Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Wednesday, September 22, 2010

District Court support for USCIS treatment of foreign degrees

In a pair of decisions from the Eastern District of Michigan, Sunshine Rehab Services v. Napolitano, 2010 WL 3325442, No. 09-13605 (E.D. Mich. Aug. 20, 2010), and Tisco Group v. Napolitano, 2010 WL 3464314, No. 09-10072 (E.D. Mich. Aug. 30, 2010), the courts were presented with challenges to denials of I-140 petitions filed for an EB3 professional (Sunshine) and an EB2 advanced degree professional (Tisco).

In both cases, the USCIS denied the I-140 petitions because the foreign degrees were not equivalent to either a four year U.S. bachelor's degree (Sunshine) or a U.S. master's degree (Tisco).  The district courts deferred to the USCIS interpretation and application of the regulations and statute and reliance on the EDGE database.  Judge Rosen in Sunshine expressed his belief that the USCIS got it wrong but was constrained by the deferential standard of review.

1429 trumps 1447(b)

In Rahman v. Napolitano, (unpublished), the court was confronted with an appeal from the denial of a petition for a hearing on a delayed naturalization application, pursuant to 1447(b).

The facts are somewhat complicated.  The LPR applied for naturalization.  While her application was pending, she pleaded guilty to a federal crime and was placed in removal proceedings.  In addition to the conviction, there was apparently a previously undisclosed in absentia order.  After the initiation of the removal proceedings, she filed the 1447(b) action in district court.  Between the filing and proper service on the government, the USCIS denied the naturalization application because of the pending removal proceedings, and the failure to disclose the criminal activity and prior removal order.

Following Zayed v. U.S., 368 F.3d 902 (6th Cir. 2004), the court found that the bar on granting naturalization applications for LPRs in removal proceedings, 1429, trumps 1447(b).  While the district court has jurisdiction under 1447(b) to consider the matter, 1429 restricts the available remedies.  The court can only grant what the AG would be and if the AG is prohibited from granting naturalization because of the pending removal proceedings, so to is the court.

Although it did not decide the matter, the court noted that the weight of the authority seems to support the view that 1447(b) grants the court exclusive authority to decide a naturalization application, so the USCIS could not deny it once jurisdiction vests with the district court.  The court did not have to reach this question because of the reach of 1429.

Monday, September 20, 2010

Courts have jurisdiction to hear challenges to a family member's removal but cannot grant relief

In Hamdi v. Napolitano, (published), a child sought to stop the DHS from removing his mother. 
The case presented sympathetic facts because Hamdi is severely disabled and dependent on his mother's care.

Although the end result was not favorable, the decisions includes discussions about several important jurisdictional issues.  First, 8 USC 1252(g), the "zipper clause" did not deprive the District Court of jurisdiction over a child's independent complaint relating to the removal of his mother.  Thus, if a family member seeks to stop a loved one's removal, the family member should assert his or her own distinct constitutional right and separate injuries.

However, the child's constitutional and international law claims do not provide subject matter jurisdiction under the Administrative Procedures Act.  In a footnote, the Court also found that the Declaratory Judgments Act likewise does not provide subject matter jurisdiction.  The APA does not provide subject matter jurisdiction over a challenge to the parent's removal because the APA is supplanted by the INA.

The APA's general waiver of sovereign immunity with respect to non-monetary claims allowed the child's claim to proceed under 8 USC 1331's general federal-question subject matter jurisdiction.  The constitutional nature of the child's alleged injury (the complaint raised the 5th, 8th, 9th, and 14th Amendments) were sufficient to create subject matter jurisdiction and could not be dismissed out of hand.

Although the Court found subject matter jurisdiction, the Court found dismissal proper for failure to state a constitutional claim upon which relief may be granted.  8 USC 1252(b)(9), although it does not preclude subject matter jurisdiction, does preclude the granting of the relief requested, which was judicial review of the mother's removal order. This statute establishes the procedure for challenging a removal order.  While the Court can determine whether the child's constitutional rights will be violated from the separation from his mother, this is distinct from a judicial determination of questions arising from the mother's removal.  In the end, 1252(b)(9) operates to deprive all federal courts of the authority to review the mother's removal to determine whether the constitutional injuries to the child renders the removal invalid.

In the final footnote, note 16, the Court left open the possibility that certain types of unnamed relief might survive section 1252's jurisdictional bars.

Diversity Visa eligibility ends with the fiscal year

In Mwasaru v. Napolitano, (published), the alien filed a mandamus complaint seeking adjudication of her FY 2007 Diversity Visa Lottery application.

The Court agreed with the 2nd, 3rd, 9th, and 11th circuits in finding that 8 USC 1154 prohibits issuance of diversity visas after the close of the fiscal year.  As unfair as it is, these courts have found that the statute simply does not allow for the issuance of these visas after the end of the fiscal year, regardless of government processing errors.  It made no difference that Mwasaru filed her mandamus complaint before the close of the fiscal year, although perhaps there is some room to distinguish this case from future cases because the USCIS denied her application and she sought to renew her application in Immigration Court.

The Court denied her mandamus complaint as moot.

ICE has burden of proving a vacated conviction remains valid for immigration purposes

In a pair of decisions, Barakat v. Holder, (published), and Agolli v. Holder,, the Sixth Circuit addressed which party bears the burden of proving that an alien is or is not removable if a conviction is set aside.

ICE bears the initial burden of proving that an alien is removable.  If ICE makes out a prima facie case, the burden shifts to the alien to produce evidence of his non-removability, such as proof that a court of competent jurisdiction vacated the conviction.  At that point, the burden shifts to ICE to prove by clear and convincing evidence that the conviction remains valid for immigration purposes, in other words, that the conviction was vacated for rehabilitative or immigration purposes.

In Barakat, the Court reiterated that Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006) placed the burden on ICE to show that a conviction was set aside for "improper" purposes.  The Court clarified that Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) is distinguishable because in that case, ICE carried its burden by submitting uncontested circumstantial evidence that the conviction was vacated solely for immigration purposes.

In Barakat, the record was unclear as to why his conviction was vacated.  This meant that ICE could not meet its burden.