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Amicus Brief to AAO on Matter of Cross 3-16-2015


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Lessons learned, musings, and suggestions inspired by recent precedential decisions.

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Amicus Brief to AAO on Matter of Cross 3-16-2015

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 1 Submitted by: Joseph P. Whalen 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) ADMINISTRATIVE APPEALS OFFICE (AAO) U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) DEPARTMENT OF HOMELAND SECURITY (DHS) 20 Massachusetts Ave., NW, MS 2090 Washington, D.C. 20529-2090 AMICUS BRIEF LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) I. Introduction On February 12, 2015, the BIA1 issued an administrative Precedent Decision which, is binding on the Departments of Justice, Homeland Security, and State2 , in cases involving the same subject matter(s). See 8 U.S.C. § 1103(a)(1) (The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular 1 Board of Immigration Appeals (BIA), within the Executive Office of Immigration Review (EOIR), within the Department of Justice (DOJ), headed by the Attorney General (A.G.), a Cabinet Official reporting to the President. 2 Department of Homeland Security (DHS); Department of State or State Department (DOS).
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 2 officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.) Since the BIA is wielding the power of the Attorney General they are the highest administrative appellate body in immigration law matters, (USCIS’ AAO is a close second). Specifically, Matter of Cross, 26 I&N Dec. 485 (BIA 2015), held: A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed. The BIA continues to dance around the topic of legitimation without truly defining it. It discusses legitimation in terms of “an affirmative act” by the parent, usually that parent is the father. The BIA makes a lot of noise about the fact that there is a distinction between the state of being legitimated as opposed to the act causing it, and that “paternity” is a whole other matter altogether. However, one way for paternity to be established may be by an act of legitimation. While much is stated about the above collateral, yet peripheral, matters, it is not clearly evident as to the actual definition of the words “legitimated” or “legitimation” or variants thereof. They are circularly defined. A legitimate child is an out-of-wedlock (formerly called “illegitimate”) child who has been legitimated through an act of legitimation. I dare anyone to find any better or more precise “definition” in Matter of Cross, for either of the underlined words in the preceding sentence. It is plain to see that a “legitimate” child refers to one who was born- in-wedlock. It is equally plain to see that an “illegitimate” child is one who was born-out-of- wedlock. The true puzzle is the highly variable means of transforming the latter into the former,
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 3 i.e., going from illegitimate to legitimate status. A plain language definition for the term “legitimation” remains elusive because it depends on local domestic/family laws. II. The BIA’s Latest “Approach to Interpreting” Legitimation Under the INA In this latest decision, the BIA makes an effort to clarify the meaning of “legitimation” under the various definitions of “child” within the Immigration and Nationality Act (INA) 8 U.S.C. (Chapter 12), § 1101, et seq. It is a subject matter that was definitely in need of clarification because the BIA has been flip-flopping back and forth for many years about the treatment of out of wedlock “children” under a wide array of laws. Many such laws have attempted to do away with the distinction between children born in wedlock and those born out of wedlock. The labels “legitimate” and “illegitimate” used to be more revered, and feared, than they are today. Congress went to great lengths to conspicuously remove the terms “legitimate” and “illegitimate” from the statutory definitions of “child” and replaced them with “born in wedlock” and “born out of wedlock”, respectively, during a highly-focused and extremely narrow statutory revision in 1995, see Pub. L. 104–51.3 3
