An Increasing Need for Joint DOJ-DHS Immigration Rulemaking
Need for EOIR Rulemaking
The various Circuit Courts of Appeals have recently sent back some cases for the purpose of directing the BIA to provide more detailed analyses so as to give the Court something to review in greater depth. Additionally, there is a continuing question as to how filing time for Motions should be tolled based on ineffective assistance of counsel as well as what constitutes proper service of a decision when the counsel of record has been suspended or expelled by the BIA from practice before EOIR and DHS. Additionally, the interplay between EOIR (IJ's and the BIA) and DHS (ICE, CBP, and USCIS) needs further examination and would benefit from a further joint rulemaking on cases involving citizenship claims made initially in Proceedings before an IJ.
These first four sample Circuit Court cases represent remands on both substantive and procedural grounds that needed to be "fleshed out". These remand decisions serve to highlight the need for the EOIR to make headway on the rulemaking that was directed in Attorney General Holder's first published immigration decision. A further BIA decision and related discussion on USCIS citizenship claim cases will highlight the value of a joint rulemaking.
Commonly called "Compean II", Decided by Attorney General June 3, 2009:
"The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel." Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009).[Emphasis added.]
Dong v. Holder, 10-1118-ag (2nd Cir. April 21, 2011 1) provides, in part:
"In the present case, the BIA abused its discretion in failing to address Dong's argument that the BIA did not properly send its decision to an appropriate party, when it sent the decision to the address of the Porges Law Firm at a time when the BIA knew that Robert Porges had been expelled from practicing before the BIA. Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (holding that "[a]n abuse of discretion may be found . . . where the [BIA's] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner" (citations omitted))."
Arias-De Alvarado v. Holder, 10-544-ag (2nd Cir. April 21, 2011 2) provides, in part:
"Contrary to the government's contention, remand would not be futile because we cannot confidently predict, see Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009); Diallo v. U.S. Dept. Of Justice, 548 F.3d 232, 235 (2d Cir. 2008), how the BIA will decide whether its underlying decision was sent to an "appropriate party" in a manner that satisfied its obligations, and whether any failure in that regard meant that the time limitation for filing a motion to reopen did not commence, see Ping Chen, 502 F.3d at 76-77; 8 C.F.R. 20 §§ 1003.1(f), 1292.5(a)."
Substantial evidence does not support the BIA's determination that Arias-De Alvarado's purported social group, single mothers without male protection, is not cognizable under the Immigration and Nationality Act. The BIA has long interpreted the term "social group" to mean "a group of persons all of whom share a common, immutable characteristic." Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. Mar.1, 1985). A cognizable social group must (1) exhibit a shared characteristic that is socially visible to others in the community and (2) be defined with sufficient particularity. See In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (B.I.A. Jan.31, 2007) aff'd by Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per curiam). Here, the BIA's finding that the purported group lacked the requisite social visibility or particularity is not supported by any explanation or analysis. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) (holding that the Court requires a "certain minimum level of analysis from [agency decisions] denying asylum, and indeed must require such if judicial review is to be meaningful") (quoting Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005))." *****
"Because the BIA has not provided sufficient analysis for our review to be meaningful, remand is appropriate. See Beskovic, 467 F.3d at 227."
Ren Quan Zheng v. Atty Gen USA, No. 10-3124 (3rd Cir. 04/19/11 3) provides, in part:
"Zheng argues that the BIA abused its discretion by basing its decision on a selective reading of the evidence and discussing only one of Zheng's articles in its decision. Indeed, with respect to its finding that Zheng's argument of changed country conditions is not supported by the proffered evidence, the BIA stated only that "[t]he conditions discussed in the respondent's articles illustrate continuing conditions in China, reflected by, inter alia, the 4 year span in reportage. In fact, the November 30, 2006, New York Times article indicates that underground churches have experienced strife since the Falun Gong movement in the late 1990's." A.R. 3 (citation omitted). The BIA did not mention or explain why other articles describing "worsening" conditions and "new crackdowns" on Christians during the 2006-2009 period were insufficient to support Zheng's position, even though Zheng discussed these articles in his brief to the BIA. We add the BIA mentioned the letters submitted as evidence, but it provided no explanation why they did not support Zheng's application.
