8 CFR 1292.1 Immigration Court Representation

§ 1292.1 Representation of others.

(a) A person entitled to representation may be represented by any of the following:

(1) Attorneys in the United States. Any attorney as defined in §1001.1(f) of this chapter.

(2) Disclosure of information for the purpose of conducting a preliminary inquiry. The EOIR disciplinary counsel, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals and entities:

(i) He or she is appearing at the request of the person entitled to representation;

(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;

(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and

(iv) The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officer-in-charge, regional director, the Commissioner, or the Board). The official or officials may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative.

(3) Reputable individuals. Any reputable individual of good moral character, provided that:

(i) He is appearing on an individual case basis, at the request of the person entitled to representation;

(ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;

(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and

(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.

(4) Accredited representatives. A person representing an organization described in §1292.2 of this chapter who has been accredited by the Board.

(5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.

(b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §1292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §1292.3 of this chapter.

(c) Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735–7.

(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.

(e) Except as set forth in this section, no other person or persons shall represent others in any case.

[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 1997; 73 FR 76927, Dec. 18, 2008]

Fraudulent marriage conspiracy Chicago - 10 indicted in Chicago sham marriage conspiracy

November 23, 2009
10 indicted in Chicago sham marriage conspiracy

CHICAGO - An immigration attorney and five current and former Cook County Traffic Court employees were among those charged on Monday for allegedly arranging sham marriages to evade U.S. immigration laws. The charges resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).

A federal grand jury returned a 14-count indictment last week that was unsealed Nov. 23 after ICE agents arrested five of the defendants. Among the 10 individuals charged are a Chicago immigration attorney and five current or former Cook County Traffic Court employees. However, the charges do not allege that their employment played any role in the alleged fraud scheme.

According to the indictment, Maria F. Cruz and others recruited U.S. citizens and foreign nationals, primarily Filipinos, who entered into at least 15 sham marriages to evade immigration laws. The foreign nationals paid Cruz about $3,000 each to arrange for them to marry U.S. citizens. Cruz allegedly promised U.S. citizens that in return for marrying a foreign national they would receive about $3,000 after the marriage and about $350 a month until the foreign national obtained U.S. citizenship.

Foreign nationals who marry U.S. citizens can become U.S. permanent residents - and ultimately obtain U.S. citizenship - but not if the marriage is identified as a sham solely to evade immigration laws.

Cruz, 49, formerly of Chicago and currently living in American Canyon, Calif., was arrested on an initial complaint in late August; she was released on a $200,000 secured bond. She was a Cook County Traffic Court employee until this past summer when she moved to California.

In addition to the 15 allegedly fraudulent marriages detailed in the indictment, Cruz allegedly attempted to arrange two additional marriages between individuals and ICE agents during an undercover portion of the investigation.

Among the five people arrested Monday was Manny Aguja, 53, of Chicago, an immigration attorney with an office at 3144 W. Montrose Ave. Also arrested were two of Aguja's employees: his twin brother, Marc Aguja, 53; and Celeste Ligutan-Lopez, 36, both of Chicago.

According to the indictment, between July 2003 and October 2009 Cruz allegedly paid fees to individuals who referred U.S. citizens to her who were willing to enter into fraudulent marriages. Cruz then drove them to weddings and took photos before and after, knowing that they would be used to make it appear that the sham marriages were legitimate. She also advised the participants of steps they needed to take to make their marriages appear legitimate.

Cruz allegedly referred sham marriage participants to Manny Aguja's law office to prepare paperwork in support of the conspiracy. In addition to preparing allegedly fraudulent immigration papers, the Aguja brothers and Ligutan-Lopez met with participants and coached them on how to make the marriages appear legitimate. The indictment also seeks forfeiture of Manny Aguja's law office.

Also arrested Monday were Keisha McGary, 33; and Eugene Wilson, 30, both Cook County employees residing in Chicago. The Aguja brothers, Ligutan-Lopez, McGary and Wilson are scheduled to appear at 1:30 p.m. Monday before U.S. District Judge Samuel Der-Yeghiayan, Northern District of Illinois.

Cruz and the remaining four defendants will be ordered to appear for arraignment at a later date. They include Maria Cyd Adriatico-Fernandez, 53, of Oakbrook, and the following three Cook County Traffic Court employees: Sonia Maki, 43; DeShawn Barksdale, 39; and Eugene Wilson's sister, Latrice Wilson, 37, all of Chicago.

