Mr. Lee's 6/10/06 Three Comments to the Department of Homeland Security Interim Rule of May 12, 2006, Withdrawing the Regulation on the Prohibition Against Paroled "Arriving Aliens" Adjusting Status to Permanent ResidenceAn interim rule by EOIR and USCIS deletes the absolute bar on an “arriving alien’s” ability to adjust status if he or she is in removal proceedings. The interim rule, published on 5/12/2006, is effective immediately. The interim rule amends the regulations so that USCIS will have jurisdiction over adjustment applications notwithstanding the removal proceedings. (The below comments were e-mailed by Mr. Lee to the Department of Homeland Secuiry on 6/10/06 in response to the Department's interim rule) Thank you for your interim rule of May 12, 2006, withdrawing the regulation on the prohibition against paroled "arriving aliens" adjusting status to permanent residence. I have three comments: 1 Your suggestions are specious that an unfavorable exercise of discretion should be presumed in the absence of unusual and outstanding countervailing equities for this class of individuals in general; that a significant adverse factor should be the aliens' avoiding the immigrant visa issuance process and arriving at a port of entry as putative nonimmigrants or with otherwise invalid or fraudulent documents; and the same negative outlook should govern the handling of adjustment of status applications for arriving aliens whose parole or advance parole statuses have been terminated or revoked. Such suggestions should be abandoned for the following reasons: Blackballing an entire class of individuals as secondary strategy because the DHS has lost in four out of six circuit courts makes the agency out to be a sore loser like one whose team is being wiped out by the opposition and decides to take his ball home. This Administration unfortunately appears to favor the strategy of blackballing classes of individuals, e.g., the fate of those entering the U.S. by sea who are caught upon landing or of those caught within 100 miles of the borders within 14 days of entry - but this certainly does not promote the rule of law to allow adjustment of status to those who have been admitted or paroled. There is no distinction drawn in the law under section 245(a) between those admitted and those paroled, and the DHS should draw no distinction now. The agency suggestion that avoiding regular immigrant visa issuance processing should be a significant adverse factor for arriving aliens is without precedent for those arriving with invalid documentation. In such case, no fraud is involved, and there is no distinction between them and those entering the country without inspection except that the arriving aliens come to a port of entry. Even though the the Fifth Amendment rights of equal protection do not strictly apply to aliens, it is difficult if not impossible to see the difference between the two classes. In a sense, individuals who evade inspection by not coming to a port of entry are even more culpable in not giving DHS an opportunity to intercept them prior to entry. For cases involving fraud, the present procedure is adequate as U.S.C.I.S. now demands that such aliens submit an I-601 waiver based on exceptional hardship to a U.S. citizen or LPR spouse or parent. DHS' third point of holding as an unfavorable factor the termination or revocation of advance parole or parole is equally specious as 1.) there are no controls as to when the Service can terminate or revoke the status, leading to the very real possibility that the Service will take such actions after an I-485 application has been filed or at any time that it desires for any reason that it wishes to do so; 2.) in effect, it amounts to drastically enhancing the penalty on an alien for an overstay of legal status and this should not be done since the act of overstaying does not imply bad moral character or any other moral defect that should lead to an adverse determination on the exercise of discretion. In adjustment of status determinations today as in the past, overstaying is not a negative discretionary factor; and 3.) DHS saw enough humanitarian reason to parole the arriving aliens in the first place. Why should its later action of terminating or revoking such parole blackball these very people that DHS thought had enough merit for the exercise of parole previously? Did these individuals change stripes while here in the U.S.? If they committed crimes or other acts while enjoying the hospitality of this country, they should be charged with those acts in removal proceedings. 2. Your request for comment on whether regulations should be amended to provide further regulatory guidance on when immigration judges (IJs) and the BIA should exercise discretion to grant or deny a continuance for arriving aliens in removal proceedings who have filed an application for adjustment of status which remains pending with U.S.C.I.S. is certainly a subject which should be addressed, and I strongly believe that much more latitude should be given to the IJs and BIA to grant continuances under those circumstances. In our litigation, we have certainly noticed that the U.S.C.I.S. is in no rush at all and, in many cases, delays adjudications of visa petitions and of I-485s of principal aliens when individuals are in proceedings. This creates an unfair situation under current law in which immigration judges feel the need to go forward and deny adjustment of status applications where the government attorneys refuse to agree to termination or continuance of proceedings in the interim. In one case, the ICE attorney was adamant that the I-485 application of the principal alien (not under proceedings) would never be approved and the I J finally ordered removal of the dependent who had filed an I-485 after opposition by the government to continuances and termination, despite our objection that the government attorney would not be the adjudicator of the visa petition. While on appeal to the BIA, the I-485 of the principal alien was approved and the green card issued. This is just one example of the abuse that we see in the system presently, and we do not understand why individuals should be prejudiced by government imposed delay. In point of fact, penalties should be assessed against the government for delay in these cases rather than DHS entertaining thoughts of further institutionalizing the abuse. We strongly urge a more liberal rather than restrictive rule of law on continuances. 3. The DHS in this interim rule should take this opportunity to correct its implausible definition of "arriving alien", to state that the term "arriving alien" only applies to those entering the U.S. on or after April 1, 1997, for all purposes. The term did not exist prior to the IIRIRA, and the Service has invited another set of challenges on the issue of retroactivity where aliens may have arrived at ports of entry and been detained by legacy INS long before IIRIRA, but were only put into proceedings on or after April 1, 1997. Such clarification would make sense not only because of the agency's present bifurcated position on individuals caught in this position being considered arriving aliens for one purpose and not another, but also because the U.S. only announced a get-tough border enforcement policy with the passage of IIRIRA. Your kind consideration of my comments would be appreciated. Very Truly Yours, Alan Lee, Esq. † The author is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2006 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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