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 4 Does the above development signal the decline of our “Great Society”, such as the changes in attitudes that preceded the fall of the Roman Empire? Is it, instead, a sign of a new period of enlightenment such as the Renaissance? I do not know the answers to the above philosophical questions and, I do not want to know. Regardless of my digressions, this newest interpretation of legitimation for immigration and especially, citizenship purposes, effects a statistically significant population across the globe. The United States can no longer leave this subject matter to the vagaries of a wide swath of disparate interpretations in administrative law because it is such a critical component in immigration cases and, as cannot be emphasized enough, in nationality/citizenship claims. This “legal interpretation” oversight has been allowed to persist for far too long. The major cases discussed and re-examined in Cross range from 1981, to 2008, and through the date of the present case in 2015, a total period of ~ 34 years! And there are references in those cases that reach back much further. Instead of actually providing a “definition”, per se, the BIA has conceded that the interpretation of the term remains situational. The BIA presents an interpretive framework in Cross as follows. The remaining question is what “legitimation” in section 101 (c) (1) means. Given this section’s express provision that “legitimation” is determined by the law of the child’s (or his father’s) residence or domicile, any satisfactory answer to that question is complicated by the growing consensus—both in the United States and abroad—against labeling children “legitimate” and “illegitimate” by virtue of the marital status of their parents. In recent decades, many countries have legally marginalized the legitimation concept, retaining some of its features for purposes of settling inheritance disputes but enacting legislation that otherwise places the children of unmarried parents on the same legal footing as those born to married couples. 7 Any coherent understanding of legitimation as a
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 5 stand-alone concept—rather than as a mechanism for establishing paternity, as in former section 321(a)(3)—must take this reality into account. 8 In light of the foregoing, we interpret section 101(c) (1) of the Act to mean that a person born abroad to unmarried parents can be a “child” for purposes of section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States). Cross at 492. [Footnotes omitted, color & box, and underlining added for emphasis.] The BIA had some help in deciding to once again re-visit and effectively tackle this subject matter. For instance, the issue of legitimation came up in a decision remanded from the 2nd Circuit Court of Appeals on May 31, 2011, Watson v. Holder, 643 F. 3d 367 (2d. 2011), with instructions to provide a clear meaning of “legitimation” and stated, in pertinent part, that: “…in reviewing the positions the BIA has taken on the “legitimation” question, we have two lingering concerns that we think ought to be resolved by the agency in the first instance. First, we remain unsure as to the precise definition the BIA has adopted for determining whether a “child” has been “legitimated” under the law of a particular jurisdiction for purposes of § 1101(c)(1). For instance, does the BIA recognize a difference between legitimate and illegitimate that is purely formalistic—in other words, where the law in question retains the label of “legitimate” for children born to married parents, but ensures that “illegitimate” children are treated exactly the same as their legitimate counterparts— or is some substantive discrimination in the law necessary? Second, we are unclear as to the legal and/or logical basis for the BIA's interpretation. Accordingly, on remand, the BIA is instructed to (1) clarify precisely how it interprets the concept of “legitimation” as it is used in § 1101(c)(1), and (2) justify how it arrived at that particular interpretation. Once that is accomplished, the BIA should again analyze and explain how its understanding of “legitimation” applies to Jamaican law and the facts of this case. Depending on the outcome of these various steps, the BIA may wish to take the opportunity of this remand to develop the record on other outstanding issues that may bear on the merits of this matter. ...” - See more at: *************
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 6 “For the foregoing reasons, we GRANT the petition for review and REMAND the cause to the BIA for proceedings consistent with this opinion. If and when petitioner seeks review of BIA determinations following this remand, the cause shall be referred to this panel. See Butt v. Gonzales, 500 F.3d 130, 137 (2d Cir.2007); United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994). The mandate shall issue forthwith.” [Highlighting and underlined bold added for emphasis.] The Second Circuit4 was asking if the BIA was merely putting form over function or if there was a substantive reason for disparate treatment. As far as I can understand from this tediously written decision; a word should have a consistent definition, unless, specifically modified, for a particular reason, and in a particular context. It’s as clear as mud! Essentially, the bottom line is: it depends on the precise context and on the “domestic relations” laws involved in the particular case. In Cross, the BIA held, in pertinent part: “………….