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Firstland International: An Insider Perspective

by Alan Lee, Esq.

Firstland International v. INS, 03-6139 (2d Cir., 8/2/04) is an important case in immigration law as it dealt with an issue of first impression in the Second Circuit which had been decided in the government's favor by three circuit courts and for aliens in one circuit concerning the court's right to review discretionary decisions by the government in immigration cases; and an issue of first impression nationwide in the circuit courts concerning the power of the government to revoke an immigrant visa petition once aliens had embarked on their journeys to the U.S. The Second Circuit found in favor of the appellants, Firstland International and Chai, on both issues following oral argument on February 18, 2004, and submission of supplemental briefs. Appellants were represented by the law firm of Alan Lee, Esq. and Mr. Lee argued the case for the appellants before the court. Amicus briefs were submitted by the American Immigration Lawyers Association, American Council on International Personnel, and the U.S. Chamber of Commerce. The following is Mr. Lee's account of the case and what it may mean to aliens in the future.

Since winning the landmark case of Firstland International v. INS before the Second Circuit Court of Appeals (decision rendered on August 2, 2004), many people have asked us what the case is all about, and why it is important.

Firstland International involved a small company, Firstland, and its chief executive in the United States who had been transferred from the parent company headquarters in China to lead the development of the company in New York. Mr. Chai, the chief executive, entered the United States on an L-1A intracompany transferee visa to work in the subsidiary company after the company had sized up the U.S. market for months before deciding that this was a viable move. The company began to develop its sales in the States becoming fairly profitable in the next year. It then requested an extension of the L-1A visa for Mr. Chai which was approved after the INS requested and received from the company voluminous documentation to prove that Mr. Chai fit within the category of an executive/managerial employee. Following the extension approval, the company applied for an immigrant visa petition (I-140) to the INS on behalf of Mr. Chai because it believed at that point that he would be important in the expansion of the U.S. company on a long-term basis. The I-140 petition's purpose was to prove to the INS that the company was viable, the subsidiary-parent relationship still existed between the two companies, and Mr. Chai was qualified for the position. The petition was soon approved affirming that Mr. Chai was indeed an executive/managerial worker for the U.S. subsidiary and entitled to EB1-3 classification as an intracompany transferee for immigrant visa purposes. Mr. Chai and his family then submitted the last step--I-485 adjustment of status to permanent resident applications--to the INS. During the period of I-485 processing, INS began questioning the executive/managerial designation that it had already given to Mr. Chai multiple times, and then revoked his approved petition -- this despite the facts that Firstland had only grown in number of employees and revenues from the time of its establishment until the time of petition revocation. Although the INS had a longstanding policy that its officers should not readjudicate issues which had been decided in prior adjudications absent gross error or fraud and we pointed this out multiple times to the INS in the course of these proceedings, it ignored the policy and fought us at every turn from administrative appeal within the INS to the suit that we filed in the federal district court.

In that proceeding, the district court for the Eastern District of New York dismissed our suit on the basis that it had no jurisdiction to hear the case because we were challenging a provision of law -- revocation proceedings -- which the court believed was left to the discretion of the Attorney General. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the federal courts had power to decide cases over discretionary decisions of the Attorney General. However, IIRIRA implemented section 242(a)(2)(B)(ii) of the Immigration and Nationality Act (INA) which stated that no court could have jurisdiction to review decisions or actions of the Attorney General the authority for which was specified under the law to be in the discretion of the Attorney General, other than the granting of political asylum relief. The government's position was that the revocation section, Section 205 of the INA, was discretionary and outside court review as its wording clearly stated that the Attorney General could at any time for what he deemed to be good and sufficient cause revoke a visa petition.

