FOR IMMEDIATE RELEASE
Wednesday, June 3, 2009
WWW.USDOJ.GOV
Attorney General Vacates Compean Order, Initiates New Rulemaking to Govern Immigration Removal Proceedings
Attorney General Eric Holder today vacated the order issued in Matter of Compean by Attorney General Mukasey in January and announced his intention to initiate a new rulemaking proceeding for regulations to govern claims of ineffective assistance of counsel in removal proceedings.
"The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel, and the Department of Justice’s rulemaking in this area will be fair, it will be transparent, and it will be guided by our commitment to the rule of law," Holder said. "It is important that the American people have the opportunity to participate in formulating our procedures in this area, and this new process will ensure they do."
On January 7, Attorney General Mukasey issued an order in Matter of Compean overturning Board of Immigration Appeals precedent and procedures governing assistance of counsel in removal proceedings. The order limited non-citizens’ ability to make claims of ineffective assistance of counsel in immigration proceedings, and it did so without the full range of public input that a notice and comment rulemaking would have provided.
In the order issued today, Attorney General Holder directs the Executive Office for Immigration Review to initiate rulemaking procedures as soon as practicable to evaluate the existing framework for making claims of ineffective assistance of counsel, to solicit public comment, and, if appropriate, to issue a final rule.
By vacating the previous order, Attorney General Holder restores the procedures governing removal proceedings to those in place before the issuance of Attorney General Mukasey’s order. A copy of the Attorney General’s order is attached.
Wednesday, September 30, 2009
Tuesday, September 29, 2009
Swiss Banking Executive and Swiss Lawyer Charged with Conspiring to Defraud the United States
FOR IMMEDIATE RELEASE
Thursday, August 20, 2009
WWW.USDOJ.GOV
TAX
(202) 514-2007
TDD (202) 514-1888
Swiss Banking Executive and Swiss Lawyer Charged with Conspiring to Defraud the United States
Defendants Aided Wealthy Americans Conceal Assets in Secret Swiss Bank Accounts
WASHINGTON - Hansruedi Schumacher and Matthias Rickenbach, both of Switzerland, were indicted today for conspiring to defraud the United States, the Justice Department and Internal Revenue Service (IRS) announced. According to the indictment, Schumacher worked as an executive manager at Neue Zuercher Bank (NZB), a Swiss private bank located in Zurich, Switzerland. Rickenbach worked as a Swiss attorney who provided legal advice and services to U.S. clients. Both are alleged to have aided wealthy Americans conceal assets and income in Switzerland from United States authorities.
According to the indictment, Schumacher and Rickenbach helped wealthy American clients conceal their assets by establishing sham and nominee offshore entities to hide their U.S. clients' assets and income while allowing these clients to still control the assets and make investment decisions.
The indictment further alleges that Schumacher and Rickenbach regularly traveled to the United States to conduct banking and investment activities with their U.S. clients and that when they traveled they concealed their business activities in the United States by falsely representing to American authorities that they were traveling to the U.S. for personal reasons. While in the United States, the defendants would sometimes bring cash for their clients..
According to court documents, Schumacher and Rickenbach aided their wealthy American clients repatriate money back to the United States using several deceptive means. Schumacher and Rickenbach helped their clients obtain offshore credit cards and created sham loan documents. Additionally, Schumacher and Rickenbach falsified bank documents to generate the appearance that assets of their U.S. clients belonged to Swiss citizens, and they falsified documents to disguise their United States clients’ repatriation of offshore funds as inheritances from foreign citizens.
According to court documents, Schumacher and Rickenbach discouraged their U.S. clients from voluntarily coming into compliance in the United States. Instead, the defendants encouraged their clients to transfer their assets from UBS, a large Swiss bank, to NZB, a smaller bank in Switzerland. The defendants told their clients that their assets and identification would be safer at NZB because they had no presence in the United States and was therefore less likely to be pressured by the American authorities to disclose the identities of their United States clients.
"The Justice Department will continue to investigate leads provided by U.S. taxpayers who have come forward to disclose foreign bank accounts and will prosecute those foreign bankers and banks who illegally helped U.S. clients evade taxes," said John A. DiCicco, Acting Assistant Attorney General of the Justice Department’s Tax Division. "We encourage foreign banks to come forward and disclose their conduct immediately, before we learn about their criminal conduct from U.S. taxpayers."
"Today’s Indictment is the latest prosecution in this District against foreign bankers and professionals who enabled and assisted wealthy Americans conceal their assets offshore," said Jeffrey H. Sloman, Acting U.S. Attorney for the Southern District of Florida. "As more Americans voluntarily come into compliance and face their financial obligations, more leads are being developed and new investigations are initiated. American taxpayers who sought to avoid taxes by hiding their assets in Swiss accounts are on notice that this investigation continues."
"This is another step in our ongoing effort to pursue hidden offshore assets -- no matter where they are located," said IRS Commissioner Doug Shulman. "We're in the early stages of our work to crack down on offshore tax evasion. Through our efforts, we are gaining access to more and more information on institutions and individuals involved in offshore tax evasion, and you can expect us to use all of our enforcement tools to stop this abuse. For people with hidden offshore assets, they have an opportunity to get right with the government. Time is quickly running out, and people should take advantage of our voluntary disclosure process before special provisions expire September 23."
Acting Assistant Attorney General DiCicco and Acting U.S. Attorney Sloman commended the investigative efforts of the IRS agents involved in this case. The prosecution is being handled by Senior Litigation Counsel Kevin M. Downing and Trial Attorney Michael P. Ben’Ary of the Tax Division, and Assistant U.S. Attorney Jeffrey A. Neiman.
U.S. citizens who have an interest in, or signature or other authority over, a financial account in a foreign country with assets in excess of $10,000 are required to disclose the existence of such account on Schedule B, Part III of their individual income tax return. Additionally, American citizens must file a Report of Foreign Bank and Financial Accounts, or F-Bar, with the U.S. Treasury, disclosing any financial account in a foreign country with assets in excess of $10,000 for which they have a financial interest in or signature authority, or other authority over.
More information about the Justice Department’s Tax Division and its enforcement efforts is available at http://www.usdoj.gov/tax/.
Thursday, August 20, 2009
WWW.USDOJ.GOV
TAX
(202) 514-2007
TDD (202) 514-1888
Swiss Banking Executive and Swiss Lawyer Charged with Conspiring to Defraud the United States
Defendants Aided Wealthy Americans Conceal Assets in Secret Swiss Bank Accounts
WASHINGTON - Hansruedi Schumacher and Matthias Rickenbach, both of Switzerland, were indicted today for conspiring to defraud the United States, the Justice Department and Internal Revenue Service (IRS) announced. According to the indictment, Schumacher worked as an executive manager at Neue Zuercher Bank (NZB), a Swiss private bank located in Zurich, Switzerland. Rickenbach worked as a Swiss attorney who provided legal advice and services to U.S. clients. Both are alleged to have aided wealthy Americans conceal assets and income in Switzerland from United States authorities.
According to the indictment, Schumacher and Rickenbach helped wealthy American clients conceal their assets by establishing sham and nominee offshore entities to hide their U.S. clients' assets and income while allowing these clients to still control the assets and make investment decisions.
The indictment further alleges that Schumacher and Rickenbach regularly traveled to the United States to conduct banking and investment activities with their U.S. clients and that when they traveled they concealed their business activities in the United States by falsely representing to American authorities that they were traveling to the U.S. for personal reasons. While in the United States, the defendants would sometimes bring cash for their clients..
According to court documents, Schumacher and Rickenbach aided their wealthy American clients repatriate money back to the United States using several deceptive means. Schumacher and Rickenbach helped their clients obtain offshore credit cards and created sham loan documents. Additionally, Schumacher and Rickenbach falsified bank documents to generate the appearance that assets of their U.S. clients belonged to Swiss citizens, and they falsified documents to disguise their United States clients’ repatriation of offshore funds as inheritances from foreign citizens.
According to court documents, Schumacher and Rickenbach discouraged their U.S. clients from voluntarily coming into compliance in the United States. Instead, the defendants encouraged their clients to transfer their assets from UBS, a large Swiss bank, to NZB, a smaller bank in Switzerland. The defendants told their clients that their assets and identification would be safer at NZB because they had no presence in the United States and was therefore less likely to be pressured by the American authorities to disclose the identities of their United States clients.
"The Justice Department will continue to investigate leads provided by U.S. taxpayers who have come forward to disclose foreign bank accounts and will prosecute those foreign bankers and banks who illegally helped U.S. clients evade taxes," said John A. DiCicco, Acting Assistant Attorney General of the Justice Department’s Tax Division. "We encourage foreign banks to come forward and disclose their conduct immediately, before we learn about their criminal conduct from U.S. taxpayers."
"Today’s Indictment is the latest prosecution in this District against foreign bankers and professionals who enabled and assisted wealthy Americans conceal their assets offshore," said Jeffrey H. Sloman, Acting U.S. Attorney for the Southern District of Florida. "As more Americans voluntarily come into compliance and face their financial obligations, more leads are being developed and new investigations are initiated. American taxpayers who sought to avoid taxes by hiding their assets in Swiss accounts are on notice that this investigation continues."
"This is another step in our ongoing effort to pursue hidden offshore assets -- no matter where they are located," said IRS Commissioner Doug Shulman. "We're in the early stages of our work to crack down on offshore tax evasion. Through our efforts, we are gaining access to more and more information on institutions and individuals involved in offshore tax evasion, and you can expect us to use all of our enforcement tools to stop this abuse. For people with hidden offshore assets, they have an opportunity to get right with the government. Time is quickly running out, and people should take advantage of our voluntary disclosure process before special provisions expire September 23."
Acting Assistant Attorney General DiCicco and Acting U.S. Attorney Sloman commended the investigative efforts of the IRS agents involved in this case. The prosecution is being handled by Senior Litigation Counsel Kevin M. Downing and Trial Attorney Michael P. Ben’Ary of the Tax Division, and Assistant U.S. Attorney Jeffrey A. Neiman.
U.S. citizens who have an interest in, or signature or other authority over, a financial account in a foreign country with assets in excess of $10,000 are required to disclose the existence of such account on Schedule B, Part III of their individual income tax return. Additionally, American citizens must file a Report of Foreign Bank and Financial Accounts, or F-Bar, with the U.S. Treasury, disclosing any financial account in a foreign country with assets in excess of $10,000 for which they have a financial interest in or signature authority, or other authority over.
More information about the Justice Department’s Tax Division and its enforcement efforts is available at http://www.usdoj.gov/tax/.
Saturday, September 26, 2009
Defendant Arranged Marriages Between Foreign Nationals and U.S. Citizens for a Fee
U.S. Department of Justice
James T. Jacks
Acting United States Attorney
Northern District of Texas
FOR IMMEDIATE RELEASE
MEDIA INQUIRIES: KATHY COLVIN
WEDNESDAY, JULY 1, 2009
www.usdoj.gov/usao/txn
PHONE: (214)659-8600
FAX: (214) 767-2898
SEVENTY-ONE-YEAR-OLD FORT WORTH WOMAN ADMITS
ROLE AS LEADER OF VISA FRAUD SCHEME
Defendant Arranged Marriages Between Foreign Nationals and U.S. Citizens for a Fee
DALLAS — Maria Refugia Camarillo, 71, pleaded guilty today before U.S. District Judge Jorge A. Solis, to conspiring to commit fraud in connection with immigration documents, announced Acting U.S. Attorney James T. Jacks of the Northern District of Texas. Camarillo, of Fort Worth, Texas, has been on a personal recognizance bond since her arrest in May 2008 on charges outlined in a 29-count indictment that charged her, and 15 additional defendants, in the large-scale document fraud conspiracy. She is scheduled to be sentenced by Judge Solis on September 23, 2009, and faces a maximum statutory sentence of five years in prison, a $250,000 fine and restitution. In addition, she is required to execute and provide a $35,000 lien on her home.
According to documents filed in court, beginning in the 1980's and continuing until May 2008, Camarillo, and a number of individuals in the Dallas-Fort Worth area, ran a fraudulent scheme in which foreign nationals, who wanted to apply for lawful residency into the U.S., would pay Camarillo to arrange a marriage between them and a U.S. citizen. Once married, they could apply for U.S. permanent residence and later, U.S. citizenship.
Camarillo recruited many of her family members, including her children, grandchildren, nieces and nephews into the conspiracy; 15 family members were indicted with Camarillo. The indictment was dismissed against one defendant, but the remainder have pleaded guilty to their role in the conspiracy and most are awaiting sentencing. Camarillo paid the co-conspirators a portion of the money that she received either directly, or by paying bills or other obligations on their behalf. Camarillo admitted that three of her grandchildren were minors when they entered into the conspiracy and that they were under age 18 when they entered into their first marriages related to the conspiracy.
Foreign nationals would pay as much as $12,000 for these arranged marriages. There was an organized deception by the defendants to make the fraudulent marriages appear legitimate. Camarillo even coached the couples on how to make the marriage appear legitimate, includingadvising them to take photographs together and open joint bank accounts. She even provided the couple a list of possible questions they might be asked at the immigration interview and advised them to practice answering the questions.