…..that a person born abroad to unmarried parents can qualify as a legitimated “child” under section 101(c)(1) of the Act if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or has a residence or domicile in such a country or State (including a State within the United States), irrespective of whether the country or State has prescribed other legal means of legitimation.” Id. at 485-486. [Highlight and bold added.] 4 Romero-Mendoza v. Holder, 665 F. 3d 1105 (9th Cir. 2011) (The court is “not required to give Chevron deference to the BIA’s interpretation of citizenship laws.”) at 21047 (1107). “…The sole issue on appeal is whether Romero’s paternity was legitimated under Salvadoran law, which would defeat his claim of derivative citizenship. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we affirm the BIA’s decision.” at 21046. “IV. Conclusion [5] The BIA committed no error when it dismissed Romero’s appeal. Romero failed to establish a claim of derivative citizenship due to his legitimation under Salvadoran law. In the absence of derivative citizenship, Romero was subject to removal due to his commission of a crime of violence. PETITION DENIED” at 21052-21053. Alternate link:
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 7 III. Beyond “Legitimation” - Broader Implications from Cross Cross also stands for additional important legal concepts, interpretations, and implications, beyond that of an acceptable or, at the very least a workable, understanding of “legitimation”. I find it more useful to clarify that while a “definition” needs to be clear and consistent; the application of a “concept” may, out of necessity, be more fluid. Such is the case for “legitimation”. The BIA seems to be starting to realize that an homage to “form over function” generally leads one down a twisted path best not traveled at all. This capitulation is most welcome because irrational and unsupported rigidity does lead to unacceptable and unsatisfactory results more often than not. “………………………..Although neither Hines nor Rowe elucidates the Board’s reasons for concluding that “legitimation” must be interpreted uniformly throughout the Act, we apparently understood it to be required by the Supreme Court’s decision in Clark v. Martinez, 543 U.S. 371 (2005). In that case, the Court held that a single statutory phrase cannot have different meanings in different factual contexts. Clark v. Martinez, 543 U.S. at 386 (rejecting “the dangerous principle that judges can give the same statutory text different meanings in different cases”). Thus, Clark would forbid us from giving the statutory phrase “paternity . . . has not been established by legitimation” one meaning for people born in Jamaica and another for those born in Guyana. Id. at 378 (“To give [the] same words a different meaning . . . would be to invent a statute rather than interpret one.”). In Hines and Rowe, however, we read Clark much more broadly, as if it required us to interpret the term “legitimation” identically throughout the Act, regardless of variations in statutory context. …” Cross at 490. In essence, the BIA has capitulated that the definition of legitimation is dictated by the specific domestic or family laws giving it effect. Those effects are seen, demonstrated, and confirmed, or refuted, through legally proscribed actions of the legitimating parent, i.e., an unwed
  8. 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 8 father. So, in the end, legitimation is not uniformly achieved. It would take an Act of Congress to make a uniform process for the act of legitimation to apply uniformly for INA purposes. IV. Consistent Application & Interpretation of “Other” Statutory Definitions There are numerous statutory definitions under the immigration laws5 , of the United States. Such definitions could be the sole meaning of a single word applied across various contexts, collectively or selectively, as the case may be. We also find multiple definitions of a single word; the word “child”, for example, is defined twice in the INA; once for immigration purposes at INA § 101(b)(1) [8 U.S.C. § 1101(b)(1)] and again for citizenship or nationality purposes at INA § 101(c)(1) [8 U.S.C. § 1101(c) (1)]. As the reader should clearly know by now, legitimation is not defined in the INA but it is included as a modifier in various definitions. It is a qualifier in both definitions of child and the definition of parent which is found, along with child for immigration purposes, at INA § 101 (b) (2) [8 U.S.C. § 1101 (b) (2)]. Here is a conundrum for the reader to ponder. Most folks, at first glance, generally believe that the nonimmigrant category descriptions found at INA § 101(a) (15) (A)-(V) [8 U.S.C. § 1101(a) (15) (A)-(V)] comprise the definition of the word “nonimmigrant”. Many, however, are taken aback to find out that they are not. Within the statutory definitions section of the INA, specifically, the portion cited above is where we find the definition of the word “immigrant” 5 This phrase is also defined at INA § 101(a)…(17) The term "immigration laws" includes this chapter [12] and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens .
