By: Shoba Sivaprasad Wadhia

On March 1, the Third Circuit published Vera v. Attorney, a case that centered on a young girl from Argentina who presumably entered the United States under the visa waiver program (VWP) and was thereafter arrested, detained and summarily ordered removed without due process. ; See also, Musings on the Visa Waiver Program, No-Right Waivers and the Age of Youth. The VWP is a program that enables millions of citizens of select countries to enter the United States as a nonimmigrant for a period of 90 days without having to first obtain a visa. The immigration statute provides that VWP holders should waive any right to review or appeal an immigration officer’s about admissibility at the port of entry or to contest, other than on the basis of an application for asylum, any action for removal. See, INA 217. While the government was unable to provide the official document containing a signature from Vera or her parents that she/they had in fact waiver her rights as a condition of her entry under the VWP, the Third Circuit nevertheless concluded that a waiver could be presumed. Without making a decision about whether Vera even signed a waiver or if she did if her waiver was “knowing or voluntary” the Court found it irrelevant under a theory that Vera’s legal position after admission under the VWP and before admission (had she refused to sign the waiver) were exactly the same—therefore, the court found that Vera suffered no prejudice. The Court also provided some damning language about the forcible lengths that ICE should have gone through to make sure Vera was placed into the plane for removal and the apparent dangers of providing safeguards to minors who enter under the VWP. To illustrate, one footnote in the Third Circuit’s decision noted “[I]t seems obvious that the borders of this country should not be opened to minor aliens literally to walk in on the basis that they are temporary visitors but who then can refuse to leave and demand procedures to determine if they can be removed.” Vera remained in immigration detention for nine months.

Later in March, Vera secured pro bono counsel to represent her in a petition for rehearing en banc before the Third Circuit. In April, Vera successfully fought with her team of attorneys and the New York State Youth Leadership Council to be released from immigration detention. In May, the Office for Immigration Litigation (OIL) (federal court lawyers who represent DHS), filed a motion to throw out Vera’s immigration case because it had discovered that she had not actually entered the United States under the VWP but rather had been admitted as a visitor and therefore was entitled to a full removal hearing before an immigration judge. Specifically, OIL asked the Third Circuit to cancel Vera’s removal order and withdraw its decision.

Jordana Vera was eventually granted a favorable exercise of prosecutorial discretion, which in immigration law refers to the agency’s decision to refrain from exercising the full scope of immigration laws against a particular person or group of persons. See also, http://immigrationpolicy.org/special-reports/morton-memo-and-prosecutorial-discretion-overview. As a DREAM Act eligible student with no criminal history and several ties to the United States, the agency’s decisions to grant prosecutorial discretion is unsurprising. The real surprise lies in the huge error DHS made in prosecuting Vera in the first place, the absolute deference given by the Third Circuit to the DHS despite any evidence in the record to support the government’s claims, and the lengths that Vera went through before the government granted deferred action. See generally, http://www.immigrantjustice.org/press_releases/JordanaVeraDeferredAction

Vera’s case reveals a gross miscarriage of justice by DHS, and the degree to which judicial deference to the agency can interfere with the rule of law. The lack of accountability or interest by the DHS or the Court to weigh any real evidence and achieve a just result is deeply unsettling. Moreover, the case raises serious concerns about the contours of the visa waiver program or any program that favors summary removal over procedural due process. Finally, Vera presents a grand irony in the government’s well-advertised efforts to implement a strong policy of prosecutorial discretion as early in the enforcement process as possible so that individuals who represent “low priorities” to the government are placed on the backburner in order to preserve the government’s precious resources and protect those individual who present strong humanitarian factors. The resources spent by DHS to erroneously prosecute, detain, and nearly deport Vera are unconscionable.

Written By: Shoba Sivaprasad Wadhia

When I was 12 years old, my favorite school project was to put together a “Future Book” detailing my adult life through cutout pictures from magazines and other places and captions written in my jumbo-size middle school cursive. My Future Book featured a movie-star husband from “Bollywood”; triplet girls, each with blond hair and medium sized white dogs; and a cover page decorated with a grand piano to showcase my future career as concert pianist. I knew little of the terms “rule of law”, “due process” or “waiver” three phrases that would feature prominently in my real adult life. This was the sixth grade story I remembered as I read the Third Circuit’s decision in Vera v. Attorney General of the United States

Jordana Vera is a citizen of Argentina who entered the U.S. at the age of 12 under the “Visa Waiver Program” (VWP). The VWP is a program that is designed to allow citizens of select countries to enter the United States as a nonimmigrant for a period of 90 days without having to first obtain a visa. The immigration statute provides that VWP holders should waive any right to review or appeal an immigration officer’s about admissibility at the port of entry or to contest, other than on the basis of an application for asylum, any action for removal. INA 217. Vera remained in the United States longer than the authorized period of stay under the VWP and years later, was arrested, detained and ordered removed by ICE without an administrative or judicial hearing. The government was unable to produce the form (I-94W Nonimmigrant Visa Waiver Arrival/Deportation) containing Vera’s signed waiver of rights. Vera filed a petition for review, arguing that her removal order was invalid because she was a minor when she entered the U.S. and because the government failed to produce a signed I-94W.