Although the BIA need not "parse or refute on the record each individual . . . piece of evidence offered by the petitioner," it "should provide us with more than cursory, summary or conclusory statements, so that we are able to discern its reasons for declining to afford relief to a petitioner." Zheng v. Att'y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). In Zheng, we vacated the BIA's denial of two motions to reopen based on changed country conditions in China because the BIA failed to discuss in an adequate fashion the petitioners' evidence or explain why the evidence was not sufficient. See Zheng, 549 F.3d at 268-69, 271. We reach the same result here.
In its brief, the government discusses the evidence submitted by Zheng and argues why it believes that it does not demonstrate a change in country conditions. None of this reasoning is present in the BIA's decision. We may only review the BIA's decision based on the rationale that it provided. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Konan v. Att'y Gen., 432 F.3d 497, 501 (3d Cir. 2005). Because the BIA's decision does not allow us to discern its reasons for denying the motion to reopen, we will grant the petition for review and remand for further proceedings."
Footnotes from original:
"In reviewing the BIA's ruling on Andrews' appeal from the denial of her motion to reconsider, which included challenges to the IJ's denial of her equitable tolling and ineffective assistance of counsel claims, we must necessarily look back to the IJ's denial of her motion to reopen. In general, motions to reopen must be filed within ninety days from the date "of entry of a final administrative order of removal." 8 C.F.R. § 1003.23(b)(1); see also 8 U.S.C. § 1229a(c)(7)(C). The time limit for filing a motion to reopen is subject to equitable tolling. See Borges, 402 F.3d at 406. Ineffective assistance of counsel can provide a basis for equitable tolling of the time to file a motion to reopen. Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). If ineffectiveness is substantiated, a petitioner must also demonstrate that she diligently pursued her claims. Id. at 252.
Andrews does not dispute that her motion to reopen, filed over two years after the removal order, was untimely. Rather, she challenges the BIA's determination that she was not entitled to equitable tolling of the time limit based on her claim of ineffective assistance of counsel.
After the IJ issued the removal order, Mazzocchi told Andrews that it was "useless" to file an appeal. In the next year, Andrews made contact with him only twice, and when she did speak with him, he told her that he had filed a petition for humanitarian relief, that her case was pending, and that it was "a good sign" that he had heard nothing back from the government. She eventually consulted with a second attorney, Sirota, and hired him once she realized that Mazzocchi was not acting on her behalf, despite his assurances that she did not need to take any further action in support of her case. Sirota also failed to pursue her case, and eventually returned her fees. We hold that Andrews acted reasonably and diligently in relying on Mazzocchi's representations and assurances. Accordingly, we conclude that the BIA abused its discretion in determining that Andrews had not diligently pursued her claims.
The BIA held, in the alternative, that Andrews had failed to demonstrate that Mazzocchi's representation was deficient. We disagree. He first told her that an appeal would be "useless." This does not appear to be the case. Had Mazzocchi filed a timely appeal, Andrews' LPR time would have continued to run. In re Lok, 18 I. & N. Dec. 101, 105 (BIA 1981) (LPR status ends "when the [BIA] renders its decision in the case upon appeal or certification or, where no appeal to the [BIA] is taken . . . or the time allotted for appeal has expired"); see also Katsis v. INS, 997 F.2d 1067, 1075-76 (3d Cir. 1993). Had counsel filed an appeal, it is probable that she would have accrued five years of lawful permanent residence while the BIA considered her appeal. She therefore would have been eligible to apply for cancellation of removal. Additionally, as stated above, Mazzocchi never petitioned for humanitarian relief as he said he did, and he avoided communicating with Andrews for over a year about the status of her case. When he did speak with her, he deceived her. Accordingly, we find that counsel's performance was indeed deficient, and we will remand the matter to the BIA for consideration of whether that deficient performance prejudiced Andrews. See Fadiga v. Att'y Gen., 488 F.3d 143, 157-59 (3d Cir. 2007).
Because Andrews has demonstrated that she diligently pursued her claims and that her attorney's representation was deficient, we will vacate the BIA's decision and remand the case for consideration of whether Andrews was prejudiced by her attorneys' ineffectiveness."
