Archive for October, 2011

USCIS’s fraud investigation zeal rendering the Howard Memo obsolete.

Sunday, October 23rd, 2011

United States Citizenship and Immigration Services, at least in San Diego, where I practice Immigration Law, in its zeal to investigate fraud and to find reasons to deny cases it adjudicates, is putting in doubt the worthwhileness of using the Howard Termination process to resolve cases for people who find themselves in removal proceedings. The Howard Termination process is based on an October 6, 2005, memorandum, the Howard Memo, from Mr. William J. Howard, Immigration and Custom Enforcement’s (ICE) principal legal advisor at the time, wherein he said in cases where it is easy to approve an adjustment of status case pending in immigration court, it is more efficient for the immigration court to terminate a case and let USCIS adjudicate it more quickly and efficiently. The theory is that the Office of Chief Counsel from ICE can examine the facts of the case, and if it determines that the case is easily approvable, informs the immigration judge that the case should be terminated based on the approval of the parties and the independently determination of the immigration judge. The idea is that it is easier for the chief counsels, the alien, and the immigration courts to move the case to USCIS. When the memo was written, ICE was dominant in having the legal expertise and the investigatory ability to make determinations about whether the case was “easy to approve. Since then, USCIS has developed its own investigators, Fraud Detention and National Security, FDNS, and they have become very zealous in investigating cases.

When ICE and USCIS were all part of INS, they had the same goals and policies and common administrators, particularly at the local level, the local districts. Now, they are separated. The managers at the Department of Homeland Security are very remote from the agencies at the grass roots, the local offices. USCIS seems no longer willing to rely on the judgments of its counterparts at ICE or the immigration court, the judges who determine whether a case is easily approvable. Instead they want to investigate and decide all over again.

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Matter of Silva-Trevino: Going, going ….

Sunday, October 16th, 2011

On November 7, 2008, outgoing Attorney General Michael Mukasey turned immigration law on its head when he issued a decision, Matter of Silva-Trevino. Rather than go into all its details, I refer you to a blog I posted on it in January 2011 and an article I co-authored.  In January I optimistically forecasted that Matter of Silva-Trevino would not survive Ninth Circuit scrutiny. I wrote:

This case (Rosas Castaneda v. Holder also may be foreshadow the demise of another precedent decision, Matter of Silva Trevino. In this case, the Attorney General vacated a BIA decision about whether a crime an alien committed was a crime of moral turpitude and constructed a new framework for evaluating whether a crime is a crime of moral turpitude. To make this evaluation, an immigration judge is commanded to look outside of the record of conviction to determine what the alien actually did if the record of conviction is ambiguous. This is contrary to precedent in the Ninth Circuit. The abandonment of the categorical and modified categorical approaches was based on the fact that aliens do not plead guilty to “crimes of moral turpitude,” and so the immigration court needs to look beyond the record of conviction to find out what happened. Of course, people do not plead guilty to “aggravated felonies” either, but, after Rosas-Castaneda it is unambiguously clear that immigration courts are restricted to the record of conviction in determining the actual conduct. We will have to see what the Ninth Circuit has to say about whether what is good for aggravated felonies is good for crimes of moral turpitude.

In the glacial speed that wrongs are righted in our judicial system, the Ninth Circuit has not yet issued a decision in Matter of Silva-Trevino. However, three have. On October 6, 2009, the 3rd Circuit rejected it in Jean-Louis v. Attorney General of the United States. On August 4, 2010, the Eighth Circuit rejected it in Guardado-Garcia  v. Holder. On October 12, 2011, the 11th Circuit rejected it in Sanchez Fajardo v. Attorney General.

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What if he was a foreigner?

Sunday, October 9th, 2011

Mark Wahlberg

Recently I stumbled upon a news item on a Boston Fox News website about a Cambodian teenager that immigration officials released because he could not be deported to his homeland. He had been convicted and punished for his crime, stabbing and beating to death of a teenage girl eleven years ago. After serving his time for the crime, Immigration and Customs Enforcement (ICE) was going to deport him, but when it could not, he was released from detention under an “order of supervision,” monitored by ICE until a country will accept him. The story, in the impeccably fair and balanced fashion of the mother network, was outraged that he was allowed back on the street. The article noted that around the country this has happened 1,748 times and 80 times in the Boston area in the last three years and discussed how something needed to be done about this outrage and to get these “worst of the worst” off of the streets.

