The speculative bubble in immigration practice. Part I.

Sunday, September 19th, 2010
By: Jonathan MontagJ.D.

Coincident with the speculative bubbles in the general economy in the 2000’s was a speculative bubble in immigration practice. Some of the overlap is easy to explain – the same super-charged, exuberance-reinforcing energy that made the economy grow and grow – for example. easy money for homeowners caused more people to enter the housing market that caused prices to rise that caused people to have more home equity and then more easy money to er-enter the market for more or bigger purchases – caused a super-charging that made for more investment in technology businesses that required more workers that led to the need for more foreign workers and a boom for business immigration lawyers. The bursting of the bubbles in the housing market and the economy in general unremarkably led to a burst of the bubble for business immigration lawyers.

Case in point – the H-1B visa, the primary too for importing skilled labor. There are, generally speaking, 65,000 such visas available each year. They become available on October 1 of each year, the federal fiscal year. Filing for them is permitted six months before the start of the new fiscal year, or on April 1. As of this week, 27,500, or 42 percent are left for fiscal year 2010. Compare this to 2007, when by April 3, six months before the start date of the 2008 fiscal year, 123,480 H-1B petitions were filed – 190 percent of the quota was filed for by two days after the filing period opened. Filing was then called off and a lottery had to be held to choose which of this 123,480 applicants could get the 65,000 visas.

This bubble was not caused by immigration lawyers and filing for H-1B visas did not jeopardize anyone’s presence in the United States. In fact, that so many filed so early, in the first two days after the filing window opened, was indicative that immigration lawyers were doing the best for their clients in crazy times. However, not all filing bubbles were as harmless. Immigration lawyers, their exuberance to file cases trumping their concern for their clients, filed cases in other contexts that are now coming back to bite. I will look at two such areas, one today, and one next time. Today I’ll look at the filing of adjustment of status applications for clients who were previously deported. Next time I’ll look at the filing of adjustment of status applications for clients who entered under the visa waiver program.

Regarding adjustment applications for aliens who have been deported, to understand what occurred, some background is necessary. Adjustment of status is the process of becoming a permanent resident in the United States. An alien “adjusts” from some other status, like say, a visitor, to permanent residence, or from no status to permanent residence. There are, of course, rules about who can do this. In the case of adjusting status through a U.S. citizen spouse (or an adult, over age 21, U.S. citizen son or daughter), the alien must have entered the country legally and not be inadmissible, meaning there are no criminal or medical or conduct-based reasons to deny the person a visa.

Many people do not meet all these requirements. In particular, many people entered without going through a border and being inspected. Some of these people were previously deported and came back. Congress passed laws and immigration authorities created regulations addressing these concerns. One law, called “245(i),” because it is found at Section 245(i) of the Immigration and Nationality Act, allowed certain aliens to adjust status without having undergone inspection and admission if they were petitioned for in the past, specifically before May 2001. Also, Congress allowed for a waiver of inadmissibility for people who were deported based on humanitarian concerns.

With that background in mind, this is now things got controversial. An alien comes to an attorney’s office in the early 2000’s and tells him that he entered without inspection after a prior deportation, is married to a United States citizen, and has an old petition filed for him before May 2001, and asks if he can be helped. (No other non-waivable grounds of inadmissibility apply.) The lawyer says that there is a waiver for being deported and that 245(i) should solve the illegal entry problem, so it is possible that the person can adjust status. The lawyer cautions that it is hard to get the waiver for having been deported and that he could be denied and re-deported, but that, as of the early 2000’s, he should be able to see an immigration judge and fight his case if he is denied. The alien decides to take the risk and they file an adjustment of status application with USCIS. The alien has very strong equities – his prior deportation was long ago and was not for any serious reason, the alien has no criminal record, his U.S. citizen spouse is very ill and dependent on him, and the couple have several children, some of whom are honor students and others very ill (and some both). USCIS grants the waiver and the adjustment of status. The word then gets out – an alien with a prior deportation who comes back illegally can get adjust status and become a permanent resident.

Other people go to their lawyers, having heard this. Some have several prior deportations, some have criminal records, are newlyweds without kids and with healthy spouses. The lawyers may or may not warn the alien that his case is different from the one he may have heard about. The alien goes ahead and file with USCIS. USCIS denies the waiver and the adjustment and send the alien to immigration court to fight his case there.

