Why Matilda and not me?

Sunday, March 13th, 2011
By: Jonathan MontagJ.D.

In this blog, I have written a lot about the visa waiver program – on September 26, 2010October 31, 2010, January 16, 2011, and January 29, 2011  – and written other places, such on the ILW website  and the now defunct Immigration Law Today magazine.  I have also litigated the issue. The conclusion from all this writing and analysis is that for six years aliens and attorneys have been on notice, at least in the the 9th Circuit, that when filing for adjustment of status as a visa waiver entrant, the alien has no recourse to the courts if the adjustment is denied. For the last three years everyone has been on notice, at least in the 9th Circuit, that a visa waiver applicant who overstays cannot adjust status. The third, seventh, and tenth circuits agree and the fifth, sixth, and eighth circuits  appear to. The curiosity of this is that despite how the courts of appeals, the final arbiters of the meaning of statutes, except for the Supreme Court, which refused to weigh in, and the curiosity that the Solicitor General of the United States took the position that visa waiver applicants can adjust status despite overstaying, it seems that only the San Diego USCIS district office is routinely denying adjustment applications of visa waiver overstays. No where else was it happening in California. Throughout the United States attorneys are not reporting anything but that visa waiver applications, even for overstays, are being approved. What makes “America’s finest city” so “special. Why if you are a Spaniard who files for adjustment of status after overstaying a visa in San Diego, can ICE come to your home at 5 a.m. and throw you in detention and then throw you on a plane home, but in the rest of the country you get a green card in the mail?

As a San Diego attorney, I have been hearing this question a lot. More significantly, I have been hearing, “What can we do about it? Save us? I’ll pay you anything, just save us? In response, I present my analysis: The federal district courts are closed to us. Momeni made that clear. The San Diego District is on sound legal footing. You can file for reconsideration, but as the law is clear – a visa waiver overstay cannot adjust – there is really no point, particularly if USCIS already knows of your particular hardships. The only real avenue is to get busy with the work of trying to come back to the United States from abroad though a United States Consulate.

As it turns out, as if in response to Homer Simpson’s quip, “Oh now who’s being naive?” the answer is, “Me,” I guess. The American Immigration Lawyers Association (AILA) put out an advisory to its members on March 4, 2011. This is what AILA posted:

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ has instructed the field that USCIS retains jurisdiction to adjust an alien who was admitted under the VWP, whether or not the adjustment application was filed during the alien’s 90-day period of admission. Watch InfoNet for further details.

There are three curiosities with this statement.

First, A resolution implies that there are two principled positions between parties with power to negotiate and a compromise is in the works. I would not say, “I came to a resolution with the mouse I found in the kitchen and smashed it.” In the case of visa waiver adjustments, there are not two parties with power in a principled dispute (anymore). The government, which includes USCIS, fought for a position in court and won. The government is not asking the courts of appeal to reverse themselves or for Congress to clarify the law. The courts spoke and said two things – (1) you cannot adjust if you overstay and (2) the courts have no jurisdiction to hear your complaints about it.

Second, what reports are there from the USCIS chapter liaisons that there have been favorable resolutions? San Diego was the only chapter reporting that visa waiver adjustments were being denied, as far as I know – and I have been trying to keep tabs on this. The San Diego USCIS District has refused to back down – stating that the law is the law. I have heard nothing to the contrary from the San Diego District?

Third, if USCIS is going to proclaim that visa waiver entrants can adjust, what is it going to do about all the circuit court decisions that say that they cannot? According to USCIS’s naturalization examination Question 12, the rule of law means, “Everyone must follow the law,” “Leaders must obey the law,” “Government must obey the law,” and “No one is above the law.” If we are a nation following the “rule of law,” how is USCIS going to ignore the circuit precedents? The San Diego District did lay out a scenario for ignoring the precedents – a policy it calls “Parole in Place.” Parole in Place is like magic, except better. What it does is say, “You who are hear illegally, abracadabra you are now here legally and can take advantage of whatever benefit that requires that you be here legally.” In this case, you are no longer an overstayed visa waiver entrant, you are a parolee and can adjust status. In the past, many have asked for Parole in Place in other contexts and such a parole has been issued quite seldomly. When USCIS floated the idea of broadening its application in a memo  last summer, congressmen and senators reacted quite harshly and the memo quickly went to the wayside, as did a chief proponent.

The government can change its mind. However, what the government cannot do is change its mind improperly – in disregard of the law and favoring some unfairly. When asked what he thought the rule of law was recently, Judge Richard Posner of the Seventh Circuit, said, “The rule of law means that judges decide cases ‘without respect of persons,’ that is, without considering the social status, attractiveness, etc. of the parties or their lawyers.” In San Diego, many visa waiver entrants have been denied adjustment of status. Now the policy may be changing. The news is cryptic — from a private lawyers’ association. The method for change is enigmatic — a controversial legal slight of hand implemented without standards or review. If the law changes, what happens to those who have been denied? Those who left? Those who were deported? Those stuck abroad? Certainly this is unfair to them.

Further, how is USCIS administering Parole in Place for visa waiver overstays? There is a story circulating in San Diego about a visa waiver entrant – lets call her Matilda. Matilda filed after the 90 days of her visa waiver entry. She has hardships. She was denied adjustment of status. She had a lawyer. The lawyer tried to get the San Diego district to give her a break. The District Director dug in his heals. No breaks. The law is the law. The rule of law. She was arrested and detained for deportation. Help me, she pleads. Sue. Do something. Well, the law is clear, you cannot sue. The courts lack jurisdiction. Fighting may prolong your detention while the courts await briefings and issue decisions but you will probably remain detained. You are better off planning for trying to come back from abroad. Right? Wrong. Matilda hired an attorney with Washington connections. Suddenly, AILA is reporting about “favorable resolutions” from the field that the field has never heard about. Suddenly, USCIS is paroling Matilda in place. Suddenly, Matilda is released by ICE. What about everyone else? What about the Rule of Law? If money talks and bullshit walks and small change takes the bus, so be it. Tell me who to pay. As Max Biolystock said, “When you’re down and out and everybody thinks you’re finished, that’s the time to stand up on your two feet and shout, ‘Who do you have to [email protected]#% to get a break in this stinking town?’” Are the San Diego lawyers who are reading the court cases, following the law, not taking money for futile cases, believing what we are told about policy the idiots? The naive ones? It is warm here in San Diego, but are we a Banana Republic? Should we be looking for the Gamal Mubaraks, the Saif Qaddafi’s, the Jack Abramoffs to help us? Should we just take clients’ money and ask for the impossible? If doing this is successful, tell me why not? Is not doing it a failure to represent zealously?

If I had a relative who was denied adjustment or detained or compelled to leave the United States in San Diego, I would want to know why this is happening in San Diego and no where else? Why Matilda gets a break but not my relative? What is the standard? Where do you apply? Is there administrative review? Judicial review? I would venture that even if the courts do not have jurisdiction over visa waiver denials, they may have jurisdiction over arbitrary parole in place decisions. The media should start asking questions. Marti Emerald, get out your pad, if not as a journalist than as a politician, to help your constituents.  Your congressman  and senators should start asking questions. The DHS Inspector General should look into it.

Getting beaten based on the law is something I never get used to but I deal with. Finding out that I am playing a fixed game, I cannot abide.  Posted March 13, 2011.



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