  9. 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 9 which contains within it numerous exceptions. It is actually those exceptions that describe the “nonimmigrant” categories. Other sections of the INA present the “immigrant categories”. There are two broad varieties of immigrants with many subcategories contained within them. Family-based immigrants make up the vast majority of immigrants to the U.S. each year (approx. 1 million annually). The number of “preference” category family-based immigrant visas is limited but the category of “immediate relatives” (IRs) of U.S. citizens has no numerical limit. The next major grouping are the employment-based immigrants which are capped at around 140,000 annually. These statutory sections, INA § 201 [8 U.S.C. § 1151] and especially INA § 203 [8 U.S.C. § 1153], describe the eligibility criteria consisting of a very wide variety of qualifications and relationships. In keeping with the title of this section, there are some definitions that simply are what they are and apply across contexts. This is probably easiest to explain through an example. V. Example of Consistent Statutory Definitions While there are some minor differences between the Nonimmigrant visa category for an intracompany transferee in an executive or managerial position with the visa code “L1-A” and the roughly corresponding Immigrant visa category for a multinational manger or executive, i.e., “EB-1C” or “E13”; both must rely upon the same statutory definitions of “executive capacity” and “managerial capacity”. These are firm and solid definitions that leave very little to the imagination except as to the supporting documentation submitted in order to demonstrate that the petitioner, the position and the beneficiary satisfy all of the conditions required by the statutory visa description and the chosen employment capacity definition.
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 10 INA § 101(a)(44) [8 U.S.C. § 1101(a)(44)]6 (A) The term "managerial capacity" means an assignment within an organization in which the employee primarily- (i) manages the organization, or a department, subdivision, function, or component of the organization; (ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional. (B) The term "executive capacity" means an assignment within an organization in which the employee primarily- (i) directs the management of the organization or a major component or function of the organization; (ii) establishes the goals and policies of the organization, component, or function; (iii) exercises wide latitude in discretionary decision-making; and (iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. (C) If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed. In the very common situation where an L1-A nonimmigrant manager or executive is later petitioned as an “E13” (EB-1C) immigrant multinational manager or executive; many issues except for the ability to pay (ATP) will likely have already been proven. Current L1-A nonimmigrant status is a very good indicator as to the likelihood of attaining the immigrant 6 While there are corresponding regulatory definitions, they do little more than parrot the statute.
  11. 11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 11 version of the category. Indeed, the same qualifying relationship between the U.S. and foreign employers has usually already been demonstrated satisfactorily in addition to the executive or managerial capacity. The major exception to the above scenario is when the L1-A has opened a “new office”. USCIS adheres to special regulations in the above described scenario to account for the leniency shown up-front as to the “expectation” of achieving a level of complexity in order to justify the placement of an employee working in a managerial or executive capacity as defined by statute, moving forward. USCIS also adheres to special regulations allowing a relaxed interpretation of the pre-existing employer-employee relationship when an L-1A nonimmigrant “intracompany transferee” is transitioning to an E13 “multinational manager or executive”. See 8 C.F.R. § 204.5(j)(3)(i)(B). Following are two standard “blurbs” that are found in many AAO decisions across many of the categories where the issue of an ability to pay (ATP) is essential. Taken together, these two excerpts explain: (1) AAO’s understanding of, critical ATP issues, which is also (2) USCIS’ overall approach to, the ATP analysis for immigrant visa petitions. Many petitions fail on this issue alone. “In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage. If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, USCIS may also consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).” 7 7 FEB102015_04B5203.pdf This excerpt and the next comprise fairly standard representative language that is re-used repeatedly. It is of no significance that these happen to come from EB-2 non-precedential decisions.
