Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I know that Congress has a ‘lame-duck’ session now. I was wondering if there were any new and recent developments in the immigration laws.

Answer: There has actually been quite a bit that has been recently signed into law by President Bush. Here is the summary of those recent laws.

On November 2, President Bush signed into law the “21st Century Department of Justice Appropriations Authorization Act.” It includes the following.

Waiver of Foreign Country Residence Requirement with Respect International Medical Graduates. Extends until 2004 the “Conrad State 20” program, which allows states to request waivers of the two-year home residence requirement of INA § 212(e) for certain J–1 physicians who agree to work in medically underserved areas for a period of at least three years, and raises the number of visas available per state from 20 to 30.

Posthumous Citizenship for Non-Citizen Veterans.: Extends the deadline for allowing family members to apply for honorary posthumous citizenship for noncitizen veterans who died while honorably serving the U.S. in past wars.

Extension of H-1B Status for Aliens with Lengthy Adjudications.: Recognizing that lengthy processing times by the Department of Labor have precluded some H-1B visa holders from being eligible to apply for a one-year extension of H status pursuant to the American Competitiveness in the 21st Century Act of 2000, this provision is intended to permit aliens who have labor certification applications caught in lengthy agency backlogs to extend status beyond the six-year limitation. As long as 365 days have elapsed since the filing of a labor certification application (that is filed on behalf of or used by the alien) or an immigrant visa petition, H-1B status can be extended in one-year increments. This will be true even if the alien has since changed his or her status or left the country. If an application for a labor certification or adjustment of status or a petition for an immigrant visa petition is denied, the extended H-1B status ends at that point.

Application for Naturalization by Alternative Applicant if Citizen Parent Has Died: Amends the INA to authorize a child’s grandparents or legal guardian to submit an application for naturalization on behalf of the child under section 322 of the INA where the child’s parent, who otherwise would be authorized to submit the petition, died during the preceding five years.

Also on November 2, the President signed the “Border Student Commuter Act of 2002”. The new law amends INA §§ 101(a)(15)(F) and (M) by creating a new border commuter nonimmigrant classification under the F and M visa categories for Canadian and Mexican nationals who maintain residence in their country of nationality and commute to the U.S. for full- or part-time academic or vocational studies. The legislation was triggered by a May 22, 2002, INS proclamation that commuter students residing in contiguous territory would no longer be allowed to enter the U.S. as visitors to attend school on a part-time basis.

President Bush, on October 29, signed the “Persian Gulf POW/MIA War Accountability Act” to provide refugee status to any alien (and his or her spouse or child) who: (1) is a national of Iraq or a nation of the Greater Middle East Region; and (2) personally delivers into the custody of the U.S. government a living American Persian Gulf War prisoner of war or individual missing in action. Excepted from the Act’s benefits are persons who are ineligible for asylum (including terrorists, persecutors, certain criminals, and individuals presenting a danger to the security of the U.S.).

On September 30, President Bush signed the “Foreign Relations Authorization Act for Fiscal Year 2003” (H.R. 1646, Pub. L. No. 107–228). The Act contains numerous immigration-related provisions, including authorization for $4.97 billion in appropriations for the administration of foreign affairs in fiscal year 2003.

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Question: Many people from around the world are being persecuted, tortured, imprisoned or killed in their home countries. However, sometimes they do not win. I heard that they may not be allowed to ever get immigration benefits again. Is this true?

Answer: They flee this persecution and apply for asylum in the United States. As a side benefit of applying for asylum, people can get work-permits which sometimes are more important for these people than the actual asylum. In the past, applying for asylum would be abused by thousands of people for this very purpose.

Thus, in 1996, Congress enacted a law which essentially stated that if someone files a frivolous asylum application, they would be permanently barred from ever applying for any immigration benefit for the rest of their lives. This bar would apply if the Immigration Judge made a ruling that the asylum application was frivolous or meritless.

In a recent 9th Circuit decision, Jamal vs. Ashcroft, 2003 U.S. App. LEXIS 23239 (9th Cir. 2003), the alien first challenged the Immigration Judge’s credibility determination underlying his removal order. The Immigration Judge had made a specific ruling that the alien was not credible. The Immigration Judge identified specific inconsistencies in the alien’s testimony, his expert’s testimony, his brother’s testimony, and between the different witnesses’ testimony. Further, the Immigration Judge ruled that the inconsistencies went to the heart of the asylum application and the alien’s identity, his membership in a persecuted group, and the date he entered the United States.

The Immigration Judge then ruled that the alien knowingly filed a frivolous asylum application and ordered that the alien be removed from the United States. Thus, because of this ruling the alien was barred for life from ever coming back to the United States. The alien appealed both the removal order and the order that the asylum application was frivolous.

Such a finding carries the severe penalty of a permanent bar to immigration relief. Immigration regulations require there to be sufficient opportunity to account for discrepancies or implausibilities.

