Contact: [email protected]or (716) 604-4233 or (716 768-6506) Page 1 JUDGMENT, DISCRETION, ENTITLEMENTS & RELIEF a la POLIDORO and KAZARIAN By Joseph P. Whalen (September 4, 2014) I. Introduction 1 Immigration in general, and particularly as to visas; naturalization; citizenship 2 claims; (in)admissibility; deportation; removal; asylum; withholding, deferral, or 3 cancellation of removal; waivers; and/or change, extension, or adjustment of status; 4 all have certain things in common while other things are in complete contrast. All of 5 these subjects can be straightforward, or can be highly complex and complicated. 6 Determining how a particular situation or “case” , is best characterized, is not always 7 obvious as it will depend on the specific facts of the individual qualities, facts, factors, 8 reasonable inferences, evidence, and/or circumstances involved in each. In other 9 words, it’s just not that simple. The purpose of this article is to explore just a 10 smattering of the myriad possibilities one might encounter in the big, wide, scary, 11 and amazing world of “immigration laws” of the United States. Did you know that 12 the basic subject matter of this article is actually defined in the Immigration and 13 Nationality Act (INA) [Title 8 U.S.C. (United States Code)]? Well, yes it is, and it is 14 defined at: 15 INA § 101 [8 U.S.C. § 1101] Definitions. 16 (a) As used in this chapter — 17 * * * * * 18 (17) The term “immigration laws” includes this chapter and all laws, conventions, 19 and treaties of the United States relating to the immigration, exclusion, deportation, 20 expulsion, or removal of aliens. 21 It is a tad disconcerting that four of the five descriptors in the above definition 22 relate to “negative” aspects, or what one might call “punishments” or “ negative 23
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Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 1
JUDGMENT, DISCRETION,
ENTITLEMENTS & RELIEF a la POLIDORO and KAZARIAN
By Joseph P. Whalen (September 4, 2014)
I. Introduction 1
Immigration in general, and particularly as to visas; naturalization; citizenship 2
claims; (in)admissibility; deportation; removal; asylum; withholding, deferral, or 3
cancellation of removal; waivers; and/or change, extension, or adjustment of status; 4
all have certain things in common while other things are in complete contrast. All of 5
these subjects can be straightforward, or can be highly complex and complicated. 6
Determining how a particular situation or “case”, is best characterized, is not always 7
obvious as it will depend on the specific facts of the individual qualities, facts, factors, 8
reasonable inferences, evidence, and/or circumstances involved in each. In other 9
words, it’s just not that simple. The purpose of this article is to explore just a 10
smattering of the myriad possibilities one might encounter in the big, wide, scary, 11
and amazing world of “immigration laws” of the United States. Did you know that 12
the basic subject matter of this article is actually defined in the Immigration and 13
Nationality Act (INA) [Title 8 U.S.C. (United States Code)]? Well, yes it is, and it is 14
defined at: 15
INA § 101 [8 U.S.C. § 1101] Definitions. 16
(a) As used in this chapter— 17
* * * * * 18
(17) The term “immigration laws” includes this chapter and all laws, conventions, 19
and treaties of the United States relating to the immigration, exclusion, deportation, 20
expulsion, or removal of aliens. 21
It is a tad disconcerting that four of the five descriptors in the above definition 22
relate to “negative” aspects, or what one might call “punishments” or “negative 23
Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 2
consequences” found in the “immigration laws” but only one rather “neutral” term 1
that would have to encompass any possible “positive” aspects, in other words, 2
“benefits” or “relief”. The word “benefit” is found either in the singular or plural, 3
twenty-one (21) times in the definitions section of the INA (including notes and 4
various headings) but is not actually defined itself. The word “relief” appears 5
eighteen (18) times, again, not as a defined term but merely in sentences and the 6
majority of occurrences are in headings or various names of acts amending the INA 7
(such as Nursing Relief Act). 8
II. Prima Facie Eligibility 9
A. “Prima Facie”-- My Working Definition: Latin for “first look” or “at first 10
sight”, often synonymous with “at first blush” or “upon first glance”. When 11
dealing with a civil case, such as an immigration case, it is a case presented that 12
raises a “presumption” which appears to meet the basic minimum evidentiary 13
showing that, without any questions asked or any affirmative rebuttal evidence 14
to disprove nor any effort to authenticate, “seems to be true”. The INA is the 15
statute that defines most immigration benefits available under the law as 16
prescribed by Congress which is empowered to make such laws on this subject 17
matter due to specific articles within the Constitution of the United States of 18
America. As an example, consider the various immigrant visa classifications 19
available to those who qualify. The INA contains many “definitions” for 20
many different “classifications”. Some statutory definitions are more precise 21
than others. Those that need further explanation get the needed additional 22
clarity through various means. The first added information is in the federal 23
regulations promulgated to implement the statutory provision. After that, 24
there may be administrative interpretations starting with the explanatory 25
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supplemental information and materials accompanying the promulgation of 1
the rule and any future changes that are published in the Federal Register. 2
When it comes to applying for any of the many, many immigrant visa 3
classifications, there are specific steps to be followed. The first is to file the 4
appropriate petition. The petition is a USCIS form with accompanying 5
instructions which, themselves, are subsumed into the specific controlling 6
regulation that speaks directly to that specific visa classification. The petition 7
must be filed by someone who is eligible and qualified to file it. Some 8
petitions may be filed by the person seeking the visa while others require that 9