Summary of Need for EOIR Rulemaking
I suggest that someone within EOIR look into what may be the root cause(s) of this situation. Are the regulations and/or procedures in need of revision? Do the criteria upon which single board members decide a case rather than refer it to a panel account for this situation? Do the criteria need to be tweaked or just reiterated? Is it a training issue among the Board Members or, is it the support staff that needs refresher training or "gentle reminders"?
If the BIA does not address it, the Courts will continue to remand more and more cases, the Immigration Law community will pick up on it and the thrashing will begin in full force. Nip it now (the bud may have bloomed long ago but nip it anyway).
Need for Joint EOIR-DHS Rulemaking
On a related topic as it illustrates a need for rulemaking to foster procedural changes made necessary by the creation of the Department of Homeland Security and the separation of Legacy INS from the Department of Justice and EOIR's retention therein. The question of original jurisdiction in claims to United States Citizenship arising for the first time in Proceedings before an IJ, whether through Expedited Removal under INA § 235 or Removal Proceedings under INA § 240, needs to be sorted out.
The BIA has also identified another area of regulation that needs clarification in the realm of claims to U.S. Citizenship in INA § 235 Expedited Removal as opposed to ordinary INA § 240 Removal Proceeding contexts.
Matter of Lujan, 25 I&N Dec. 53 (BIA 2009) Decided by the Board July 20, 2009:
"The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge's decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen."
The limits on our appellate jurisdiction and on the ability of the DHS to commence section 240 removal proceedings are regulatory in nature. Just as we are bound by those regulations, so too may those regulations be amended if the Attorney General, acting in concert with the Secretary of Homeland Security, so determines. [Emphasis added.]
We conclude by noting that an important purpose behind expedited removal proceedings is to ensure that appropriate cases are, in fact, expedited. This means deciding cases involving minimal or no controversy promptly and without multiple layers of administrative and judicial review. There is, for example, no further administrative review of an Immigration Judge's determination that an arriving alien has or lacks a credible fear of persecution. 8 C.F.R. §§ 1208.30(g)(2)(iv)(A), (B) (2009). We would be acting ultra vires if we assumed jurisdiction in such a case, just as we would if we assumed jurisdiction here."
Original Citizenship Claims in Proceedings before an IJ v. USCIS Form N-600
It should be noted that under the INA, the Secretary of Homeland Security through USCIS adjudication of the Form N-600, Application for Certificate of Citizenship, has an established process for the presumptive citizen to pursue their claim to citizenship. An administrative appeal is afforded through the USCIS's Administrative Appeals Office (AAO). There is a further avenue for judicial review of an AAO Dismissal.
USCIS has a very specific administrative and regulatory framework in place for citizenship claim cases made via a Form N-600 (even if they exhibit a certain lax attitude and confusion in carrying it out themselves, they do):
8 CFR § 341.6 Denial of application.
Most citizenship claimants (N-600 applicants) do not know or understand their appeal and motion rights and USCIS (just like INS before it) has been quite remiss in explaining those rights. It should be noted however, that very recent efforts have been made to remedy this situation. The first approach was via two newer Policy Memos addressing appeal and motion rights notification in denial decisions. The second effort was an announcement by the AAO Chief and the USCIS Director in an October 2010 "Stakeholder Engagement" that the AAO is currently writing regulations for publication "soon". However, given that it took 3 ˝ months to post a very watered down, pathetic 4 ˝ page summary of a short meeting, it leaves one wondering exactly how does USCIS's AAO define the word "soon". Will that be within months, years or decades?
To continue, if one disagrees with the N-600 Denial decision they may file an appeal on Form I-290B, with fee, and with any additional evidence to be considered and/or a brief identifying specifically any erroneous conclusion of law or statement of fact along with legal references and/or specifying the evidence in the record that they believe was misinterpreted with an explanation of the facts and evidence as they interpret them.
