significantly prolongs the overall process and increases the time
that U.S. citizens are separated from their immediate family members.
The proposed change would affect only when and where certain aliens can
apply for waivers of the unlawful presence grounds of inadmissibility;
it would not change the extreme hardship standard for evaluating
eligibility for the waiver nor would it change whether aliens subject
to these grounds of inadmissibility must depart the U.S. to apply for
their immigrant visas. USCIS plans to effectuate this proposal through
the regulatory process. USCIS will issue a proposed rulemaking that
will explain the proposal in further detail and that will invite
comment from all interested parties. Note: Do not send an application
requesting a provisional waiver under the procedures under
consideration in this notice. Any application requesting this new
process will be rejected and the application package returned to the
applicant, including any fees, until a final rule is issued and the
change becomes effective.

Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-140 Filed 1-6-12; 8:45 am]
BILLING CODE 9111-97-P

 

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CIS Ombudsman Recommendations to Improve the Quality in Extraordinary Ability and Other Employment-based Adjudications

Our nation’s immigration laws recognize the importance of attracting individuals of extraordinary ability from around the world to the United States to continue their work in the arts, athletics, business, education, healthcare, and sciences. On December 22, 2010, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that applies a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals. Stakeholders report that adjudications under this policy memorandum have been inconsistent. The Office of the Citizenship and Immigration Services Ombudsman makes these recommendations to improve predictability and transparency in adjudications of extraordinary ability and other employment-based petitions.

The Ombudsman recommends that USCIS:

  1. Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations; and
  2. In the interim, provide public guidance on the application of a final merits determination; and
  3. In the interim, provide ISOs with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

Download the Full Recommendation (PDF, 12 pages – 240 KB)

December 29, 2011

Our nation’s immigration laws recognize the importance of attracting individuals of extraordinary ability from around the world to the United States to continue their work in the arts, athletics, business, education, healthcare, and sciences. Individuals who meet this standard not only contribute their diversity, drive, and spirit to serve our country, but they also add to our national competitiveness. From cancer researchers to professional athletes to musicians, experts come and contribute to our economic development, culture, and educational discoveries.

Over the years, U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance to inform stakeholders on how best to prepare extraordinary ability petitions and to guide adjudicators on how to evaluate them. On December 22, 2010, USCIS issued a policy memorandum that provided new guidance for adjudicating certain immigrant petitions, which uses as part of its authority, the Ninth Circuit decision, Kazarian v. US Citizenship and Immigration Services.

Stakeholders have questioned USCIS’ approach in the policy memorandum and how it is applied in adjudications. In my own interactions with employers across a range of fields, I am frequently asked what the Ombudsman’s Office can do to help foster consistency and predictability in the adjudication of extraordinary ability petitions. Employers are not just raising individual denials and Requests for Evidence that they find concerning, but they are often making a plea to simply understand the rules.

USCIS has heard from stakeholders too, and in response, has sought public feedback through a request for amicus curiae briefs to the USCIS Administrative Appeals Office, and an upcoming stakeholder engagement call. This response from USCIS is a positive step, acknowledging the need to better address these concerns.

The Ombudsman’s Office recognizes that adjudicators often have the responsibility of evaluating an individual’s expertise in a highly technical area. There is no doubt that extraordinary ability adjudications can be complex and challenging. This only makes the need for clear guidance to both adjudicators making decisions and the individuals and employers presenting their requests all the more important. These recommendations are done so with this objective in mind.

Most sincerely,

January Contreras

Citizenship and Immigration Services Ombudsman

RECOMMENDATIONS
The Ombudsman recommends that USCIS:

  • 1) Conduct formal rulemaking to clarify the
    regulatory standard, and if desired, explicitly
    incorporate a final merits determination into the
    regulations; and
  •  2) In the interim, provide public guidance on the
    application of a final merits determination; and
  • 3) In the interim, provide ISOs with additional
    guidance and training on the proper application
    of preponderance of the evidence standard
    when adjudicating EB11, EB12, and EB2 petitions.

REASONS FOR THE RECOMMENDATIONS

Stakeholders are concerned that the current I-140 policy
  • memorandum allows for too much subjectivity for adjudicative petitions.

  • Stakeholders presented in amicus curiae briefing to the USCIS
    Administrative Appeals Office (AAO) that the Kazarian
    decision does not require USCIS to implement a twopart
    review and that application of the I140 policy
    memorandum has not resulted in a clearer adjudicatory
    standard.

  • USCIS Immigration Service Officers lack guidance that
    clearly demonstrates the nature and type of evidence that
    typically establishes whether an individual possesses
    extraordinary ability,” may be classified as an
    “outstanding professor or researcher,” or has “exceptional
    ability.

  • USCIS has not clearly explained the objective factors that
    USCIS adjudicators should consider when conducting a
    final merits determination.

December 29, 2011

The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.

EXECUTIVE SUMMARY

In this study, the Office of the Citizenship and Immigration Services Ombudsman (Ombudsman‟s Office) reviews1 U. S. Citizenship and Immigration Services‟ (USCIS) policy regarding the adjudication of certain employment-based immigrant petitions filed on behalf of individuals with extraordinary ability in the sciences, arts, education, business, or athletics (EB-1-1); outstanding professors and researchers (EB-1-2); and exceptional ability professionals (EB-2) in the sciences, arts, or business.2

On March 4, 2010, the Ninth Circuit Court of Appeals issued a decision, Poghos Kazarian v. US Citizenship and Immigration Services (Kazarian), reviewing USCIS‟ application of the regulations governing extraordinary ability petitions.3 This was the first circuit court decision following district court cases issued to clarify the standard for adjudications. On December 22, 2010, USCIS issued a policy memorandum entitled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14” (I-140 policy memo).4 This USCIS policy guidance applies the Ninth Circuit decision with respect to petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals. The USCIS policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.