someone else file on their behalf. The person for whom the visa is sought 10
must actually be eligible and qualified for that classification. These numerous 11
considerations are quite variable for many different reasons across the various 12
classifications. A mere “prima facie” showing is usually only the beginning. 13
B. Matter of Polidoro, 12 I&N Dec. 353 (BIA 1967), contains an often quoted 14
clear statement of interpretation which everyone interested in this subject 15
matter needs to memorize and internalize. Here is that essential passage: 16
“In the instant case the adoption took place on May 20, 1960. The 17
adopted person, the petitioner, was at that time 35 years old. It is 18
concluded that the adoption is invalid for immigration purposes and 19
that the petitioner is not eligible to seek immediate relative status on 20
behalf of the beneficiary as her adoptive parent. 21
The argument of counsel has been noted. The issue in visa petition 22
proceedings is not one of discretion but of eligibility. The appeal will 23
be dismissed. 24
ORDER: It is ordered that the appeal be and the same is hereby 25
dismissed.” 26
Id. at 354. [Emphasis Added.] 27
It is that second emphasized sentence that says the most. It refers back 28
to the “argument of counsel” in that case which was more or less a plea for the 29
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candy factory wrapping chocolates on an assembly and their supervisor on 1
that assembly line shout “Speed it up a little!” In order for any judge in any 2
Court to do more than that, the denial of adjustment of status would have to 3
be such a huge criminal miscarriage of justice that we would all know about it 4
from the network evening news! I think that it would involve a scandalous act 5
of some sort. Such as someone refused to pay a bribe (like a demand for 6
money or sex) or refused to give in to extortion whether based on a real or 7
phony, trumped-up reason by a crooked government employee or contractor 8
to the government who wanted something else like a terrorist act or other 9
criminal act to be carried out. I haven’t time to ponder all the possibilities. 10
VII. FORMS OF RELIEF 11
A. Legally Defined Forms of Relief: Most forms of relief are discretionary but 12
others are entitlements, unless legally barred. In general, if a person can prove 13
their case and are found credible and actually meet the criteria, asylum would 14
only denied if the applicant is specifically barred due to a horrible past act 15
like: Terrorism, Extrajudicial Killings, being a Persecutor. There is a mixed 16
bag of forms of relief. I include them in this article because once a person 17
reaches this point before an Immigration Judge, the nature of the proceeding 18
shifts. It stops being adversarial and becomes inquisitorial. Those practitioners 19
in Immigration Court who fail to realize this just make things more difficult 20
for themselves and worse for their clients! 21
1. Some examples of Forms of Relief before an IJ that should be handled 22
like Benefits Requests include: Withholding of Removal (WOR) whether 23
under the INA or CAT, Special Rule Cancellation, Asylum, Deferral of 24
Removal under CAT, or various waivers. 25
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2. Some Forms of Relief are applied for directly as Benefits Requests before 1
USCIS and include: Deferred Enforced Departure (DED), Temporary 2
Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), 3
various waivers, etc. 4
B. Special Forms of Relief: 5
1. Equitable Tolling is allowed by Courts and Administrative Appellate 6
Bodies. It is a usually just a minor corrective action to allow a late filing. 7
2. Equitable Estoppel is for the Courts alone BUT even then there are limits 8
to its reach in immigration and nationality cases. 9
3. Collateral Estoppel will prevent re-evaluation of “subjective” findings and 10
hard-fought “settled facts”, barring fraud or misrepresentation but allows 11
consideration of newly uncovered facts previously withheld or overlooked. 12
4. Collateral Attacks by an alien who was ordered removed are possible when 13
there is new evidence, changes in the law, major case precedent with 14
retroactive ameliorative effects, or based on a claim to an “Entitlement”. 15
5. Collateral Attacks by the government based on the Merits (revocation, 16
rescission, or termination) or newly discovered Fraud/Misrepresentation 17
are still OK, but retroactive application of new legal interpretations that 18
strip previous rights or privileges usually won’t survive challenges to the a 19
Circuit Court or Supreme Court. Congress would have to be extremely 20
careful and explicit to make negative aspects be retroactive. 21
6. Settlement Agreements may provide special relief especially when a large-22
scale and systemic (or subconsciously systematic) Due Process violation 23
has occurred. These often end up being “due process” corrective actions. 24
C. Overlooked, Neglected or Withheld ENTITLEMENTS: Recapture of 25
seemingly lost entitlements can be based on due process violations relating to 26
statutes, regulations, precedents, or older settlements; in addition to any fresh 27
chance to apply or reopen a matter or proceeding which may be afforded via 28
a new settlement agreement. When there is something there, go for it! 29
Procedural Inefficiencies can be overcome! 30
1. An example is the ABC Settlement that allows class members to get a 31
de novo hearing with USCIS on their old asylum cases. 32
2. A recent case involved a situation where processing errors at INS were 33
so egregious that an ABC Class member, who had jumped through all 34
the required administrative hoops, had obviously gotten an incorrect 35
decision based on mishandling. That was the basis for his Petition For 36
Review of his Final Order of Removal to be granted and remanded. 37
That’s My Two-Cents, For Now!
Contact: joseph.whal en774@ gmail.com or (716) 604-4233 or (716 768-6506) Page 14
About the Author
Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home) E-mail: [email protected] web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer
DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor.
NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having
been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS.
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