Each defendant was charged with conspiracy to commit marriage fraud. Some defendants were charged with additional counts of marriage or immigration fraud, including Cruz who faces 10 counts of marriage fraud. The Aguja brothers were also charged with conspiracy to induce foreign nationals to reside illegally in the United States.

"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said ICE Assistant Secretary John Morton. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."

ICE was assisted in the investigation by the U.S. Citizenship and Immigration Service's Fraud Detection and National Security (FDNS) program.

Assistant U.S. Attorney Jason Yonan, Northern District of Illinois, is prosecuting the case.

Conspiracy to commit marriage fraud and marriage fraud carry a maximum penalty of five years in prison and a $250,000 fine. Other immigration fraud counts in the indictment carry a maximum penalty of 10 years in prison and a $250,000 fine. If convicted, however, the Court would impose a sentence it deems reasonable under the advisory U.S. Sentencing Guidelines.

The public is reminded that an indictment contains only charges and is not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

Deceased U.S. Citizens and their Children - Guidance Regarding Surviving Spouses (Neufeld Memo 06/15/2009)

U.S. Citizenship and Immigration Services

June 15, 2009


Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Director
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children

I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.

II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.

III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand¬alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing
procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.

I. Effect of Grant of Deferred Action

The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors

Writ Coram Nobis - Requirements

The writ of error coram nobis is a common law writ that means, "an error remains in our presence." Only the court that issued the judgment has jurisdiction to grant the writ. To warrant coram nobis relief, the petitioner must satisfy four requirements, including a showing that fundamental error occurred in the proceedings and that there are valid reasons why the petitioner did not act to attack the conviction earlier. See Hirabayashi I,. United States, 828 F.2d 591. 604 (9th Cir.1987). The Ninth Circuit Court of Appeals, the jurisdiction in which this case arises, has made it clear that the writ of error coram nobis is a "highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007). "[A] petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of
Article 111; and (4) the error is of the most fundamental character." Id. at 1006 (citation omitted).

Immigration Consequences of Guilty Plea in Criminal Proceedings in CT - Conn. Gen. Stat. § 54-1j

Sec. 54-1j. Ascertainment that defendant understands possible immigration and naturalization consequences of guilty or nolo contendere plea. (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.

(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.

(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.

(P.A. 82-177; P.A. 97-256, S. 6; P.A. 03-81, S. 1.)

History: P.A. 97-256 amended Subsec. (c) by imposing a three-year time period after the acceptance of the plea for the defendant to show that his plea and conviction may have one of the enumerated consequences, and deleting provision that, in the absence of a record that the court provided the required advice, the defendant is presumed not to have received such advice; P.A. 03-81 amended Subsec. (a) to replace former provision prohibiting the court accepting plea unless the court "advises" the defendant of the possible immigration or naturalization consequences of conviction if the defendant is not a citizen and setting forth specific language of such advisement with provision that prohibits the court accepting plea unless the court first addresses the defendant personally and determines that the defendant fully understands such possible consequences, add "removal" from the United States as a possible consequence and add provision requiring the court to permit the defendant to discuss these possible consequences with the defendant's attorney prior to accepting plea, amended Subsec. (b) to make a technical change for purposes of gender neutrality and amended Subsec. (c) to make provisions applicable if court fails "to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section" rather than if court fails "to advise a defendant, as required in subsection (a) of this section" and make a technical change for purposes of gender neutrality.

Court found that the time limit for filing motion was procedural in nature and therefore could be applied retroactively. 251 C. 617. Warning of deportation and denial was substantial compliance with provisions of statute since defendant was warned guilty plea implicates immigration status. 257 C. 653.

Court need only inform defendant of potential deportation consequences rather than engaging defendant in a manner to ensure full understanding. 62 CA 805. Section is in place only to call defendant's attention to potential immigration consequences under federal law, not to inform defendant of every possible consequence of a plea. 68 CA 499.

Welfare fraud is not a “theft offense” - 24 I. & N. Dec. 436, MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA

24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

MATTER OF LIDUINA DE FATIMA GARCIA-MADRUGA, RESPONDENT

Decided January 17, 2008
(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.

(2) The respondent's welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.

