FIRSTLAND INTERNATIONAL AND WHAT IT MAY MEAN FOR YOU
By Alan Lee, Esq.†‡
Firstland International v.
INS, 03-6139 (2d Cir., 8/2/04) is an important case in immigration
law as it dealt with an issue of first impression in the Second
Circuit which had been decided in the government's favor by three
circuit courts and for aliens in one circuit concerning the court's
right to review discretionary decisions by the government in immigration
cases; and an issue of first impression nationwide in the circuit
courts concerning the power of the government to revoke an immigrant
visa petition once aliens had embarked on their journeys to the
U.S. The Second Circuit found in favor of the appellants, Firstland
International and Chai, on both issues following oral argument on
February 18, 2004, and submission of supplemental briefs. Appellants
were represented by the law firm of Alan Lee, Esq. and Mr. Lee argued
the case for the appellants before the court. Amicus briefs were
submitted by the American Immigration Lawyers Association, American
Council on International Personnel, and the U.S. Chamber of Commerce.
The following is Mr. Lee's account of the case and what it may mean
to aliens in the future.
Since winning the landmark case of Firstland International
v. INS before the Second Circuit Court of Appeals (decision
rendered on August 2, 2004), many people have asked us what the
case is all about, and why it is important.
Firstland International involved a small company, Firstland,
and its chief executive in the United States who had been transferred
from the parent company headquarters in China to lead the development
of the company in New York. Mr. Chai, the chief executive, entered
the United States on an L-1A intracompany transferee visa to work
in the subsidiary company after the company had sized up the U.S.
market for months before deciding that this was a viable move. The
company began to develop its sales in the States becoming fairly
profitable in the next year. It then requested an extension of the
L-1A visa for Mr. Chai which was approved after the INS requested
and received from the company voluminous documentation to prove
that Mr. Chai fit within the category of an executive/managerial
employee. Following the extension approval, the company applied
for an immigrant visa petition (I-140) to the INS on behalf of Mr.
Chai because it believed at that point that he would be important
in the expansion of the U.S. company on a long-term basis. The I-140
petition's purpose was to prove to the INS that the company was
viable, the subsidiary-parent relationship still existed between
the two companies, and Mr. Chai was qualified for the position.
The petition was soon approved affirming that Mr. Chai was indeed
an executive/managerial worker for the U.S. subsidiary and entitled
to EB1-3 classification as an intracompany transferee for immigrant
visa purposes. Mr. Chai and his family then submitted the last step--I-485
adjustment of status to permanent resident applications--to the
INS. During the period of I-485 processing, INS began questioning
the executive/managerial designation that it had already given to
Mr. Chai multiple times, and then revoked his approved petition
-- this despite the facts that Firstland had only grown
in number of employees and revenues from the time of its establishment
until the time of petition revocation. Although the INS had a longstanding
policy that its officers should not readjudicate issues which had
been decided in prior adjudications absent gross error or fraud
and we pointed this out multiple times to the INS in the course
of these proceedings, it ignored the policy and fought us at every
turn from administrative appeal within the INS to the suit that
we filed in the federal district court.
In that proceeding, the district court for the Eastern District
of New York dismissed our suit on the basis that it had no jurisdiction
to hear the case because we were challenging a provision of law
-- revocation proceedings -- which the court believed was left to
the discretion of the Attorney General. Prior to the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the federal
courts had power to decide cases over discretionary decisions of
the Attorney General. However, IIRIRA implemented section 242(a)(2)(B)(ii)
of the Immigration and Nationality Act (INA) which stated that no
court could have jurisdiction to review decisions or actions of
the Attorney General the authority for which was specified under
the law to be in the discretion of the Attorney General, other than
the granting of political asylum relief. The government's position
was that the revocation section, Section 205 of the INA, was discretionary
and outside court review as its wording clearly stated that the
Attorney General could at any time for what he deemed to be good
and sufficient cause revoke a visa petition.