An appeal to the AAO must be filed with the office that made the decision within 30 days of the date of the Denial Notice for personal service, 33 days if received by mail. The AAO does not have the capacity to accept payments and they do not have the file in their possession. Also, any submission will first be returned to the original Officer that decided the case (or another one if that one is unavailable or no longer there) to see if the case can be readily approved without any major legal interpretation involved. These are generally only cases where evidence was missing and is now being submitted. If the application can now be approved based on additional evidence, the appeal will be treated as a motion and approved. The initial deciding Officer should not be making grand legal interpretations at this stage of review. Anything that would overturn a prior decision based on prior precedent needs to be forwarded to the AAO. The latter case would be a situation where certification of a decision is the appropriate course of action.
If an appeal is not filed within the time allowed, a new N-600 may not be filed see 8 CFR § 341.6. Instead, if at a later date the applicant wishes to pursue the citizenship claim anew, they may file, pursuant to 8 CFR § 341.6, a form I-290B, with the current fee as of the date of that filing, for:
The applicant must exhaust the administrative appeal process afforded under the law by first appealing to the AAO (USCIS' Administrative Appeals Office) before they may seek judicial review of the agency decision in the case, which would be to file a lawsuit in a U.S. District Court under INA § 360(a) [8 U.S.C. §?1503(a)] and pursuant to 28 U.S.C. § 2201.
The existence of concurrent Removal Proceedings would preclude U.S. District Court judicial review under the above cited section and restrict review to a Petition for Review in a U.S. Circuit Court of Appeals of any Removal Order following a BIA Dismissal of a Removal Order under 8 USC § 1252(b) [INA § 242(b)].
Alternate Procedure for Initial Claim to U.S. Citizenship (USC)
When an individual makes a claim to USC in Expedited Removal (rather than through the filing of an N-600 and thus USCIS-the true arbiter of the question-is out of the equation) and an IJ finds for the claimant but DHS, through ICE Counsel disagrees, it is unclear exactly how things should then proceed. Does DHS have to institute INA § 240 Removal Proceedings just to get the same result from an IJ? More on this follows below.
Original Jurisdiction in Citizenship Claims v. Ultimate Legal Interpretation Authority The IJ as a representative of the A.G. is not the designee within the INA to make the initial determination of USC inside the United States, the Secretary of Homeland Security through USCIS is the official with delegated statutory authority5. However, in matters of legal interpretation, the A.G. is the final arbiter to whom the Secretary must defer. INA § 103(a)(1) [8 USC 1103(a)(1)]. The BIA can exercise this legal interpretation authority on behalf of the A.G. AAO can exercise the Secretary's authority 6 in citizenship claim cases. The AAO/Secretary, in consultation with the EOIR/BIA/A.G., can also publish Precedent Decisions within its areas of expertise (see below). Who deserves the right to consider the facts of the particular citizenship claim case in the first instance when there is disagreement between an IJ and ICE Counsel? Is it properly a matter for the AAO or should it go to the BIA?
8 CFR § 103.3 Denials, appeals, and precedent decisions. [DHS substituted for (the) Service)
At this point, the water gets even muddier.
Perhaps the BIA disagrees with the IJ determination and then the claimant fights the Removal Order in a Petition for Review in a Circuit Court of Appeals. DHS can dispute the claim to USC, but if the Circuit Court finds that questions of material facts exist, it then transfers the case to District Court. Again it falls to DHS to fight in court as it should be.
However, if the BIA agrees with the IJ what should it do? On the one hand, the BIA is ostensibly speaking for the A.G. and the Secretary is supposed to defer to that determination in matters of legal interpretation. On the other hand, this particular determination is supposed to be made by the Secretary in the first instance according to the INA.
Any regulations promulgated to address this situation should be made in consultation between EOIR and DHS. DHS would need to address the appropriate actions to be taken by CBP, ICE and USCIS at various stages of the processing of the case. Likewise, EOIR must consider the correct actions to be taken by an IJ and the BIA in the overall picture and in consideration of the required actions of the various DHS Agencies.