Couples filed their applications for permanent residence with U.S. Citizenship and Immigration Services (CIS) using fraudulently obtained, legitimate documents which showed their marriages were valid. To further evade detection, Camarillo provided some defendants who were citizen spouses, fraudulent identities, including false names, dates of birth and Social Security numbers. Camarillo admitted that approximately 13 fraudulent identities were used during the course of the conspiracy by various members of the conspiracy.
Camarillo admitted that after the foreign national had made initial contact with a member of the conspiracy, she would usually meet with the foreign national in her office behind her house in Fort Worth. During the meeting, or soon after, the foreign national would pay half of the arranged fee to Camarillo. Then, Camarillo would select one of the coconspirators, who was a citizen of the appropriate age and gender, to marry and petition for the alien. The selected spouse usually met the foreign national for the first time when they applied for a marriage license and again for the actual wedding ceremony, which was normally officiated by a Justice of the Peace.
The case is being investigated by CIS, U.S. Immigration and Customs Enforcement (ICE), Social Security Administration’ Office of Inspector General, Health and Human Services Commission’s Office of Inspector General and the Department of Homeland Security’s Office of Inspector General.
Assistant U.S. Attorneys Charles Brown and Amy Mitchell are prosecuting.
James T. Jacks
Acting United States Attorney
Northern District of Texas
FOR IMMEDIATE RELEASE
MEDIA INQUIRIES: KATHY COLVIN
WEDNESDAY, JULY 1, 2009
www.usdoj.gov/usao/txn
PHONE: (214)659-8600
FAX: (214) 767-2898
SEVENTY-ONE-YEAR-OLD FORT WORTH WOMAN ADMITS
ROLE AS LEADER OF VISA FRAUD SCHEME
Defendant Arranged Marriages Between Foreign Nationals and U.S. Citizens for a Fee
DALLAS — Maria Refugia Camarillo, 71, pleaded guilty today before U.S. District Judge Jorge A. Solis, to conspiring to commit fraud in connection with immigration documents, announced Acting U.S. Attorney James T. Jacks of the Northern District of Texas. Camarillo, of Fort Worth, Texas, has been on a personal recognizance bond since her arrest in May 2008 on charges outlined in a 29-count indictment that charged her, and 15 additional defendants, in the large-scale document fraud conspiracy. She is scheduled to be sentenced by Judge Solis on September 23, 2009, and faces a maximum statutory sentence of five years in prison, a $250,000 fine and restitution. In addition, she is required to execute and provide a $35,000 lien on her home.
According to documents filed in court, beginning in the 1980's and continuing until May 2008, Camarillo, and a number of individuals in the Dallas-Fort Worth area, ran a fraudulent scheme in which foreign nationals, who wanted to apply for lawful residency into the U.S., would pay Camarillo to arrange a marriage between them and a U.S. citizen. Once married, they could apply for U.S. permanent residence and later, U.S. citizenship.
Camarillo recruited many of her family members, including her children, grandchildren, nieces and nephews into the conspiracy; 15 family members were indicted with Camarillo. The indictment was dismissed against one defendant, but the remainder have pleaded guilty to their role in the conspiracy and most are awaiting sentencing. Camarillo paid the co-conspirators a portion of the money that she received either directly, or by paying bills or other obligations on their behalf. Camarillo admitted that three of her grandchildren were minors when they entered into the conspiracy and that they were under age 18 when they entered into their first marriages related to the conspiracy.
Foreign nationals would pay as much as $12,000 for these arranged marriages. There was an organized deception by the defendants to make the fraudulent marriages appear legitimate. Camarillo even coached the couples on how to make the marriage appear legitimate, includingadvising them to take photographs together and open joint bank accounts. She even provided the couple a list of possible questions they might be asked at the immigration interview and advised them to practice answering the questions.
Couples filed their applications for permanent residence with U.S. Citizenship and Immigration Services (CIS) using fraudulently obtained, legitimate documents which showed their marriages were valid. To further evade detection, Camarillo provided some defendants who were citizen spouses, fraudulent identities, including false names, dates of birth and Social Security numbers. Camarillo admitted that approximately 13 fraudulent identities were used during the course of the conspiracy by various members of the conspiracy.
Camarillo admitted that after the foreign national had made initial contact with a member of the conspiracy, she would usually meet with the foreign national in her office behind her house in Fort Worth. During the meeting, or soon after, the foreign national would pay half of the arranged fee to Camarillo. Then, Camarillo would select one of the coconspirators, who was a citizen of the appropriate age and gender, to marry and petition for the alien. The selected spouse usually met the foreign national for the first time when they applied for a marriage license and again for the actual wedding ceremony, which was normally officiated by a Justice of the Peace.
The case is being investigated by CIS, U.S. Immigration and Customs Enforcement (ICE), Social Security Administration’ Office of Inspector General, Health and Human Services Commission’s Office of Inspector General and the Department of Homeland Security’s Office of Inspector General.
Assistant U.S. Attorneys Charles Brown and Amy Mitchell are prosecuting.
SIXTEEN CHARGED IN VISA FRAUD SCHEME
FOR IMMEDIATE RELEASE
MEDIA INQUIRIES: KATHY COLVIN
TUESDAY, MAY 13, 2008
WWW.USDOJ.GOV/USAO/TXN
PHONE: (214)659-8600
FAX: (214) 767-2898
SIXTEEN CHARGED IN VISA FRAUD SCHEME
DALLAS — Twelve of 16 defendants charged in a federal indictment, returned by a grand jury in Dallas last week, with conspiracy to commit fraud in connection with immigration documents, were arrested this morning without incident in the Dallas - Fort Worth, Texas, area and in Corpus Christi, Texas, announced U.S. Attorney Richard B. Roper of the Northern District of Texas. The indictment stems from an extensive investigation by the U.S. Citizenship and Immigration Services (CIS), U.S. Immigration and Customs Enforcement (ICE), Social Security Administration’ Office of Inspector General, Health and Human Services Commission’s Office of Inspector General and the Department of Homeland Security’s Office of Inspector General.
U.S. Attorney Roper said, “I compliment the agencies who worked together to unravel this alleged conspiracy. My office will continue to work to prosecute those who use fraud to undermine our nation’s immigration system.”
Charged in the indictment are:
• Maria Refugia Camarillo, a/k/a “Cuca," 70
• Diana De Leon, a/k/a “Yvette Barrera,” 34
• Laura De Leon, 33
• Olga Hernandez, a/k/a “Anita Marie Borja,” 52
• Mary Lou Hernandez, a/k/a “Rachel Lucio Trejo,” 51
• Oscar Hernandez, 44 (arrested in Corpus Christi, Texas)
• Carmela Valdez, 48
• Andres Valdez, 49
• Delia Valdez, 47
• San Juanita Valdez, 51
• Maria Rosario Nunez, 33
• Antonio Anchondo, 28
• Arnoldo Anchondo, 25
• Alfredo De Leon, Jr., 29
• Josephine Hinojosa, 28
• Diana Hernandez, a/k/a “Olga Jean Flores,” 48
Defendants Carmela, Andres and Delia Valdez, and Maria Rosario Nunez remain at large.
The arrested defendants made their initial appearance today before a U.S. Magistrate Judge who released them on bond. All are set for arraignment on May 19, 2008.
According to the 29-count indictment, since 2003, all of the defendants were allegedly involved in a large-scale conspiracy in which foreign nationals paid as much as $12,000 each to marry U.S. citizens so that once married, they could apply for U.S. permanent residence, and later U.S. citizenship. All of the defendants are also charged with at least one substantive count including fraud and misuse of visas, permits, and other documents; Social Security number fraud, or aggravated identity theft. The indictment also includes a forfeiture allegation which will require the defendants to forfeit to the U.S., upon conviction, a home located in Fort Worth, Texas.
The indictment involved an organized deception by the defendants to make the fraudulent marriages appear legitimate. Couples filed their applications for permanent residence with CIS using fraudulently obtained legitimate documents which showed their marriages were valid. To further evade detection, some defendants also used fraudulent identities, including false names, dates of birth and Social Security numbers.
An indictment is an accusation by a federal grand jury, and a defendant is entitled to the presumption of innocence unless proven guilty. If convicted, however, the conspiracy count, as well as the fraud and Social Security number counts, carry a maximum statutory sentence each of five years in prison and a $250,000 fine. The fraud and misuse of visas, permits, and other documents carry a maximum statutory sentence of 10 years in prison and a $250,000 fine and the aggravated identity theft count carries a statutory sentence of two years in prison which must run consecutively with any other term of imprisonment for the underlying felony.
The case is being prosecuted by Assistant U.S. Attorney Charles Brown and Special Assistant U.S. Attorney Amy Mitchell.
MEDIA INQUIRIES: KATHY COLVIN
TUESDAY, MAY 13, 2008
WWW.USDOJ.GOV/USAO/TXN
PHONE: (214)659-8600
FAX: (214) 767-2898
SIXTEEN CHARGED IN VISA FRAUD SCHEME
DALLAS — Twelve of 16 defendants charged in a federal indictment, returned by a grand jury in Dallas last week, with conspiracy to commit fraud in connection with immigration documents, were arrested this morning without incident in the Dallas - Fort Worth, Texas, area and in Corpus Christi, Texas, announced U.S. Attorney Richard B. Roper of the Northern District of Texas. The indictment stems from an extensive investigation by the U.S. Citizenship and Immigration Services (CIS), U.S. Immigration and Customs Enforcement (ICE), Social Security Administration’ Office of Inspector General, Health and Human Services Commission’s Office of Inspector General and the Department of Homeland Security’s Office of Inspector General.
U.S. Attorney Roper said, “I compliment the agencies who worked together to unravel this alleged conspiracy. My office will continue to work to prosecute those who use fraud to undermine our nation’s immigration system.”
Charged in the indictment are:
• Maria Refugia Camarillo, a/k/a “Cuca," 70
• Diana De Leon, a/k/a “Yvette Barrera,” 34
• Laura De Leon, 33
• Olga Hernandez, a/k/a “Anita Marie Borja,” 52
• Mary Lou Hernandez, a/k/a “Rachel Lucio Trejo,” 51
• Oscar Hernandez, 44 (arrested in Corpus Christi, Texas)
• Carmela Valdez, 48
• Andres Valdez, 49
• Delia Valdez, 47
• San Juanita Valdez, 51
• Maria Rosario Nunez, 33
• Antonio Anchondo, 28
• Arnoldo Anchondo, 25
• Alfredo De Leon, Jr., 29
• Josephine Hinojosa, 28
• Diana Hernandez, a/k/a “Olga Jean Flores,” 48
Defendants Carmela, Andres and Delia Valdez, and Maria Rosario Nunez remain at large.
The arrested defendants made their initial appearance today before a U.S. Magistrate Judge who released them on bond. All are set for arraignment on May 19, 2008.
According to the 29-count indictment, since 2003, all of the defendants were allegedly involved in a large-scale conspiracy in which foreign nationals paid as much as $12,000 each to marry U.S. citizens so that once married, they could apply for U.S. permanent residence, and later U.S. citizenship. All of the defendants are also charged with at least one substantive count including fraud and misuse of visas, permits, and other documents; Social Security number fraud, or aggravated identity theft. The indictment also includes a forfeiture allegation which will require the defendants to forfeit to the U.S., upon conviction, a home located in Fort Worth, Texas.
The indictment involved an organized deception by the defendants to make the fraudulent marriages appear legitimate. Couples filed their applications for permanent residence with CIS using fraudulently obtained legitimate documents which showed their marriages were valid. To further evade detection, some defendants also used fraudulent identities, including false names, dates of birth and Social Security numbers.
An indictment is an accusation by a federal grand jury, and a defendant is entitled to the presumption of innocence unless proven guilty. If convicted, however, the conspiracy count, as well as the fraud and Social Security number counts, carry a maximum statutory sentence each of five years in prison and a $250,000 fine. The fraud and misuse of visas, permits, and other documents carry a maximum statutory sentence of 10 years in prison and a $250,000 fine and the aggravated identity theft count carries a statutory sentence of two years in prison which must run consecutively with any other term of imprisonment for the underlying felony.
The case is being prosecuted by Assistant U.S. Attorney Charles Brown and Special Assistant U.S. Attorney Amy Mitchell.
Tuesday, September 22, 2009
Public Law 110-293, 42 CFR 3 4.2(b), and Inadmissibility Due to Human Immunodeficiency Virus (HIV) Infection
Excerpt from USCIS Memorandum dates September 15, 2009 on
SUBJECT: Public Law 110-293, 42 CFR 3 4.2(b), and Inadmissibility Due to Human Immunodeficiency Virus (HIV) Infection
1. Purpose
The purpose of this memorandum is to direct USCIS officers to hold in abeyance any waiver application and associated benefit request (such as adjustment of status or refugee), which would be denied under current law, if the only ground of inadmissibility is that the applicant has been diagnosed with HTV infection. It is not necessary to hold such a case, however, if the alien is eligible for a waiver of inadmissibility and USCIS determines that, as a matter of discretion, the waiver should be granted. This guidance is provided in response to the Department of Health and Human Services’ (HHS) publication on July 2, 2009, of a proposed rule to remove FIIV from the list of communicable diseases of public health significance and is effective as of the date of this memo. The guidance provided in the first memorandum on this issue, Public Law 110-293 and Inadmissibility due to HIV Infection, published on August 26, 2008, is rescinded as of the date of this second memorandum.