Prior to and following implementation of this policy, stakeholders raised concerns about consistency in these adjudications. Recent concerns have focused on the subjective nature of a final merits determination. Stakeholders report that the I-140 policy memo has not resulted in a clearer adjudicatory standard.5 Stakeholders aver in amicus curiae briefing to the USCIS Administrative Appeals Office (AAO) that the Kazarian decision does not require USCIS to implement a two-part review.6 USCIS has been challenged in identifying an objective standard and application for a final merits determination, and some Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions.

Based on its findings, the Ombudsman‟s Office makes the following recommendations to improve fairness, consistency, and transparency in adjudications of these employment-based petitions:

1) Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations; and
2) In the interim, provide public guidance on the application of a final merits determination; and
3) In the interim, provide ISOs with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

BACKGROUND

Employment-based immigration allows certain employers and individuals to petition USCIS for an immigrant visa on the basis of job skills or potential contributions to the U.S. economy. The laws governing employment-based immigration are written to enable a broad range of individuals with expertise in sciences, arts, education, business or athletics to immigrate to the United States. As a result, an employment-based application or petition is often accompanied by highly technical supporting documentation. Proper adjudication frequently requires careful application of complicated fact patterns to complex laws and regulations.

Following the enactment of the Immigration Act of 1990,7 USCIS and the courts have sought to clarify the governing law. Perhaps most notable is USCIS‟ December 22, 2010, policy memorandum entitled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14,8 which provides instructions on adjudicating petitions based on claims of: extraordinary ability; outstanding professor and/or researcher status; or, exceptional ability.9

Stakeholders report that petitions adjudicated under the I-140 policy memo have resulted in decisions that are unfair, opaque, and inconsistent.

Statutory and Regulatory Framework. There are five employment-based preference categories.10 Depending on the preference category, an individual may be immediately eligible for an immigrant visa or need to wait for a visa number to become available, with first and second preference categories generally requiring shorter waits.11

The regulations provide instructions on how to review and decide petitions filed in the employment-based first and second preference categories as follows: 12

Extraordinary ability (EB-1-1): Evidence that the individual has sustained national or international acclaim that his or her achievements have been recognized in the field of expertise, and that the individual is one of that small percentage who have risen to the very top of their field. The petitioner must submit evidence of receipt of recognition for a one-time achievement or meet three of the ten criteria listed in the regulations. These include: professional publications, evidence of the beneficiary‟s original contribution of major significance in the field of expertise.13
Outstanding professors and researchers (EB-1-2): Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. The evidence must satisfy two of the six regulatory criteria.14
Exceptional ability (EB-2): Evidence that the individual is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business. The evidence must satisfy three of the six regulatory criteria.15

USCIS Guidance Prior to the I-140 Policy Memorandum. Prior to the issuance of the I-140 policy memo, the AFM and agency policy provided general guidance on how to adjudicate a petition and apply the pertinent regulatory requirements.

In 1992, the then Director of the Northern Service Center, James Bailey, sought guidance on adjudication standards for I-140 petitions for individuals with extraordinary ability and outstanding professors and researchers.16 Director Bailey identified two schools of thought:

One school of thought is that the phrase, “Such evidence shall consist of” means that if the evidence submitted meets two of the criteria listed, the alien qualifies for the classification. The other opinion is that the regulation means that at least two kinds of evidence must be submitted, but the evidence must demonstrate that the alien stands out from the regular, garden-variety type of professor or researcher.17

The Director was concerned that too many professors and researchers could minimally meet the regulation, when in fact the individual does not meet the legislative intent.

Acting Associate Commissioner of Examinations Lawrence Weinig issued a letter in response. He stated:

The evidentiary lists were designed to provide for easier compliance by the petitioner and easier adjudication by the examiner. The documentation presented must establish that the alien is either an alien of extraordinary ability or an outstanding professor or researcher. If this is established by the meeting [of] three of the criteria for extraordinary aliens or two of the criteria for outstanding professors or researchers, this is sufficient to establish the caliber of the alien. There is no need for further documentation on the question of the caliber of the alien. However, please note that the examiner must evaluate the evidence presented. This is not simply a case of counting pieces of paper.18

The letters served as unofficial guidance until the issuance of the I-140 policy memo rescinded all prior guidance.

In 1995, legacy Immigration and Naturalization Service (INS), issued a proposed rule,19 which would have added the following language to the EB-1 regulations:

Sec. 204.5 Petitions for employment-based immigrants.

(i)(4) If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. Meeting three of the evidentiary standards listed in paragraph (i)(3) of this section is not dispositive of whether the beneficiary is an alien of extraordinary ability. The petitioner has the burden of proof to establish that he or she is an alien of extraordinary ability.20

The proposed rule received public comment but was never finalized and promulgated.

The AAO and federal courts also issued numerous decisions discussing employment-based adjudications, which established supplementary legal guidance interpreting the pertinent regulations and indicating how they should be applied in particular circumstances.21

For example, in Matter of Price,22 the AAO limits the agency‟s review of the submitted documentation to the regulatory text and prohibits moving beyond the regulations. In Buletini v. INS, a Michigan District Court, citing to the Weinig letter, held that:

It is an abuse of discretion for an agency to deviate from the criteria of its own regulation. Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard (emphasis added).23

These cases, along with others, created a framework that petitioners and ISOs alike used to explain how an individual met the regulatory requirements or lacked the requisite evidence.24 All of the cases come to the same general conclusion: the petitioner must demonstrate that the beneficiary meets the regulatory requirements for the preference category sought and the adjudicator is limited to the requirements set forth in the regulation when evaluating the submitted evidence.

