The Need For An Adopted Decision To Standardize Discretionary Adjudications Under 8 C.F.R §214.1(c)(4) And The Theory Of Nunc Pro Tunc
It is not uncommon for immigration practitioners to encounter cases where clients have suffered an inadvertent lapse in nonimmigrant status due to unavoidable causes, ineffective assistance of counsel, or other inauspicious circumstances.
Prior to the enactment of the Immigration and Nationality Act (INA) of 1952, case law already permitted the forgiveness of a lapse in status as a matter of discretion. Subsequently, 8 C.F.R. §214.1(c)(14) was implemented to afford relief to unwitting aliens who fall out of status without any fault of their own.
Unfortunately, the U.S. Citizenship & Immigration Services (USCIS or the Service), and its predecessor agency, Legacy Immigration and Naturalization Service (INS) have embarked on a trend aimed against specifying the reasons for denying discretionary relief in various areas of immigration law.
This article will explore the problem in the area of discretionary decisions under 8 C.F.R. §214.1(c)(14) and the legal theory of nunc pro tunc and suggest a plausible solution that will establish a uniform policy and alleviate the unjust results of the current adjudicatory scheme.
I. Nunc Pro Tunc
The legal theory of nunc pro tunc has been in existence since prior to the 1952 INA. It allows the Service the discretion to permit a client beneficiary to retroactively re-apply for nonimmigrant admission. See, Matter of S-N-, 6 I&N Dec 73, 76 (AG 1954). If granted, client beneficiary’s status is restored as if no lapse had ever occurred.
In the time leading up to the terrorist attacks of September 11, 2001, nunc pro tunc adjudications generally received favorable review by Legacy INS, provided the request contained detailed explanations and appropriate documentary evidence to justify the late filing. However, subsequent to 9/11, favorable nunc pro tunc adjudications became less common, and perhaps understandably so, given the Service’s shift of focus to national security.
In 2004, the Service unveiled its new dual focus: national security and backlog elimination. The balance of these two important objectives have brought changes to they way cases are adjudicated. Unfortunately, favorable nunc pro tunc adjudications remain the exception, not the rule, regardless of the strength of the evidence submitted.
II. The Regulatory Basis to Excuse a Lapse in Status
Subsequent to the 1952 Act, a new regulation emerged to define the basis by which to adjudicate a request to excuse a lapse in status. The regulation at 8 C.F.R 214.1(c)(4) provides that a failure to file for extension of nonimmigrant status before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:
Again, prior to 9/11, relief under this regulation posed no barrier against favorable adjudication provided the regulatory elements were met. Since then, a reverse trend has emerged and remains unchecked.
It is fair to say that in a minority of cases – and often dependent upon the current “mood” of the Service Center in question - invocation of this regulation with appropriate supporting evidence can result in a positive outcome. However, the common trend now is for the Service to summarily deny these requests without any reference to the applicability of 8 C.F.R 214.1(c)(4) and the adequacy of the supporting documentation presented. This practice poses potentially catastrophic consequences which the regulation intends to prevent.
III. Service Policy on the Issuance of Denials vs. Actual Practice
In early 2005, the USCIS firmly reminded adjudicators of the regulatory requirement that denials must be rendered with legal sufficiency to withstand judicial scrutiny. In a Memorandum dated February 16, 2005, USCIS Director of Operations, William R. Yates, announced this policy in an effort to increase the efficiency of the Service’s adjudicatory process with an aim of reducing the backlog.
Specifically, Mr. Yates said that the Service is “committed to providing quality decisions.” Therefore, “adjudicating officers must evaluate records of proceeding in their entirety and are required by regulation to clearly explain the specific reasons for denial. Denials should be written with sufficient specificity to withstand judicial scrutiny and must include proper notice of any applicable appeal process to the applicant or petitioner. In complex situations, consultation with supervisors or USCIS counsel may be appropriate and is encouraged.”
Likewise in the context of late filings, it is clear that the Service is required to issue specific decisions that detail the reasons for a denial under 8 C.F.R. §214.1(c)(4) and nunc pro tunc. In other words, the policy requires adjudicating officers to explain “with sufficient specificity to withstand judicial scrutiny” why the arguments raised in an application do not warrant a favorable exercise of discretion.
