In support of Immigration Judge J. Chase; important bill on U.S.C.I.S. fee raise limitations and FBI name check time limits; the right of asylee derivatives to travel back to their homeland; and hope for the DREAM Act.

By Alan Lee, Esq.^†‡

1 In Support of I J Chase

In our view, Immigration Judge Jeffrey Chase of the New York Executive Office for Immigration Review has been pilloried enough and should be allowed to return to the bench very shortly if he has the desire to do so. According to the New York Times of March 13, 2007, he has been relieved of his courtroom duties and reassigned to a desk job following a rebuke by the Second Circuit Court of Appeals last year and its recent recommendation that the Board of Immigration Appeals scrutinize all of his decisions which are pending on appeal. At issue was his perceived hostility to asylum cases, and in one case a plethora of errors and omissions. Judge Chase may have gone overboard on some of his cases, but his record of decisions in asylum cases has been in line and even more generous than the national average. The TRAC immigration project, a non-partisan and independent organization supported by the JEHT Foundation, Ford Foundation and Syracuse University which attempts to discover detailed information from the government and make it available to Congress and the public, has posted statistics on immigration judge asylum approvals and denials nationwide from 2000 to the early months of 2005, and noted a national grant average of 38.1 %. In that period, Judge Chase's grant rate was 42%. That information shows that aliens with asylum cases before Judge Chase have had a true shot at being granted asylum. This contrasts with other New York judges with approval rates of 9.6%, 4.1% and 5.7% during that same period of time. I would personally rather sit with my clients in front of a judge who may throw fits but is capable of adjudicating along Judge Chase's line than before one who is polite and mannered but has such an awful record against approving asylum cases. From my personal experience in litigating cases before Judge Chase, he is an effective judge who has exhibited impartiality, paid attention to proceedings, is obviously very bright, and has even suggested solutions favorable to the alien when available. His pet peeve appears to be cases in which he believes that the aliens before him are still being helped by smugglers and the unlicensed consultants who provide them with false stories for asylum claims. While the occasions on which he has not controlled himself cannot be condoned, he has from all reports learned his lesson and should soon be allowed return to the bench.

2 S. 795/ H.R. 1379 propose important restrictions on U.S.C.I.S. fee hikes and FBI name checks.

Senate Bill 795 and its House counterpart, H.R. 1379, innocuously titled the "Citizenship Promotion Act of 2007" may well be remembered not for its citizenship provisions, but for its warning shot across the bow that fee hikes of such magnitude as proposed by U.S.C.I.S. recently (86% weighted average increase on all fees) and long out drawn-out delays in immigration cases because of FBI name checks will not be allowed. The legislation was introduced on March 7, 2007 in both chambers by Senator Barack Obama (D-IL) and Representative Luis Gutierrez (D-IL).

In U.S.C.I.S.'s proposed rule of February 1, 2007, astronomical fee raises were proposed including for I-485 applications (to adjust status to permanent residence) from the current fee of $325 to $905, I-751 petitions (to remove conditions on residence) from $205 to $465, I-601 applications (for waivers of grounds of excludability) from $265 to $545, and N-400 applications (for naturalization) from $330 to $595 (all fees given without the $70 biometrics fee). The reasons cited by U.S.C.I.S. were Congress' transforming legacy INS into a fee based agency in the past, and that the collection of fees must not only ensure recovery of full costs of adjudications and naturalization services, but also pay for U.S.C.I.S.'s infrastructure. Much of the increase would go to fund the agency's ambitious plans to upgrade its infrastructure. However, the magnitude of the increase fueled much negative reaction. The proposed legislation would change U.S.C.I.S. from a totally fee based organization to one only partially dependent upon collection of fees by authorizing annual appropriations to the Department of Homeland Security for an amount equal to the difference between the fees collected by U.S.C.I.S. and the cost of providing the services. The DHS would be allowed to set fees to ensure recovery of full costs of providing such services or only a portion. It is certainly time for Congress to move the operations of U.S.C.I.S. back to partial funding as immigrants by and large have proved a positive force to this country's economy. It is difficult for lawyers in this field a long time to grasp the enormity of these fees as we can remember a time when I-130 petitions cost the applicant $10, I-485s $30, and N-400s $15. A retired Officer-in-Charge (OIC) of Legacy INS, Victor W. Johnston, writing in the Immigrant's Weekly publication of ILW.com, on February 12, 2007, summed it best in remembering fees costing $10 for an immigrant petition and $50 for an application for citizenship, stating that he did not believe that there are enough people to justify such exorbitant fees even if CIS was so technologically advanced that it would be in the 23rd century, and to pay him $50 each, give him access to the system, and he would do as many naturalization applications as anyone wanted and save the taxpayers and users a bundle.

FBI name checks have become the elephant in the room in U.S.C.I.S. adjudications as there are now acknowledged large numbers of applicants for adjustment of status to permanent residence or naturalization whose cases cannot be adjudicated because of the failure of the FBI to complete name check clearances on a timely basis for U.S.C.I.S. Michael Aytes, associate director of domestic operations for U.S.C.I.S, informed the audience at the Spring Conference of the American Immigration Lawyers Association on March 16, 2007, that 261,000 cases are pending FBI checks as of January 2007. The agency does not appear to have a solution as seen in the interoffice memorandum of December 21, 2006 by Mr. Aytes, "FBI Name Check Policy and Process Clarification for Domestic Operations" that requests for expedite can only be for military deployment, ageout cases not covered under the provisions of the Child Status Protection Act (CSPA) and applications affected by sunset provisions such as diversity visas (DV's), compelling reasons as provided by the requesting office (e.g.-critical medical conditions), and loss of Social Security benefits or other subsistence in the discretion of the District Director. The memo further notes that mandamus filings will no longer be routinely expedited. (However, it should be noted that at least one official of U.S.C.I.S. has suggested that part of the proposed fee increase would be used to fully fund the FBI background checks).