Following the dismissal in the District Court, we appealed to the highest federal court beneath the Supreme Court, the Circuit Court of Appeals. (In the nation, there are 11 federal courts of appeal plus the D.C. Court of Appeals, each responsible for federal decisions in different regions of the country). In deciding our appeal, the Second Circuit Court of Appeals which has jurisdiction over the states of New York, Vermont and Connecticut upheld us on the jurisdictional issue. Although not citing the numerous decisions of other circuit courts of appeal which have agreed with the government's position in sections of the INA giving discretion to the Attorney General ( the Sixth Circuit which covers Ohio, Michigan, Kentucky and Tennessee, the Seventh Circuit covering Illinois, Indiana and Wisconsin, and the 10th Circuit covering Wyoming, Utah, Colorado, Kansas, Oklahoma and New Mexico) or the one circuit court which has carved out an exception ( the Ninth Circuit covering the states of California, Alaska, Washington, Montana, Idaho, Oregon, Nevada, Arizona, and Hawaii), the court signaled its favor with the Ninth Circuit's rulings by finding restrictions on the exercise of discretion by the Attorney General and concluding that there was no statutory basis for the decision as it was not "specified" to be in the discretion of the Attorney General. At issue was the third sentence of section 205 that "In no case, however, shall such revocation have effect unless there is mailed to the petitioner's last known address a notice of the revocation and unless notice of the revocation is communicated to the beneficiary of the petition before such beneficiary commences his journey to the United States." The government argued that the third sentence only applied to individuals residing overseas, and not to Mr. Chai since he had already been admitted to the U.S..
In finding a restriction to a statute which otherwise appeared to give great discretion to the INS, the court seemed to agree with the Ninth Circuit's view that each exercise of discretion by the Attorney General must be examined closely to determine whether any boundaries to discretion exist which would take the disputed provision out of section 242(a)(2)(B)(ii) 's bar against judicial review.

At this time, there are many deserving cases which are no longer being heard in the federal courts because of section 242(a)(2)(B)(ii). Unfortunately the inability to have a federal judge hear claims where discretion is given to the Immigration Service has emboldened it in denying cases like Firstland. Hopefully this case will help turn the tide against the expansive use of the bar against judicial review. The importance of having another circuit court speak out in favor of judicial review cannot be overstated, especially the Second Circuit, which is highly respected for its scholarship and the quality of its rulings and is arguably the most influential circuit court in the country.

The court's major ruling in Firstland (once past the jurisdictional question) was that the Attorney General has no power to issue a revocation of an approved immigrant visa petition once an alien has embarked on his/her journey to the U.S.. In this case, Mr. Chai was in the U.S. at the time that his I-140 petition was approved. In our research, this was an issue of first impression which had never been decided previously by any circuit court - only by an Oregon district court and the Board of Immigration Appeals, both of which had ruled in favor of the government. We argued that once approved, Mr. Chai's status could only be attacked in proceedings before an immigration court in which he would enjoy a fairer standard of proof than in revocation proceedings in which the Attorney General could revoke at any time for what he deemed to be good and sufficient cause. In this regard, we relied upon the fourth sentence of section 205 that "If notice of revocation is not so given, and the beneficiary applies for admission to the United States, his admissibility shall be determined in the manner provided for by sections 1225 and 1229a of this title." (Sections 1229 and 1229a deal with initiation of removal proceedings and removal proceedings respectively). We further pointed out analogous situations in which the Board of Immigration Appeals had upheld the authority of immigration judges to examine the merits of visa petitions in exclusion and deportation proceedings. The court in ruling for us held that under the plain language of the statute, a decision by the INS to revoke its approval of a visa petition has no effect unless the alien receives notice of the revocation from the Secretary of State before departing for the United States. The court found no ambiguity in the notice requirement of the statute. The court noted INS's complaints that the court in so ruling as it did would unsettle the adjustment of status process and result in additional administrative burdens on the agency, but stated that if the INS was correct, it could petition Congress to amend the statute. It concluded tongue-in-cheek that if there was merit in the INS's stated concerns for the future, it should not be difficult to obtain from Congress an appropriate technical amendment to the statute.

At this time, the case of Firstland is not yet over as the government has the right to request a rehearing before the panel of judges that decided the case or before the entire Second Circuit bench or to appeal the case to the Supreme Court. Regardless of the ultimate outcome, the Second Circuit's decision makes the positive statement that there are boundaries to the government's grasp for power and the court is ready to play its part in the checks and balances which frame the nation's three branches of government.


About The Author

Alan Lee, Esq. is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was given two awards by the Taiwan government for his work protecting human rights in 1985. Readers may visit Mr. Lee's website at http://www.alanleelaw.com.


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