2. Background
In an August 26, 2008, memorandum, USCIS advised officers that the President had signed into law the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, Public Law No. 110-293. Section 305 of P.L. 110-293 amends section 212(a)(1)(A)(i) of the Immigration and Nationality Act so that the Secretary of HHS is no longer required to designate HIV infection as a “communicable disease of public health significance.” The August 26, 2008, memorandum also advised officers that unless and until HHS amends 42 CFR 34.2(b), to remove HIV infection from the list of diseases that qualify as a “communicable disease of public health significance,” officers must continue to consider HIV as a communicable disease of public health significance for which a waiver is required.
On July 2, 2009, HHS published a proposed amendment to 42 CFR 34.2(b) in the Federal Register at 74 Fed. Reg. 31798. The amendment proposes to remove HIV infection from the list of communicable diseases of public health significance. If the proposal is adopted as an interim or final rule, HIV infection will no longer make an alien inadmissible.
3. Guidance
An applicant’s admissibility is determined based on the law in effect at the time of the final decision. See Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992). Therefore, the current version of 42 CFR 3 4.2(b) continues to apply until such time as HHS has published a final rule amending the regulations. HIV testing will continue to be part of the medical assessment for aliens who are applying for an immigrant visa, refugee status or adjustment of status, and officers deciding any case before the rule becomes final must continue to find applicants who test positive for HIV infection inadmissible. As stated in the August 26, 2008, memorandum, applicants found to be inadmissible due to an HIV infection may file the appropriate waiver application.
If the applicant applies for a waiver, the USCIS officer should continue following existing practices and policy guidance. That is, if USCIS finds that the alien qualifies for the waiver, and that, as a matter of discretion, the waiver should be granted, USCIS may approve the waiver and, if eligible, any benefits application.
If no waiver was filed, but the applicant is HIV positive and may be eligible for a waiver, the officer will still issue a request for evidence (RFE) for the waiver application. The RFE should articulate the inadmissibility finding based on HIV infection and advise the applicant that the Secretary of Health and Human Services has proposed removing HIV infection from the list of communicable diseases of public heath significance. 74 Fed. Reg. 31798 (2009). The RFE should also advise that if HHS adopts this proposal as a final rule, the applicant may no longer be inadmissible due to H1V infection. Until such time, however, USCIS cannot approve the adjustment of status application absent a waiver, and therefore the delay may be significant. In the interim, applicants who wish to receive a decision before HHS makes a final decision on whether to remove HIV infection from the list of communicable diseases of public heath significance may apply for a waiver, with fee. The RFE should also advise that if the applicant chooses to file the waiver application before HHS promulgates a final rule, USCIS will not refund the filing fees.
If the applicant files a waiver application, and USCIS finds both that the alien qualifies for the waiver and that, as a matter of discretion, the waiver should be granted, USCIS may approve the waiver and, if eligible, any pending adjustment or refugee application. Since the waiver makes the case approvable, whether HHS adopts a final rule or not, there is no need to hold the case for the final HHS rule. If the applicant does not respond to the RFE, officers should not deny the case as abandoned. Rather, the case should be placed on hold pending the publication of the HHS interim or final rule.
In light of the HHS proposed rule, USCIS will not deny any adjustment, refugee, or other benefit application if the sole ground of denial of the application would be based on inadmissibility due to HIV infection. Nor will USCIS deny any waiver application if the sole ground of inadmissibility is HIV infection. If the applicant’s sole ground of inadmissibility is HIV infection, and the officer finds either that the alien does not qualify for a waiver, or that a waiver is not warranted as a matter of discretion, all written decisions should state that the case will be placed on hold and automatically reexamined by USCIS, pending the outcome of the rule. The hold is only for cases where the application would be approved, but for the HIV infection. If the applicant is inadmissible on other grounds unrelated to HIV infection, or ineligible for adjustment of status or refugee status for other reasons, USCIS officers should enumerate all applicable grounds of inadmissibility in the written decision, including HIV.
Should the HHS rule be adopted as interim or final, additional guidance will be issued and the
Adjudicator’s Field Manual will be updated, accordingly.
4. Use
This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications for adjustment of status. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
5. Contact Information
Questions regarding this memorandum and USCIS policy regarding the medical examination of aliens may be directed through supervisory channels to OFO AOS and Legalization Mailbox,
Timothy Schäffer, Service Center Operations, Family & Status Branch, Whitney Reitz, Chief of the
International Operations Division Programs Branch, Pamela G. Williams, Policy and Regulation
Management, or Roselyn Brown-Frei, Office of Policy & Strategy.
SUBJECT: Public Law 110-293, 42 CFR 3 4.2(b), and Inadmissibility Due to Human Immunodeficiency Virus (HIV) Infection
1. Purpose
The purpose of this memorandum is to direct USCIS officers to hold in abeyance any waiver application and associated benefit request (such as adjustment of status or refugee), which would be denied under current law, if the only ground of inadmissibility is that the applicant has been diagnosed with HTV infection. It is not necessary to hold such a case, however, if the alien is eligible for a waiver of inadmissibility and USCIS determines that, as a matter of discretion, the waiver should be granted. This guidance is provided in response to the Department of Health and Human Services’ (HHS) publication on July 2, 2009, of a proposed rule to remove FIIV from the list of communicable diseases of public health significance and is effective as of the date of this memo. The guidance provided in the first memorandum on this issue, Public Law 110-293 and Inadmissibility due to HIV Infection, published on August 26, 2008, is rescinded as of the date of this second memorandum.
2. Background
In an August 26, 2008, memorandum, USCIS advised officers that the President had signed into law the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act of 2008, Public Law No. 110-293. Section 305 of P.L. 110-293 amends section 212(a)(1)(A)(i) of the Immigration and Nationality Act so that the Secretary of HHS is no longer required to designate HIV infection as a “communicable disease of public health significance.” The August 26, 2008, memorandum also advised officers that unless and until HHS amends 42 CFR 34.2(b), to remove HIV infection from the list of diseases that qualify as a “communicable disease of public health significance,” officers must continue to consider HIV as a communicable disease of public health significance for which a waiver is required.
On July 2, 2009, HHS published a proposed amendment to 42 CFR 34.2(b) in the Federal Register at 74 Fed. Reg. 31798. The amendment proposes to remove HIV infection from the list of communicable diseases of public health significance. If the proposal is adopted as an interim or final rule, HIV infection will no longer make an alien inadmissible.
3. Guidance
An applicant’s admissibility is determined based on the law in effect at the time of the final decision. See Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992). Therefore, the current version of 42 CFR 3 4.2(b) continues to apply until such time as HHS has published a final rule amending the regulations. HIV testing will continue to be part of the medical assessment for aliens who are applying for an immigrant visa, refugee status or adjustment of status, and officers deciding any case before the rule becomes final must continue to find applicants who test positive for HIV infection inadmissible. As stated in the August 26, 2008, memorandum, applicants found to be inadmissible due to an HIV infection may file the appropriate waiver application.
If the applicant applies for a waiver, the USCIS officer should continue following existing practices and policy guidance. That is, if USCIS finds that the alien qualifies for the waiver, and that, as a matter of discretion, the waiver should be granted, USCIS may approve the waiver and, if eligible, any benefits application.
If no waiver was filed, but the applicant is HIV positive and may be eligible for a waiver, the officer will still issue a request for evidence (RFE) for the waiver application. The RFE should articulate the inadmissibility finding based on HIV infection and advise the applicant that the Secretary of Health and Human Services has proposed removing HIV infection from the list of communicable diseases of public heath significance. 74 Fed. Reg. 31798 (2009). The RFE should also advise that if HHS adopts this proposal as a final rule, the applicant may no longer be inadmissible due to H1V infection. Until such time, however, USCIS cannot approve the adjustment of status application absent a waiver, and therefore the delay may be significant. In the interim, applicants who wish to receive a decision before HHS makes a final decision on whether to remove HIV infection from the list of communicable diseases of public heath significance may apply for a waiver, with fee. The RFE should also advise that if the applicant chooses to file the waiver application before HHS promulgates a final rule, USCIS will not refund the filing fees.
If the applicant files a waiver application, and USCIS finds both that the alien qualifies for the waiver and that, as a matter of discretion, the waiver should be granted, USCIS may approve the waiver and, if eligible, any pending adjustment or refugee application. Since the waiver makes the case approvable, whether HHS adopts a final rule or not, there is no need to hold the case for the final HHS rule. If the applicant does not respond to the RFE, officers should not deny the case as abandoned. Rather, the case should be placed on hold pending the publication of the HHS interim or final rule.
In light of the HHS proposed rule, USCIS will not deny any adjustment, refugee, or other benefit application if the sole ground of denial of the application would be based on inadmissibility due to HIV infection. Nor will USCIS deny any waiver application if the sole ground of inadmissibility is HIV infection. If the applicant’s sole ground of inadmissibility is HIV infection, and the officer finds either that the alien does not qualify for a waiver, or that a waiver is not warranted as a matter of discretion, all written decisions should state that the case will be placed on hold and automatically reexamined by USCIS, pending the outcome of the rule. The hold is only for cases where the application would be approved, but for the HIV infection. If the applicant is inadmissible on other grounds unrelated to HIV infection, or ineligible for adjustment of status or refugee status for other reasons, USCIS officers should enumerate all applicable grounds of inadmissibility in the written decision, including HIV.
Should the HHS rule be adopted as interim or final, additional guidance will be issued and the
Adjudicator’s Field Manual will be updated, accordingly.
4. Use
This memorandum is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications for adjustment of status. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
5. Contact Information
Questions regarding this memorandum and USCIS policy regarding the medical examination of aliens may be directed through supervisory channels to OFO AOS and Legalization Mailbox,
Timothy Schäffer, Service Center Operations, Family & Status Branch, Whitney Reitz, Chief of the
International Operations Division Programs Branch, Pamela G. Williams, Policy and Regulation
Management, or Roselyn Brown-Frei, Office of Policy & Strategy.
Sunday, September 20, 2009
Leader of international counterfeit immigration document ring sentenced
September 17, 2009
Leader of international counterfeit immigration document ring sentenced
DENVER - The leader of a prolific and nationwide fraudulent document ring was sentenced Friday to serve 57 months in federal prison. The sentence was announced by U.S. Attorney David Gaouette. The case was investigated by U.S. Immigration and Customs Enforcement (ICE), the IRS' Criminal Investigation Denver Field Office, Social Security Administration's Denver Office of the Inspector General and the Postal Inspection Service.
Pedro Castorena-Ibarra, 46, of Guadalajara, Mexico, was indicted by a federal grand jury in Denver on July 11, 2005. He was later extradited by the Republic of Mexico to the District of Colorado. On Feb. 5, 2009 Castorena-Ibarra pleaded guilty before by U.S. District Court Judge Lewis T. Babcock. Judge Babcock sentenced Castorena-Ibarra on Sept. 11.
According to the indictment and the subsequent plea agreement, from May 1998 through February 2005, Castorena-Ibarra conspired with others to manufacture and distribute various counterfeit documents, such as alien registration cards and Social Security cards. Castorena-Ibarra also counterfeited Republic of Mexico identification documents, such as the "Matricula Consular" identification card for illegal aliens and others for a fee.
The Castorena-Ibarra organization operated Los Angeles, San Francisco, Denver, Atlanta, Chicago, Las Vegas and New York City. During the course of the investigation, ICE seized more than 3 million counterfeit identity documents with an estimated street value of more than $20 million. The documents were linked to over 400 investigations and seizures across the United States in more than 50 cities.
Judge Babcock noted during Castorena-Ibarra's sentencing that this investigation led to 20 cases in Colorado alone, charging 50 defendants, including Castorena-Ibarra's brother.
"The production and distribution of 3 million counterfeit identity documents allows the inference that there are millions of people who have been able, by paying money to the Castorena family and others, to be in this country illegally, said Babcock. "That is a huge insult to the law of the United States and even more to the sovereignty of the United States of America and its integrity in its borders."
"This latest sentencing of the head of the Castorena Family Organization finally marks the end of one of the largest and most destructive fraudulent document rings in the United States," said Homeland Security Assistant Secretary for ICE John Morton. "The Castorena family has been brought to justice. But also, this investigation and prosecution stopped millions more fraudulent documents from threatening security at the local, regional and national levels."
"With the sentencing of Pedro Castorena-Ibarra, one of the largest fraudulent identification organizations has been dismantled," said U.S. Attorney David Gaouette.
"IRS-CI is committed to working with the United States Attorney's Office and other law enforcement agencies in prosecution individuals who intentionally violate our anti-money laundering laws by concealing income from illegal activities," said Christopher M. Sigerson, special agent in charge of IRS Criminal Investigation, Denver Field Office.
"This investigation is a good example of inter-agency cooperation," said Postal Inspector in Charge Shawn Tiller. "Many federal agencies came together and through a combined effort dismantled this organization. The Postal Inspection Service is pleased with the outcome of this investigation and committed to partnering with other law enforcement agencies whenever possible."
Special Agent in Charge Wilbert M. Craig of the Social Security Administration, Office of the Inspector General (SSA OIG) for the Denver Field Division Office said, "SSA OIG is dedicated to assisting the U.S. Attorney's Office and fellow law enforcement agencies through joint investigation of these criminal organizations. The successful prosecution of Pedro Castorena-Ibarra sends a clear signal which will deter individuals who may engage in identity theft or fraudulent use of Social Security Account numbers."