The Kazarian Ruling. On March 4, 2010, the Ninth Circuit Court of Appeals issued a decision in Poghos Kazarian v. US Citizenship and Immigration Services, reviewing the manner in which USCIS adjudicates extraordinary ability petitions. In Kazarian, the Ninth Circuit, echoing prior decisions in federal districts, held that USCIS is prohibited from “unilaterally imposing novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. section 204.5.”25 The Ninth Circuit court, in its application of the regulations, state:

If the petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both a „level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor,‟ 8 C.F.R. § 204.5(h)(2), and „that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.‟ 8 C.F.R. § 204.5(h)(3).26

The Ninth Circuit did not apply a two-part analysis, having determined that Poghos Kazarian failed to prove that he satisfied part one of the test.27

USCIS’ I-140 Policy Memorandum. Following the Kazarian decision, on December 22, 2010, USCIS issued a policy memorandum entitled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator‟s Field Manual (AFM) Chapter 22.2, AFM Update AD11-14” (I-140 policy memo).28 The I-140 policy memo applies to the adjudication of Form I-140, Immigrant Petition for Alien Worker, filed for: individuals of extraordinary ability in the sciences, arts, education, business or athletics (EB-1-1); outstanding professors or researchers (EB-1-2); and individuals of exceptional ability in the sciences, arts, or business (EB-2). The I-140 policy memo was followed by a new template for Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) for EB-1-1 petitions.29

Citing the Kazarian decision, the I-140 policy memo instructs ISOs to use a two-part analysis as referenced, but not applied by the Ninth Circuit in Kazarian. USCIS stated that the I-140 policy memo is intended to eliminate the “piecemeal consideration of extraordinary ability and [shift] the analysis of overall extraordinary ability to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination).”30

When applying part one of the analysis, the ISO is instructed to: “Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)(3).”31 USCIS Office of Chief Counsel (OCC) confirmed that, “the „quality and caliber‟ should be considered in the part one analysis only when the specific prong being reviewed contains a qualitative element.”32 At this stage, the ISO is not expected to determine whether the individual is one of that small percentage who have risen to the top of the field or if the individual has sustained national or international acclaim.33

Part two a final merits determination instructs the ISO to “determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the immigrant classification….”34 The evidence submitted by the petitioner must demonstrate that the individual has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor.35 USCIS OCC confirmed that for part two of the case analysis “the quality of the evidence must be considered.”36

If the petitioner does not meet this burden in a final merits determination, the ISO “must articulate the specific reasons as to why the USCIS officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the [individual has met the regulatory requirements].”37 The I-140 policy memo does not go into further detail explaining what qualifies as a “specific reason” for denying a petition. Throughout the adjudication, the petitioner bears the burden of establishing his/her claim by a preponderance of the evidence meaning that the evidence submitted by the petitioner establishes that it is more likely than not that the individual meets all pertinent statutory and regulatory requirements.38

USCIS Implementation of the I-140 Policy Memorandum. At this time, the I-140 policy memo is the primary guidance for these adjudications. USCIS Headquarters is updating materials related to the adjudication of I-140 petitions, via the USCIS Policy Review Initiative, and plans to update its national standard operating procedures.39

In August 2010, approximately eight months after the issuance of the Kazarian decision, USCIS began training its ISOs on how to apply the policy.40 USCIS held roundtable discussions with adjudicators, but ISOs report that the discussions were often limited to hypothetical examples and not pending cases, which according to the ISOs would have assisted in applying the policy.41

Training materials provide questions to consider when reviewing documentation submitted for each regulatory criterion.42 They provide examples of what fails to meet a final merits determination.43 Training materials also remind ISOs that the legal standard of proof is preponderance of the evidence. Training materials do not provide examples of evidence that would meet the regulatory standard of extraordinary ability, outstanding professor/researcher status, or exceptional ability, by a preponderance of the evidence. The I-140 policy memo is silent on how to apply objective standards in a final merits determination.

In the initial months of implementation, USCIS Headquarters reviewed RFEs issued pursuant to the I-140 policy memo before they were issued.44 USCIS Headquarters reported that changes were made to the approach or emphasis of RFEs but could not identify that any decision was overturned or RFE withdrawn in this review.45 USCIS Service Center Operations is not tracking decisions received from stakeholders requesting review of the policy or how many of the submitted decisions have been forwarded to the service centers for additional review.46

AAO’s Request for Amicus Curiae. On August 18, 2011, the AAO requested amicus curiae briefs addressing the current I-140 policy memo.47 USCIS sought to uphold its commitment “to actively engaging our stakeholders as we develop policies and procedures.”48 The AAO‟s request was prompted by a case decision issued in 2009, pre-dating the I-140 policy memo.

Adjudicatory Consequences of the New Policy. Reports from ISOs on the success and sufficiency of the I-140 policy memo and training have varied. ISOs frequently stated that their approach in considering what meets the regulatory requirements evolves over many years and is derived from experience.49 Generally, ISOs reported that although the I-140 policy memo established a new two-part test, it did not materially change the analysis of petitions.50 Some ISOs indicated that the I-140 policy memo assists them in organizing and drafting a denial decision, and found the guidance to be adequate.51 Other ISOs indicated that they do not have a clear understanding of how to make a final merits determination.52

Customer Impact. Stakeholders report that adjudications under the I-140 policy memo continue to be inconsistent, making it difficult to advise individuals and employers on how to file successful petitions. At a national immigration attorney conference, stakeholders addressed these issues with USCIS Director Alejandro Mayorkas, stating that denials often indicate that adjudicators relied upon their subjective interpretations of the evidence submitted in support of petitions, rather than focusing on whether the evidence satisfies the applicable regulatory criteria. Director Mayorkas acknowledged these concerns and committed to reviewing how adjudicators are applying the new I-140 policy memo, with specific focus on the manner in which ISOs conduct a final merits review analysis.53

Additionally, stakeholders have asserted that the I-140 policy memo relies on an expanded interpretation of the Kazarian decision, which results in the imposition of exactly the type of novel, extra-regulatory requirements that the Ninth Circuit cautioned against. Stakeholders argue that the I-140 policy memo replaces former guidance with discretion.54

First and Second Preference Adjudications Data. USCIS provided the Ombudsman‟s Office data on EB-1-1, EB-1-2, and EB-2 adjudications, including receipts and approvals for the Texas (TSC) and Nebraska (NSC) Service Centers. USCIS has experienced a slight downturn in EB-1 and EB-2 filings over the past five years for both EB-1 and EB-2 (not including National Interest Waiver petitions), with approval and denial rates remaining largely constant.55 Stakeholders report that inconsistent adjudications have had a chilling effect on petition filings, which may explain why receipt levels have dropped over the past five years and approval rates have remained constant. However, other factors, including economic conditions, may have led to the change in filing levels.