Unfortunately, the Service has not been too keen in following its own rules in this area. For example, in one case, an alien’s H-4 status had expired on May 30, 2005. However, due to miscommunication, counsel was unable to timely file the application for H-4 extension concurrently with the extension of the principal alien’s H-1B extension petition. As a result of the inadvertence, a nunc pro tunc application for extension of H-4 nonimmigrant status was filed only on August 23, 2005. The remedial provisions of 8 C.F.R. §214 (c)(4) were raised, arguing, among others, that the lapse was completely unintentional and beyond the alien’s control. Nevertheless, the Service denied the application with only a brief statement saying:
“You have failed to maintain your nonimmigrant status because your authorized stay expired prior to filing this application and you have given no justifiable reason for the delay in submitting your application. Your authorized stay expired on May 30, 2005 and you filed this application on August 23, 2005.”
And to further complicate these issues, under 8 C.F.R. § 214.1(c)(5), there is no appeal of a decision by the Service to deny an application for extension of nonimmigrant status. The practitioner is only left to file motions to reopen or reconsider in order to obtain a just result.
Perhaps this issue is ripe for a new mechanism to level the playing filed with an aim at eliciting fair adjudications from the USCIS.
IV. The Mechanism of the Adopted Decision
One possible source of precedent decisions binding upon the Service are those rendered by the Administrative Appeals Office (AAO). Decisions by the AAO become binding upon USCIS upon the Commissioner’s designation. Once chosen as precedent, these decisions become binding on all officers and employees of the USCIS pursuant to 8 C.F.R. §103.3(c).
However, only a small proportion of the decisions rendered by the AAO are designated as precedent decisions. The ratio of binding to non-binding AAO decisions has been historically small. The non-binding status of many decisions on point has frustrated practitioners for not being able to use them in support of their cases.
Fortunately, a recent USCIS initiative by Acting Deputy Director, Robert Divine, has created hope that a faster, more standardized national policy can be easily implemented for adjudicators to follow.
In line with this effort, Director Divine adopted three recent AAO decisions as binding upon the USCIS, without waiting for the AAO (as a representative of the Commissioner) to designate them as such. The two AAO decisions relate to the recapture of H-1B time spent outside the U.S. and permanent portability under AC21, respectively. The final, and most recent, adopted decision involved what constitutes an “American firm or corporation” for purposes of Section 316(b) of the INA. This decision also reemphasized the preponderance of the evidence standard, which had been previously discussed in a USCIS policy memorandum.
In the area of discretionary decisions governing lapse of non-immigrant status, only one federal court case addresses the issues appropriately.
V. Evangelical Lutheran Church in America v. INS
In Evangelical Lutheran Church in America v. INS, 288 F. Supp. 2d 32, 2003 U.S. Dist.LEXIS 19318 (U.S. Dist. D.C. 2003), the employer of an alien on H-1B visa had failed to timely file a petition for extension of the alien’s nonimmigrant status.
In this case, Evangelical Lutheran Church in American (“Petitioners”) hired the beneficiary as a Financial Systems Analyst and in December 1999, filed an H-1B visa petition on the latter’s behalf. Legacy INS approved the visa petition on April 6, 1999, with a validity period commencing on April 2, 1999, and ending on November 1, 2001.
Thus, the Beneficiary’s H-1B visa, and, according to governing regulations, his lawful stay in the U.S., expired on November 1, 2001. However, the petition for extension of his H-1B status was not filed until January 4, 2002, more than two (2) months after the status had lapsed. The employer invoked 8 C.F.R 214.1(c)(4) and raised several grounds to excuse the delay, namely: (a) Petitioner had not retained its own counsel when Beneficiary’s initial H-1B filing was prepared, hence, Petitioner was not advised of the impending expiration date; (b) Petitioner did not have a calendaring system to keep track of applicable deadlines; (c) Petitioner was inexperienced in immigration matters because it employed only two H-1B employees; and (d) Beneficiary believed that he was in valid H-1B status until April 2002.
Legacy INS denied the petition primarily on the ground that the petition was filed late and the alien had been out of status for over two (2) months. Petitioners then filed several Motions to Reconsider or Reopen, reiterating the request for the Service to exercise its discretion to excuse the late filing. These Motions were denied, without addressing the proffered explanation for petitioner’s failure to timely file for extension.
Petitioner then sought relief in federal court to challenge the Services’ refusal to exercise its discretion.
The District Court, in addressing the issue of jurisdiction and reviewability of the INS decision, said that “while it may not be able to quarrel with an INS determination that there are no ‘exceptional circumstances…commensurate with the delay” sufficient to mandate utilization of 8 C.F.R 214.1(c)(4)’s safety valve provision, the court may, at the very least, ask whether the INS recognized its ability to utilize that instrument.”