The Immigration Judge reviewed with Farah the consequences of filing a frivolous asylum application. However, Farah wanted to continue with the application. In the end, the Immigration Judge found that Farah had knowingly filed a frivolous asylum application, but never allowed Farah to explain any of the inconsistencies the Immigration Judge relied upon in making that decision.

The primary issue to be answered is whether the Immigration Judge ruled correctly on whether there was a knowingly frivolous asylum application filed. This issue is of critical importance as it bears on whether persons who might have a colorable asylum claim will step forward and apply. If they feel that they will be adjudged to have filed a knowingly frivolous asylum application, a chilling effect for asylum seekers will occur. They will be afraid to file these applications. Instead of the United States attempting to adjudicate an asylum claims, the United States will be sending out a message to try to exclude valid claims.

The Immigration Judge concluded that Farah’s asylum application was so inconsistent that it rose to the level of being knowingly frivolous under the immigration laws.

In this case, the Immigration Judge found two specific examples of fabrication that were relevant to his decision: the petitioner’s entry date and his travel history. In his decision, the IJ held that it was clear that the respondent did not enter in New York on January 24, 1999, in the manner in which he stated and that he has fabricated that portion of his claim. The Immigration Judge further stated that he has also been untruthful as to whether he was in Nairobi, Kakuma, London, England or any other place before he came to the United States.

This court stated that Farah had ample opportunities to explain the discrepancies that led to the adverse credibility finding. For example, discrepancies in his father’s name and in his clan identity. To support the finding of frivolousness, however, the Immigration Judge relied with particularity on different discrepancies between what Farah said and the extrinsic evidence. Farah was not given an adequate opportunity to address those additional discrepancies before the ruling on frivolousness was made. In sum, the evidence presented did not allow a proper opportunity for Farah to explain all discrepancies in the record. Therefore, the court overturned the decision of the Immigration Judge that the application was knowingly frivolous.

Even though the Court did not reverse the decision denying the asylum, they did reverse the permanent bar to future filings with immigration. Now, aliens with colorable asylum claims will not be afraid to present those claims to the United States.

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Question: I am a lawful permanent resident and have petitioned my wife and son many years ago. Just recently I found out about the V Visa which allowed my wife and son to come to the United States and reside with me while we are waiting for the visa number to become current. However, my son is going to be 21 years old in two months. I have been told by USCIS that he will have to return home and he can no longer reside here on the V Visa. I have missed him so much that I cannot bear to be separated for years to come. Is there anything I can do?

Answer: Actually, there was just a case that came out in the Ninth Circuit Court of Appeal. Therefore, if you live in the jurisdiction of the Ninth Circuit (basically the Western United States), then you are in luck.

In this case, the court held that Immigration regulations terminating V nonimmigrant status the day before the visa holder’s 21st birthday, was contrary to Congress’ intent to reunite families when it enacted the Legal Immigration Family Equity Act (“LIFE Act“).

As background: the LIFE Act added a new nonimmigrant visa category, INA § 101(a)(15)(V). Spouses and children of lawful permanent residents who have been waiting for permanent resident status for at least three years are eligible for V visas. These V visa holders are entitled to certain benefits, including employment authorization. The INS regulations implementing INA § 101(a)(15)(V) provide that V visa status “will be granted a period of admission not to exceed 2 years or the day before the alien’s 21st birthday, whichever comes first.” Upon termination of V nonimmigrant status, the individual is no longer eligible for employment authorization.

In this Ninth Circuit case, the government argued that, the court should allow the USCIS regulations to stand. The court ultimately disagreed, stating “[w]e do not owe deference…to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.”

The court concluded that Congress did not directly speak to the issue of whether a person could lose V status by turning 21. The court found that the LIFE Act made clear that a person over the age of 21 was not eligible to receive a V visa but that the statute was silent regarding whether a person over the age of 21 who has been issued a V issue is able to continue to hold that visa. Thus, the court concluded that Congress’ intent was ambiguous.

The court noted that the LIFE Act provided three ways that V visa status may terminate and that aging-out was not one of those ways. Thus, applying the presumption that “when a statute designates certain . . . manners of operation, all omissions should be understood as exclusions,” the court concluded that “[s]ince Congress explicitly enumerated circumstances by which V Visa benefits are terminated, the presumption is that Congress purposely excluded all other possible means, such as aging-out.” The court further found that its conclusion was supported by: (1) statements in the congressional record regarding another LIFE Act provision (adjustment of status under INA § 245(i)); (2) “the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion;” (3) and the rule of lenity (in immigration cases, “doubts are to be resolved in favor of the alien.”).

Thus, the court invalidated the age-out provisions of the V Visa. Thus, your son can legally stay with you under the V Visa even though he will be older than 21 years of age. This is a significant victory for immigrants as it shows the power of the family unit and how Immigration cannot simply make arbitrary regulations.

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