USCIS Receipts for Extraordinary Ability and Exceptional Ability Petitions

(Not including National Interest Waivers)
USCIS Approval Rates for Extraordinary Ability and Exceptional Ability Petitions (Not including National Interest Waivers)

Source: Data from USCIS Office of Performance and Quality (Aug. 10, 2011). *All 2011 data includes FY 2011, Quarters 1 and 2 only.

USCIS does not maintain data on the number of RFEs or NOIDs that are issued for EB-1 and EB-2 petitions using the I-140 policy memo.56 USCIS is not collecting data on appeals or motions filed for denial decisions using the I-140 policy memo, nor are they collecting information on AAO decisions that overturn these service center decisions.57

ANALYSIS & RECOMMENDATIONS

1) Conduct formal rulemaking to clarify the regulatory standard, and if desired, explicitly incorporate a final merits determination into the regulations.

The Administrative Procedure Act (APA) prescribes the process for agency rulemaking and was written to bring regularity and predictability to the decisions made by executive branch agencies.58 Generally, the APA ensures that the public has an opportunity to provide input in how federal statutes are applied by the executive agencies charged with their enforcement. The various rulemaking procedures set forth in the APA provide the public with:

A notice of proposed rulemaking published in the Federal Register;
The opportunity to submit, in writing data, views, or arguments pertaining to the proposal;
A statement of the agency‟s reason for proposing the rule and the legal authority upon which the proposed rule is based; and
A 30-day notice before the new rule goes into effect.59

The use of the APA rulemaking process would assist both adjudicators and stakeholders to clarify the adjudicatory standard for EB-1-1, EB-1-2, and EB-2s. APA rulemaking provides the opportunity to submit written comments to the proposed rule and requires a statement from the agency explaining how it responded to the public comments. The APA rulemaking process would provide substantive standards for ISOs to use in adjudications, and for individuals and employers to use in preparing petitions. USCIS could promulgate regulations to formally establish an objective two-part Kazarian-derived test as the standard by which evidence offered in support of all EB-1-1, EB-1-2, and EB-2 petitions must be evaluated. If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2) In the interim, provide public guidance on the application of a final merits determination.

A clearly delineated objective standard for evaluating the totality of the supporting evidence is essential to any two-part evidentiary test. Otherwise, the adjudication can become overly subjective and possibly circular.

USCIS has not clearly articulated the objective factors that ISOs should consider when conducting a final merits determination. When conducting research in support of this recommendation, the Ombudsman‟s Office asked USCIS how it makes its final merits determination. Some ISOs indicated that the determination is primarily based on his or her own experience adjudicating petitions.60 Supervisors stated that the determination is made based on the totality of the circumstances.61 USCIS SCOPS referred to the aforementioned training on the I-140 policy memo, but referred questions regarding the specific steps followed, and factors considered, during a final merits determination to the USCIS OCC.62

USCIS Headquarters acknowledged that subjectivity is a part of a final merits determination and pointed to the AFM in support of its position.63 The AFM states:

Even in non-discretionary cases, the consideration of evidence is somewhat subjective. For example, in considering an employment-based petition, the adjudicator must examine the beneficiary‟s employment experience and determine if the experience meets or exceeds, in quality and quantity, the experience requirement stated on the labor certification by the employer. However, a subjective consideration of facts should not be confused with an exercise of discretion. Like an exercise of discretion, a subjective consideration of facts does not mean the decision can be arbitrary, inconsistent or dependent upon intangible or imagined circumstances.64

In order to effectively and fairly apply the current I-140 policy memo, adjudicators need guidance that demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability.” Effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3) In the interim, provide ISOs with additional guidance and training on the proper application of preponderance of the evidence standard when adjudicating EB-1-1, EB-1-2, and EB-2 petitions.

Additional training materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence, would greatly assist ISOs in making consistent decisions.

The I-140 policy memo contains numerous examples of what does not constitute proof of extraordinary ability. However, it does not provide adjudicators with affirmative examples of the type of evidence that satisfies the governing law; outstanding professor/researcher status; and, exceptional ability. Although these categories are too broad for USCIS to produce any type of exhaustive list of examples, solid training materials containing approvable examples, from which adjudicators could extrapolate, would significantly improve the quality adjudications. Affirmative examples could be developed by expanding upon the brief descriptions of the various criteria used by USCIS.

CONCLUSION

These recommendations seek to address stakeholders concerns with inconsistent and subjective adjudications. Rulemaking would provide the forum for USCIS to receive stakeholder concerns and formally respond. In the interim, additional guidance to the public and USCIS adjudicators is needed to clarify and make objective the application of any final merits determination.

Posted in Citizenship and Immigration Services Ombudsman, Employment-based Adjudications, exceptional ability professionals, Extraordinary Ability, Ombudsman, outstanding professors, outstanding professors and researchers, U.S. Citizenship and Immigration Services, USCIS | Leave a comment

Drug trafficking prior to naturalization interview precluded good moral character: U.S. v. Suarez 7th Cir Denaturalization/Good Moral Character Requirement 12-21-2011

In U.S. v. Suarez, 2011 WL 6382155 (7th Cir. 2011), the U.S. Court of
Appeals for the Seventh Circuit affirmed a decision by the U.S. District
Court which revoked the defendant’s previously accorded naturalization
pursuant to INA § 340(a) [8 USCA § 1451(a)]. The circuit court primarily
relied on the catch-all provision under INA § 101(f) [8 USCA § 1101(f)]
(the definition of “good moral character”) and the applicable
regulation, 8 CFR § 316.10(b)(1), in concluding that the defendant’s
commission of unlawful acts, namely drug trafficking, prior to his
interview on his naturalization application precluded him from
establishing the required good moral character, notwithstanding that he
was not charged with or convicted of the drug offenses until after his
naturalization was conferred.