Assistant U.S. Attorney Joseph Mackey, District of Colorado, prosecuted this case.
Leader of international counterfeit immigration document ring sentenced
DENVER - The leader of a prolific and nationwide fraudulent document ring was sentenced Friday to serve 57 months in federal prison. The sentence was announced by U.S. Attorney David Gaouette. The case was investigated by U.S. Immigration and Customs Enforcement (ICE), the IRS' Criminal Investigation Denver Field Office, Social Security Administration's Denver Office of the Inspector General and the Postal Inspection Service.
Pedro Castorena-Ibarra, 46, of Guadalajara, Mexico, was indicted by a federal grand jury in Denver on July 11, 2005. He was later extradited by the Republic of Mexico to the District of Colorado. On Feb. 5, 2009 Castorena-Ibarra pleaded guilty before by U.S. District Court Judge Lewis T. Babcock. Judge Babcock sentenced Castorena-Ibarra on Sept. 11.
According to the indictment and the subsequent plea agreement, from May 1998 through February 2005, Castorena-Ibarra conspired with others to manufacture and distribute various counterfeit documents, such as alien registration cards and Social Security cards. Castorena-Ibarra also counterfeited Republic of Mexico identification documents, such as the "Matricula Consular" identification card for illegal aliens and others for a fee.
The Castorena-Ibarra organization operated Los Angeles, San Francisco, Denver, Atlanta, Chicago, Las Vegas and New York City. During the course of the investigation, ICE seized more than 3 million counterfeit identity documents with an estimated street value of more than $20 million. The documents were linked to over 400 investigations and seizures across the United States in more than 50 cities.
Judge Babcock noted during Castorena-Ibarra's sentencing that this investigation led to 20 cases in Colorado alone, charging 50 defendants, including Castorena-Ibarra's brother.
"The production and distribution of 3 million counterfeit identity documents allows the inference that there are millions of people who have been able, by paying money to the Castorena family and others, to be in this country illegally, said Babcock. "That is a huge insult to the law of the United States and even more to the sovereignty of the United States of America and its integrity in its borders."
"This latest sentencing of the head of the Castorena Family Organization finally marks the end of one of the largest and most destructive fraudulent document rings in the United States," said Homeland Security Assistant Secretary for ICE John Morton. "The Castorena family has been brought to justice. But also, this investigation and prosecution stopped millions more fraudulent documents from threatening security at the local, regional and national levels."
"With the sentencing of Pedro Castorena-Ibarra, one of the largest fraudulent identification organizations has been dismantled," said U.S. Attorney David Gaouette.
"IRS-CI is committed to working with the United States Attorney's Office and other law enforcement agencies in prosecution individuals who intentionally violate our anti-money laundering laws by concealing income from illegal activities," said Christopher M. Sigerson, special agent in charge of IRS Criminal Investigation, Denver Field Office.
"This investigation is a good example of inter-agency cooperation," said Postal Inspector in Charge Shawn Tiller. "Many federal agencies came together and through a combined effort dismantled this organization. The Postal Inspection Service is pleased with the outcome of this investigation and committed to partnering with other law enforcement agencies whenever possible."
Special Agent in Charge Wilbert M. Craig of the Social Security Administration, Office of the Inspector General (SSA OIG) for the Denver Field Division Office said, "SSA OIG is dedicated to assisting the U.S. Attorney's Office and fellow law enforcement agencies through joint investigation of these criminal organizations. The successful prosecution of Pedro Castorena-Ibarra sends a clear signal which will deter individuals who may engage in identity theft or fraudulent use of Social Security Account numbers."
Assistant U.S. Attorney Joseph Mackey, District of Colorado, prosecuted this case.
Thursday, September 17, 2009
Connecticut Illegal Driver's License Provider Arrested
Department of Public Safety
2008
Connecticut State Police Patch STATE OF CONNECTICUT
Department of Public Safety
1111 Country Club Road
Middletown, Connecticut 06457
Contact:
860-685-8230
pio.dps@po.state.ct.us
FOR IMMEDIATE RELEASE
March 20, 2008
STATE POLICE ARREST
DRIVING SCHOOL OWNER FOR FORGERY
On 03/20/2008 at 9:00 a.m. Henry KRUSZEWSKI, the owner and operator of the Express Driving School in Stratford surrendered to State Police at Troop- G in Bridgeport. This arrest stems from an extensive State Police criminal Investigation that began in January of 2005 based on complaints that Express Driving School of Stratford was fraudulently obtaining Licenses from DMV for illegal Aliens.
In October of 2007, DMV while inspecting the License Applications of Students from the Express Driving School discovered what appeared to be possible counterfeit documents that would enable immigrants to obtain drivers licenses. This information was forwarded to State Police Detectives for criminal investigation.
State Police Detectives, assisted by the Motor Vehicle Review Unit and the Federal Immigration and Customs Enforcement Department (ICE) conducted an extensive examination of hundreds of documents that were submitted by the Express Driving School and used to obtain drivers licenses.
The investigation revealed that there were a large number of drivers licenses issued to subjects using forged or counterfeit documents. Forms examined included documents denoting immigration status, student visa status, Social Security and school employment letters. State Police Detectives determined that the Driving School had submitted these forged documents to the DMV enabling illegal immigrants to obtain Connecticut drivers Licenses.
The investigation also revealed that Express Driving School was having immigrants complete all of the DMV required training and testing to obtain Connecticut Drivers licenses. However, it was also determined that the Driving School then submitted forged documents to the DMV stating that the Driving School Students were students of actual Colleges who have had their immigration status’s changed from Visitor Visa’s to Student Visa’s, thus allowing them to be eligible to obtain Connecticut Drivers Licenses.
Based on facts and circumstances developed by State Police investigators in this case with assist from MVD and ICE Search and Seizure Warrants were obtained for the Express Driving School 3272 Main St Stratford, Ct. and the Residence of the owner/operator, Henry Kruszewski 59-B East Broadway Milford, Ct. The warrants were executed on 01/24/2008. During the search hundreds of counterfeit and forged documents were seized.
State Police Detectives after complete examination of all evidence and interviewing numerous witnesses in this case submitted an arrest warrant application to Superior Court GA #2 for the arrest of the accused KRUSZEWSKI. The court issued the warrant and the accused voluntarily surrendered this morning.
This arrest was a cooperative multi agency investigative effort by State Police, Dept of Motor Vehicles and ICE.
ICE will pursue the case on a Federal Level when the CSP investigation is completed.
ARRESTED: Henry KRUSZEWSKI Age: 57
59B East Broadway, Milford, CT.
CHARGES: CORA (Corrupt Organization & Racketeering Activity) (1 Count)
Forgery 2nd Degree (50 Counts)
COURT: 03/20/2008 – GA#2 Bridgeport
BOND: $500,000.00
The accused was released from custody after posting $500,000 bond and he will appear in Superior Court on April 3rd GA #2 Bridgeport.
###END###
Lt. J. Paul Vance
2008
Connecticut State Police Patch STATE OF CONNECTICUT
Department of Public Safety
1111 Country Club Road
Middletown, Connecticut 06457
Contact:
860-685-8230
pio.dps@po.state.ct.us
FOR IMMEDIATE RELEASE
March 20, 2008
STATE POLICE ARREST
DRIVING SCHOOL OWNER FOR FORGERY
On 03/20/2008 at 9:00 a.m. Henry KRUSZEWSKI, the owner and operator of the Express Driving School in Stratford surrendered to State Police at Troop- G in Bridgeport. This arrest stems from an extensive State Police criminal Investigation that began in January of 2005 based on complaints that Express Driving School of Stratford was fraudulently obtaining Licenses from DMV for illegal Aliens.
In October of 2007, DMV while inspecting the License Applications of Students from the Express Driving School discovered what appeared to be possible counterfeit documents that would enable immigrants to obtain drivers licenses. This information was forwarded to State Police Detectives for criminal investigation.
State Police Detectives, assisted by the Motor Vehicle Review Unit and the Federal Immigration and Customs Enforcement Department (ICE) conducted an extensive examination of hundreds of documents that were submitted by the Express Driving School and used to obtain drivers licenses.
The investigation revealed that there were a large number of drivers licenses issued to subjects using forged or counterfeit documents. Forms examined included documents denoting immigration status, student visa status, Social Security and school employment letters. State Police Detectives determined that the Driving School had submitted these forged documents to the DMV enabling illegal immigrants to obtain Connecticut drivers Licenses.
The investigation also revealed that Express Driving School was having immigrants complete all of the DMV required training and testing to obtain Connecticut Drivers licenses. However, it was also determined that the Driving School then submitted forged documents to the DMV stating that the Driving School Students were students of actual Colleges who have had their immigration status’s changed from Visitor Visa’s to Student Visa’s, thus allowing them to be eligible to obtain Connecticut Drivers Licenses.
Based on facts and circumstances developed by State Police investigators in this case with assist from MVD and ICE Search and Seizure Warrants were obtained for the Express Driving School 3272 Main St Stratford, Ct. and the Residence of the owner/operator, Henry Kruszewski 59-B East Broadway Milford, Ct. The warrants were executed on 01/24/2008. During the search hundreds of counterfeit and forged documents were seized.
State Police Detectives after complete examination of all evidence and interviewing numerous witnesses in this case submitted an arrest warrant application to Superior Court GA #2 for the arrest of the accused KRUSZEWSKI. The court issued the warrant and the accused voluntarily surrendered this morning.
This arrest was a cooperative multi agency investigative effort by State Police, Dept of Motor Vehicles and ICE.
ICE will pursue the case on a Federal Level when the CSP investigation is completed.
ARRESTED: Henry KRUSZEWSKI Age: 57
59B East Broadway, Milford, CT.
CHARGES: CORA (Corrupt Organization & Racketeering Activity) (1 Count)
Forgery 2nd Degree (50 Counts)
COURT: 03/20/2008 – GA#2 Bridgeport
BOND: $500,000.00
The accused was released from custody after posting $500,000 bond and he will appear in Superior Court on April 3rd GA #2 Bridgeport.
###END###
Lt. J. Paul Vance
Saturday, September 5, 2009
Freedom of Information Act - FOIA - US Attorney Office
Freedom of Information Act (FOIA)
All FOIA Requests must be signed & Submitted in Writing to:
FOIA/Privacy Staff
Executive Office for United States Attorneys
600 E Street, N.W. (BICN Room 7300)
Department of Justice
Washington, DC 20530-0001
(202) 616-6757
Under the Freedom of Information Act (5 U.S.C. 552) and the Department's FOIA Guide and rules at 28 CFR 16.1 et seq. (Subpart A), one may request access to public, nonexempt records maintained by the Executive Office for United States Attorneys (EOUSA) and/or individual United States Attorneys' Offices (USAOs). Before submitting a request, please visit our "Electronic Reading Room", as such records may be available, on-line, at no cost.
A FOIA request may be made in any written form that bears the requester's signature, provided that it is sent to the above address and specifies your return address. Requests sent directly to a USAO will be forwarded to EOUSA, and such requests will not be deemed received, for processing purposes, until received by EOUSA. For further guidance, see 28 CFR 16.1 & 16.3 ("General Provisions" & "Requirements for Making Requests").
Please note that the Act does not require agencies to create or explain records, and requests should be formulated to seek records in existence as of the request date that are subject to public release unless covered by a specific exemption (e.g., classified national security matters, personal privacy material, trade secrets and privileged information, etc.). 5 U.S.C. 552(b).
A FOIA request should sufficiently describe the specific records sought, so as to enable our staff to conduct a search for the requested records with a reasonable amount of effort (e.g., specific case files, etc.). Likewise — to minimize processing delays and fees — please specify which particular USAO or EOUSA office you are inquiring about. While certain administrative records are maintained by EOUSA, case files are not centralized in Washington, and local USAOs maintain copies of certain court and case materials. All requests for case records should thus identify a case name, judicial district, filing date/location, and/or specific USAO(s) where responsive records may exist.
PRIVACY CONSIDERATIONS & IDENTITY VERIFICATION:
If you seek records pertaining to another person, that information is usually not disclosed unless you have obtained the other person's written consent, the other person is deceased, or public disclosure is authorized by law.
Requests for third-party information protected by the Privacy Act should be accompanied by evidence of the record-subject's consent, and requests for information about yourself should be accompanied by a verification-of-identity form.
While no special verification-of-identity or consent forms are required, you may use Department of Justice Form 361 (Certification of Identity) or Form G-639 (FOIA/PA Request). Such forms must be signed and notarized, or submitted under 28 U.S.C. 1746, a law allowing unnotarized statements to be signed under penalty of perjury.
For further guidance in this regard, please see our Privacy Act page, the DOJ Office of Information & Privacy home page, or the Department's rules at 28 CFR Part 16 governing the Production or Disclosure of Material or Information.
Fees:
Requesters are responsible to pay all applicable fees for search, review, and/or duplication of requested records, in accordance with Department of Justice FOIA fee regulations. 28 CFR 16.11.
Unless otherwise specified, your request for records under FOIA constitutes your agreement to pay all applicable fees up to $25. See 28 CFR 16.3(c). A requester will typically be notified if it appears that fees will exceed $25, pursuant to 28 CFR 16.11(e)-(i).