To me, the alternative, indefinite detention (which means locking a person up for his entire life after having served a criminal sentence) is not a good alternative. As for the numbers, with there being 4.5 million people in the Boston area and 310 million Americans, this does not seem like a particularly serious safety issue. I wondered about prominent Bostonians with criminal behavior in their past – who of course are not subject to immigration detention or deportation – as material for the “What if he was a foreigner?” series. A name that came to mind was Mark Walhberg of Marky Mark and the Funky Bunch and later of Boogie Nights, Three Kings, The Perfect Storm, Planet of the Apes, The Italian Job, I Heart Huckabees, Four Brothers, The Departed, Invincible, Shooter, and The Fighter. Not deportable for The Perfect Storm, other conduct would render him deportable.

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USCIS adjudicators administer laws they do not understand.

Sunday, October 2nd, 2011

When I was a kid, I remember watching an interview with the then-current crop of Nobel Prize winners on television. The concept was that these men and women were the world’s brightest people and their insights on things outside of their professional expertises would be valuable. The Physics prize winner kept saying all kinds of non-mainstream things that made him seem odd compared the others whose views were within the norm, at least to my then-child’s mind.  One thing he said that stuck with me was that the biggest problem confronting the modern welfare state is the difficulty in finding enough bright people to administer it. As agencies of the government became involved in more and more things – providing medical care, social security, a huge military, law enforcement, food safety, building roads, giving out drivers licenses and fishing licenses, funding research, fighting fires, emergency response, managing land, etc. ad infinitum, finding people to do these things correctly will become a challenge. Of all the criticisms of big government, and debate about big government in America is nothing new – it was the major theme of American political debate through the entire period of the Cold War – and perhaps a major theme since independence from a big monarchical government – this one resonated most with me.

This concern is no more obvious than in the immigration context. The immigration laws are rather complex and the procedures to implement them more so, as readers of this blog hopefully have noticed, and from day to day thousand of people’s individual cases must be evaluated by thousands of thousands of immigration adjudicators, law enforcement officials, and judges who are responsible for applying this large body of statutes, regulations, court decisions, operating instructions, and policy memoranda to individual people.

A recent case at the San Diego U.S. Citizenship and Immigration Services office demonstrates the problem. The person was applying for permanent residence, adjustment of status. Adjustment of status, defined at Sections 209 (for refugees and asylees) and 245 (for most everyone else) of the Immigration and Nationality Act, allows a person to become a permanent residence, either by changing from a current status or from no status at all. In this case, the person was changing from no status, having overstayed a visa. He also had a criminal conviction for battery, specifically convicted of “using force against another” for which he served far less than a half a year in jail.

After a wait of an hour after the time of scheduled appointment – one wonders why they even have a schedule if it is kept to so erratically – a USCIS officer spoke to the applicant. He told the applicant, with all the bedside manner of Gregory House, that his battery conviction made him deportable for having committed a crime of domestic violence and that he had doubts as to whether he was eligible for adjustment of status because he was deportable and deportable people cannot adjust status.

If I took a person randomly off the street and asked him these three questions about immigration law:

1. Is a person with a simple battery (misdemeanor)  conviction explicitly for using force against another person and with just a short period in jail inadmissible and thus ineligible to adjust status?

2. Is a person with a simple battery (misdemeanor)  conviction explicitly for using force against another person and with just a short period in jail deportable?

3. Is a deportable person ineligible for to adjust status?

I might expect some confusion from a random sampling– just like when you approach random Americans and ask them to show you where America is on a map, a great many get it wrong.  However, the officer who conducted the interview was an experienced adjudicator with years of experience who handles, I suspect, a dozen cases a day, and at one point worked in the local directorate – analogous to a soldier working on the general’s staff. The officer undoubtedly underwent job training before he assumed his position as an adjudicator and he presumably undergoes continuous training as part of his job. He should know the three answers – No to all three. Yet his statements made clear that if asked, he would have gotten all three wrong.