S. 795 would implement a system for timely completion of background checks under which the FBI would make a reasonable effort to complete background checks within 90 days of receiving the request from U.S.C.I.S.; the Attorney General should document the reason why a background check was not completed if it reaches the 91st day without completion; after 121 days, the Attorney General must document the reason why the background check was not completed before that date; that if the check goes on for 181 days, the Attorney General must submit no later than 210 days a report to appropriate congressional committees and the Secretary of Homeland Security describing the reasons why the background check was not completed within 180 days and the earliest date on which the Attorney General is certain that the background check will be completed. If the Secretary of Homeland Security receives such report from the Attorney General, the Secretary is to provide the applicant a copy of the report, redacted to remove any classified information.

Hopefully this legislation can be passed as the two above subjects are of prime concern to many people seeking immigration benefits.

3 Derivative asylees allowed to travel to the principal's country of persecution

A large question which has faced many immigration attorneys over a number of years has been what advice to give to families of asylees who hold dependent asylee status and wish to return temporarily to the homeland of their principal's persecution. U.S.C.I.S. in the past has been mum on the subject. The main argument for allowing the families to travel is that they themselves are not necessarily the persecuted, but the family members, and their ability to travel back and forth unimpeded by the home government should not deprive them of their status which is dependent upon family connection with the principal asylee. The fear of derivative asylees wishing to travel back to their homelands has been that U.S. Customs and Border Enforcement (CBP) would intercept them at the airports or other ports of entry and place them in removal proceedings for not having a valid fear of persecution. U.S.C.I.S. released a fact sheet in January 2007 which spoke of the risks of travel for asylees, but did not address the issue of derivatives. We (along with undoubtedly others) raised this question for the American Immigration Lawyers Association (AILA) to bring to the attention of U.S.C.I.S., and U.S.C.I.S. fortunately answered the question at the Asylum Headquarters/ Non-Governmental Organization liaison meeting on March 6, 2007, in Washington D.C..

The answer provided was that the fact sheet was just a clarification of the rules and made no policy changes -- that derivative asylees are permitted to travel to the principal's country of persecution. As they were not granted asylum on their individual cases, CIS would not seek to terminate their asylum status upon such travel. However, U.S.C.I.S. noted that normal procedures would still have CBP questioning the derivative asylees when they reenter the United States.

U.S.C.I.S. headquarters further spoke on the effect of a short trip by the principal asylee to the homeland of persecution in stating that such would most likely not be considered reavailment (availing oneself again to a country's protections) by noting that reavailment is really about establishing ties and not about visiting family. However, readers should note that further questions may arise with CBP if principal asylees obtain passports or extensions of passports from the homeland of persecution prior to traveling. Also that the term "short trip" was not defined (is it two weeks or 90 days or 6 months?), nor the situation in which a businessman travels to the homeland for several short trips per year on behalf of his or her employer. Principal asylees appear have a partial but not complete answer as to their ability to travel to the homeland of persecution, and should remain cautious in planning such trips.

4 DREAM Act has more hope of passage this year.

With the Democrats' emphasis on passing a comprehensive immigration reform bill this year and President Bush's recent words in his South America/Latin American tour that he would work as hard as he possibly could to pass such legislation, hopes for non-documented students in the U.S. appear brighter than ever. The Development Relief Education for Alien Minors (DREAM) Act of 2007 was introduced by Senator Richard Durbin (D-IL) in the Senate on March 6, 2007, and similar legislation, the American Dream Act (H.R. 1275) by Howard Berman (D-IL) on March 1, 2007, in the House. Passage of the legislation would insure that America does not lose this corps of young students who would either be forced to leave the country or in many cases take on positions for which they would be tremendously over-qualified.

To establish eligibility under the legislation, the individual must have first entered the U.S. before the age of 16; be physically present for a continuous period of five years before the law is enacted; and either be in college, completed high school, or obtained a GED, and not be inadmissible for crimes, security or smuggling (or be deportable on the same grounds) although a waiver would be available if there would be extreme hardship to the individual, the individual's child, or his or her parents (if the alien is still a child). A six year period of conditional residence is contemplated, and a petition to remove the conditional basis of the residence status could be made 180 days before to two years after (or any extensions given by Congress) the six year date. Among other requirements, a successful removal petition must show that the student has not left the United States for a total of 365 days during the period of conditional residence and the individual must have two years in good standing in a bachelor's or higher degree program in the U.S. or a college degree in the U.S. or have served in the military for two years. A waiver of the latter condition is available if the individual can show compelling circumstances for not being able to complete one of the three and exceptional and extremely unusual hardship to the individual or the individual's spouse, parent, or child who are either U.S. citizens or permanent residents. Children who have not completed high school or are in college or have obtained a GED, but are at least 12 years of age, enrolled full time in a primary or secondary school and meet all the other requirements would be allowed a stay of removal and employment authorization.

As we have recently seen young persons in despair who have either finished college and hold dead-end jobs, or are graduating soon and cannot take on positions from companies that have been impressed by their abilities during internships, we hope that this news on the DREAM Act and a review of its requirements will give them hope. Passage of the DREAM Act as part of a comprehensive immigration reform package or even separately would benefit this country by allowing the youth that we have educated at taxpayer expense to take on their proper roles in American society at a time when other countries are declining because of a lack of skilled workers.

† The author is a 26+ 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 © 2007 Alan Lee, Esq.

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