Doc Uploaded Filed Description
1 04/04/2011 04/04/2011 Oral Argument
2 12/21/2011 12/16/2011 Opinion (ROVNER)

The defendant, Mr. Suarez, is a native of Mexico who became a lawful
permanent resident (LPR) of the U.S. in 1978. He filed his application
for naturalization with the INS in 1996. His application disclosed a
marijuana offense from the 1980s, as well as disorderly conduct and
trespassing charges during the 1990s. He explained to the INS officer
that all of those charges had been dismissed. However, he did not reveal
that he had more recently committed additional marijuana-related
offenses for which he had not been charged. The INS approved the
application and Suarez became a citizen on May 14, 1998.

On August 27, 1998, the U.S. charged Suarez and three other defendants
with possession with intent to distribute over 195 pounds of marijuana,
in violation of 21 USCA § 841(a)(1), and a related conspiracy offense
under 21 USCA § 846. Both charges alleged that the criminal activity
occurred between June 1996 and October 1996, a few months prior to the
filing of Suarez’s naturalization application. A jury found Suarez
guilty on both counts and he was sentenced to an 87-month prison term.
The criminal court found that Suarez was a manager of at least one
participant in the conspiracy and therefore enhanced his sentence on
that basis. The Seventh Circuit affirmed the federal district court’s
judgment on direct appeal–U.S. v. Suarez, 2000 WL 197927 (7th Cir.
2000). Three years after his release from prison, the government filed a
complaint to revoke his naturalization under three separate theories:
(1) Suarez illegally procured his naturalization because he committed
crimes that reflected adversely on his moral character; (2) he illegally
procured his naturalization because he provided false testimony; (3) he
willfully misrepresented and/or concealed that he had committed the drug
crimes.

The district court granted summary judgment to the government on the
first theory, holding that Suarez illegally procured his naturalization
because, as a person lacking in good moral character (GMC), he was
ineligible for naturalization. The lower court rejected Suarez’s
argument to the effect that extenuating circumstances mitigated his
unlawful acts so that he could still be found to possess GMC at the time
of his naturalization. The district court noted that, under Suarez’s
argument, a person who was convicted before applying for naturalization
would be barred from citizenship, but a person who committed the same
crime and managed to evade justice until after naturalization would be
eligible for citizenship.

Before the circuit court Suarez reiterated that he cannot be found to
have illegally procured his citizenship because the INS had the
discretion and authority to grant his application notwithstanding his
unlawful acts. He also maintained that there were genuine questions of
material fact on the issue of whether extenuating circumstances
mitigated his unlawful acts, and that the lower court erred in relying
on the length of his criminal sentence as evidence of the seriousness of
his criminal acts.

Exercising de novo review, the circuit court explained that under INA §
340(a), the U.S. may sue to set aside an order admitting a person to
citizenship and to cancel that person’s certificate of naturalization
“on the ground that such order and certificate were illegally procured
or were procured by concealment of a material fact or by willful
misrepresentation.” In addressing the government’s “illegal procurement”
theory, the court focused on whether Mr. Suarez lacked the requisite GMC
as required by the statute, INA § 316(a)(3) [8 USCA § 1427(a)(3)]. It
expounded that, under INA §§ 101(f)(3) and (8) [8 USCA §§ 1101(f)(3) and
(8)], the listing of those lacking GMC includes persons who have been
convicted of or who have admitted committing certain controlled
substance offenses. The court considered that if a disqualifying offense
was committed during the statutory period when an applicant must possess
GMC, and the applicant is convicted of that offense, the applicant is
statutorily barred from a finding of GMC no matter when the conviction
occurs. It emphasized that the offense must occur during the statutory
period under § 101(f)(3), but the proof may come at any time. The court
remarked that to read the relevant statutes otherwise would lead to the
absurd result that the district court feared.

The court proceeded to conclude that there was a second reason why Mr.
Suarez was barred from a finding of GMC. It noted that § 101(f) contains
a catch-all provision, which provides that “the fact that any person is
not within any of the foregoing classes shall not preclude a finding
that for other reasons such person is or was not of [GMC].” The court
then referred to the applicable federal regulation, under which the INS
evaluates claims of GMC on a case-by-case basis taking into account the
elements enumerated in INA § 101(f) and the “standards of the average
citizen in the community of residence.” The court highlighted 8 CFR §
316.10(b) 2), which specifies that an applicant shall be found to lack
GMC if, during the statutory period, the applicant violated any law
relating to a controlled substance, provided that the violation was not
a single offense for simple possession of 30 grams or less of marijuana.
The court expressed that these regulations are entitled to Chevron
deference, and referred to a decision from the Eleventh Circuit,
U.S. v. Jean-Batiste, 395 F.3d 1190 (11th Cir. 2005), which affirmed a
denaturalization order in a case presenting similar facts.

In regard to the third way in which Suarez could be found to have
illegally procured his naturalization, premised on the regulation’s
unlawful act provision, 8 CFR § 316.10(b)(3), the court was not
impressed with the defendant’s argument that the INS could have found
“extenuating circumstances” in his favor, given the magnitude of the
drug offense and his role as an indispensable middleman. Thus it ruled
that he failed to raise a genuine issue of material fact sufficient to
defeat the government’s summary judgment motion.

UNITED STATES v. SUAREZ

UNITED STATES of America, Plaintiff–Appellee, v. Jose SUAREZ, Defendant–Appellant.

No. 10–3476.

Argued April 4, 2011. — December 16, 2011
Before KANNE, ROVNER and SYKES, Circuit Judges.

Kirsten L. Daeubler, Department of Justice, Washington, DC, for Plaintiff–Appellee.John D. Winters, Butler, Rubin, Saltarelli & Boyd, Chicago, IL, for Defendant–Appellant.

