SEPTEMBER 11 USHERED IN A NEW ERA IN IMMIGRATION LAW and
PRACTICE
by Angelo A. Paparelli and John C. Valdez
One consequence of the tragic events of September 11 is that immigration law has
achieved new visibility and a much greater sense of national importance in the minds of
legislators, the Bush administration, the media and the public. This attention has already
resulted in changes in immigration law and practice in the post-September 11 era. Many
more changes are likely in the future. This article offers observations and predictions of
some of the likely attributes of this new era.
INCREASED DEMAND FOR THE SERVICES OF EXPERIENCED IMMIGRATION ATTORNEYS
Experienced immigration lawyers will likely be in greater demand than ever before and
clients, whether corporate or individual, will come to recognize the need to pay for
expertise in this complex specialty area of law. The "do-it-yourself" mentality
that has at times prevailed - particularly with the ready availability of online resources
- will probably be replaced by a new cautiousness, and a healthy recognition that even a
seemingly simple petition or application may contain traps to ensnare the uninitiated. The
near-term situation will likely resemble the era that followed the enactment of the
Immigration Reform and Control Act of 1986, which signaled a new willingness on the part
of corporations to retain competent immigration lawyers because corporate conduct for the
first time was subject to sanctions under the Immigration and Nationality Act.
INCREASED SCRUTINY IN THE ENFORCEMENT OF THE IMMIGRATION LAWS
In the post-September 11 era, enforcement of all of the immigration laws will no doubt
be more vigorous. Government bureaucrats - whether they are adjudicators at the Regional
Service Centers or inspectors at ports of entry - will likely be less willing to exercise
favorable discretion. An illustration of a more rigid posture regarding the exercise of
favorable discretion by the INS can be found in the position announced in a new memorandum
released by INS Headquarters [Memorandum from Michael Cronin, Acting INS Executive
Commissioner, Office of Programs, Deferred
Inspections, Parole and Waiver of Documentary Evidence Requirements, File No.
HQINS 70/10.10 (Nov. 14, 2001)] ("the Cronin memorandum").
The Cronin memorandum limits the authority of INS officers to grant parole, waivers of
visa or other documentation requirements, and deferred inspection. In particular, it
provides that "[d]uring the nation's heightened security alert and until further
notice" inspectors at Ports of Entry ("POEs") and Port Directors no longer
have authority to grant deferred inspections, waiver of passports, visas and other
documents, or to exercise parole authority. It also limits the exercise of these powers to
District Directors, Deputy District Directors, Assistant District Directors for
Inspections, and Assistant District Directors for Examinations.
While claiming that the new policy restricting the number of authorized officials who
can exercise discretion does not change the existing statutory standards for paroles and
documentary waivers, the memorandum allows the favorable exercise of discretion only if
the following criteria are met:
- All appropriate database checks have been completed; and
- The alien is likely to comply with the terms of the exercise of parole or documentary
waiver discretion, and
- inadmissibility is technical in nature (i.e., involving documentary or paperwork
deficiencies); or
- compelling humanitarian circumstances require the alien's entry to the United States.
What does the Cronin memorandum mean for your clients?
The Cronin memorandum will cause increased scrutiny and difficulties for some clients
attempting to reenter the United States, as the following scenarios suggest:
- The Hapless F-1 Student:
- An F-1 student is returning from a trip outside of the United States after she has
completed a course of study. She is returning for authorized practical training, but her
Form I-20 is technically expired - the form says the Designated School Official at the
alien's college or university must have endorsed it in the last year, but the regulations
say that the I-20 must have been so endorsed in the last six months. See 8 C.F.R. section
214.2(f)(13)(ii). Thus, a subtle paperwork deficiency may prevent the alien's entry to the
United States. Unlike the situation in the past, a POE inspector or Port Director no
longer has the authority to grant a waiver, parole, or deferred inspection in this
situation, and the alien must seek assistance in accord with the requirements set out in
the Cronin memorandum.