Review:
Administrative review of adverse agency determinations is available by appealing to the Office of Information & Privacy (OIP), Department of Justice, Flag Building, Suite 570, Washington, DC 20530-0001, within 60 days from the date of the agency's adverse determination letter, after which judicial review may also be available. See 28 CFR 16.9.
All FOIA Requests must be signed & Submitted in Writing to:
FOIA/Privacy Staff
Executive Office for United States Attorneys
600 E Street, N.W. (BICN Room 7300)
Department of Justice
Washington, DC 20530-0001
(202) 616-6757
Under the Freedom of Information Act (5 U.S.C. 552) and the Department's FOIA Guide and rules at 28 CFR 16.1 et seq. (Subpart A), one may request access to public, nonexempt records maintained by the Executive Office for United States Attorneys (EOUSA) and/or individual United States Attorneys' Offices (USAOs). Before submitting a request, please visit our "Electronic Reading Room", as such records may be available, on-line, at no cost.
A FOIA request may be made in any written form that bears the requester's signature, provided that it is sent to the above address and specifies your return address. Requests sent directly to a USAO will be forwarded to EOUSA, and such requests will not be deemed received, for processing purposes, until received by EOUSA. For further guidance, see 28 CFR 16.1 & 16.3 ("General Provisions" & "Requirements for Making Requests").
Please note that the Act does not require agencies to create or explain records, and requests should be formulated to seek records in existence as of the request date that are subject to public release unless covered by a specific exemption (e.g., classified national security matters, personal privacy material, trade secrets and privileged information, etc.). 5 U.S.C. 552(b).
A FOIA request should sufficiently describe the specific records sought, so as to enable our staff to conduct a search for the requested records with a reasonable amount of effort (e.g., specific case files, etc.). Likewise — to minimize processing delays and fees — please specify which particular USAO or EOUSA office you are inquiring about. While certain administrative records are maintained by EOUSA, case files are not centralized in Washington, and local USAOs maintain copies of certain court and case materials. All requests for case records should thus identify a case name, judicial district, filing date/location, and/or specific USAO(s) where responsive records may exist.
PRIVACY CONSIDERATIONS & IDENTITY VERIFICATION:
If you seek records pertaining to another person, that information is usually not disclosed unless you have obtained the other person's written consent, the other person is deceased, or public disclosure is authorized by law.
Requests for third-party information protected by the Privacy Act should be accompanied by evidence of the record-subject's consent, and requests for information about yourself should be accompanied by a verification-of-identity form.
While no special verification-of-identity or consent forms are required, you may use Department of Justice Form 361 (Certification of Identity) or Form G-639 (FOIA/PA Request). Such forms must be signed and notarized, or submitted under 28 U.S.C. 1746, a law allowing unnotarized statements to be signed under penalty of perjury.
For further guidance in this regard, please see our Privacy Act page, the DOJ Office of Information & Privacy home page, or the Department's rules at 28 CFR Part 16 governing the Production or Disclosure of Material or Information.
Fees:
Requesters are responsible to pay all applicable fees for search, review, and/or duplication of requested records, in accordance with Department of Justice FOIA fee regulations. 28 CFR 16.11.
Unless otherwise specified, your request for records under FOIA constitutes your agreement to pay all applicable fees up to $25. See 28 CFR 16.3(c). A requester will typically be notified if it appears that fees will exceed $25, pursuant to 28 CFR 16.11(e)-(i).
Review:
Administrative review of adverse agency determinations is available by appealing to the Office of Information & Privacy (OIP), Department of Justice, Flag Building, Suite 570, Washington, DC 20530-0001, within 60 days from the date of the agency's adverse determination letter, after which judicial review may also be available. See 28 CFR 16.9.
S Visa Eligibility - United States Attorney Manual - Criminal Resource Manual 1862
1862
S Visa Program—Eligibility
The number of alien witnesses and informants who may be admitted into the United States pursuant to the S Visa Program is limited by law, and is currently set by Congress at 200 per fiscal year for aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State's rewards program. 8 U.S.C. § 1184(k)(1). See also 22 U.S.C. § 2708(a) (Department of State rewards program). There can be no carryover of allocated S visa slots into the next fiscal year. Certain family members of the alien providing the information—spouse, parents, and children—are also eligible for admission into the United States in an S nonimmigrant derivative status, 8 U.S.C. § 1101(a)(15)(S), and these persons do not count against the numerical limits.
The S nonimmigrant classification is generally available to aliens who would otherwise be inadmissible to or deportable from the United States (for example, due to criminal convictions or certain problems with immigration status). The statute authorizes the Secretary of Homeland Security to waive most grounds of inadmissibility. The program is particularly useful for witnesses or informants who would otherwise be in danger in their home countries. It is also a substantial benefit for many other witnesses and informants who might not otherwise be able legally to enter or remain in the United States.
Questions concerning the eligibility of cooperating aliens for S visa status should be directed to the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations, Criminal Division, at (202) 305-4023.
S Visa Program—Eligibility
The number of alien witnesses and informants who may be admitted into the United States pursuant to the S Visa Program is limited by law, and is currently set by Congress at 200 per fiscal year for aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State's rewards program. 8 U.S.C. § 1184(k)(1). See also 22 U.S.C. § 2708(a) (Department of State rewards program). There can be no carryover of allocated S visa slots into the next fiscal year. Certain family members of the alien providing the information—spouse, parents, and children—are also eligible for admission into the United States in an S nonimmigrant derivative status, 8 U.S.C. § 1101(a)(15)(S), and these persons do not count against the numerical limits.
The S nonimmigrant classification is generally available to aliens who would otherwise be inadmissible to or deportable from the United States (for example, due to criminal convictions or certain problems with immigration status). The statute authorizes the Secretary of Homeland Security to waive most grounds of inadmissibility. The program is particularly useful for witnesses or informants who would otherwise be in danger in their home countries. It is also a substantial benefit for many other witnesses and informants who might not otherwise be able legally to enter or remain in the United States.
Questions concerning the eligibility of cooperating aliens for S visa status should be directed to the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations, Criminal Division, at (202) 305-4023.
Friday, September 4, 2009
ALIMORADI v. USCIS - 245(k) waiver - minor, non criminal immigration violations in the interest of national security and public safety
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ARZHANG ALIMORADI, )Case No. CV 08-02529 DDP (JCx)
)
Plaintiff, )ORDER DENYING MOTION TO DISMISS
)
v.
)[Motion filed on July 7, 2008]
)
U.S. CITIZENSHIP & )
IMMIGRATION SERVICES, A)
BUREAU OF THE DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendants. )
)
__________________________ )
In this matter, Arzhang Alimoradi challenges Defendant United
States Citizenship and Immigration Services’ (“USCIS”) decision to
deny him status as a lawful permanent resident. Before the Court
is Defendant’s motion to dismiss; the issue presented is whether
the regulation used to reject Mr. Alimoradi’s application - which
does not allow USCIS, in its discretion, to ignore minor, non
criminal immigration violations in the interest of national
security and public safety - is a permissible construction of its
authorizing statute. After reviewing the materials submitted by
the parties and considering the arguments therein, the Court finds
the regulation impermissible, and therefore DENIES the motion.
I. BACKGROUND1
Plaintiff Arzhang Alimoradi, Ph.D., is a native and citizen of
Iran and the subject of an approved I-140 visa petition certifying
him as an “Outstanding Professor or Researcher” pursuant to 8
U.S.C. § 1153(b)(1)(B). This qualifies him as a “priority
worker[]” who is at the top of the list (assuming other
prerequisites are met) to obtain legal permanent residency in the
United States. Id. § 1153(b)(1). Dr. Alimoradi is a senior
researcher who specializes in Earthquake Engineering. He completed
his Ph.D. in this area at the University of Memphis in December
2004. (A.R. 79.) Among his many accomplishments, Dr. Alimoradi
has been involved with earthquake research at several prestigious
universities, is a successful science and engineering professor,
and, perhaps most notably, has “been the southern California backup
person for a major northern California earthquake clearinghouse
procedure. A clearinghouse is the focal point of coordinating
post-earthquake investigations between researchers and
organizations from around the globe in the aftermath of a major
earthquake.” (A.R. 80.) He has published articles in numerous
academic journals, and his “state-of-the-art” research “helps civil
engineers to design an earthquake resistant building structure” to
a degree that other researchers had not to this point succeeded.
1 Unless otherwise noted, all facts are either undisputed ortaken from Dr. Alimoradi’s allegations, because, on a motion todismiss for failure to state a claim, this Court must assume aplaintiff’s allegations to be true.
2
(A.R. 107.) In other words, Dr. Alimoradi’s entire illustrious
career revolves around helping communities to build safely and to
prepare successfully for earthquakes, and he would like to live in
Southern California - an earthquake center.
This case arose because Dr. Alimoradi inadvertently let his
employment status lapse. Dr. Alimoradi joined the research and
development department of John A. Martin & Associates (“JAMA”) as a
senior research engineer on January 3, 2005. He was authorized to
work in the United States at this time on an Optional Practical
Training visa, which was valid until January 2, 2006. JAMA sent
Dr. Alimoradi to consult with its General Counsel, Dr. Farzad
Naeim, in order “to handle” his immigration matters and extend his
work visa. (A.R. 79.) To facilitate this process, on February 22,
2005, Dr. Naeim filed an I-140: Immigration Petition for Alien
Worker (outstanding professor/researcher), which was approved by
USCIS on August 18, 2005. The I-140 was the first step in
obtaining legal permanent residency (or, a “green card”) for Dr.
Alimoradi.
At the same time, Dr. Naeim filed an I-129: Petition for
Nonimmigrant Worker (H1B visa). The H1B visa grants temporary work
status (but not a green card) to certain individuals. As part of
preparing the I-129 petition, Dr. Naeim filed a Labor Condition
Application (ETA 9035E), which was certified by the Department of
Labor for the period August 1, 2005 through July 31, 2008. In
other words, Dr. Alimoradi, with the help of Dr. Naeim and JAMA,
applied for an H1B visa and his green card concurrently, as two
alternate means of obtaining legal work status.
3
Once the I-140 petition was approved in August 2005,
certifying that a permanent resident visa was available for him,
Dr. Alimoradi took the next step in the green card process by
filing an I-485 Application to Adjust Status from that of a nonimmigrant
to a lawful permanent resident of the United States.
Because the green card application seemed to be progressing quickly
and with success, Dr. Naeim did not pursue the H1B visa route any
further. (A.R. 86.) Dr. Naeim believed, and told Dr. Alimoradi,
that the combination of the approved Labor Condition Application
obtained through the H1B process, the approved I-140, and the
pending I-485 permitted him to work at JAMA until the expiration of
the approved Labor Condition Application in July 2008. (A.R. 86.)
Dr. Naeim believed “that the mere filing of I-485 would provide Dr.
Alimoradi yet one more source of authorization to work,” in
addition to the approved Labor Condition Application. (A.R. 86.
(emphasis added).) In fact, however, Dr. Alimoradi was required to
file a different application for employment in conjunction with his
I-485: the I-765 Application for Employment Authorization. See 8
C.F.R. § 274a.12(c)(9). According to Dr. Alimoradi, he relied on
Dr. Naeim’s explanation of the prerequisites for legal employment;
as a result, Dr. Alimoradi was unaware that the Labor Condition
Application was insufficient, and that he needed instead to file an
I-765 and to obtain a valid Employment Authorization Document
(“EAD”).
On August 1, 2007, USCIS sent Dr. Alimoradi a “Request For
Evidence” questioning whether he had been properly authorized to
work after February 2, 2006. Dr. Naeim, at that point, began to
conduct further research and discovered the need for an EAD. (A.R.
4
86.) He informed Dr. Alimoradi of this fact, explained how to file
the I-765, obtained the filing fee for Dr. Alimoradi from JAMA, and
urged Dr. Alimoradi to seek outside legal counsel. (A.R. 86-87.)
Dr. Alimoradi immediately filed the I-765, which was received by
USCIS on August 13, 2007. Dr. Naeim has submitted a declaration
attesting, inter alia, that “[n]either JAMA nor Dr. Alimoradi has
ever had any intention of employment without authorization for any
duration at all.” (A.R. 87.)
On October 10, 2007, USCIS sent Dr. Alimoradi an “Intent to
Deny” his I-485 application on the ground that he had worked in the
United States without authorization for more than 180 days. (A.R.
4-7.) Dr. Alimoradi challenges that determination in the instant
complaint, and Defendant USCIS has moved to dismiss.
II. ANALYSIS
A. Jurisdiction
Defendant first moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1), arguing that this Court lacks subject matter
jurisdiction because neither the Declaratory Judgment Act (“DJA”),
28 U.S.C. § 2201, nor the Administrative Procedure Act (“APA”), 5
U.S.C. § 701, “confer independent jurisdiction over this matter.”
(Mot. To Dismiss at 10.) The Court rejects this argument because
the Ninth Circuit has long held that district courts have
jurisdiction under 28 U.S.C. § 1331 over “challeng[es resulting
from the] . . . denial of . . . applications for adjustment of
status.” Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997); see
5
also Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996).
Accordingly, Defendant’s Rule 12(b)(1) motion is DENIED.2
B. Failure to State a Claim
Defendant also moves to dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. The
Court rejects this argument as well.
“A Rule 12(b)(6) motion tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A
court can dismiss a claim only when no cognizable legal theory
exists to support the plaintiff’s claim, or when the plaintiff has
not alleged sufficient facts to support a cognizable legal theory.