FOR RESPONDENT:
John H. Ruginski, Jr., Esquire, Providence, Rhode Island

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

PAULEY, Board Member:

In a decision dated August 21, 2007, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony “theft offense” for which the term of imprisonment was at least 1 year under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2000). The Immigration Judge also incorporated a separate decision denying the respondent's motion to terminate the proceedings. The respondent has appealed from the Immigration Judge's decision. The Department of Homeland Security (“DHS”) has not filed a brief in this matter. [FN1] The respondent's appeal will be sustained, and the proceedings will be terminated.

I. FACTUAL AND PROCEDURAL HISTORY
The record reflects that the respondent was convicted on March 31, 2006, of welfare fraud in violation of section 40-6-15 of the General Laws of Rhode Island, for which she was sentenced to a 5-year term of imprisonment. That statute provides as follows:
Any person who by any fraudulent device obtains, or attempts to obtain, or aids or abets any person to obtain public assistance, pursuant to this chapter, to which he or she is not entitled, or who willfully fails to report income or resources as provided in this chapter, shall be guilty of larceny and, upon conviction thereof, shall be punished by imprisonment of not more than five (5) years or by a fine of not more than one thousand dollars ($1,000) or both, if the value of the public assistance to which he or she is not entitled shall exceed five hundred dollars ($500), or by imprisonment by less than one year or by a fine of not more than five hundred dollars ($500) or by both, if the value of the public assistance to which he or she is not entitled shall not exceed five hundred dollars ($500).

The conviction record reflects that the respondent was found guilty under that portion of the above statute that criminalizes fraudulently obtaining, or attempting to obtain, public assistance to which she was not entitled. Citing Matter of V-Z-S-, 22 I&N Dec. 1338, 1346 (BIA 2000), the Immigration Judge concluded that the respondent's offense of welfare fraud qualified as an aggravated felony under section 101(a)(43)(G) of the Act.

II. ISSUE
On appeal, the respondent contends that the Immigration Judge erred in finding that her Rhode Island welfare fraud offense fits within the definition of a “theft offense” as contemplated by section 101(a)(43)(G) of the Act. She asserts that the offense defined by the portion of the statute under which she was convicted-obtaining, or attempting to obtain, or aiding or abetting any person to obtain, public assistance to which she is not entitled, by fraudulent device-is not a “theft offense.” She argues that it represents instead a separate and distinct aggravated felony, i.e., “an offense that involves fraud or deceit” under section 101(a)(43)(M)(i) of the Act. [FN2]

III. ANALYSIS
In Matter of V-Z-S-, supra, we addressed the question of what constitutes a “theft offense” for purposes of section 101(a)(43)(G) of the Act and concluded, after an exhaustive analysis of relevant authorities, that “a taking of property constitutes a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Id. at 1346. Our focus in that case was not, however, on the meaning of a “taking” and whether theft could overlap with fraud, but on whether the deprivation must be permanent. [FN3] Specifically, we examined, among other things, Federal laws, State statutes, decisions of several Federal courts of appeals, and section 223.2(1) of the Model Penal Code, defining “theft.” However, we did not consider whether a conviction under the adjoining section of the Model Penal Code, entitled “Theft by Deception,” would represent a “theft offense.” See Model Penal Code § 223.3.

Our decision in Matter of V-Z-S-, supra, has been well received by the Federal courts. Moreover, in the wake of Matter of V-Z-S-, every Federal court of appeals to have addressed the meaning of “theft offense” under section 101(a)(43)(G) has determined that it necessarily includes the requirement that the property have been obtained from its owner “without consent.” See Burke v. Mukasey, No. 06-60710, 2007 WL 4295386, at *2 (5th Cir. Dec. 10, 2007) (per curiam) (involving a conviction for criminal possession of stolen property); Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004) (involving a conviction for larceny); Nugent v. Ashcroft, 367 F.3d 162, 173-74 (3d Cir. 2004) (involving a conviction for theft by deception for having passed a bad check); United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (involving a conviction for petty theft of cigarettes and beer); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001) (involving a conviction for attempting to knowingly receive or transfer a stolen motor vehicle); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1008-09 (7th Cir. 2001) (involving a conviction for possession of a stolen motor vehicle). The Supreme Court has also observed with apparent approval that “[t]he Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the ‘taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”’ Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 820 (2007) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)). Other than *439 Nugent v. Ashcroft, supra, however, none of these cases addressed whether fraud crimes may also be encompassed in the definition of theft.