  12. 12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 12 “USCIS may consider the overall magnitude of the petitioner's business activities in its determination of the petitioner's ability to pay the proffered wage. See Sonegawa, 12 I&N Dec. at 614-15. The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. USCIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage.” 8 INA § 203 [8 U.S.C. § 1153] (b) Preference allocation for employment-based immigrants Aliens subject to the worldwide level specified in section 1151(d) of this title for employment- based immigrants in a fiscal year shall be allotted visas as follows: (1) Priority workers Visas shall first be made available in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (4) and (5), to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C): (C) Certain multinational executives and managers An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or 8 FEB242015_02B5203.pdf
  13. 13. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 13 corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. INA § 101 [8 U.S.C. §1101] Definitions (a) As used in this chapter- (15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens- (L) subject to section [INA § 214] 1184(c)(2) of this title, an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him; VI. Deference & Collateral Estoppel Based on Use of Same Statutory Definition As shown in the previous section, a single definition may apply to different situations whether similar or different. As also shown above, most but not all eligibility issues will have been settled in the earlier proceeding. The classic exception to deference is the L1-A “new office” extension petition. In fact, it is USCIS’ stated general policy position, to give deference to prior approvals of petitions involving the same parties. However, as the policy memorandum9 on this topic specifically states, at page 2, footnote 1, that it does not apply to L-1 new office extension petitions, which are subject to the very specific evidentiary requirements at 8 C.F.R. § 214.2 (l) (14) (ii). 9 Memorandum of William R. Yates, Associate Director for Operations, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility of Petition Validity, (April 23, 2004).
  14. 14. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 14 Specifically: 1 This memorandum does not cover petitions, or extensions of petition validity, or any other non-immigrant cases, where the initial approval is granted to allow the petitioner and/or beneficiary to effectuate a tentative or prospective business plan or otherwise prospectively satisfy the requirements for the nonimmigrant classification. Nonimmigrant cases of this type include the treaty investor classification, which may require a petitioner to be actively in the process of investing a substantial amount of capital in a bona fide enterprise, and the L-1 "new office" extension petitions. The regulation at 8 CFR § 214.2(l)(3)(v)(C) allows an L-1 "new office" one year from the date of the initial approval to support an executive or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the petitioner's business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension of the visa's validity. One of my favorite immigration-related Circuit Precedents comes from the Ninth Circuit Court of Appeals and clearly lays out how collateral estoppel applies to, and in, immigration cases. Oyeniran v. Holder, No. 09-73683(9th Cir. March 6, 2012)10, explains: “IV. Discussion A. Collateral Estoppel Applies in Immigration Proceedings [1] It is beyond dispute that the doctrine of collateral estoppel (or issue preclusion) applies to an administrative agency’s determination of certain issues of law or fact involving the same alien in removal proceedings. Allen v. McCurry, 449 U.S. 90, 94 (1980); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987) (per curiam) (doctrine applies even when the agency reopens a removal proceeding for new evidence); Matter of Fedorenko, 19 I. & N. Dec. 57, 57 (BIA 1984) (doctrine conclusively establishes the ultimate facts of a subsequent deportation proceeding and precludes reconsideration of issues of law resolved by the prior judgment — absent a change in the controlling law). Collateral estoppel applies to a question, issue, or fact when four conditions are met: (1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits. Montana v. United States, 440 U.S. 147, 153-54 (1979); Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir. 1992). [Slight reformatting for clarity.] 10 See:
  15. 15. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 15 In those cases and situations where a particular fact had to be proven in an earlier stage of a protracted process, in order to obtain a favorable finding on the merits, then there may be a case to apply collateral estoppel and make a claim for deference. The L-1A to EB-1C (E13) transition is a pretty good example of a multistage process with various findings-of-fact being required along the way but also with clear exceptions. As has been discussed above, in the “new office” scenario, all bets are off and a new fresh look is demanded for particular issues. There are two other quite obvious scenarios where an earlier decision may need to be re-determined. In the “blanket” L-petition, USCIS only looks at the eligibility criteria for the petitioning employer. The determination as to the qualifications of the intracompany transferee (L-nonimmigrant employee), is then left to either a Consular Officer or a CBP Officer, based on a “blanket” L-petition, and sometimes when not. At some later date in a future petition, USCIS may be examining primary documentary evidence for the first time. Since USCIS would not have had an opportunity to examine evidence until an extension petition or a transition petition is filed, it has an interest in closely examining all never before seen evidence. VII. Fluid Application of a Concept If a word is used in a statute and that statute does not define that word then there is clearly some room for interpretation. Sometimes, that “room for interpretation” can be problematic if the context clues in the statute fail to point one in a clear direction. The worst variation on this theme is the dreaded, true “ambiguity” left by Congress that must be tackled by an agency because if the agency does not handle it, then a court surely will, at some point which can be ugly and highly impractical. Agencies must be proactive in order to preserve steady