- The "Porting" H-1B Traveler:
- An H-1B alien, invoking H-1B portability,1 is returning from a trip abroad. He left the United States
before receiving the INS fee receipt and lacks other documents to show that his new
employer filed a new H-1B petition on his behalf. Previous INS Headquarters memoranda
dated January 29, 2001 and June 19, 2001,
contemplated a search of the INS CLAIMS database as a first step to confirm eligibility
for portability. As an alternative, the cited memoranda say that generally an applicant
who lacks evidence of a pending H-1B petition should not be processed for expedited
removal unless there is evidence of fraud or misrepresentation. With the issuance of the
Cronin memorandum, it is unclear whether the earlier memoranda are still applicable. Will
inspectors at POEs question whether the January 29 and June 19, 2001 memoranda continue to
state agency policy in light of the Cronin memorandum? Will officers go to the trouble to
track down the persons authorized to grant parole or deferred inspections or documentary
waiver when the CLAIMS system, the INS database that issues fee receipts and confirms
submissions at the Regional Service Centers, reflects the acceptance of the new employer's
H-1B petition but the alien lacks documentary evidence? Unlike Blanche DuBois in Streetcar
Named Desire, the authors would suggest that aliens and their attorneys not rely on the
kindness of strangers.
Lawyers should therefore caution clients about the closer scrutiny they may face when
applying for entry from abroad and the INS' increased reluctance to exercise discretion
favorably. Indeed, the consequences of an adverse finding at a POE can be severe, as
suggested in an AILA Infonet report that a number of employment-based nonimmigrants at
major POEs have been "placed in custody and subjected to expedite removal" since
the Cronin memo was released. See Jonathan Ginsburg, Vice Chair, Notice By AILA Visa
Office Liaison Committee, as reported on AILA Infonet on December 12, 2001.
Practice Pointers for Lawyers Counseling Clients on Travel in the Post September 11th
Era
- Forewarn your clients about the risks of foreign travel;
- Urge them to delay any truly unnecessary travel;
- Make sure they carry all possible documents demonstrating their eligibility for
admission;
- Explain the nuances of withdrawal of application for admission (and resultant visa
cancellation by INS) versus request for deferred inspection, parole or documentary waiver
and advise them of the reduced list of INS officials authorized to grant such benefits.
- Offer general trips on traveling after September 11th. (See Cyrus Mehta's article on the
ilw.com web site: http://www.ilw.com/lawyers/colum_article/articles/2001,1218-Mehta.shtm;
see also an article by Steve Yale-Loehr and Stanley Mailman about travel and documentation
tips generally post-Sept. 11 as appearing in the Dec. 24, 2001 issue of the New York Law
Journal. This publication will be reproduced shortly in Bender's Immigration Bulletin.
Other Enforcement Issues
In addition to changes the government will make to address matters of national
security, the INS will likely continue to enforce the nation's immigration laws vigorously
in matters that are unrelated to the need to snare terrorists and protect our homeland.
Some recent illustrations of INS' increased enforcement efforts include the following:
- The indictment of Tyson Foods and certain executives and other employees for alleged
alien smuggling. INS Commissioner, James Ziglar, has stated that this "case
represents the first time INS has taken action against a company of Tyson's
magnitude." The indictment alleges that "Tyson Foods cultivated a corporate
culture in which the hiring of illegal workers was condoned" and "aided and
abetted" aliens in procuring "false documents so they could work at Tyson
poultry plants." In pursuing this matter, the INS, in an unusually broad government
investigation, has worked in cooperation with the United States Attorneys Office for the
Eastern District of Tennessee, the Federal Bureau of Investigation, the Internal Revenue
Service, the Department of Agriculture, the Department of Labor, the Social Security
Administration, the Bedford County Tennessee Sheriff's Department, the Shelbyville
Tennessee Police Department, and the Tennessee Highway Patrol. Department of
Justice Press Release, #654: 12-19-01,
http://www.ilw.com/lawyers/immigdaily/ins_news/2001,1220-Tyson.shtm.
