USCIS leaders still unclear and erratic regarding visa waiver adjustments

Sunday, March 20th, 2011
By: Jonathan MontagJ.D.

Last week,  in discussing the issue of the San Diego USCIS’s apparent unique enforcement of of laws about the Visa Waiver Program, I noted that the American Immigration Lawyers Association posted the following on its members-only news page, called InfoNet:

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.  This week the San Diego USCIS district discussed its position regarding the visa waiver program in a meeting with some immigration lawyers. San Diego USCIS district officials stated the following:

1. They are not aware of any guidance from USCIS headquarters regarding this issue;

2. They are willing to use “parole in place,” the process where USCIS can declare that someone is no longer a visa waiver entrant and is now a “parolee,” to people who have unique reasons for not having applied in a timely fashion, i.e., before their period of authorized stay expired;

3. They are still denying cases of visa waiver applicants otherwise eligible to adjust status except for the fact that they overstayed their period of authorized stay as visa waiver entrants;

There seems to be a disconnect between the San Diego USCIS District and the USCIS National Headquarters or AILA National was completely misinformed about USCIS Headquarters’ intentions or USCIS Headquarters is taking an exceedingly long time to issue its policy memorandum to the field.

Still we have no answers to the following questions:

1. Why is San Diego applying visa waiver adjustment law differently than everywhere else in the country?

2. How is USCIS going to finesse a more-lenient policy than the case law? [Last week’s blog linked to cases from circuit courts around the country.]

3. What process does USCIS in San Diego have to implement the exceptions to the rule that a person cannot adjust status if he or she did not file an adjustment of status application after the expiration of an authorized period of stay? There needs to be policies to avoid the appearance of impropriety and actual impropriety in who is getting a break and who is not, including the right to appeal a decision.

4. What happens to people harmed by the new procedures – people denied, people already detained for removal, people already deported?

Last week, I also indicated that all this changing of minds in application of the law and the variety of ways of law is being implemented (principally a difference between how San Diego and everywhere else implements the law and what the exceptions to the rule that a visa waiver overstay cannot adjust status) is troublesome, noting that while the government can change its mind, it must change its mind rationally.

In a 2009 Ninth Circuit case, Marmolejo-Campos v. Holder, Circuit Court Judge Marsha S. Berzon, in dissenting to a change in position by the Board of Immigration Appeals in a completely different matter, discussed an agency’s obligation when changing its mind about its interpretation and implementation of a law:

… agencies are not free … to generate erratic, irreconcilable interpretations of their governing statutes and then seek judicial deference. Consistency over time and across subjects is a relevant factor … when deciding whether the agency’s current interpretation is “reasonable.” Moreover, when an agency does change its mind, it must provide an adequately reasoned explanation for the change. “Sudden and unexplained change, or change that does not take account of legitimate reliance on prior interpretation, may be arbitrary, capricious [or] an abuse of discretion,” and therefore unworthy of deference. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742, 116 S. Ct. 1730, 135 L. Ed. 2d 25 (1996); see also Brand X, 545 U.S. at 1000 (“[T]he Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.”); Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991) (deferring to the Secretary of Health and Human Services’ interpretation, because “the Secretary amply justified his change of interpretation with a ‘reasoned analysis'”). To satisfy this requirement, the agency must provide not only a reasoned explanation for its current position, but also a reasoned explanation for why the change was warranted or why the new position is preferable.
… [w]hen agencies depart from their prior interpretations, they must offer a reasoned explanation for doing so. This requirement is rooted not only in the APA‘s [Administrative Procedures Act] prohibition on arbitrary and capricious action, but in the rule of law itself, for “unreasoned decisionmaking . . . prevent[s] both consistent application of the [rule] by subordinate agency personnel . . . and effective review of the [rule] by the courts.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 375, 118 S. Ct. 818, 139 L. Ed. 2d 797 (1998). See also CBS v. FCC, 147 U.S. App. D.C. 175, 454 F.2d 1018, 1025 (D.C. Cir. 1971) (“Without such a requirement [as reasoned decisionmaking], effective judicial review would be impractical if not impossible, and administrative litigants and the public generally would be set adrift on a potential sea of unconscious preference and irrelevant prejudice.”).  Hopefully USCIS will comply with these obligations under the law in its erratic and irreconcilable actions regarding visa waiver adjustment applications.  Concerned readers should ask their senators, representatives, and the media to get to the bottom of this mess. Last week’s post provides some links. Posted March 20, 2011.


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