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Farewell Izumi!: Robert Divine And The Return of Precedent

by Gary Endelman

The absence of precedent is the lawyer's worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is secondary and glossing over that which is truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator also is at sea. Uncertain what standards to employ, frustrated by a nagging suspicion that overly clever attempts by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst looks in vain for guidance that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is sure, almost anything can happen.

In the not too distant past, opinions by the INS General Counsel served to provide the interpretive lubricant that made the process go. That ended on July 13, 1998, when the INS Administrative Appeals Office decided Matter of Izumi [1]. After that, for several years, we were on our own as Congress passed one new law after another while the INS went away and its successor agency, the United States Citizenship and Immigration Services, seemed unable or unwilling to use the regulatory process to tell its customers what it expected them to do. Finally, coming to Washington was a lawyer from the Heartland who served as the CIS General Counsel for one year and has been Acting Deputy Director for the past year. His name is Robert Divine and this is his story. Without intending to overthrow Matter of Izumi, he has done precisely that and, for the first time in a long time, the calm of precedent has made itself felt.

On its face, Izumi is a plain and rather tedious case with limited sex appeal, being concerned with the byzantine intricacies of what constitutes a qualifying investment for immigrant visa purposes. Looking a bit deeper, we find more and that is what excites us. The Izumi investors, it seems, had relied for justification of their actions on a December 19, 1997, legal opinion issued by the INS' Office of General Counsel. This did not, unfortunately for them, impress the AAO that was not overawed by the wisdom of such reliance: "OGC memoranda, as counsel himself stated after oral argument, [2] are merely opinions. OGC is not an adjudicative body and is in the position only of being an advisor; as such, adjudicators are not bound by OGC recommendations. See 8 C.F.R. 103.1 (b) (1)." [3] When they switched over to the other side of the street and attempted to portray the General Counsel's memorandum as a substantive rule change that the legacy INS was retroactively applying in violation of the Administrative Procedure Act, the Izumi investors enjoyed the same lack of success:

As noted in the OGC opinion itself, the opinion in no way modifies existing law, but is intended merely to provide guidance to the Service in understanding many factual issues that have arisen over the years with respect to immigrant investor petitions. Providing this type of guidance is the very mission of the OGC, as specifically provided at 8 C.F.R. 100.2(a)(1) and 103.1 (b)(1). These regulations do not delegate any authority to OGC to establish binding legal principles or to exercise any other rulemaking power. Neither the AAU nor other Service adjudicators, therefore, are bound to follow the OGC opinion of December 19, 1997. [4]

The immigration bar was in shock. The verities of accepted wisdom had been shattered but what would take their place in this strange new world?

Stephen Yale-Loehr, head of AILA’s Immigrant Investor Liaison Committee, and perhaps the foremost critic of the havoc that Izumi unleashed, gave voice to the emerging legal reality where borders and definition were a thing of the past:

If immigrants, attorneys and other INS officials cannot rely on official pronouncements by the INS, what can they rely on? Can the AAO or an INS adjudicator ignore a policy directive issued by the INS Commissioner? I doubt it. Then why not legal opinions issued by the INS General Counsel, most of which are usually thoroughly vetted within the agency for months before they are released? The AAO’s statements on this issue undercut the ability of the public to rely on the many policy pronouncements that fill in gaps in the regulations and which are supposed to let us know how the agency will interpret its regulations. Without such reliance, we have bedlam. (emphasis added). [5]

Agile minds like Ron Klasko realized that, if the General Counsel’s views did not bind the INS, they did not bind him either, while zealous litigators like Ira Kurtzban and Dale Schwartz sought in the courts the justice their clients could no longer expect from the INS. The only  thing that was certain was the utter absence of certainty itself.

Enter Robert Divine, loyal Republican and legal scholar, fresh from his vibrant law practice in Tennessee to tell Bill Yates and the USCIS how to stay smart and on the right side of the law. Divine was not on crusade against Izumi. There is no indication that he consciously set about to cast it aside or even that he thought about it very much. One doubts that Izumi disturbed the serenity of his nocturnal slumber. His was a less lofty but equally important and infinitely more practicable goal, to give USCIS adjudicators the guidance they needed to resolve thorny questions of interpretation and do a good job. Acting carefully, moving slowly, picking his spots with great precision, he restored the relevance of precedent without launching a frontal attack against Izumi that, in theory, retains the same validity that it has always had. Don't believe it for a second. We live in changed times. On three separate occasions, Mr. Divine has restored order to our universe. In each case, the precedent decision came from the Administrative Appeals Office. In each case, there were no binding regulations to decide the issue. In each case, what the CIS had to say was the final word. As Mr. Divine recently explained to the 2006 Spring Continuing Legal Education Conference of the American Immigration Lawyers Association held in Washington, D.C, he spoke out for a reason on issues " where CIS is the only decision maker that addresses that issue, it makes sense for us to designate decisions that we consider precedent , and that are policy of this agency, and so we've been doing that… and they all go up on the website." [6]