- Indictment of Golden State Transportation for alleged alien smuggling. In a criminal
matter involving one of the largest asset forfeitures in an alien smuggling case, the
Department of Justice has procured indictments against Golden State Transportation, a Los
Angeles-based bus company, its principal officers, and more than 30 employees in the
United States District Court in Tucson, Arizona alleging that they conspired with migrant
smugglers to move undocumented immigrants from the southwest border to locations across
the United States. Department
of Justice Press Release, #636: 12-10-01,
http://www.ilw.com/lawyers/immigdaily/ins_news/2001,1211-Smuggling.shtm.
- Recognition by the 2nd Circuit of a civil private right of action under the Racketeer
Influenced Corrupt Organizations Act ("RICO") by one cleaning company against
another on a claim that the knowing use of workers who lacked employment authorization
caused the law abiding company to lose a bid for a valuable janitorial services contract.
See Commercial
Cleaning Services LLC v. Colin Service Systems, 271 F.3d 374 (2nd Cir. 2001).
- U.S. v. O'Conner, 158 F. Supp. 2d 697 (E.D. Va. 2001). In this case, two business
associates were defendants in a sixty-one61 count criminal indictment in connection with
their role in inducing 200 aliens to invest money for the purpose of obtaining visas under
the EB-5 treaty investment program. The defendants were convicted of all offenses cited in
the indictment, which included conspiracy to commit immigration fraud, conspiracy to
commit money laundering, and filing false income tax returns.
The foregoing cases demonstrate the increased willingness of the federal government and
of private parties to venture into the business arena in the enforcement of the
immigration laws. They also show the government's commitment to apply additional
resources, both in terms of money and personnel, to achieve enforcement goals.
While there may be good reasons for INS to target specific employers, lawyers
representing employers will likely be called upon to protect the interests of their
clients against unwarranted and intrusive investigations of business practices. This
responsibility will require lawyers to fully document cases that demonstrate eligibility
for the immigration benefit the client seeks, to advance creative legal arguments
zealously and ethically within the bounds of the law, and to go into federal court as and
when needed to prevent injustice and governmental overreaching.
ADDITIONAL POST-SEPTEMBER 11 DEVELOPMENTS
The post-September 11 era may well include new developments that fundamentally change
the way the INS conducts operations. Two likely areas of development of critical
importance will involve restructuring of the INS itself and changes in the use of
technology. In addition, legislation and federal cases not involving the events of
September 11 continue to change immigration law, sometimes in ways that benefit aliens.
INS Restructuring Proposal
Although the INS's recent proposal for restructuring and splitting the agency into two
separate entities promises more efficient enforcement of the immigration laws while
producing better customer service in the adjudication of applications, there are ominous
signs that the INS's major focus will be more on enforcement and less on service. Evidence
of this emphasis can be found in INS's proposal to keep the inspections function in the
Bureau of Immigration Enforcement rather than in the Bureau of Immigration Services,
despite its recognition in the proposal that "Inspectors have a unique role as both
facilitators of bona fide travelers and as law enforcement personnel."
INS has declined to a follow a suggestion by some to create a separate Inspections
Bureau reporting directly to the Commissioner. By creating a separate Inspections Bureau,
the agency could establish a unit that would theoretically place an equal emphasis on
service and enforcement goals. Instead, the INS's proposal aims to place this unit within
the enforcement arm of the INS in order to "ensure law enforcement coordination at
ports of entry." Query how inspectors working under newly revised policies limiting
the use of discretionary powers and separated from the Bureau of Immigration Services will
be trained on current standards of eligibility for admission under the family-based and
employment-based categories. History teaches that inspectors have often been among the
last to learn of new eligibility criteria. These new changes are likely to make matters
worse for some applicants for admission.
