Third Circuit Reflects on Unlawful Presence, Chevron, and the Importance of Prosecutorial Discretion

Written by: Shoba Sivaprasad Wadhia

As an immigration law professor sitting in Third Circuit who writes about prosecutorial discretion and the daughter of a highly educated software engineer-mother born in India, Cheruku v. Attorney General of the United States http://www.aila.org/content/default.aspx?docid=37068 is not just intellectually rich, it’s almost personal.

Reddy Cheruku is a software engineer from India who entered the U.S. on a temporary B-1 visa, overstayed and through a U.S. based employer eventually sought adjustment to lawful permanent resident (“green card”) status under the Legal Immigration Family Equity Act (LIFE Act).  The LIFE Act was established by Congress to allow certain residents who entered without inspection or without lawful status inside the U.S. to regularize to permanent status if a family or employment-based petition was properly filed on or before April 30, 2001.  8 U.S.C. § 1255(i)  Seeking to leave the U.S. temporarily while her adjustment application was pending, Cheruku applied for “advanced parole” and subsequently used this parole to travel and reenter the U.S. in 2002.  Advanced parole is a travel document that permits individuals with pending applications for adjustment to depart the U.S. temporarily reenter.  Cheruku’s adjustment application under the LIFE Act was denied because of her travel on advanced parole.  Specifically, the Department of Homeland Security’s (DHS) (and later, the Department of Justice) found that her reentry into the U.S. in 2004 rendered her “inadmissible” for 10 years under INA 212(a)(9)(B)(i)(II) (commonly known as the “ten-year” bar), a provision added by Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.  The ten-year bar was one among three new barriers created by Congress to penalize noncitizens who accrued “unlawful presence” in the United States, left and then sought to reenter.

Judge Scirira, writing for the Third Circuit, denied Cheruku’s petition for review, and made at least four conclusions: 1) the LIFE Act does not waive the ten-bar to admissibility; 2) the circumstances of Cheruku’s departure and return were not factually distinguishable from those at issue in prior BIA precedents; 3) Cheruku has failed to show any misrepresentation or affirmative misconduct by DHS; and 4) the grant of an advanced parole does not nullify Cheruku’s departure.  What makes Cheruku particularly significant is Judge Scirira’s application of the Chevron doctrine but acknowledgement about the human consequences when the doctrine is applied; and a concurrence by Judge McKee where he applies the strong equities and contributions of Cheruku to highlight a case deserving of prosecutorial discretion.  These points are summarized below.

The Cheruku court reiterates the two-step inquiry in Chevron v. NRDC, 467 U.S. 837, namely 1) whether Congress’ intent is expressed in the statute’s plain language; or 2) whether the statute is silent or ambiguous.  If the statute is silent or ambiguous “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”  Aguirre-Aguirre, 526 U.S. at 424.  The Cheruku court also references Brand X to conclude that courts must accept an agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.  Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs, 545 U.S. 967, 980 (2005)  Like with its sister circuits, the Cheruku court finds the relationship between the statute governing adjustment of status under the LIFE Act and the statutory bars relating to unlawful presence ambiguous.  The Cheruku court relies on the BIA precedent decisions In re Briones, 24 I & N Dec. 355 (BIA 2007) and Lemus-Losa, 24 I & N Dec. 378 (BIA 2007).  In, Lemus-Losa, the Board concluded that the inadmissibility bar at 212(a)(9)(B)(i)(II) trumps the adjustment provisions at 245(i) of the LIFE Act.  As such, individuals inadmissible under the ten-year bar are ineligible for adjustment under the LIFE Act absent the grant of a discretionary waiver.   The Cheruku court found the Board’s interpretation in Lemus-Losa reasonable and therefore subject to Chevron deference, noting the fact that limited waivers are available to people subject to the ten-year bar and that in any event, the administrative goals of implementing the LIFE Act are meaningful different from the goals behind the ten-year bar.

The Cheruku court expresses some discomfort with the result and the need for legislative change when it notes “While we may question whether the policy choices furthered by the BIA’s interpretation of the statutory scheme are wise, we remain mindful that “the place to resist unwise or cruel legislation touching aliens it the Congress, not th[e] [c]ourts.”  Harisades v Shaughnessy, 342 U.S.  580, 592 (1952).

The concurrence by Chief Judge McKee begins with the face of Cheruku, an educated software engineer, a highly skilled professional engaged in what her employer describes as “research, design, and develop[ment] [of] software and programs for high tech medical, industrial, scientific financial applications, lead[ing] teams of programmers and systems analysts in projects.”  Judge McKee notes that Cheruku lacks any criminal record or desire to repeatedly violate the immigration laws.  To the contrary, the parole document Cheruku received to travel outside the United States included complex language that both affirmed her permission to leave the United States and contained written warnings about the immigration consequences of returning to the United States after a period in “unlawful presence.”  Judge McKee concludes that “as a matter of law, Cheruku is, of course, charged with understanding the convoluted and hype technical language on the form she received.”

Leaving aside the contradictions and confusion contained in the advanced parole document, we are still left with a question about priorities and prosecutorial discretion.  A favorable exercise of “prosecutorial discretion” refers to the immigration agency’s authority to not assert the full scope of immigration powers against a particular individual. http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf While the immigration’s use of prosecutorial discretion goes back to an immigration case involving music legend John Lennon http://immigrationimpact.com/2011/07/20/prosecutorial-discretion-and-the-legacy-of-john-lennon/    it has received heightened attention recently in light of a series of memoranda by ICE in the last year that both showcase the various equities the agency should consider in making prosecutorial decisions and the criminal and recidivist behavior that it labels as a high priority.  Meanwhile, the White House issued a letter and policy on August 18 of this year to announce its creation of an interagency working group of DHS and DOJ to work through the pending 300,000 cases in removal and administrative close the cases it deems a “low priority.”  Taking note of these developments, Judge McKee identifies the August 18 announcement and expresses “optimism” that Cheruku, a highly skilled engineer with steady employment and no criminal history represents a “low priority” case.

AILA has long questioned the wisdom of the unlawful presence bars and the harsh consequences that attach to law-abiding noncitizens with strong equities.  AILA has also challenged the legality of Brand X deference in cases involving 245(i) and the unlawful presence bars.   http://www.aila.org/content/default.aspx?bc=9418|11708|36120 AILA and American Immigration Council (Immigration Council) have also both advocated for proper exercise of prosecutorial discretion http://www.legalactioncenter.org/sites/default/files/docs/DHS%20Review%20of%20Low%20Priority%20Cases%209-1-11.pdf; http://immigrationpolicy.org/special-reports/morton-memo-and-prosecutorial-discretion-overview-0  and is closely monitoring how the agency’s policies are being implemented in regions across the country.  Judge McKee’s concurrence should be added to the legal toolbox AILA attorneys and advocates use to push for favorable prosecutorial discretion on behalf of qualifying clients.

Please direct comments to amicus@aila.org