Some may be thinking that this is obscure stuff, opining that in their own jobs odd things come up from time to time and it is too much to remember every little nuance. However, this is not rare stuff – this stuff must come up quite frequently. What happened with this officer at the San Diego USCIS office is exactly like getting into a car for a drivers test with a DMV examiner and his failing you because you stopped at a red light with the explanation that one must stop at green and go on red. It is basic stuff.

The key point the officer made was that deportable people cannot adjust status. That point was ludicrous and he would not back off it despite my polite entreaties to him to put on his thinking cap. The facts are straightforward – the statute and regulations discuss inadmissibility grounds, not deportation grounds, as applying to adjustment of status and not deportability grounds. Further, in immigration court, where deportable people go to be deported and seek relief from deportation, the form of relief most granted by immigration judges is adjustment of status, nearly as many as all other forms of relief combined.  (In FY 2010, 8,475 adjustments of status versus 9,152 of everything else, according to the chart at R3). Even in his own day to day work, he must see that upwards of 90 percent of adjustment applicants are not in lawful status (those adjusting through U.S. citizen spouses, adult citizen sons and daughters and those covered by 245(i)). People not in lawful status are, guess what – deportable – and his office adjusts them by the scores every day. Finally, there are precedential administrative adjudicative decisions saying that deportable people can adjust status.

Regarding the officer’s misconceptions about battery, battery is not a deportable offense for being a crime of moral turpitude. Case law is clear on this fact. Further, it is not a deportable offense as a crime of domestic violence. Deportability for domestic violence requires that there be violence against a cohabitant and not force against “another.” For deportability purposes, the conviction documents control what happened.  Case law is also clear on these points.

Battery is a very common crime. Police departments in a great number of jurisdictions have policies that whenever police get called to a home where there is some sort of domestic dispute, someone must be arrested – if for no other reason than so everyone can cool off. Prosecutors in a great many jurisdictions have policies that they should seek prosecution in these cases just to give a slap on the wrist as a warning in an effort to promote domestic tranquility. With battery defined as the slightest unwanted touching, almost any conduct could amount to a battery. I cannot believe that a USCIS adjudicator does not encounter adjustment applicants with battery convictions weekly, if not daily.

Finally, for inadmissibility, because battery is not a crime of moral turpitude, it is not a ground of inadmissibility. There is no domestic violence ground of inadmissibility. In any case, there is a petty crime exception to inadmissibility for one crime of moral turpitude if the maximum sentence is no more than a year and the person was not sentenced to more than six months. INA § 212(a)(2)(A)(ii)(II).  It is hard to imagine an officer does not encounter the petty crime exception at least once a week.

Here are the problems with a USCIS adjudicator being so misfeasant:

1. His pronouncements are considered to be correct by customers and so his errors scare them to death, just like when you call your credit card company, you think what the customer service provider is saying is true;

2. It is hugely inefficient for people in charge of making decisions to be so unaware of what they are supposed to be doing. It leads to delays in adjudications, wrongful denials, and great expense to the government and the individual to correct mistakes. (Remember, USCIS charges huge fees for appeals even when they are flat-out wrong);

3. It creates misery for people full of trepidation about being deported and torn away from loved ones who should not be subject to this torment. Instead of a quick disposition, this case will needlessly wind its way through weeks of supervisory and legal review to reach a decision that should be as quick as paying a highway toll.

This is a case where the Nobel laureate’s observation seems to be true. The laws are too complicated to administer. The laws are full of technicalities to help people avoid being deported (as well as technicalities to help deport people). It is a stimulating intellectual challenge to get a handle on it. USCIS, like all agencies, is hard-pressed to find people up to the challenge of administering the laws  – or at least it was in this case.

The Nobel laureate made another observation during his interview that stuck with me. He espoused a theory that large bureaucracies cannot change. They are two big and full of inertia to change. The nutty things that go on in large organizations, like the Army, a big company, or a large government agency, have always gone on and always will. Applying this concept to this case, USCIS (and its predecessor agency) have always been staffed by officers who do not know the law they administer. Despite any actions by supervisors, directors, and even deputy secretaries and secretaries, they always will. No one can turn the oil tanker that is USCIS – it is destined to remain the way it is forever. Let’s hope the Nobel laureate was wrong on this point. Posted October 2, 2011.