Jose Suarez committed two controlled substance offenses shortly before he applied for naturalization. Unaware of these offenses, the Immigration and Naturalization Service (“INS”)1 approved his application, and Suarez took the oath of allegiance, becoming a United States citizen. A few months later, he was indicted for the offenses he committed prior to filing his application. After Suarez was convicted and had served his sentence, the United States sought to revoke his naturalization pursuant to 8 U.S.C. § 1451(a). The district court granted the government’s motion for summary judgment and revoked his citizenship. Suarez appeals.

I.

Suarez is a native of Mexico who became a lawful permanent resident of the United States on July 17, 1978. In December 1996, he filed an Application for Naturalization with the INS. He revealed on the Application that he had been arrested for a marijuana crime in the 1980s, and for disorderly conduct and trespassing in the 1990s. He explained to an INS officer that all of the charges had been dismissed. What he did not reveal was that he had recently committed additional marijuana-related offenses for which he had not yet been charged. The INS approved his application on April 4, 1998, and Suarez became a citizen on May 14, 1998.

On August 27, 1998, the United States charged Suarez and three other defendants with possession with intent to distribute approximately 196 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1); and conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. Both charges related to the time period between June 1996 and October 22, 1996, a few short months before Suarez applied for naturalization. A jury found Suarez guilty on both counts and the district court sentenced him to an eighty-seven month term of imprisonment. In setting the sentence, the court determined that Suarez would be held accountable for eighty-nine kilograms of marijuana seized from his co-defendants as well as an additional twelve kilograms from previous shipments.2 The court also found that Suarez was a manager or supervisor of at least one other participant in the conspiracy, and enhanced his sentence on that basis. We affirmed the district court’s judgment on direct appeal. United States v. Suarez, 2000 WL 197927 (7th Cir. Feb. 8, 2000).

Approximately three years after Suarez was released from prison, the United States filed a complaint to revoke his naturalization under three separate theories, pursuant to 8 U.S.C. § 1451(a). The complaint alleged that Suarez (1) illegally procured his naturalization because he committed crimes that reflected adversely on his moral character, and thus lacked the good moral character required for naturalization; (2) illegally procured his naturalization because he provided false testimony to obtain citizenship when he denied that he had committed any such crimes; and (3) obtained his naturalization by willfully misrepresenting and/or concealing that he had committed these crimes. After discovery, the government moved for summary judgment on the first ground alleged, that Suarez had illegally procured his citizenship because, as a person lacking good moral character, he was ineligible for naturalization. Suarez opposed the motion, arguing that extenuating circumstances mitigated his unlawful acts and he could still be found to possess good moral character at the time of his naturalization. The district court granted judgment in favor of the United States, finding that Suarez was barred from establishing good moral character because he had committed serious crimes in the five years prior to his application, and that none of the circumstances he raised in any way mitigated his crimes. The court noted that, under Suarez’s argument, a person who was convicted before applying for naturalization would be barred from citizenship, but a person who committed the same crime and managed to evade justice until after naturalization would be eligible for citizenship. Rejecting that reasoning, the court revoked Suarez’s citizenship. Suarez appeals.

II.

Suarez contends that he cannot be found to have illegally procured his citizenship because the INS had the discretion and authority to grant his application for citizenship notwithstanding his unlawful acts. Moreover, he argues that there are genuine questions of material fact on the issue of whether extenuating circumstances mitigated his unlawful acts. Finally, he maintains that the court erred in relying on the length of his criminal sentence as evidence of the seriousness of his criminal acts. Our review of the district court’s grant of summary judgment in favor of the government is de novo. Norman–Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 428 (7th Cir.2010); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009).

A.

The United States may sue to set aside the order admitting a person to citizenship and to cancel that person’s certificate of naturalization “on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation[.]” 8 U.S.C. § 1451(a). Only the first ground for revocation, illegal procurement, is at issue in this appeal. The government alleged that Suarez illegally procured his citizenship because he was statutorily ineligible for naturalization at the time he sought to become a naturalized citizen. See Fedorenko v. United States, 449 U.S. 490, 506 (1981) (failure to comply with any of the congressionally imposed pre-requisites of citizenship renders the certificate of citizenship illegally procured). See also United States v. Ciurinskas, 148 F.3d 729, 732 (7th Cir.1998) (if a certificate of naturalization is illegally procured, a court lacks discretion to refuse to revoke citizenship). He was statutorily ineligible, the government asserted, because he lacked good moral character, a prerequisite to citizenship. See 8 U.S.C. § 1427(a)(3) (“No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant ․ during all the periods referred to in this subsection has been and still is a person of good moral character.”). Although the statute directs the Attorney General to consider the five-year period prior to filing the application in determining good moral character, the Attorney General may also consider as a basis for the determination the applicant’s conduct and acts at any time prior to that period. 8 U.S.C. § 1427(d). Suarez lacked good moral character, under the government’s theory, because he had committed two serious controlled substance offenses shortly before he applied for naturalization. After he became a citizen, he was indicted, tried and convicted of possession with intent to distribute marijuana and conspiracy to possess with intent to distribute marijuana. Both charges stemmed from the shipment of nearly 200 pounds of marijuana only months before Suarez applied for citizenship.

Under section 1101(f), “[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was,” among other things, “a habitual drunkard,” gambler, aggravated felon, or Nazi persecutor. 8 U.S.C. § 1101(f). The list of those lacking good moral character includes persons who have been convicted of or who have admitted committing certain controlled substance offenses. 8 U.S.C. § 1101(f)(3) and (8). Suarez was not convicted until after his application was approved and he contends that this distinction places him in a category of persons that the INS may still admit as a discretionary matter. Because the INS could have exercised its discretion to admit him, he argues that he was not statutorily barred from admission and thus cannot be considered to have illegally procured his citizenship. We see at least three possible flaws in Suarez’s argument, based on our reading of the statutes and regulations.

1.