In contrast, the Fourth Circuit examined the interplay between a “theft offense” and “an offense that involves fraud” in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). [FN4] The alien in that case was convicted of the fraudulent use of a credit card for having misrepresented that she was the holder of a credit card, without the card holder's consent, to obtain property in excess of $200. Like the respondent, the alien argued that she was not convicted of a “theft offense” under section 101(a)(43)(G) of the Act but, rather, a “fraud” offense covered by section 101(a)(43)(M)(i). The court noted our unpublished order in that case, in which we agreed with the alien that her offense “‘by its terms, involves fraud,”’ but nonetheless found that the theft and fraud provisions of sections 101(a)(43)(G) and (M)(i) were not mutually exclusive and that “‘a crime which involves fraud may also involve theft.”’ Id. at 279 (quoting the Board's decision). After determining that the plain text of section 101(a)(43) shows that Congress specifically distinguished fraud from theft, and that it meant for the two offenses to be treated differently, the court examined the Black's Law Dictionary definition of each from several editions, concluding as follows:
When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element-theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.
*440 Id. at 282. Thus, the court held that the alien's crime would not qualify as an aggravated felony “theft offense” under section 101(a)(43)(G) of the Act under the “modified” categorical approach, as the indictment underlying the alien's conviction for credit card fraud did not charge that she had actually obtained any property from the cardholder or taken goods without the consent of the merchant.

In sum, the Federal courts of appeals' analysis of theft offenses under section 101(a)(43)(G) of the Act requires that the stolen property be obtained from its owner “without consent,” and the courts have read Matter of V-Z-S-, supra, to include this element as well. We believe the courts' interpretation of Matter of V-Z-S- is correct, since the natural reading of the definition we adopted there, i.e., that there must be a “ taking” of property (as opposed, e.g., to an acquiring of property), is that the property must be obtained “without consent.”

We therefore find that we are in substantial agreement with Soliman v. Gonzales, supra, that the offenses described in sections 101(a)(43)(G) and (M)(i) of the Act ordinarily involve distinct crimes. Whereas the taking of property without consent is required for a section 101(a)(43)(G) “theft offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit” ordinarily involves the taking or acquisition of property with consent that has been fraudulently obtained [FN5] Accordingly, we now refine the definition in Matter of V-Z-S-, supra, to clarify that a theft offense within the meaning of section 101(a)(43)(G) consists of the taking of, or exercise of control over, property [FN6] without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

IV. CONCLUSION
We conclude that the respondent's offense of welfare fraud under section 40-6-15 of the General Laws of Rhode Island does not constitute the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership. The respondent has therefore not been convicted of an aggravated felony “theft offense” as defined in section 101(a)(43)(G) of the Act. Accordingly, the respondent's appeal will be sustained, and the proceedings will be terminated.

ORDER: The appeal is sustained, and the removal proceedings are terminated.
FN1. The DHS did, however, submit a brief on the issue before the Immigration Judge.
FN2. An aggravated felony under section 101(a)(43)(M)(i) of the Act is defined as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.
FN3. We note that the statute involved in Matter of V-Z-S-, supra, specifically required a taking “‘without the consent of the owner.”’ Id. at 1347 (quoting section 10851 of the California Vehicle Code).
FN4. In Nugent v. Ashcroft, supra, the Third Circuit likewise considered the relationship between a section 101(a)(43)(G) “theft offense” and a section 101(a)(43)(M)(i) “offense involving fraud or deceit.” The court found that Pennsylvania's theft by deception statute fell under section 101 (a)(43)(G) as a “theft offense,” but also was in the nature of an offense based on fraud or deceit under section 101(a)(43)(M)(i). Id. at 176-79. The court further held that, for such a “hybrid” offense consisting of both a theft and a fraud crime, the elements of both needed to be satisfied before an alien would be removable. See also Valansi v. Ashcroft, 278 F.3d 203, 213 n.8 (3d Cir. 2002) (“The fact that the BIA classified embezzlement as … a theft offense under § 1101(a)(43)(G) does not mean that it could not also classify it as an offense involving fraud or deceit under § 1101(a)(43)(M)(i)”). However, to date, the Third Circuit has not identified another “hybrid” offense occasioning application of Nugent v. Ashcroft, supra. See, e.g., Bobb v. Att'y Gen. of U.S., 458 F.3d 213 (3d Cir. 2006) (distinguishing Nugent v. Ashcroft).
FN5. However, the definition in Soliman v. Gonzales, supra, of a fraud offense is not before us, and we need not decide whether it is sufficiently inclusive. That is, we do not discount the possibility that the theft and fraud aggravated felony compartments are not watertight such that certain crimes, like the theft by deception offense at issue in Nugent v. Ashcroft, supra, may constitute both a theft offense and one “involv[ing] fraud.” See Valansi v. Ashcroft, supra (holding that the elements of an offense that “involves fraud” need not be coextensive with a crime of fraud); see also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (same). That does not mean, however, that we subscribe to the Nugent court's holding that in such an instance the elements of both aggravated felony branches must be demonstrated. Nor need we determine in this case the precise meaning of “consent,” for example, whether it applies to consent induced by coercion. See 18 U.S.C. § 1951(b)(2) (2000).
FN6. The language “exercise of control” does not come from Matter of V-Z-S-, but we incorporate it inasmuch as the Supreme Court in Duenas-Alvarez v. Gonzalez, supra, employed that phrase in summarizing the theft definition adopted by the courts of appeals and the Board. Presumably, the “exercise of control” formulation is designed to better capture the concept of an indirect “taking” or a situation where the owner originally relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was lent to the offender for a limited time or purpose, but the offender later determined to keep it for himself).
24 I. & N. Dec. 436, Interim Decision 3596, 2008 WL 192487 (BIA)