See id. When considering a 12(b)(6) motion, the Court accepts all
material allegations in the complaint as true, and draws all
reasonable inferences in favor of the nonmoving party. See id. As
such, a claim will be dismissed under Rule 12(b)(6) “only if it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Id.
(internal quotation marks omitted).
1. Statutory Framework
Section 245 of the Immigration and Nationality Act (“INA”)
sets forth when an individual is eligible to apply for adjustment
of status. An individual is not, “subject to subsection (k) of
this section,” eligible to apply for adjustment of status if he, as
2 It is of no consequence that Plaintiff’s complaint invokesthe APA and DJA as jurisdiction, rather than specificallymentioning 28 U.S.C. § 1331. Subject matter jurisdiction eitherexists, or it does not. That Plaintiff failed to name preciselythe correct language does not divest this Court of the jurisdictionit rightfully holds. Moreover, the APA and DJA providejurisdiction under § 1331 because they are federal statutes.
Defendant’s argument to the contrary is without merit.
6
relevant here, “has failed (other than through no fault of his own
or for technical reasons) to maintain continuously a lawful status
since entry into the United States.” 8 U.S.C. § 1255(c)(2)
(emphasis added). Subsection (k) excuses an individual from the
requirements of § 1255(c)(2) if, as relevant here, he is “eligible
to receive an immigrant visa” as an outstanding professor or
researcher under § 1153(b), and if
(1) the alien, on the date of filing an application foradjustment of status, is present in the United States pursuantto a lawful admission;
(2) the alien, subsequent to such lawful admission has not,
for an aggregate period exceeding 180 days –
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of thealien’s admission.
Id. § 1255(k). There is no dispute that Dr. Alimoradi would
qualify for the exemption in § 1255(k) except that, because of the
confusion over his I-765 application, he “engaged in unauthorized
employment” for “an aggregate period exceeding 180 days.”
Accordingly, in order to successfully challenge USCIS’s
determination that he is ineligible to apply for adjustment of
status, Dr. Alimoradi must show that his failure to maintain lawful
employment status was “through no fault of his own or for technical
reasons.”
2.
Application
a.
Applicability of the “No Fault of His Own orTechnical Reasons” Exception
The parties devote most of their briefing to debating whether
or not Dr. Naeim’s misinformation constituted ineffective
assistance of counsel such that Dr. Alimoradi’s unlawful employment
status came about “through no fault of his own.” The Court
emphasizes that, in light of the dire consequences for Dr.
7
Alimoradi, Dr. Naeim’s failure to conduct a thorough and accurate
investigation into the requirements for obtaining legal work status
is truly deplorable. However, the Court need not reach the
question of ineffective assistance of counsel, because it finds
that, assuming all allegations in the complaint are true, Dr.
Alimoradi’s mistake was “through no fault of his own or for
technical reasons” within the meaning of the INA, and that
therefore it did not render him ineligible to apply for adjustment
of status.3
The phrase, “no fault of his own or for technical reasons” is
not defined in the statute. It is, however, defined in the
implementing regulations, and those regulations “limit” its
application to four categories, which both parties agree do not fit
this case.4 Instead, Plaintiff Alimoradi argues that limiting the
3 Although Dr. Alimoradi’s briefing does not focus on the“technical reasons” clause, a fair reading of his argument revealshis contention that he falls into either exception - “no fault ofhis own” or “for technical reasons”; essentially, he argues thatthe mistake was minor and unintentional, and that he diligentlyattempted to comply with all immigration requirements. Moreover,
the implementing regulations define the clauses as a whole,
suggesting they should be analyzed as one.
4 The exceptions are:
(i) Inaction of another individual or organization designatedby regulation to act on behalf of an individual and over whoseactions the individual has no control . . .; or
(ii) A technical violation resulting from inaction of theService . . . [; or]
(iii) A technical violation caused by the physical inabilityof the applicant to request an extension of nonimmigrant stay. . . [; or]
(iv) A technical violation resulting from the Service’sapplication of the maximum five/six year period of stay forcertain H-1 nurses . . . .
8 C.F.R. § 1245.1(d)(2).
8
applicability of the exception to four narrow categories violates
the APA, which “commands reviewing courts to ‘hold unlawful and set
aside’ agency action that is ‘arbitrary, capricious, an abuse or
discretion, or otherwise not in accordance with law.” Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) (quoting 5 U.S.C. §
706(2)(A)). The Court agrees.
Under Chevron U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837, 844 (1984), courts must defer to
agency regulations as interpretations of their governing statutes
“unless they are arbitrary, capricious, or manifestly contrary to
the statute.” Here, the narrow construction imposed by the
regulation is manifestly contrary to the plain language of the
statute, which provides that any individual whose disqualifying
activity occurred “through no fault of his own or for technical
reasons” shall not be rendered ineligible for adjustment of status.
Nothing in the statute allows for the regulatory interpretation
that only certain individuals who fall into unlawful status through
no fault of their own or for technical reasons may qualify for this
exception.
The Court can find almost no case law interpreting this
provision. However, Mart v. Beebe, CIV. 99-1391, 2001 WL 13624 (D.
Or. Jan. 5, 2001) (unpublished), is instructive. There, the
plaintiff was admitted to the United States as a non-immigrant (B-2
visa), and then applied with her husband for political asylum. She
was “not aware” that she was required to apply to extend her B-2
visa while the asylum application was pending, and therefore fell
out of lawful status. Id. at *2. Her I-485 application was denied
on that basis, and she, along with her family, filed suit in
9
federal district court. Judge Jones found that the “lapse of
lawful status” was a “mere technical violation,” and that the
regulation requiring a determination to the contrary
defies Congress’ intent that individuals such as theplaintiffs, who have diligently endeavored to obey the law andhave contributed substantially to the United States . . .
since their arrival, not be precluded from adjustment becausethey were unaware of their duty to keep their non-immigrantvisas current while awaiting the INS’ decision on theirrequest for asylum.
Id at *5.
Similar logic applies in this case. Assuming all Dr.
Alimoradi’s allegations are true, he was not aware that he needed
to file a separate application for employment authorization.
Instead, he relied on Dr. Naeim, who told him that the approved
Labor Condition Application, in combination with an approved I-140
and the pending I-485, would suffice. It is not as if Dr.
Alimoradi failed to apply for any employment authorization; he
simply failed to apply for the right kind.5 As soon as he realized
his error, he filed the appropriate I-765 application. Because he
already had employment approval of some kind, his mistake, like
that at issue in Mart, amounts to a “mere technical violation.”
Essentially, Dr. Alimoradi mixed up the paperwork - not difficult
to do in this maze of statutes and regulations.
The Court further finds that the implementing regulation is
arbitrary and capricious because it fails to provide an exception
for individuals who are crucial to our national interest and
security, and it therefore presents a serious public safety risk.
5 Defendant asserts that Dr. Alimoradi was in fact aware of
the need to file a separate employment authorization application.
When considering a motion to dismiss for failure to state a claim,
however, the Court assumes that Plaintiff’s allegations are true.
10
Especially in California, the threat of a massive and destructive
earthquake is a constant. The 1994 Northridge earthquake in
Southern California left 57 people dead and more than 1,500 people
seriously injured, and damaged several major freeways. Days later,
9,000 homes and businesses were without electricity, 20,000 were
without gas, and more than 48,500 had little to no water.6 The
1989 Loma Prieta earthquake in Northern California killed 62,
injured 3,757, left more than 12,000 homeless, destroyed portions
of the Bay Bridge, and caused three billion dollars in damage.7
The 1906 San Francisco earthquake killed hundreds and left nearly
half of the city’s 450,000-person population homeless as miles
“burned and crumbled into a windswept desert of desolation.”8
Experts are seriously concerned about the devastation that a large
earthquake could cause in the near future, and the United States
Geological Survey has recently stressed the need for concerted
efforts “to avoid an earthquake catastrophe” because “[t]he
question is not if but when southern California will be hit by a
major earthquake - one so damaging that it will permanently change
lives and livelihoods in the region.”9
6 See http://www.lafire.com/famous_fires/940117_
NorthridgeEarthquake/quake/01_EQE_exsummary.htm (last accessedAugust 20, 2008).
7 See http://www.sfmuseum.org/alm/quakes3.html (last accessedAugust 20, 2008).
8 See http://www.sfmuseum.org/1906_eq_quests/eq.htm (lastaccessed August 20, 2008).
9 See Suzanne Perry et al, The ShakeOut Earthquake Scenario A
Story that Southern Californians Are Writing, U.S. GeologicalSurvey Circular 1324, Cal. Geological Survey Special Report 207(2008), available at http://pubs.usgs.gov/circ/1324/.
11
Dr. Alimoradi is, by all accounts, a talented and innovative
researcher in the area of earthquake science. His work could save
the lives and livelihoods of thousands of Americans in the event of
a serious earthquake. The United States Government has not only
recently warned that we must do everything in our power to prepare
for such a quake, but has specifically certified Dr. Alimoradi as
one of the crucial individuals who will help accomplish this task.
As far as the Court can discern, the United States should be
jumping at the chance to offer Dr. Alimoradi lawful permanent
residency. It would be the very definition of arbitrary and
capricious to hold him ineligible to remain in the United States
because he inadvertently failed to file a second application for
employment authorization even though the approved Labor Condition
Application that he had already obtained was, as far as he knew,
still valid.
The Immigration and Nationality Act leaves ample room for the
Attorney General, in his discretion, to pass regulations that would
forgive minor, technical violations when it is in the interest of
national security or public safety. Instead, USCIS has interpreted
its governing statute in a manner that effectively leaves it
paralyzed. As a result, the agency has allowed itself no
flexibility to act in this country’s best interests. Such a
reading arbitrarily eschews common sense, and creates a fundamental
tension not only with the statute’s plain language, but with its
larger purpose in creating priority worker visas, which, by their
very definition, are designed to make it easier for those skilled
individuals for whom we have a great need to become permanent
residents. See 8 U.S.C. § 1153(b)(1). Congress’s goal of
12
encouraging priority workers to stay in the United States is
directly undermined if USCIS refuses to offer these special
individuals relief from innocent mistakes.10
This Court is mindful of the various roles our Constitution
designed for each branch of government. It in no way intends by
this ruling to intrude on the province of the executive branch.
USCIS may draft reasonable regulations that articulate how the “no
fault of his own or technical reasons” exception should be applied,
including how to account for serious public safety or national
security risks. Rather, the Court’s holding is limited to the
conclusion that the regulation as it stands does not work. Under
the circumstances in this case, the regulation as applied to
preclude Dr. Alimoradi - whose work is vital to public safety and
national security - from immigrating to the United States because
of an innocent mistake, is an impermissible construction of its
governing statute, and therefore cannot stand.
b. Applicability of 180-day Bar
Defendant argues that even if Dr. Alimoradi qualifies for the
“no fault of his own or for technical reasons” exception, he is
nevertheless not eligible to adjust his status to that of a lawful
permanent resident because he worked out-of-status for more than
180 days. The Court disagrees with this statutory construction.
10 Dr. Alimoradi provides an excellent example of theconsequences of this impermissibly narrow regulation, but imagineeven more dramatic examples. Under the current regulation, theUnited States would be forced to export, due to minor, noncriminal,
and unintentional immigration violations, the world’s leadingexperts on nuclear physics, biological terrorism, or chemicalwarfare. Such a result is beyond arbitrary and capricious; it isinimical to public safety.
13
8 U.S.C. § 1255(c)(2) reads, as relevant here, that “subject
to subsection (k) of this section, an alien . . . who has failed
(other than through no fault of his own or for technical reasons)
to maintain continuously a lawful status since entry into the
United States” is ineligible for adjustment of status. Subsection
(k), of course, provides an exception to ineligibility under
subsection (c)(2); those aliens with extraordinary ability, such as
outstanding researchers or professors, may adjust status even if
they worked unlawfully so long as, inter alia, they did not work
unlawfully for longer than 180 days.
Defendant urges the following construction: Section 1255(c)(2)
proscribes adjustment of status for individuals who work
unlawfully, except for those whose mistake was through no fault of
their own or for technical reasons. However, that exception is
subject to the requirements of subsection (k), and as such is
limited to those individuals whose mistakes lasted less than 180
days.
The Court rejects this construction because it turns
congressional intent on its head by imposing additional
requirements on immigrants with outstanding skills or talents that
are not imposed on individuals with no such ability. “It is a
fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme.” Nat’l Ass’n of Home
Builders v. Def. of Wildlife, 127 S. Ct. 2518, 2534 (2007)
(internal quotation marks omitted). Through the plain language of
the Immigration and Nationality Act, it is clear that Congress
intended to grant immigrants such as Dr. Alimoradi special
14
treatment in obtaining legal immigrant status by labeling them
“priority workers.” See 8 U.S.C. § 1153(b)(1) ([Employment] “Visas
shall first be made available . . . to qualified immigrants,”
including outstanding professors or researchers (emphasis added)).
This intent is underscored by § 1255(k), which provides for these
individuals with special skills an escape from the sanctions
imposed for certain immigration violations that is not available to
the average individual seeking lawful permanent residency.