  16. 16. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 16 operation through implementation of a new process that works on its terms rather than impractical directives from a District Judge, or a Circuit or Supreme Court Justice. A prime example of the fluid application of a concept, as opposed to a static meaning and singular course of action, is the main theme of Matter of Cross; namely “legitimation”. Since the affirmative actions that individual jurisdictions demand of unwed fathers in order for them to “legitimate” their “out of wedlock” children is highly variable, it requires a very fluid process to apply the concept to a particular scenario. VIII. My Predictions for Ramifications from & Practical Implications of Cross The word legitimation, or variants of it, appear in the two definitions of “child” that are found in the “Definitions” section of the INA. While legitimate, legitimated, and legitimation, all appear within various definitions, they themselves are not defined under the INA. Instead, the INA being a federal law, is and was read to recognize the general Constitutional condition that within the U.S., “family” or “domestic” legal matters are normally left to the states because they are not assigned to the Federal government in the Constitution. Also recognizing that there are various mechanisms for making legitimation happen among the states, and in other countries, Congress left the term unabashedly ambiguous. The BIA needed to bring some additional clarity to this area as it relates to two specific contexts within its reach. Admittedly,
  17. 17. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 17 at least two other Departments11 also deal with the subject matter discussed in Cross, and have probably been perplexed and likely yearning for some clarity as well. IX. When Must Eligibility EXIST? The simple answer to the simple question: “When must eligibility exist?” is that there actually is no simple answer. Instead, a more realistic answer is: “It depends on what benefit is being requested.” Some benefits may only be requested if the requestor already “qualifies” for a particular classification “at time of filing”. See Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm. 1971). That is the appropriate context for determining eligibility when the filing date has significance. The filing date may have significance when that filing date will be transformed into a “priority date” for visa allocation and issuance purposes if and when that petition is eventually approved. Preference category visas can have a significant waiting period for the actual visa to become available. Since that is the case, it is simply unfair to allocate a “preference” visa to someone who does not qualify for it because improperly accepting a petition a mere few weeks or months early can add years of waiting time for someone else. The issue of eligibility at time of filing, to a lesser degree, is also crucial when “interim benefits” flow from the mere act of having the form accepted by USCIS for filing. The classic example is the application for adjustment of status which offers work authorization and advance parole while waiting. 11 DHS’ immigration agencies: U.S. Citizenship & Immigration Services (USCIS) and its Administrative Appeals Office (AAO); U.S. Immigration & Customs Enforcement (ICE); U.S. Customs and Border Protection (CBP); as well as DOS’ Bureau of Consular Affairs (CA), at the very least.
  18. 18. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 18 A brand-new Precedential Decision from the Fifth Circuit supports the proposition that one of the appropriate contexts for determining eligibility for a particular immigration benefit or form of relief is indeed "egibility at time of final adjudication". See Jose Rodriguez-Avalos v. Eric Holder, Jr., ___F. 3d___(5th Cir. 2015) No. 13-60736-CV March 4, 2015. A new decision on Appeal or upon a Motion fits the “at time of final adjudication” regime quite well for USCIS, AAO, or the BIA. “A motion to reopen is a form of procedural relief that “asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing.” 1 Gordon12 §3.05[8][c].” Dada v. Mukasey, 554 U.S. 1, 12 (2008) While the Supreme Court recognizes that a “change in circumstances since the ‘hearing’” can be reason enough for reopening proceedings, the administrative immigration authorities generally do not. DHS and DOJ generally rely upon the regulatory criteria for Motions to Reopen and Motions to Reconsider found at 8 CFR § 103.5 (AAO, USCIS, ICE), and § 1003.5 (BIA), or § 100.23 (IJ). The “new interpretation” of legitimation announced in Matter of Cross is a change in the law with retroactive effect due to its ameliorative or corrective nature and meets the requirements for reconsideration per regulation. In that the prior law made it futile to submit certain evidence, and the government agencies will not have asked for certain evidence which would have been in support of an, as yet, non-existent criterion; new evidence will most likely be required and thus will meet the requirements for reopening per regulation. 12 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure (rev. ed. 2007) [The leading immigration law treatise, published by LexisNexis/Matthew Bender.] (Supra. As “Gordon”).