First, the express language of section 1101(f)(3) arguably includes in the list of persons who must be found to lack good moral character those who committed a qualifying crime during the statutory period and were later convicted for that crime:

For the purposes of this chapter—

No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—

* * * *

(3) a member of one or more of the classes of persons, whether inadmissible or not, described in ․ subparagraphs (A) and (B) of section 1182(a)(2) of this title and subparagraph (C) thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;

8 U.S.C. § 1101(f)(3) (emphasis added). Section 1182(a)(2)(A)(i), in turn, lists classes of aliens ineligible for admission:

․ [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—

* * * *

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(II).

Suarez is a member of the class of persons described in section 1182(a)(2)(A) because he was convicted of two controlled substance offenses. He falls within the purview of section 1101(f)(3) as a person statutorily barred from a finding of good moral character because “the offense described therein” was “committed during such period” when one’s good character must be established. In other words, under the language of section 1101(f)(3) that we highlighted above, if the offense was committed during the statutory period when an applicant must possess good moral character, and the applicant is convicted of that offense, the applicant is statutorily barred from a finding of good moral character no matter when the conviction occurs. The highlighted language addresses the very problem that concerned the district court. Applicants who commit crimes that statutorily bar them from a finding of good moral character who manage to evade detection and conviction until after they have been naturalized should not and do not possess an advantage over persons who are convicted before they apply for naturalization.

Both the government and Suarez assume that the crime and the conviction must both occur within the statutory period in order for an applicant to be barred from a finding of good moral character under section 1101(f)(3). We do not read such a limitation into the statute. Section 1182(a)(2)(A)(i) provides that the alien (or, in this case, applicant) “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of” a violation of the controlled substance laws is inadmissible. The quoted language indicates the level of proof necessary to demonstrate a violation of the controlled substance laws. That is, the person must have been convicted of the offense, or admitted committing it, or admitted the acts which make up the substance of the offense. See Fedorenko, 449 U.S. at 505 (the evidence against the naturalized citizen must be clear, unequivocal and convincing); Ciurinskas, 148 F.3d at 732 (same). There is no reason, either in the text or in the intent of these statutes, to assume that the proof must occur during the statutory period. To the contrary, the offense must occur during the statutory period under the language of the highlighted part of section 1101(f)(3) but the proof may come at any time. To read these statutes otherwise would lead to the absurd result that the district court feared: an applicant who evaded prosecution or refused during the statutory period to admit committing a crime would have an advantage over an applicant who was convicted or who was truthful during that time period. The district court, and apparently the government, believed that only the catch-all language of section 1101(f)(8) and the accompanying regulations could remedy this peculiar result. We would be inclined to find that resort to the catch-all is not necessary, but because the government relies on the catch-all, we will address it next.

2.

Assuming for the sake of argument that the language we have highlighted does not apply to Suarez, there is a second way in which he was statutorily barred from a finding of good moral character. The list in section 1101(f) is expressly not all-inclusive:

The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.

8 U.S.C. § 1101(f). Federal regulations set forth further guidance for applying section 1101(f). In accordance with section 1101(f), the INS “shall evaluate claims of good moral character on a case-by-case basis taking into account the elements enumerated in this section and the standards of the average citizen in the community of residence.” An applicant “shall be found to lack good moral character” if, during the statutory period, the applicant, among other things:

* * *

(iii) [v]iolated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana[.]

8 C.F.R. § 316.10(b)(2). Suarez does not dispute the district court’s finding or the government’s argument on appeal that section 316.10(b) is entitled to Chevron deference. See Chevron U.S.A ., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–44 (1984); United States v. Jean–Baptiste, 395 F.3d 1190, 1194 (11th Cir.2005) (Cudahy, J., sitting by designation). The regulation requires a finding that the applicant lacks good moral character if, during the statutory period, the applicant “violated any law” of the United States relating to a controlled substance. That Suarez “violated” the law during the statutory period is sufficient under the regulation to require a finding that he lacked good moral character. And we know that he violated the law during the statutory period because he was later convicted of a controlled substance offense involving considerably more than 30 grams of marijuana where the charged conduct occurred during the statutory period.3 Although Suarez contends that the “case-by-case” language of section 316.10 demonstrates that the INS could have exercised its discretion to find that he possessed good moral character even though he violated the controlled substance laws, he fails to note that the INS’s discretion is cabined by the mandatory language at the start of the provision: “An applicant shall be found to lack good moral character” if the applicant violated a qualifying controlled substance law during the statutory period. 8 C.F.R. § 316.10(b)(2) (emphasis added). A finding contrary to this mandatory language would be a per se abuse of discretion.

3.

We turn then to the third way in which Suarez can be found to have illegally procured citizenship even if neither the plain language of section 1101(f)(3) nor the mandatory language of section 316.10(b)(2) applies. A catch-all provision of 8 C.F.R. § 316.10(b)(3) specifies:

Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

* * *

(iii) [c]ommitted unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of § 316.10(b)(1) or (2).

8 C.F.R. § 316.10(b)(3). As with section 316.10(b)(2), a conviction during the statutory period is not necessary for a finding that an applicant lacks good moral character. It is enough that the offense was “committed” during that time. And as we noted above, this regulation is entitled to deference. See Chevron, 467 U.S. at 843–44. See also United States v. Dang, 488 F.3d 1135, 1140–41 (9th Cir.2007) (according Chevron deference to section 316.10(b)(3) and finding that unlawful acts during the statutory period would be considered even when the conviction came after naturalization). There are thus three different paths in the statutes and regulations that would lead to the same result: Suarez illegally procured his naturalization because he was statutorily ineligible as a person lacking good moral character.

That the regulations encompass some discretion on the part of the INS in determining whether an applicant possesses good moral character does not change the result. This conclusion is bolstered by a very similar case from one of our sister circuits. Suarez, as we noted, concedes that if he had been convicted before his application was approved, he would have been statutorily ineligible for naturalization. In the absence of a conviction during the statutory period, he maintains that, under section 316.10(b)(3), the Attorney General retained discretion to approve his application. Because of this discretion, he asserts that his citizenship cannot be characterized as “illegally procured.” Although this is an issue of first impression in the Seventh Circuit, the Eleventh Circuit has held that a conviction for a qualifying controlled substance offense after naturalization, for conduct that occurred in the statutory period before naturalization, precludes an applicant from establishing good moral character under 8 U.S.C. § 1101(f)(8), as elaborated in 8 C.F.R. § 316.10(b)(3)(iii). Jean–Baptiste, 395 F.3d at 1194.