Immigration Attorney Fraud - Georgia attorney pleads guilty to filing fraudulent immigration documents

November 18, 2009
Georgia attorney pleads guilty to filing fraudulent immigration documents

Lawyer helped clients obtain legal immigration status through fraud

ATLANTA - A 63-year-old of Duluth, Ga., pleaded guilty today in federal district court to one count of filing a false document with the U.S. Department of Labor (DOL) in a fraudulent effort to assist a client in obtaining legal immigration status in the United States following a U.S. Immigration and Customs Enforcement's (ICE) Document and Benefit Fraud Task Force investigation.

According to the charges and other information presented in court, Sai Hyun Lee, a licensed attorney in Georgia, charged an alien seeking lawful status in the United States $25,000 to substitute the client on an approved labor certificate that had been issued to an employer but for a different foreign worker.

Lee then assisted her client in using the labor certificate to apply for lawful resident status in the United States based upon employment, with knowledge that the client did not work for the employer and did not intend to work for the employer to which the labor certificate was issued, as is required by federal law.

Based upon the application which fraudulently represented that Lee's client was working in compliance with the approved labor certificate, the client obtained legal status as a lawful resident alien. Lee's client never worked for the employer and the employer was not aware that Lee used the labor certificate to assist her client in obtaining legal status.

Further investigation revealed that Lee assisted at least 16 other aliens in the same way. In some instances, aliens who hired Lee to help them obtain legal status did not know they were supposed to be working for a particular employer when they became legal resident aliens. In many instances, the employers did not know that Lee used labor certificates issued to them to assist her clients in obtaining lawful status through fraud.

"Immigration fraud poses a severe threat to national security and public safety because it creates a vulnerability that may enable terrorists, criminals, and illegal aliens to gain entry to and remain in the United States," said Kenneth Smith, special agent in charge of ICE's Office of Investigations in Atlanta. "ICE will continue using its Document and Benefit Fraud Task Forces to target unscrupulous attorneys who knowingly circumvent our immigration laws and procedures for financial reasons."

Daniel R. Petrole, acting inspector general, Department of Labor, stated: "Today's guilty plea is the result of a successful collaboration between the Office of the U. S. Attorney, ICE and the Department of Labor, Office of Inspector General. This investigation uncovered an immigration lawyer who sought to personally profit by defrauding the foreign labor certification process. My office is committed to working with the Document and Benefit Fraud Task Force to bring to justice individuals who perpetrate these crimes."

U. S. employers who can demonstrate a particular need for a foreign worker may apply to the Department of Labor for a labor certification for the foreign worker. Once the employer obtains a labor certification, the employer may apply for an immigrant visa and adjustment of status for the foreign worker. After the approval of the visa application and change of status, the foreign worker is afforded the benefit of lawful permanent residence in the United States and is expected to begin working for the employer who petitioned to bring him to the United States.

Lee faces a maximum sentence of up to 10 years in prison and a fine of up to $250,000. She also agreed to forfeit to the United States $100,000 which represents the fees that she charged the 17 aliens to assist them in submitting fraudulent applications for legal status.

Sentencing is scheduled for Feb. 18, 2010, before U. S. District Judge Thomas W. Thrash, Jr.