The court then held that, in this case, “the INS blithely ignored its ability to utilize 8 C.F.R. §214.1 (c)(4) and its corresponding obligation to consider whether the grounds set forth by plaintiffs constituted “extraordinary circumstances” sufficient to trigger §214.1(c)(4)’s safety valve provision. This is evident in the INS’s denial of plaintiff’s first and second Motions to Reopen. In those opinions, the INS merely stated: ‘The requested extension of stay was denied because the petitioner failed to establish that the beneficiary was maintaining valid nonimmigrant status at the time the instant petition was filed.’… These statements certainly make it appear that the INS did not consider the possibility of excusing the untimeliness of plaintiff’s application.”
The court further said that “defendants never satisfactorily explained whether the INS: (1) had discretion to excuse plaintiff’s late filing and exercised it or (2) had no discretion and acted accordingly. Moreover, the administrative record never demonstrates that, even assuming the INS had discretion, it actually evaluated plaintiff’s petition under the appropriate standard, as set forth in §214.1 (c)(4)…the administrative record, on which the court must rely, is devoid of any indication that the INS specifically considered plaintiff’s proffered explanation for the delay and found it wanting.”
Finally, the court emphasized that it was “troubled by the apparent deficiency of the INS’s decision-making process.” It reminded the Service that “the requirement that agency action cannot be arbitrary or capricious includes a requirement that the agency adequately explain its result…An agency must therefore ‘take whatever steps it needs to provide an explanation that will enable the court to evaluate the agency’s rationale at the time of decision.’” Pension Benefit Guar. Corp v. LTV Corp., 496 U.S. 633, 654, 110 L. Ed. 2d 579, 110 S. Ct. 2668 (1990).
VI. Evangelical Lutheran Church Should be Adopted as Binding
Because there is no appeal from a denial of an extension of status, there is no real process by which to obtain a precedent AAO decision in this area. A request for judicial review in federal court is often problematic. The federal circuits are split on whether INA 242(a)(2)(B)(ii) is an absolute bar to judicial review in the immigration context. Some courts have said the bar applies only to removal proceedings, while others have ruled that the bar is absolute. But the issue here is not whether the federal courts have jurisdiction to review erroneous denials. The issue is what must USCIS do to comply with the requirement regarding adequately explained decisions.
Unfortunately, absent a designation of Evangelical by USCIS Deputy Director, Robert Devine, as an Adopted Decision, the applicability of Evangelical’s holding would otherwise be limited only to the federal district where the case was decided; it could be used as persuasive evidence in the Service Centers, but it is likely that the Service Center will disregard the argument.
Evangelical should therefore be adopted as binding because it reiterates the critical principle that the Service has a general duty to render decisions that “adequately explain its result,” as stated in the US Supreme Court’s holding in Pension Benefit, which the Evangelical court extended to the immigration law context.
Without the Service’s recent initiatives to establish a more uniform policy, there is, unfortunately, no other method to obtain an AAO precedent decision in this area that can be adopted as binding upon the Service. The only way to establish uniform and fair policy is to adopt Evangelical Lutheran Church of America as binding upon the Service. Such an action would not only set a fair standard of adjudication to the rules governing lapse of non-immigrant status, but it could potentially be expanded into other areas of discretionary relief.
1An article analyzing the first set of adopted decisions by Romulo Guevara and Tiffany Biason appeared on ILW.com in November 2005. Click here to view this article.
2 Click here to view the USCIS memo dated January 11, 2006.
3 See, CDI Information Services, Inc. v. Reno, 278 F. 3d 616 (6th Cir. 2002); Samirah v. O'Connell, 335 F. 3d 545 (7th Cir. 2003).
© 2006 by Romulo E. Guevara
Romulo E. Guevara is a senior attorney with Littler, Mendelson, Bacon, & Dear, PLLC in Phoenix, Arizona, where he specializes in business immigration law for large corporate clients. He is a member of the AILA Young Lawyers Division (YLD) National Steering Committee. Rómulo frequently contributes articles analyzing the latest developments in immigration law to a wide variety of immigration law journals. He has also lectured at conferences for AILA and ILW.com, and has served as Associate Editor on recent AILA publications. Rómulo graduated from Hofstra University School of Law in 1996 and has been practicing immigration law since 1997. He is originally from El Salvador.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.