Other noteworthy recommendations in the INS restructuring proposal include:
- Providing "[p]rofessional communication skills training for all Inspections field
staff;"
- Expanding the "automated inspection systems to expedite entry of low-risk travelers
at seaports and land border pedestrian lanes;"
- Hiring of "25 Customer Service Representatives to work in Headquarters" in
order "to respond more quickly and systematically to case inquiries" and
"solve specific case problems raised by immigrants, U.S. citizens, and Congressional
Offices;"
- Creating a Chief Information Officer position;
- Allowing for on-line filing of at least two immigration benefits applications by the end
of FY 2002 and expanding so-called "e-filing" to additional form types in FY
2003 and FY 2004; and
- Integrating all governmental databases containing information on aliens.
The INS restucturing proposla can be found at http://www.ilw.com/lawyers/immigdaily/ins_news/2001,1116-Proposal.pdf.
New Uses of Technology
New, advanced technologies will play a prominent role in the post-September 11 methods
of operations for both the INS and the Department of State. According to a report in the
Los Angeles Times, in January 2002, the State Department planned to begin relaying digital
images of foreign travelers to INS officials at ports of entry in the United States. The
agencies hope that this new procedure will, for the first time, permit INS inspectors to
confidently compare the physical appearance of travelers to the United States standing
before them to authentic pictures of these aliens taken at the time they applied for visas
abroad at a U.S. consulate or embassy. The report also stated that Congress may approve
legislation that would mandate unique, personal identifiers - such as digitized
fingerprints - on visas that the State Department grants to foreign nationals who wish to
travel to this country, as well as on passports of aliens from 29 nations. This bill
passed the House on December 19, 2002 and enjoys broad support in the Senate. Jonathan
Peterson, Digital Images Will Verify Identity of Visitors to U.S., Los Angeles
Times, January 2, 2002.
The State Department is also relying on new technologies for security measures
involving the Olympic games. The State Department has reportedly issued more than 9,000
visas to Olympic participants using a new high-tech security system that makes it possible
to check the applicants' backgrounds for terrorist connections before electronically
issuing a forgery-proof document. The secure document includes a digital picture of the
participant on the visa and threads of colored paper that help prevent forgeries. The
Olympic Visa Information Database 2002 (OVID 2002) began approving credentials on November
15, 2001. State Department officials anticipate the system will issue as many as 20,000
visas to athletes, coaches, the media and other officials for the Olympic and Paraolympic
Winter Games scheduled to begin Feb. 8 in Salt Lake City. The procedures followed by the
State Department mark "the first time that the State Department has issued visas
electronically." Judi Hasson, IT in Play at Olympics, Federal Computer Week,
December 10, 2001 (see www.fcw.com).
Current national security concerns, as well as the need for more efficient processing
of immigration applications, will place increased demand on government officials to
develop and implement new technologies. To meet the practice demands caused by these
changes, lawyers must likewise be prepared to commit time and resources to the
introduction of technology enhancements in their offices. They must also make a daily
commitment to continuing education through frequent visits to immigration portals like www.ilw.com and AILA infonet, so that they can remain
up-to-date on technology advancements used by INS and adapt their use of technology
accordingly.
Silver Linings: Positive Changes in Immigration Law in the Post-September 11 Era
Notwithstanding the events of September 11, immigration law changes, unrelated to
national security concerns, continue to unfold. Pressure from immigrant activists, the
business sector, attorneys, and others is a key factor in motivating Congress to make
sensible immigration laws that benefit the nation, immigrants, and the economy.
Recently enacted bills liberalizing the Immigration and Nationality Act include the
following benefits:
These legislative gains prove that advocacy of business concerns involving the use of
foreign labor and immigrant rights can be successful even in an era when aliens face
increased scrutiny and restrictive policies and practices at the border. Immigration
lawyers and their clients can, and should, marshal resources for legislative and agency
advocacy efforts and enlist the aid of the media in fostering a better public
understanding of the need for enlightened immigration laws.