Assistant U. S. Attorneys William L. McKinnon, Jr., Susan Coppedge and Mary Kruger are prosecuting the case.

Lawrence H. Summers on Women in Science & Engineering Workforce

"There are three broad hypotheses about the sources of the very substantial disparities that this conference's papers document and have been documented before with respect to the presence of women in high-end scientific professions. One is what I would call the-I'll explain each of these in a few moments and comment on how important I think they are-the first is what I call the high-powered job hypothesis. The second is what I would call different availability of aptitude at the high end, and the third is what I would call different socialization and patterns of discrimination in a search. And in my own view, their importance probably ranks in exactly the order that I just described."

Lawrence H. Summers
Cambridge, Mass.
January 14, 2005

To read more continue reading http://www.president.harvard.edu/speeches/summers_2005/nber.php

Immigrants use civil lawsuits to protest raids by federal agents

This excerpt is from the article "Putting Heat On ICE" published by Connecticut Law Tribune Monday, November 16, 2009
Copyright 2009, ALM Properties, Inc.

In May 2006, the federal Immigration and Customs Enforcement agency launched “Operation Return To Sender.” The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types.

Since then, ICE agents have conducted scores of raids on homes and workplaces. Advocacy groups and lawyers say some agents have been overly zealous, and the advocates have regularly gone to court to try to void arrests and block deportations. But in what seems to be a small, but significant trend, some have also gone on the offensive, filing civil lawsuits against ICE and its agents.

The most recent example is in Connecticut, where a Yale School of Law legal clinic has filed suit on behalf of 10 undocumented immigrants whose homes were raided in June 2007. Immigration attorneys differ on whether the claim has much chance of success. But most agree that litigation is an interesting strategy that could buy time in America for the clients and give ICE officials reason to reconsider tactics.

Attorney Alex Meyerovich, of Bridgeport’s M.C. Law Group, called the lawsuit part of a “cat and mouse game” between federal agents and advocates for immigrants. Similar claims have been filed following sweeps on immigrant homes in New Jersey, New York, Georgia and Northern California in recent years.

“What Yale is trying to do is to intimidate ICE,” said Meyerovich. “To show there is a potential liability if they step over an invisible border. It doesn’t matter if [the lawsuit] succeeds or fails. It’s an important power struggle.”

Meyerovich has few kind words for ICE agents, calling some of them “vigilantes.” But he also would not endorse the civil rights lawsuit. “If illegal immigrants succeed in this lawsuit, the message might come out, if you come into the country illegally and get arrested, your rights were violated. I think it’s the wrong message.”

to read more article please visit

http://www.ctlawtribune.com/printarticle.aspx?ID=35524

Transport Illegal Aliens - Three Louisiana individuals sentenced for transporting illegal aliens

October 30, 2009

Three Louisiana individuals sentenced for transporting illegal aliens
Defendants Part of Large Scale Operation to Transport Illegal Aliens

LAKE CHARLES, La. - Members of a large scale illegal alien transportation operation based in Sulphur, La., were sentenced in federal court yesterday following an investigation by U.S. Immigration and Customs Enforcement (ICE) agents.

U. S. District Judge Patricia Minaldi sentenced Carolyn Joyce Metcalf, 62, to 30 months in prison, followed by three years supervised release; Terri Lynn Fields, 41, to 27 months in prison, followed by three years supervised release; and Jean Morgan Vincent, 59, to three years probation, for conspiracy to transport illegal aliens.

Metcalf, Fields and Vincent were indicted last year, along with three others, for conspiracy to transport illegal aliens, and pleaded guilty in May 2009. Metcalf, Fields and Vincent admitted they conspired with their co-defendants to transport illegal aliens from the Texas and Mexico border area to other locations within Texas, that they knew the aliens came into the United States illegally, and the transportation of these illegal aliens was with the intent to further their unlawful presence in the United States. Metcalf, Fields and Vincent were involved in a conspiracy with their co-defendants that resulted in the organization transporting hundreds of illegal aliens on a regular basis since 2005.

Two co-defendants have previously pled guilty. Joan Comeaux, 56, pleaded guilty in October 2008, and is scheduled to be sentenced on Dec. 10, 2009. Comeaux, the ring leader of this organization, admitted that she instructed her co-defendants in this case on the procedure to transport illegal aliens and along with her sister, Carolyn Metcalf, transported illegal aliens.