The Vera court held that the government is entitled to a “rebuttable presumption” (which had not been rebutted) that Vera executed a waiver, even though Vera was 12 when she entered the United States and even though the government failed to produce a form saying she signed a waiver. The Vera court found that even if Vera did not sign the waiver or if she signed a waiver that was invalid because of age, there was still no claim because she suffered no prejudice, concluding, “she would be in precisely the position she is in now- facing summary removal.” The opinion did not include facts about whether Vera was entitled to formal relief from removal or an exercise of prosecutorial discretion based on various positive equities. The Vera court cited liberally to another Third Circuit case called Bradley v. Attorney General. In that case, the Petitioner Bradley, challenged that his removal order was invalid because he was intoxicated when he entered into the United States under the VWP and therefore the waiver of his rights was not “knowing and voluntary.” Leaving aside whether his waiver was “knowing and voluntary,” the Bradley court rejected his challenge, holding that even if knew about the contents of the waiver and refused to sign, he would be in the same position as he is now-subject to summary removal without a hearing, and therefore suffered no prejudice. AILA Amicus Committee Member Stephen Manning has blogged previously about Bradley and the stance among several federal circuits on the legal challenges around the INA’s requirement that VWP entrants waive their rights to a formal removal hearing or to even to contest their removal.

The Vera court makes some additional comments that are somewhat harsh and potentially damaging to future claims involving noncitizens who enter the United States as minors under the VWP. For example, the court offers in a footnote “Although Vera was a minor when she entered the United States she was not such tender years that she could not possibly have executed the waiver.” Really? I re-read this passage many times, stunned by the expectation behind these words in contrast to the limits of my own sixth grade worries. Though the court did not have to determine if Vera’s waiver was “knowing and voluntary” because of her age, it included strong language against any theory that minors cannot sign a waiver knowingly: “…[T]he consequence of a decision that a minor cannot execute a valid waiver or the summary removal provisions of the VWP cannot be enforced against a minor could force the government to adopt a policy not to allow minors to enter this country pursuant to the VWP. After all, it seems obvious that the borders of this country should not be opened to minor aliens literally to walk in on the basis that they are temporary visitors but who then can refuse to leave and demand procedures to determine if they can be removed.” I hope this portion of the Vera decision is treated as nothing more than dicta and eventually retracted.

If you have a case that involves litigating a visa waiver issue at the circuit courts, please contact AILA Amicus at amicus@aila.org.

By Shoba Sivaprasad Wadhia

On January 31, the Board of Immigration Appeals (Board) published an important decision on “administrative closure” decisions.

The American Immigration Lawyers Association (AILA) has long supported the principles echoed in Matter of Avetisyan and notably, advanced many of these themes in a related amicus brief last June.

Matter of Avetisyan involved a native and citizen of Armenia who entered the United States as a J-1 visa holder and thereafter was placed in removal proceedings based on her failure to maintain the conditions of her visa status. At one of her hearings before the Immigration Judge, the respondent informed him that she was recently married to someone who was in the process of naturalizing and that the couple had recently had a child together. Several hearings later and at the final hearing, the respondent asked that her removal proceedings be “administratively closed” so that her marriage-based visa petition could be adjudicated by the United States and Citizenship and Immigration Services (USCIS). The Immigration Judge administratively closed proceedings over the DHS counsel’s objection. The Board agreed that the Immigration Judge had the authority to administrative close proceedings and also found that the Immigration Judge’s decision to close proceedings was properly exercised.

Notably, the Board offered the following new legal standard for determining whether administrative closure is appropriate in a removal case: “[A]n Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.” The Board also reclaimed the province of the EOIR by concluding that the Immigration Court and the Board may administratively close cases even when a party opposes, overruling its own decision from more than 15 years ago. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996).

Three important lessons from Matter of Avetisyan are described below.

Matter of Avetisyan upholds the principle decisional independence. In 1952, Congress enacted the Immigration ant Nationality Act and designated the task of hearing to deportation cases to “Immigration Judges” within the Immigration and Naturalization Service (INS). It was not until 1983 when the Attorney General removed Immigration Judges from the INS and placed them into a newly created Executive Office for Immigration Review. The creation of EOIR was significant because it acknowledged the importance of decisional independence to the integrity of removal process. The principle of independence has been since articulated in the regulations and was highlighted by the Board in Matter of Avetisyan throughout its opinion and also when it remarked “In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Matter of Avetisyan identifies the limitations of prosecutorial discretion. “Prosecutorial discretion” refers to the agency’s decision about whether or not to enforce the full scope of immigration laws against a particular person or group of persons. Prosecutorial discretion is a powerful tool that may be employed by DHS at any stage of the enforcement process. However, once the NTA (immigration charges) have been filed with the EOIR and removal proceedings have commenced, jurisdiction shifts from the DHS to the EOIR and as a practical matter, modifies and in some cases shrinks the number of prosecutorial tools available to the DHS. The Board in Matter of Avetisyan carefully distinguished the DHS’ prosecutorial discretion authority from the Immigration Judge’s authority to regulate removal proceedings and manage the Court’s calendar, concluding that DHS opposition alone is insufficient to bar an Immigration Judge’s decision to administrative close removal proceedings. In the last year, the DHS has showcased the role of prosecutorial discretion in immigration matters and instructed that ICE officers consider administrative closure in “low priority” cases that present strong equities. Matter of Avetisyan serves as an important reminder that while DHS’ decision to join or initiate a motion to administrative close removal proceedings is an exercise of prosecutorial discretion, the ultimate decision about administrative closure lies within EOIR and must be made in accordance with the law.

Matter of Avetisyan offers an articulable legal standard for future administrative closure decisions. Administrative closure has been long used by the immigration agency, but lacks a definition or standard in the statute or the regulations. The Board’s new standard on administrative closure is consistent with its decisions on motions to reopen and requests for continuances.

Note: The AILA Amicus Committee is interested in hearing about cases where Immigration Judges are administratively closing removal proceedings in “low priority” cases with strong claims for relief. We believe that closure in such cases is improper and inconsistent with the standard identified in Matter of Avetisyan. Please email us at: amicus@aila.org

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