The following example well illustrates the backwardness of
Defendant’s argument: Assume that an individual fails to maintain
lawful status because he was ill and physically unable to request
an extension of non-immigrant stay. He would qualify for the “no
fault of his own or technical reasons” exception set forth in §
1255(c)(2), even under the narrow interpretation laid out in the
implementing regulations. See 8 C.F.R. § 1245.1(d)(2)(iii). Now
further assume that because of his illness, the individual was
unable to request an extension of his stay for 220 days. Under
Defendant’s construction, if this individual does not qualify as a
priority worker with outstanding ability under § 1153(b), he can
make use of the exception in § 1255(c)(2) no matter how long he
worked out of status because § 1255(k) does not apply to him.
However, if, like Dr. Alimoradi, he does qualify as a worker with
outstanding talents, he cannot make use of the exception in §
1255(c)(2), even if the circumstances that rendered the individuals
unlawful were identical. In short, under Defendant’s construction,
the statute is less forgiving for special applicants called
“priority workers,” whom Congress has explicitly placed at the
front of the line for obtaining visas, than for a random individual
15
with no special skills whatsoever. It is axiomatic that courts
“must avoid [statutory] interpretations that would produce absurd
results,” and Defendant’s argument clearly does just that. Azarte
v. Ashcroft, 394 F.3d 1278, 1288 (9th Cir. 2005).
Instead, the Court finds that, in the context of the entire
statutory framework, § 1255 provides more flexibility for priority
workers than for regular individuals. In context, the thrust of §
1255(c)(2) is that it prohibits adjustment of status for most
people whose legal status has lapsed. The thrust of § 1255(k) is
that it provides a special, unique exemption for priority workers,
so long as they were not out-of-status for more than 180 days.
Thus, § 1255(c)(2) is “subject to” § 1255(k) in that it offers an
extra exemption for priority workers not offered to regular
applicants.
In addition, § 1255(c)(2) provides an exemption for those
individuals whose status lapses through no fault of their own or
for technical reasons. Unlike § 1255(k), this exemption is not
limited to priority workers, and it does not impose a bar on
adjustment of status for those individuals who worked out of status
for more than 180 days, as long as the mistake came about “through
no fault of [their] own or for technical reasons.” In other words,
a priority worker whose status lapses receives an automatic 180-day
grace period. After the 180 days has passed, to obtain relief he
must demonstrate that he falls into the “no fault of his own or for
technical reasons” exception, which provides relief for any
eligible individual.
Accordingly, consistent with congressional intent to provide
priority workers with priority treatment, the Court finds that Dr.
16
Alimoradi’s invocation of the “no fault of his own or for technical
reasons” exception is not subject to a 180-day limit that would not
have been imposed on a non-priority worker. Having further
determined that the applicable regulation interprets the “no fault
of his own or for technical reasons” exception in an impermissibly
narrow fashion, the Court concludes that, construing the facts of
this case in the light most favorable to Dr. Alimoradi, he may
invoke this exception because his work is crucial to public safety
and the national security of the United States.
III. CONCLUSION
Based on the foregoing analysis, the motion to dismiss is
DENIED.
IT IS SO ORDERED.
Dated: August 29, 2008
DEAN D. PREGERSON
United States District Judge
17
CENTRAL DISTRICT OF CALIFORNIA
ARZHANG ALIMORADI, )Case No. CV 08-02529 DDP (JCx)
)
Plaintiff, )ORDER DENYING MOTION TO DISMISS
)
v.
)[Motion filed on July 7, 2008]
)
U.S. CITIZENSHIP & )
IMMIGRATION SERVICES, A)
BUREAU OF THE DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendants. )
)
__________________________ )
In this matter, Arzhang Alimoradi challenges Defendant United
States Citizenship and Immigration Services’ (“USCIS”) decision to
deny him status as a lawful permanent resident. Before the Court
is Defendant’s motion to dismiss; the issue presented is whether
the regulation used to reject Mr. Alimoradi’s application - which
does not allow USCIS, in its discretion, to ignore minor, non
criminal immigration violations in the interest of national
security and public safety - is a permissible construction of its
authorizing statute. After reviewing the materials submitted by
the parties and considering the arguments therein, the Court finds
the regulation impermissible, and therefore DENIES the motion.
I. BACKGROUND1
Plaintiff Arzhang Alimoradi, Ph.D., is a native and citizen of
Iran and the subject of an approved I-140 visa petition certifying
him as an “Outstanding Professor or Researcher” pursuant to 8
U.S.C. § 1153(b)(1)(B). This qualifies him as a “priority
worker[]” who is at the top of the list (assuming other
prerequisites are met) to obtain legal permanent residency in the
United States. Id. § 1153(b)(1). Dr. Alimoradi is a senior
researcher who specializes in Earthquake Engineering. He completed
his Ph.D. in this area at the University of Memphis in December
2004. (A.R. 79.) Among his many accomplishments, Dr. Alimoradi
has been involved with earthquake research at several prestigious
universities, is a successful science and engineering professor,
and, perhaps most notably, has “been the southern California backup
person for a major northern California earthquake clearinghouse
procedure. A clearinghouse is the focal point of coordinating
post-earthquake investigations between researchers and
organizations from around the globe in the aftermath of a major
earthquake.” (A.R. 80.) He has published articles in numerous
academic journals, and his “state-of-the-art” research “helps civil
engineers to design an earthquake resistant building structure” to
a degree that other researchers had not to this point succeeded.
1 Unless otherwise noted, all facts are either undisputed ortaken from Dr. Alimoradi’s allegations, because, on a motion todismiss for failure to state a claim, this Court must assume aplaintiff’s allegations to be true.
2
(A.R. 107.) In other words, Dr. Alimoradi’s entire illustrious
career revolves around helping communities to build safely and to
prepare successfully for earthquakes, and he would like to live in
Southern California - an earthquake center.
This case arose because Dr. Alimoradi inadvertently let his
employment status lapse. Dr. Alimoradi joined the research and
development department of John A. Martin & Associates (“JAMA”) as a
senior research engineer on January 3, 2005. He was authorized to
work in the United States at this time on an Optional Practical
Training visa, which was valid until January 2, 2006. JAMA sent
Dr. Alimoradi to consult with its General Counsel, Dr. Farzad
Naeim, in order “to handle” his immigration matters and extend his
work visa. (A.R. 79.) To facilitate this process, on February 22,
2005, Dr. Naeim filed an I-140: Immigration Petition for Alien
Worker (outstanding professor/researcher), which was approved by
USCIS on August 18, 2005. The I-140 was the first step in
obtaining legal permanent residency (or, a “green card”) for Dr.
Alimoradi.
At the same time, Dr. Naeim filed an I-129: Petition for
Nonimmigrant Worker (H1B visa). The H1B visa grants temporary work
status (but not a green card) to certain individuals. As part of
preparing the I-129 petition, Dr. Naeim filed a Labor Condition
Application (ETA 9035E), which was certified by the Department of
Labor for the period August 1, 2005 through July 31, 2008. In
other words, Dr. Alimoradi, with the help of Dr. Naeim and JAMA,
applied for an H1B visa and his green card concurrently, as two
alternate means of obtaining legal work status.
3
Once the I-140 petition was approved in August 2005,
certifying that a permanent resident visa was available for him,
Dr. Alimoradi took the next step in the green card process by
filing an I-485 Application to Adjust Status from that of a nonimmigrant
to a lawful permanent resident of the United States.
Because the green card application seemed to be progressing quickly
and with success, Dr. Naeim did not pursue the H1B visa route any
further. (A.R. 86.) Dr. Naeim believed, and told Dr. Alimoradi,
that the combination of the approved Labor Condition Application
obtained through the H1B process, the approved I-140, and the
pending I-485 permitted him to work at JAMA until the expiration of
the approved Labor Condition Application in July 2008. (A.R. 86.)
Dr. Naeim believed “that the mere filing of I-485 would provide Dr.
Alimoradi yet one more source of authorization to work,” in
addition to the approved Labor Condition Application. (A.R. 86.
(emphasis added).) In fact, however, Dr. Alimoradi was required to
file a different application for employment in conjunction with his
I-485: the I-765 Application for Employment Authorization. See 8
C.F.R. § 274a.12(c)(9). According to Dr. Alimoradi, he relied on
Dr. Naeim’s explanation of the prerequisites for legal employment;
as a result, Dr. Alimoradi was unaware that the Labor Condition
Application was insufficient, and that he needed instead to file an
I-765 and to obtain a valid Employment Authorization Document
(“EAD”).
On August 1, 2007, USCIS sent Dr. Alimoradi a “Request For
Evidence” questioning whether he had been properly authorized to
work after February 2, 2006. Dr. Naeim, at that point, began to
conduct further research and discovered the need for an EAD. (A.R.
4
86.) He informed Dr. Alimoradi of this fact, explained how to file
the I-765, obtained the filing fee for Dr. Alimoradi from JAMA, and
urged Dr. Alimoradi to seek outside legal counsel. (A.R. 86-87.)
Dr. Alimoradi immediately filed the I-765, which was received by
USCIS on August 13, 2007. Dr. Naeim has submitted a declaration
attesting, inter alia, that “[n]either JAMA nor Dr. Alimoradi has
ever had any intention of employment without authorization for any
duration at all.” (A.R. 87.)
On October 10, 2007, USCIS sent Dr. Alimoradi an “Intent to
Deny” his I-485 application on the ground that he had worked in the
United States without authorization for more than 180 days. (A.R.
4-7.) Dr. Alimoradi challenges that determination in the instant
complaint, and Defendant USCIS has moved to dismiss.
II. ANALYSIS
A. Jurisdiction
Defendant first moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1), arguing that this Court lacks subject matter
jurisdiction because neither the Declaratory Judgment Act (“DJA”),
28 U.S.C. § 2201, nor the Administrative Procedure Act (“APA”), 5
U.S.C. § 701, “confer independent jurisdiction over this matter.”
(Mot. To Dismiss at 10.) The Court rejects this argument because
the Ninth Circuit has long held that district courts have
jurisdiction under 28 U.S.C. § 1331 over “challeng[es resulting
from the] . . . denial of . . . applications for adjustment of
status.” Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997); see
5
also Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996).
Accordingly, Defendant’s Rule 12(b)(1) motion is DENIED.2
B. Failure to State a Claim
Defendant also moves to dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. The
Court rejects this argument as well.
“A Rule 12(b)(6) motion tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A
court can dismiss a claim only when no cognizable legal theory
exists to support the plaintiff’s claim, or when the plaintiff has
not alleged sufficient facts to support a cognizable legal theory.
See id. When considering a 12(b)(6) motion, the Court accepts all
material allegations in the complaint as true, and draws all
reasonable inferences in favor of the nonmoving party. See id. As
such, a claim will be dismissed under Rule 12(b)(6) “only if it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Id.
(internal quotation marks omitted).
1. Statutory Framework
Section 245 of the Immigration and Nationality Act (“INA”)
sets forth when an individual is eligible to apply for adjustment
of status. An individual is not, “subject to subsection (k) of
this section,” eligible to apply for adjustment of status if he, as
2 It is of no consequence that Plaintiff’s complaint invokesthe APA and DJA as jurisdiction, rather than specificallymentioning 28 U.S.C. § 1331. Subject matter jurisdiction eitherexists, or it does not. That Plaintiff failed to name preciselythe correct language does not divest this Court of the jurisdictionit rightfully holds. Moreover, the APA and DJA providejurisdiction under § 1331 because they are federal statutes.
Defendant’s argument to the contrary is without merit.
6
relevant here, “has failed (other than through no fault of his own
or for technical reasons) to maintain continuously a lawful status
since entry into the United States.” 8 U.S.C. § 1255(c)(2)
(emphasis added). Subsection (k) excuses an individual from the
requirements of § 1255(c)(2) if, as relevant here, he is “eligible
to receive an immigrant visa” as an outstanding professor or
researcher under § 1153(b), and if
(1) the alien, on the date of filing an application foradjustment of status, is present in the United States pursuantto a lawful admission;
(2) the alien, subsequent to such lawful admission has not,
for an aggregate period exceeding 180 days –
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of thealien’s admission.
Id. § 1255(k). There is no dispute that Dr. Alimoradi would
qualify for the exemption in § 1255(k) except that, because of the
confusion over his I-765 application, he “engaged in unauthorized
employment” for “an aggregate period exceeding 180 days.”
Accordingly, in order to successfully challenge USCIS’s
determination that he is ineligible to apply for adjustment of
status, Dr. Alimoradi must show that his failure to maintain lawful
employment status was “through no fault of his own or for technical
reasons.”
2.
Application
a.
Applicability of the “No Fault of His Own orTechnical Reasons” Exception
The parties devote most of their briefing to debating whether
or not Dr. Naeim’s misinformation constituted ineffective
assistance of counsel such that Dr. Alimoradi’s unlawful employment
status came about “through no fault of his own.” The Court
emphasizes that, in light of the dire consequences for Dr.
7
Alimoradi, Dr. Naeim’s failure to conduct a thorough and accurate
investigation into the requirements for obtaining legal work status
is truly deplorable. However, the Court need not reach the
question of ineffective assistance of counsel, because it finds
that, assuming all allegations in the complaint are true, Dr.