Then there are developments in the law. Immigration judges do not agree that 245(i) fixes illegal entry after deportation. Another law, namely a reinstatement law, INA § 245(a)(5), says that a person who was deported, is not allowed to ask for adjustment of status and must be re-deported. Further, there is a ground of inadmissibility for a person who comes back after he is deported and 245(i) does not fix that problem. So immigration judges deny adjustments a second time when the aliens end up their to fight the denials at USCIS. In other cases, the immigration judge says the case does not even belong in immigration court. There is already a prior deportation order and ICE should just re-instate it. These cases then end up at the court of appeals.

Addressing all these issues in the courts of appeals takes time. Despite the muddle, immigration attorneys continue to file adjustment of status applications – believing the law is on their side and minimizing the difficulty in getting waivers. This despite the fact that the Board of Immigration Appeals, the court between the immigration court and the court of appeals, in Matter of Torres-Garcia, decided on January 26, 2006, that 245(i) does not solve the problem of illegal entry after deportation. However, the 9th Circuit, issued decisions in the aliens’ favor. In Acosta v. Gonzales, decide a month after the Torres-Garcia decision of the BIA, the Ninth Circuit concluded that 245(i) cures the bar for people who came back illegally after being deported. Lawyers reasoned that since the 9th Circuit was a higher court that the BIA, the Acosta decision controlled. A year-plus earlier, in Morales-Izquierdo v. Ashcroft, decided on November 18, 2004, the Ninth Circuit concluded that the regulations allowing immigration officers to reinstatement removal orders were invalid and that immigration judges should hear the cases, including considering adjustment of status applications and waivers.

With these decisions, more and more exuberance. Lawyers were filing when there were fewer and fewer positive equities and more and more negative ones. Eligibility and deservedness were completely confused.

There were plenty of reasons to believe this was all too good to be true. The government was fighting these cases – taking them to the Supreme Court or asking for rehearing at the Ninth Circuit. In a sister case to Acosta, Perez-Gonzalez v. Ashcroft, decided on August 13, 2004, the Ninth Circuit held that another ground of inadmissibility, ineligibility to adjust if you have been in the country illegally for a year or more, left the U.S., and then came back without permission (as opposed to being deported and then coming back without permission as in Acosta), was also cured by 245(i). In Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227 (9th Cir. Wash. November 30, 2007), the Court of Appeals reversed itself and concluded that 245(i) did not cure this ground of inadmissibility. The Court based its decision on the BIA”s decision in Matter of Torres-Garcia. The Court of Appeals did not say that it agreed with the BIA in Matter of Torres-Garcia, but instead that it had to respect their decision as it was a reasonable interpretation of the law. Coincidentally, a day before the Gonzalez decision, BIA specifically issued a decision where it disagreed with Perez-Gonzalez, Matter of Briones, decided on November 29, 2007. If the Ninth Circuit reversed itself in Perez-Gonzalez out of deference to the BIA, how long would it take for the Ninth Circuit to reverse itself in Acosta?

And that was not all. The Supreme Court in Fernandez-Vargas v. Gonzales, reversed the Ninth Circuit’s decision in Morales-Izquierdo. While the Morales-Izquierdo decision said that ICE could not reinstate old deportation orders, the Supreme Court said they could. So now, after USCIS denies an adjustment of status because of a prior deportation, ICE can swoop in, arrest and deport the alien.

The Ninth Circuit has not yet reversed itself in Acosta. With reinstatement, it may be hard for a case to reach the Court of Appeals as aliens are deported based on the old deportation order before they can get to the federal court. The BIA, in Matter of Diaz-Castaneda, ignores it. So does USCIS.

Despite Fernandez-Vargas, Gonzalez, Matter of Torres-Garcia, and Matter of Briones, do you think there are immigration lawyers still filing 245(i) adjustments for aliens with prior deportation orders? With the disregard shown for the difficulty in getting waivers and the unwillingness to see the handwriting on the wall in the past, I bet some are. Next time, I’ll look at blind indifference in the visa waiver context. Posted September 19, 2010.



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