Timothy Gene Jones, 40, pleaded guilty in May 2009, and was sentenced on Sept. 3, 2009, to one year imprisonment, followed by three years supervised release. Jones admitted that he was recruited as a driver and made trips to Texas to pick up and transport the illegal aliens. The recruiting process took place in the Western District of Louisiana.

"This case is a perfect example of the outstanding cooperation between ICE and our sister law enforcement agencies. Because of positive interagency cooperation, human trafficking and smuggling criminal organizations are discovering how difficult it is for them to hide their illegal activities from authorities," said Michael A. Holt, special agent in charge of ICE's Office of Investigations in New Orleans. "We are dedicated to identifying and dismantling these types of illicit operations wherever and whenever we find them."

"Any person who assists an alien to illegally enter the United States is in violation of the law and should be punished," said U. S. Attorney Donald Washington. "We will continue to aggressively pursue those who assist aliens to illegally enter and remain in the United States."

This case was investigated by U.S. Immigration and Customs Enforcement (ICE), the FBI, U.S. Customs and Border Protection (CBP) Border Patrol, Louisiana State Police, Sulphur Police Department and Calcasieu Parish Sheriff's Office, and is being prosecuted by Assistant U. S. Attorney James T. McManus.

Update: USCIS Extends Grace Period for Accepting Previous Version of the Notice of Entry of Appearance as Attorney or Representative Form

Update: USCIS Extends Grace Period for Accepting Previous Version of the Notice of Entry of Appearance as Attorney or Representative Form

Older Version of Form G-28 Accepted Until Further Notice

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today that the previous version of the Notice of Entry of Appearance as Attorney or Representative (Form G-28) will be accepted until further notice.

On Oct. 1, 2009, USCIS announced the publication of a new Form G-28 and provided a 30-day grace period, until Oct. 30, for accepting previous versions at the USCIS Lockbox facilities or USCIS Service Centers. USCIS encourages attorneys and accredited representatives to use the new Form G-28, however, USCIS will not reject filings of the previous Form G-28 version until further notice. This will allow law students who represent immigrants to use the previous form until changes can be made to the form to accommodate their unique situation.

To obtain the new Form G-28, and instructions for completing the form, please visit the Forms section of the USCIS website.

Alien Smuggling, Visa Fraud are the Federal Charges Against 8 Individuals, Law Firm, and Property Company in Salt Lake City, UT

Eight Individuals, Law Firm, Property Company Face Federal Charges Alleging Alien Smuggling, Visa Fraud


Salt Lake City, UT
July 28, 2009

Indictment Alleges Firm Helped Foreign Nationals, Utah Employers Obtain Visas For Workers Through Fraud

A federal indictment unsealed this morning in Salt Lake City charges a law firm, a property management company, and eight individuals with conspiracy to commit alien smuggling and visa fraud, encouraging and inducing illegal aliens to come to, enter, or remain in the United States, and visa fraud.

Included in the defendants is a Salt Lake City law firm, an individual who worked as a United States border patrol agent with the Immigration and Naturalization Service prior to joining the law firm, and an individual who worked for the United States government as a visa assistant at the U.S. Consulate in Ciudad Juarez, Mexico, before going to work for the law firm.

Charged in the indictment are the Alcala Law Firm, which practices immigration law and is located at 1380 West Indiana Avenue in Salt Lake City; Westside Property Management, a Salt Lake County company; James Hector Alcala, age 41, of Salt Lake City; Carlos Manuel Vorher, age 43, of Salt Lake City; Carlos Enrique Gomez-Alvarez, age 41, formerly of Salt Lake City now living in Houston; Daniel Trigo Villavicencio, age 30, of Orem; Gustavo Ballesteros-Munoz, age 45, of West Jordan; Andres Lorenzo Acosta Parra, age 31, of Salt Lake City; Florentino Jose Ayala Villarreal, age 39, of Mexico; and Olga Adriana Garza Muniz, age 47, of Mexico.

The investigation of the case, which started about 18 months ago, has been conducted by the U.S. Department of State’s Diplomatic Security Service; ICE, the U.S. Department of Labor; the Department of Homeland Security Citizenship and Inspection Services; and the U.S. Attorney’s Office.

“The charges in this indictment allege that attorneys and others who worked at the law firm, who have a position of trust in our community, circumvented the law to obtain visas for employers and the foreign national workers they were employing in Utah,” U.S. Attorney Brett L. Tolman said today. “The laws that govern the issuance of visas are there to make the practice fair for everyone. When fraud is used in an attempt to get a visa, other workers, including foreign nationals and U.S. workers and employers, who have played by the rules, get hurt.”