Alimoradi’s mistake was “through no fault of his own or for
technical reasons” within the meaning of the INA, and that
therefore it did not render him ineligible to apply for adjustment
of status.3
The phrase, “no fault of his own or for technical reasons” is
not defined in the statute. It is, however, defined in the
implementing regulations, and those regulations “limit” its
application to four categories, which both parties agree do not fit
this case.4 Instead, Plaintiff Alimoradi argues that limiting the
3 Although Dr. Alimoradi’s briefing does not focus on the“technical reasons” clause, a fair reading of his argument revealshis contention that he falls into either exception - “no fault ofhis own” or “for technical reasons”; essentially, he argues thatthe mistake was minor and unintentional, and that he diligentlyattempted to comply with all immigration requirements. Moreover,
the implementing regulations define the clauses as a whole,
suggesting they should be analyzed as one.
4 The exceptions are:
(i) Inaction of another individual or organization designatedby regulation to act on behalf of an individual and over whoseactions the individual has no control . . .; or
(ii) A technical violation resulting from inaction of theService . . . [; or]
(iii) A technical violation caused by the physical inabilityof the applicant to request an extension of nonimmigrant stay. . . [; or]
(iv) A technical violation resulting from the Service’sapplication of the maximum five/six year period of stay forcertain H-1 nurses . . . .
8 C.F.R. § 1245.1(d)(2).
8
applicability of the exception to four narrow categories violates
the APA, which “commands reviewing courts to ‘hold unlawful and set
aside’ agency action that is ‘arbitrary, capricious, an abuse or
discretion, or otherwise not in accordance with law.” Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) (quoting 5 U.S.C. §
706(2)(A)). The Court agrees.
Under Chevron U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837, 844 (1984), courts must defer to
agency regulations as interpretations of their governing statutes
“unless they are arbitrary, capricious, or manifestly contrary to
the statute.” Here, the narrow construction imposed by the
regulation is manifestly contrary to the plain language of the
statute, which provides that any individual whose disqualifying
activity occurred “through no fault of his own or for technical
reasons” shall not be rendered ineligible for adjustment of status.
Nothing in the statute allows for the regulatory interpretation
that only certain individuals who fall into unlawful status through
no fault of their own or for technical reasons may qualify for this
exception.
The Court can find almost no case law interpreting this
provision. However, Mart v. Beebe, CIV. 99-1391, 2001 WL 13624 (D.
Or. Jan. 5, 2001) (unpublished), is instructive. There, the
plaintiff was admitted to the United States as a non-immigrant (B-2
visa), and then applied with her husband for political asylum. She
was “not aware” that she was required to apply to extend her B-2
visa while the asylum application was pending, and therefore fell
out of lawful status. Id. at *2. Her I-485 application was denied
on that basis, and she, along with her family, filed suit in
9
federal district court. Judge Jones found that the “lapse of
lawful status” was a “mere technical violation,” and that the
regulation requiring a determination to the contrary
defies Congress’ intent that individuals such as theplaintiffs, who have diligently endeavored to obey the law andhave contributed substantially to the United States . . .
since their arrival, not be precluded from adjustment becausethey were unaware of their duty to keep their non-immigrantvisas current while awaiting the INS’ decision on theirrequest for asylum.
Id at *5.
Similar logic applies in this case. Assuming all Dr.
Alimoradi’s allegations are true, he was not aware that he needed
to file a separate application for employment authorization.
Instead, he relied on Dr. Naeim, who told him that the approved
Labor Condition Application, in combination with an approved I-140
and the pending I-485, would suffice. It is not as if Dr.
Alimoradi failed to apply for any employment authorization; he
simply failed to apply for the right kind.5 As soon as he realized
his error, he filed the appropriate I-765 application. Because he
already had employment approval of some kind, his mistake, like
that at issue in Mart, amounts to a “mere technical violation.”
Essentially, Dr. Alimoradi mixed up the paperwork - not difficult
to do in this maze of statutes and regulations.
The Court further finds that the implementing regulation is
arbitrary and capricious because it fails to provide an exception
for individuals who are crucial to our national interest and
security, and it therefore presents a serious public safety risk.
5 Defendant asserts that Dr. Alimoradi was in fact aware of
the need to file a separate employment authorization application.
When considering a motion to dismiss for failure to state a claim,
however, the Court assumes that Plaintiff’s allegations are true.
10
Especially in California, the threat of a massive and destructive
earthquake is a constant. The 1994 Northridge earthquake in
Southern California left 57 people dead and more than 1,500 people
seriously injured, and damaged several major freeways. Days later,
9,000 homes and businesses were without electricity, 20,000 were
without gas, and more than 48,500 had little to no water.6 The
1989 Loma Prieta earthquake in Northern California killed 62,
injured 3,757, left more than 12,000 homeless, destroyed portions
of the Bay Bridge, and caused three billion dollars in damage.7
The 1906 San Francisco earthquake killed hundreds and left nearly
half of the city’s 450,000-person population homeless as miles
“burned and crumbled into a windswept desert of desolation.”8
Experts are seriously concerned about the devastation that a large
earthquake could cause in the near future, and the United States
Geological Survey has recently stressed the need for concerted
efforts “to avoid an earthquake catastrophe” because “[t]he
question is not if but when southern California will be hit by a
major earthquake - one so damaging that it will permanently change
lives and livelihoods in the region.”9
6 See http://www.lafire.com/famous_fires/940117_
NorthridgeEarthquake/quake/01_EQE_exsummary.htm (last accessedAugust 20, 2008).
7 See http://www.sfmuseum.org/alm/quakes3.html (last accessedAugust 20, 2008).
8 See http://www.sfmuseum.org/1906_eq_quests/eq.htm (lastaccessed August 20, 2008).
9 See Suzanne Perry et al, The ShakeOut Earthquake Scenario A
Story that Southern Californians Are Writing, U.S. GeologicalSurvey Circular 1324, Cal. Geological Survey Special Report 207(2008), available at http://pubs.usgs.gov/circ/1324/.
11
Dr. Alimoradi is, by all accounts, a talented and innovative
researcher in the area of earthquake science. His work could save
the lives and livelihoods of thousands of Americans in the event of
a serious earthquake. The United States Government has not only
recently warned that we must do everything in our power to prepare
for such a quake, but has specifically certified Dr. Alimoradi as
one of the crucial individuals who will help accomplish this task.
As far as the Court can discern, the United States should be
jumping at the chance to offer Dr. Alimoradi lawful permanent
residency. It would be the very definition of arbitrary and
capricious to hold him ineligible to remain in the United States
because he inadvertently failed to file a second application for
employment authorization even though the approved Labor Condition
Application that he had already obtained was, as far as he knew,
still valid.
The Immigration and Nationality Act leaves ample room for the
Attorney General, in his discretion, to pass regulations that would
forgive minor, technical violations when it is in the interest of
national security or public safety. Instead, USCIS has interpreted
its governing statute in a manner that effectively leaves it
paralyzed. As a result, the agency has allowed itself no
flexibility to act in this country’s best interests. Such a
reading arbitrarily eschews common sense, and creates a fundamental
tension not only with the statute’s plain language, but with its
larger purpose in creating priority worker visas, which, by their
very definition, are designed to make it easier for those skilled
individuals for whom we have a great need to become permanent
residents. See 8 U.S.C. § 1153(b)(1). Congress’s goal of
12
encouraging priority workers to stay in the United States is
directly undermined if USCIS refuses to offer these special
individuals relief from innocent mistakes.10
This Court is mindful of the various roles our Constitution
designed for each branch of government. It in no way intends by
this ruling to intrude on the province of the executive branch.
USCIS may draft reasonable regulations that articulate how the “no
fault of his own or technical reasons” exception should be applied,
including how to account for serious public safety or national
security risks. Rather, the Court’s holding is limited to the
conclusion that the regulation as it stands does not work. Under
the circumstances in this case, the regulation as applied to
preclude Dr. Alimoradi - whose work is vital to public safety and
national security - from immigrating to the United States because
of an innocent mistake, is an impermissible construction of its
governing statute, and therefore cannot stand.
b. Applicability of 180-day Bar
Defendant argues that even if Dr. Alimoradi qualifies for the
“no fault of his own or for technical reasons” exception, he is
nevertheless not eligible to adjust his status to that of a lawful
permanent resident because he worked out-of-status for more than
180 days. The Court disagrees with this statutory construction.
10 Dr. Alimoradi provides an excellent example of theconsequences of this impermissibly narrow regulation, but imagineeven more dramatic examples. Under the current regulation, theUnited States would be forced to export, due to minor, noncriminal,
and unintentional immigration violations, the world’s leadingexperts on nuclear physics, biological terrorism, or chemicalwarfare. Such a result is beyond arbitrary and capricious; it isinimical to public safety.
13
8 U.S.C. § 1255(c)(2) reads, as relevant here, that “subject
to subsection (k) of this section, an alien . . . who has failed
(other than through no fault of his own or for technical reasons)
to maintain continuously a lawful status since entry into the
United States” is ineligible for adjustment of status. Subsection
(k), of course, provides an exception to ineligibility under
subsection (c)(2); those aliens with extraordinary ability, such as
outstanding researchers or professors, may adjust status even if
they worked unlawfully so long as, inter alia, they did not work
unlawfully for longer than 180 days.
Defendant urges the following construction: Section 1255(c)(2)
proscribes adjustment of status for individuals who work
unlawfully, except for those whose mistake was through no fault of
their own or for technical reasons. However, that exception is
subject to the requirements of subsection (k), and as such is
limited to those individuals whose mistakes lasted less than 180
days.
The Court rejects this construction because it turns
congressional intent on its head by imposing additional
requirements on immigrants with outstanding skills or talents that
are not imposed on individuals with no such ability. “It is a
fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme.” Nat’l Ass’n of Home
Builders v. Def. of Wildlife, 127 S. Ct. 2518, 2534 (2007)
(internal quotation marks omitted). Through the plain language of
the Immigration and Nationality Act, it is clear that Congress
intended to grant immigrants such as Dr. Alimoradi special
14
treatment in obtaining legal immigrant status by labeling them
“priority workers.” See 8 U.S.C. § 1153(b)(1) ([Employment] “Visas
shall first be made available . . . to qualified immigrants,”
including outstanding professors or researchers (emphasis added)).
This intent is underscored by § 1255(k), which provides for these
individuals with special skills an escape from the sanctions
imposed for certain immigration violations that is not available to
the average individual seeking lawful permanent residency.
The following example well illustrates the backwardness of
Defendant’s argument: Assume that an individual fails to maintain
lawful status because he was ill and physically unable to request
an extension of non-immigrant stay. He would qualify for the “no
fault of his own or technical reasons” exception set forth in §
1255(c)(2), even under the narrow interpretation laid out in the
implementing regulations. See 8 C.F.R. § 1245.1(d)(2)(iii). Now
further assume that because of his illness, the individual was
unable to request an extension of his stay for 220 days. Under
Defendant’s construction, if this individual does not qualify as a
priority worker with outstanding ability under § 1153(b), he can
make use of the exception in § 1255(c)(2) no matter how long he
worked out of status because § 1255(k) does not apply to him.
However, if, like Dr. Alimoradi, he does qualify as a worker with
outstanding talents, he cannot make use of the exception in §
1255(c)(2), even if the circumstances that rendered the individuals
unlawful were identical. In short, under Defendant’s construction,
the statute is less forgiving for special applicants called
“priority workers,” whom Congress has explicitly placed at the
front of the line for obtaining visas, than for a random individual
15
with no special skills whatsoever. It is axiomatic that courts
“must avoid [statutory] interpretations that would produce absurd
results,” and Defendant’s argument clearly does just that. Azarte
v. Ashcroft, 394 F.3d 1278, 1288 (9th Cir. 2005).
Instead, the Court finds that, in the context of the entire
statutory framework, § 1255 provides more flexibility for priority
workers than for regular individuals. In context, the thrust of §
1255(c)(2) is that it prohibits adjustment of status for most
people whose legal status has lapsed. The thrust of § 1255(k) is
that it provides a special, unique exemption for priority workers,
so long as they were not out-of-status for more than 180 days.
Thus, § 1255(c)(2) is “subject to” § 1255(k) in that it offers an
extra exemption for priority workers not offered to regular
applicants.
In addition, § 1255(c)(2) provides an exemption for those
individuals whose status lapses through no fault of their own or
for technical reasons. Unlike § 1255(k), this exemption is not
limited to priority workers, and it does not impose a bar on
adjustment of status for those individuals who worked out of status
for more than 180 days, as long as the mistake came about “through
no fault of [their] own or for technical reasons.” In other words,
a priority worker whose status lapses receives an automatic 180-day
grace period. After the 180 days has passed, to obtain relief he
must demonstrate that he falls into the “no fault of his own or for
technical reasons” exception, which provides relief for any
eligible individual.
Accordingly, consistent with congressional intent to provide
priority workers with priority treatment, the Court finds that Dr.
16
Alimoradi’s invocation of the “no fault of his own or for technical
reasons” exception is not subject to a 180-day limit that would not
have been imposed on a non-priority worker. Having further
determined that the applicable regulation interprets the “no fault
of his own or for technical reasons” exception in an impermissibly
narrow fashion, the Court concludes that, construing the facts of
this case in the light most favorable to Dr. Alimoradi, he may
invoke this exception because his work is crucial to public safety
and the national security of the United States.
III. CONCLUSION
Based on the foregoing analysis, the motion to dismiss is
DENIED.
IT IS SO ORDERED.
Dated: August 29, 2008
DEAN D. PREGERSON
United States District Judge
17
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