Equitable Tolling - An Opportunity for Effective Advocacy
One line of cases that promises to arm immigration lawyers with new legal arguments in
the defense of their clients in the post-September 11 era is best illustrated by Socop-Gonzalez
v. Immigration & Naturalization Service, No. 98-70782 (9th Cir. December 5, 2001);
see also, Varela v. INS, 204 F.3d 1237 (9th Cir. 2000) and Iavorski v. INS,
232 F.3d 124 (2nd Cir. 2000). In Socop-Gonzalez, the Ninth Circuit Court of Appeals
found that the principle of equitable tolling applies to the 90-day period to reopen a
deportation case after a Board of Immigration Appeals decision under 8 CFR 3.2(c)(2), and
applies even if the applicant knew, or should have learned of, the tolling event before
the expiration of the original period of limitations.
The Socop-Gonzalez Court ruled that the factual circumstances of the case
warranted equitable tolling of the 90-day period to reopen a deportation matter. Of
particular importance to the case, was the Court's finding that the plaintiff had received
incorrect advice from an INS officer while his appeal of the denial of an asylum
application and order of deportation was pending at the Board of Immigration Appeals
("the BIA"). Subsequent to the immigration judge's order of deportation, the
plaintiff married a U.S. citizen. Acting without the advice of counsel, he approached an
INS officer at an INS office in Westminster, California. That officer advised the
plaintiff to withdraw his appeal and file an immigrant visa petition and adjustment of
status application with the INS. This advice was faulty. The plaintiff's spouse should
have filed an immigrant visa petition with the INS. After approval of the immigrant visa
petition, the plaintiff could have submitted a motion to remand his case from the BIA to
the Immigration Court, along with the immigrant visa approval notice and an application
for adjustment of status.
Following the INS officer's advice, the plaintiff submitted his request to withdraw his
appeal to the BIA, which resulted in a final order of deportation. Before the plaintiff
was able to sort out his confusion over the matter, caused primarily by faulty advice from
an INS officer, the limitations period for filing a motion to reopen with the BIA expired.
Socop-Gonzalez contains the following useful observations:
- Although an alien may be barred from asserting equitable estoppel against the INS, see
e.g., Mukherjee v. INS, 793 F.2d 1006, 1008 (9th Cir. 1986), the alien may
nonetheless rely on equitable tolling to forgive the late-filing of a required documentary
submission;
- Both equitable estoppel and equitable tolling stop a limitations period from running,
but the two doctrines are distinct: equitable estoppel focuses on the action of the
defendant while tolling focuses on the alien's excusable ignorance of the limitations
period and on the lack of prejudice to the government;
- To establish a basis for equitable tolling, the alien must show that despite his or her
due diligence, the alien was prevented from making a timely submission by circumstances
beyond the alien's control that were caused by something more than merely "excusable
neglect;"
- Equitable tolling also requires a showing that, despite the exercise of reasonable
diligence, the proponent of tolling could not have discovered essential information
bearing on his or her claims or rights;
- Equitable tolling can be applied where INS negligently provided information upon which
the alien reasonably relied, and also in a situation involving ineffective assistance of
counsel, but the court in Socop-Gonzalez emphasized that it is by no means limited to
these two situations; and
- As established by the Supreme Court in Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946), the rule of law is that equitable tolling is presumed to be part of every
federal limitation periods - thus, conceivably it could be relied on in a variety of
situations involving immigration deadlines.
Since equitable tolling is presumed to be part of all federal limitation periods, the
holding of Scoop-Gonzalez could conceivably be applied in a variety of situations
involving immigration deadlines. A short list of examples could conceivably include the
time to respond to an INS Request for Evidence, the time to submit a change of status
application (e.g., where alien is unexpectedly terminated from H-1B employment and thinks
he/she is authorized to remain in the United States during the unexpired period of
authorization noted on the Form I-94), and the time to submit an extension of status
application (e.g., where alien is understandably confused about the effect of dueling
Forms I-94 under the INS so-called "last action rule").2