Suarez contends that Jean–Baptiste was wrongly decided because the court had not been presented with the argument he makes here. In particular, Suarez contends that because the Attorney General retained discretion to approve his application, and because no statute or regulation alone categorically precluded his citizenship, he cannot be found to have “illegally” procured citizenship. According to Suarez, only an INS examining officer exercising his or her discretion could have made the determination. He cites the INS Field Adjudicator’s Manual, section 73.6(d)(3) in support of his claim that a denial of naturalization under 8 C.F.R. § 316.10(b)(3)(iii) is discretionary, and thus cannot be characterized as a statutory bar.

But we see no reason to depart from the well-reasoned decision of our sister circuit. As we noted above, we think it highly unlikely that Congress intended for applicants who, during the statutory period, commit crimes that would disqualify them from naturalization to nonetheless slide through the loophole Suarez asks us to create if they manage to evade detection and conviction until after they are naturalized. And we have held that a court lacks discretion to refuse to revoke citizenship where it was illegally procured. Ciurinskas, 148 F.3d at 732. Suarez was not eligible for naturalization when, during the five years prior to his application, he committed crimes establishing a lack of good moral character, whether or not he was convicted for those crimes before his naturalization was complete. Any discretion available in different circumstances cannot change the result here.

B.

Section 316.10(b)(3) begins with a possible exception to the general rule that an applicant “shall be found to lack good moral character” if the applicant committed certain criminal acts during the statutory period. 8 C.F.R. § 316.10(b)(3). Suarez contends that, under that provision, he may avoid a finding that he lacks good moral character if he “establishes extenuating circumstances.” Id. Suarez argues that he has raised genuine issues of material fact regarding extenuating circumstances that should have precluded summary judgment. In particular, he cites as extenuating circumstances that (1) the convictions at issue here were his first and only criminal convictions; (2) he played a minimal role in the offenses for which he was convicted; and (3) he received no compensation for the drug transactions at issue.

Extenuating circumstances in the context of a determination of good moral character “must pertain to the reasons showing lack of good character, including acts negating good character, not to the consequences of these matters.” Jean–Baptiste, 395 F.3d at 1195 (collecting cases). Extenuating circumstances are those which render a crime less reprehensible than it otherwise would be, or “tend to palliate or lessen its guilt.” Black’s Law Dictionary, Sixth Edition (1990). That these convictions allegedly arose from Suarez’s first crimes does nothing to mitigate their seriousness. Recall that Suarez was convicted of possession with intent to distribute and conspiracy to possess with intent to distribute nearly 200 pounds of marijuana. Setting aside the dubious proposition that any drug dealer begins his career with a 200–pound transaction, if this truly was his first offense (as opposed to his first conviction), he certainly jumped into a life of crime with both feet with a transaction of this size. A first crime of this magnitude is more damning rather than less so. Nothing about the magnitude of this first offense incident tends to minimize the seriousness of the crime.

Although Suarez would now have us believe that his role in the offense was minimal, we need only refer to our opinion on direct appeal to determine that this is simply not true. The district court adjusted Suarez’s sentence upward after finding that he served as a manager or supervisor in the conspiracy. Suarez, 2000 WL 197927, at *3. We affirmed that enhancement, concluding that Suarez not only recruited two other conspirators but also directed their activities. Moreover, Suarez served as an indispensable middleman who found a driver willing to travel across state lines to transport a large quantity of marijuana. Nothing about Suarez’s role in the offense may be fairly described as minimal, and he may not now re-litigate issues decided in his criminal case. See Jean–Baptiste, 395 F.3d at 1194–95 (collateral estoppel bars a defendant who is convicted in a criminal trial from contesting the conviction in a subsequent civil action with respect to issues necessarily decided in the criminal trial). See also In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 201–02 (7th Cir.2003) (setting forth the elements of collateral estoppel).

Finally, that he made no money for his role in the offense does nothing to mitigate his responsibility for the crime. First, the statutes themselves are agnostic on the question of money changing hands. The harm that the statutes at issue penalize is the distribution of controlled substances, not the sale. And the social harm caused by persons who conspire to distribute controlled substances is not lessened when the dealer makes little or no money on the transaction.

In sum, Suarez has failed to raise a genuine issue of material fact regarding extenuating circumstances. Although we are inclined to find that the plain language of section 1101(f)(3) bars a finding of good moral character for persons who commit qualifying crimes during the statutory period but who are not convicted of those offenses until after naturalization, we will not definitively decide that question here in the absence of the government’s urging. Instead we conclude that the district court correctly granted summary judgment in favor of the government because Suarez could not demonstrate the good moral character required for naturalization under the catch-all provision of section 1101(f)(8) and the accompanying regulations. Suarez’s remaining arguments are without merit.

Affirmed.

FOOTNOTES

1.  Congress transferred the functions of the former INS to the Department of Homeland Security (“DHS”) on March 1, 2003. The transfer does not affect any legal issue in the case, and the DHS did not exist during any of the underlying administrative proceedings. We will use the terminology in place at the time that the agency considered and approved Suarez’s application for naturalization. See Diallo v. Ashcroft, 381 F.3d 687, 690 n. 1 (7th Cir.2004).

2.  The eighty-nine kilograms seized from Suarez’s co-defendants is equal to approximately 196 pounds.

3.  Thirty grams amounts to slightly more than an ounce. Suarez was convicted of possession and conspiracy to possess nearly 200 pounds of marijuana.

ROVNER, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Denaturalization, Deportation, Deportation for Drug Crimes, Good Moral Character, Good Moral Character (GMC), Naturalization, Revoke Naturalization | 2 Comments