Following the dismissal in the District Court, we appealed to the
highest federal court beneath the Supreme Court, the Circuit Court
of Appeals. (In the nation, there are 11 federal courts of appeal
plus the D.C. Court of Appeals, each responsible for federal decisions
in different regions of the country). In deciding our appeal, the
Second Circuit Court of Appeals which has jurisdiction over the
states of New York, Vermont and Connecticut upheld us on the jurisdictional
issue. Although not citing the numerous decisions of other circuit
courts of appeal which have agreed with the government's position
in sections of the INA giving discretion to the Attorney General
( the Sixth Circuit which covers Ohio, Michigan, Kentucky and Tennessee,
the Seventh Circuit covering Illinois, Indiana and Wisconsin, and
the 10th Circuit covering Wyoming, Utah, Colorado, Kansas, Oklahoma
and New Mexico) or the one circuit court which has carved out an
exception ( the Ninth Circuit covering the states of California,
Alaska, Washington, Montana, Idaho, Oregon, Nevada, Arizona, and
Hawaii), the court signaled its favor with the Ninth Circuit's rulings
by finding restrictions on the exercise of discretion by the Attorney
General and concluding that there was no statutory basis for the
decision as it was not "specified" to be in the discretion
of the Attorney General. At issue was the third sentence of section
205 that "In no case, however, shall such revocation have effect
unless there is mailed to the petitioner's last known address a
notice of the revocation and unless notice of the revocation is
communicated to the beneficiary of the petition before such beneficiary
commences his journey to the United States." The government
argued that the third sentence only applied to individuals residing
overseas, and not to Mr. Chai since he had already been admitted
to the U.S..
In finding a restriction to a statute which otherwise appeared to
give great discretion to the INS, the court seemed to agree with
the Ninth Circuit's view that each exercise of discretion by the
Attorney General must be examined closely to determine whether any
boundaries to discretion exist which would take the disputed provision
out of section 242(a)(2)(B)(ii) 's bar against judicial review.
At this time, there are many deserving cases which are no longer
being heard in the federal courts because of section 242(a)(2)(B)(ii).
Unfortunately the inability to have a federal judge hear claims
where discretion is given to the Immigration Service has emboldened
it in denying cases like Firstland. Hopefully this case
will help turn the tide against the expansive use of the bar against
judicial review. The importance of having another circuit court
speak out in favor of judicial review cannot be overstated, especially
the Second Circuit, which is highly respected for its scholarship
and the quality of its rulings and is arguably the most influential
circuit court in the country.
The court's major ruling in Firstland (once past the jurisdictional
question) was that the Attorney General has no power to issue a
revocation of an approved immigrant visa petition once an alien
has embarked on his/her journey to the U.S.. In this case, Mr. Chai
was in the U.S. at the time that his I-140 petition was approved.
In our research, this was an issue of first impression which had
never been decided previously by any circuit court - only by an
Oregon district court and the Board of Immigration Appeals, both
of which had ruled in favor of the government. We argued that once
approved, Mr. Chai's status could only be attacked in proceedings
before an immigration court in which he would enjoy a fairer standard
of proof than in revocation proceedings in which the Attorney General
could revoke at any time for what he deemed to be good and sufficient
cause. In this regard, we relied upon the fourth sentence of section
205 that "If notice of revocation is not so given, and the
beneficiary applies for admission to the United States, his admissibility
shall be determined in the manner provided for by sections 1225
and 1229a of this title." (Sections 1225 and 1229a deal with
expedited removal proceedings and removal proceedings respectively).
We further pointed out analogous situations in which the Board of
Immigration Appeals had upheld the authority of immigration judges
to examine the merits of visa petitions in exclusion and deportation
proceedings. The court in ruling for us held that under the plain
language of the statute, a decision by the INS to revoke its approval
of a visa petition has no effect unless the alien receives notice
of the revocation from the Secretary of State before departing for
the United States. The court found no ambiguity in the notice requirement
of the statute. The court noted INS's complaints that the court
in so ruling as it did would unsettle the adjustment of status process
and result in additional administrative burdens on the agency, but
stated that if the INS was correct, it could petition Congress to
amend the statute. It concluded tongue-in-cheek that if there was
merit in the INS's stated concerns for the future, it should not
be difficult to obtain from Congress an appropriate technical amendment
to the statute.
At this time, the case of Firstland is not yet over as
the government has the right to request a rehearing before the panel
of judges that decided the case or before the entire Second Circuit
bench or to appeal the case to the Supreme Court. Regardless of
the ultimate outcome, the Second Circuit's decision makes the positive
statement that there are boundaries to the government's grasp for
power and the court is ready to play its part in the checks and
balances which frame the nation's three branches of government.
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