  19. 19. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 19 I firmly believe that this most recent reinterpretation of the term “legitimation” within the citizenship/nationality arena is highly likely to spur many Motions to Reopen and Reconsider (MTRRs). They will be based on this new understanding. Motions will need to be supported by a brief; at least a “letter brief” explaining legitimation mechanisms in various countries, provinces and states-whether within the U.S. or abroad; along with some additional evidence to demonstrate the fact of the respondent or appellant having met the newly recognized evidentiary standards under the various legitimation laws. This new development may affect individuals who have already been removed from the United States (deported) or denied entry. It is also possible that some folks are awaiting removal or have even become immigration fugitives, evaded capture, been “no-shows” for Immigration Court; gone underground, or dodged a window for “voluntary departure”. All of those “violations” will drop off the face of the earth and become “null and void”, if citizenship is proven. It may take some time for word to get out among those who need to know about it. There are likely to be individuals in the U.S. who have had N-600 applications denied by USCIS and perhaps Appeals Dismissed by AAO who would now need to file Motions with their local USCIS Offices. I would expect USCIS to try to work out a system to allow a case that had previously been dismissed by AAO to be handled locally with an authorized “late Motion”. Nevertheless, I would also expect that AAO may need a few cases from which to select a cross-section of citizenship claim scenarios for publication as Precedents in “Administrative Decisions Under Immigration & Nationality Laws”, prior to any internal, policy-driven “short-
  20. 20. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 20 term, short-cut” for easy reopening locally. As the underlying premise from Cross becomes more common in citizenship claim cases, additional countries’ legitimation laws will need to be examined. The preceding is merely a suggestion. Regardless of the final details about any potential new Precedents or scenario- specific special handling of MTRs, applicants need to be reminded of the controlling regulations for N-600s that have been denied. An applicant may NOT file a second or subsequent N-600, instead, it is a Motion that is required. The actual controlling regulation is poorly written. It requires a second N-600 to be filed and REJECTED with instructions to file a Motion or worse— if a late Appeal is filed it too is supposed to be REJECTED or “dismissed as untimely” but then a Motion would be filed on the same USCIS Form I-290B for the same fee! Either course of action is idiotic. Certainly that comedic conundrum found its roots in Legacy INS’ penchant to use the regulations to embody its internal processes and procedures; and it was surely more of an instruction to INS mail clerks rather than an instruction to Citizenship Claimants and their Counsel. The Seventh Circuit addressed the crux of this matter when interpreting the most recent past incarnation of the controlling regulation. Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010) provides: “.... Congress's solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congress's concern that individuals be able to settle, definitively, the issue of citizenship.”..... “As we have discussed in some detail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship [should] be filed as a motion to reconsider or to reopen. ...”
  21. 21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________ LESSONS LEARNED FROM STUDYING MATTER OF CROSS, 26 I&N DEC. 485 (BIA 2015) - 21 8 CFR § 341.6 has been repealed, this issue is now covered by 8 CFR § 341.5(e) per 76 FR 53764, 53805 (8/29/11), effective Nov. 28, 2011. The regulation is still clunky. Thankfully, the court stated it in a more workable manner. Dated this 16th of March, 2015. X /s/ Joseph P. Whalen 03/16/2015 Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou,, c=US Date: 2015.03.16 21:02:16 -04'00'