On October 18, 2005, Acting Deputy Director Divine designated Matter of IT Ascent, EAC #0404753189 as binding precedent for all USCIS adjudicators. [7] No longer would overworked INS adjudicators have to waste time and energy trying to figure out  if L-1 or H-1B absences from the United States were “meaningfully interruptive”; the alien now only had to show that he or  she was not here. Makes sense, so much so that you wonder why someone did not think of it earlier. Well, they didn’t and, even if they had, with Izumi having defanged the Office of General Counsel, how would anyone make it stick? That same day, Mr. Divine designated another decision out of the California Service Center, Matter of ___________, WAC 02 282 54013, 2005 WL 1950775 ( January 12, 2005) [8] that, at long last, made it clear that, at least so far as the USCIS is concerned,there can be no adjustment of status portability without an approved I-140 immigrant petition; by itself, keeping an adjustment case alive for 180 days is not enough. Whether we agree or disagree with this interpretation, Mr. Divine has finally and thankfully given us one. Now we have something to guide us. Subsequently, on January 11, 2006, Mr. Divine again exercised his authority as USCIS Acting Deputy Director to designate the decision of the Administrative Appeals Office in Matter of Chawathe [9] so that lawyers and adjudicators would now be able to determine if an alien worked for an American firm or corporation for purposes of avoiding disruption of residence in the naturalization context. Divine sought results, correct decisions correctly arrived at. He was, as any skilled advocate must be, interested not in making law but solving problems. Until he acted, it was virtually impossible for aliens who worked for publicly-traded companies from proving the nationality of their employer. [10]

Precedent tells those who drive what the rules of the road are. That is Robert Divine’s great achievement. Acting not to exalt the power of his office or create new theories, he has restored clarity and stability to important questions of law at a time when both qualities were sorely lacking. The fact that he has not been on a crusade to vanquish the ghost of Izumi makes the practical import of his having done precisely that no less telling. The immigration bar and the USCIS need each other; neither benefits over the long run if confrontation, not cooperation, rules the day. Those who work in the trenches of our Service Centers and decide these cases for a living have a right to know, particularly in the absence of regulation, what the legal position of the USCIS is on questions that come before them .The fact that Robert Divine has only acted with utmost care is less important than the mechanism he has established despite Izumi, a way around chaos that will be there for future USCIS policymakers to use with greater frequency as the needs of the moment and the interests of the Agency dictate.

This is not necessarily an ideal state of affairs. There is no opportunity for public notice and comment. Concerned interest groups will not feel a sense of ownership in a rule of law they received but did not help to create. Given the breakdown in the traditional regulatory process that has plagued the USCIS and the legacy INS , it would serve the national interests better if the USCIS leadership trusted the American public and the immigration bar, not to mention themselves and their own adjudicators, enough to invoke the Negotiated Rulemaking Act of 1990 [11]. Allowing all concerned factions to sit at the same table and work together to craft the rules by which they would then have to live would diminish the need for and number of public comments following the promulgation of a proposed rule. Other benefits must surely follow. Negotiated rulemaking would shorten the notice and comment period, limit the substantive changes necessary before the rule goes “live” and virtually eliminate the prospects for litigation that sought to challenge the rule itself. [12] If Mr. Divine and his colleagues doubt that negotiated rulemaking would work, perhaps they would take time to examine the congressional findings that accompanied the Negotiated Rulemaking Act; there, they will soon find that “reg neg”, as it is affectionally called by its growing army of devotees, offers an unparalleled opportunity for civic involvement and  the amelioration of highly polarized issues that had proven stubbornly resistant to solution through traditional rulemaking.  Yet, until that enlightened day of deliverance arrives, we have to muddle along as best we can using the tools at our disposal. Having restored the relevancy of precedent, Robert Divine has given us a great big one whose careful deployment deserves the hearty hosannas of good men and women everywhere.


1Matter of Izumi A 76 426 873 ( Decided by Associate Commissioner, Examinations, July 13, 1998)

2 While allowed in regulation, oral argument rarely plays a role in AAO decision making. That it did here is a sure sign that Izumi was a big deal.

3 See Matter of Izumi, slip op. at 20.

4 Id. at 27.

5 Matter of Izumi: Why All Immigration Lawyers Should Be Worried ( AILA InfoNet Doc. 98081840 posted on Aug. 18, 1998).

6 See 83 Interpreter Releases 794-795( April 24, 2006). All precedent decisions can be found on the USCIS website at

7 See Memorandum from Michael Aytes, Acting  Assoc. Comm’r for Domestic Operations, Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission for H-1B and L-1 Nonimmigrants (Oct.21, 2005) reprinted in 10 Bender’s Immigration Bulletin 1810, 1811 ( Appendix B, Dec. 4, 2005).

8 See 82 Interpreter Releases 1795 (Nov. 7, 2005) and 7 Immigration Business News & Comment 245, 246-247( Dec. 1, 2005).

9 Matter of Chawathe,  A74 254 994 (AAO, January 11, 2006). Both the decision and Acting Deputy Director Divine’s designation of it as precedential are reprinted at 11 Bender’s Immigration Bulletin 191-201 (Appendix C, Feb. 15, 2006) and at 83 Interpreter Releases 225-232 ( Jan. 30,2006)(Appendix II).

10 Matter of Warrach, 17 I&N Dec. 285, 286-87 (Reg. Comm.1979) tried to solve the problem but it was as clear as mud. Under the Warrach test, the nationality of a company was determined by the nationality of those who owned 51% or more of its stock. However, since this changed every second of every hour of each trading day when Wall Street was open, nobody could figure this out. Chawathe  gives us something that mere mortals can use, so that your client can file an N-470 to protect his naturalization case while working overseas if his or her company was both incorporated in the United States and traded its stock exclusively on US markets. Only if this more flexible standard could not be met would it be necessary to crack the Da Vinci code and interpret Matter of Warrach.

11 5 U.S.C. Sec. 561-570. For an in-depth examination of negotiated rulemaking and its many virtues, See Gary Endelman, Go As Far As You Can: How Negotiated Rulemaking in Immigration Benefits America, 8 Bender’s Immigration Bulletin 1110-1115 (July 1, 2003).

12 So rare is it for a negotiated rule to be challenged in the courts that there is only one reported precedent . U.S.A. Group Loan Services Inc. v. Riley, 82 F.3d 708(7th Cir. 1996)( discussing student loan servicer’s complaint that the Department of Education negotiated in bad faith).