A Role Model to Learn Lessons From
Currently, when an arriving alien asserts a claim for asylum, CBP will contact USCIS to have an Asylum Officer perform a credible/reasonable fear interview. It is likely that some Asylum Officers are co-located with CBP in high volume areas or at least have "circuit rides" or "details" etc. If USCIS cannot respond quickly enough, the asylum-seeker could be handed over to ICE to await that fear interview. USCIS may allow an applicant to make an affirmative asylum application directly with it to be decided at one of its asylum offices. If USCIS is not convinced, the asylum-seeker can be referred for further fear review by an IJ or, referred to an IJ for a Removal Proceeding to apply for asylum or, referred to an IJ for a "Withholding Only" Proceeding.
Further Coordination Clearly Required 7
It is unclear to me exactly what happens when an arriving traveler makes an initial claim to USC at a port-of-entry. ICE has published a memo8 about procedures to be followed when someone makes a claim to USC when first encountered, when found subject to NTA issuance or, while in ICE custody/detention. It is sad to say that this memo does not even once mention USCIS, let alone any such consultation. USCIS issued a sort of follow-up or "companion" memo9 on its relations with ICE when benefits applicants are in proceedings.
The USCIS memo mainly just directs all its offices to contact their local ICE counterparts and work things out to facilitate communications, especially regarding file transfers. ICE and USCIS Service Centers already had an existing relationship due to cases involving the tentative grant of a benefit by an IJ. USCIS would accept certain applications and facilitate the required fingerprinting and associated background checks and issue documents (EAD's and greencards).
Need for Further Consultations between USCIS and ICE as well as USCIS and CBP
There is no discussion in any memo on "consultations" as to eligibility determinations for benefits but that also means that such agreements are NOT prohibited either, even if not required or, even encouraged--except as previously mentioned regarding file transfers. The issue of DHS affirming whether an underlying or likely eligibility for ultimate relief through adjustment of status even exists has been brought up in various BIA and Circuit Court opinions in discussions of the proper grounds to grant continuances. However, I for one, could not find out if that level of coordination has been established anywhere in the United States yet.
As for the relationship between USCIS and CBP, there is an existing relationship within the specific context of asylum claims only. This, in turn, could serve as a model for continuing and expanding their working-relationship into the realm of original citizenship claims made by arriving travelers at a port-of-entry.
The Clueless Leading the Even More Clueless
The ICE USC claim memo instructs that the Office of Investigations (OI) and Detention und Removal Operations (DRO) personnel must consult with the Office of the Principal Legal Advisor's (OPLA) local Office of the Chief Counsel (OCC).
The former INS personnel who became ICE and CBP never had any particular expertise with this area of the INA. The former INS personnel who became USCIS had all the required expertise in the area. In fact, N-400 Officers (Naturalization Examiners) were relied upon to do the difficult legal research in its denials which were then ravenously plagiarized by the investigators for their OSC and NTA write-ups. The N-400 Officers did not become part of ICE and CBP. Those agencies suffered a drain on institutional knowledge when DHS was created10. That void has not been filled in regard to this area of the INA. Weighing evidence and testimony in citizenship claim cases is beyond the authority and expertise of ICE and CBP and most especially their attorneys.
It is clear that specific areas of concern have been identified and do exist regarding the working relationships between the Departments of Justice and Homeland Security as well as matters pertaining to proper jurisdiction as well as management and exercise of statutory authorities. It is also clear that there are areas of concern as to communication between the various components within each of these Departments. The A.G has directed the EOIR and BIA to promulgate regulations in order to codify and refine the Lozada requirements concerning claims of ineffective assistance of counsel. The Courts have further identified a need for those regulations to be promulgated with specific additional processing concerns being addressed. The BIA has found an area within the existing regulations, in Lujan, that needs attention from a joint perspective between DOJ and DHS. The USCIS Director has directed the AAO Chief to promulgate a rule to streamline its appellate operations. That same rule was in the works in the past but fell by the wayside without follow through. The Courts and the various Departments through their agencies and components have found other areas of concern that are not addressed in this essay but they should not be ignored either.
Let us all urge the BIA, AAO, and all the other actors in this drama to play nice together and get the job done. Feet have been dragging for far too long already. Write your Congressional Representatives, follow the Federal Register and comment on rules, comment on the USCIS Outreach items under review and, write letters to the agencies about your concerns. Please take action and get involved any way you can.
Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.