“The U.S. Department of State’s Diplomatic Security Service is resolutely committed to investigate any and all allegations of passport and visa fraud, and to bring those who commit these crimes to justice,” said Ed Moreno, Assistant Director for Domestic Operations for the Diplomatic Security Service, whose office conducted the joint investigation of the case.

“ICE’s message is simple - America's legal immigration system is not for sale and we will move aggressively against those who compromise the integrity of that system simply to enrich themselves,” said Paul Maldonado, deputy special agent in charge of the ICE Office of Investigations that oversees the agency’s investigative activities in Utah. “Not only did the defendants in this case allegedly use fraudulent information to obtain employment visas for hundreds of people who weren’t authorized to work, regrettably we believe this scheme also led to untold numbers of U.S. citizens and legal workers being refused jobs or discouraged from applying at all.”

Daniel R. Petrole, Acting Inspector General, U. S. Department of Labor, stated, “Today’s indictments serve as a stern warning to those who would fraudulently abuse the foreign labor certification program for their personal gain. Facilitating the entry of workers into this nation under false pretenses corrupts a program designed to ensure the lawful admission of foreign labor under very specific conditions. Our agency remains committed with its law enforcement partners to investigate fraud committed against these Department of Labor programs."

"It is through our due diligence and the great partnerships with law enforcement agencies that we are able to detect and curtail fraud within our immigration system," said Robert Mather, U.S. Citizenship and Immigration Services, Denver District Director.

The 17-count indictment alleges that the object of the conspiracy was to profit financially by assisting Utah employers in obtaining H-2B visas for their foreign-national workers by fraudulently representing to the DOL, USCIS, and DOS that the foreign nationals were eligible for the visas when, in fact, they were not. Investigators believe more than 5,000 visas were issued based on more than 700 petitions filed. Although some of the visas may have not have been obtained fraudulently, investigators believe the majority of them were.

The H-2B visa program allows United States companies to hire foreign nationals to fill employee vacancies that the company, for one reason or another, cannot fill with U.S. citizens. The visa program is not intended for permanent work. It is designed to help U.S. businesses that have temporary, seasonal, peak load or intermittent needs. Several federal agencies are involved in what is a fairly complicated application process. The number of H-2B visas that are issued each year is capped at 66,000, according to the indictment.

For a foreign-national worker to be eligible for the visa, employers must demonstrate that there are not enough United States citizens who are able, willing, qualified, and available to fill the employment vacancies. If the foreign-national worker is in the United States at the time the petition is filed, the employer must include the date the foreign-national worker originally arrived in the United States and must demonstrate that the worker is in the United States legally. If the employer does not document that the worker is in the United States, the worker is presumed to be outside the United States. Those who are not present in the United States at the time the petition is filed are required to have resided and been physically outside of the United States for six months immediately prior to receiving the H-2B visa.

The indictment alleges the defendants charged in this case would meet with the employers and the foreign national workers to discuss methods the law firm could utilize to help the workers obtain lawful status using the H-2B visa program. During these discussions, employers would inform the defendants that their employees were not in the country legally. Notwithstanding this fact, the defendants would instruct the employers and foreign-national workers about how to use the H-2B visa program, including encouraging the employers to petition for more H-2B visas than the employer actually needed so conspirators would be able to unlawfully “swap” foreign-national workers from one employer to the next based on who ultimately obtained visas. Although the employers often had already filled the positions, the defendants prepared and submitted newspaper advertisements making it appear like the employers were looking to hire new workers. Additionally, according to the indictment, the advertisements often would advertise the pay at a much lower rate than the foreign-national workers were actually receiving.

The indictment also alleges that as a part of the conspiracy, the defendants prepared forms and submitted them indicating that employers were looking for “new” employees who were not in the United States when, in truth, the employers were hoping to obtain visas for their current workforce. Once visas were approved, conspirators would, at times, “pool” the visas it obtained on behalf of all of its clients.

According to the indictment, defendants held meetings in the United States to provide instructions to foreign-national workers. As a part of these meetings, conspirators told the foreign national workers that they had to return to Mexico and not tell the consular officer during the interview that they had just come from the United States.

Employee clients of the Alcala Law Firm, according to the indictment included two landscaping companies and a steel company in Utah County and a construction company, landscaping company, a painting company, a roofing and general construction company, a roofing company, and a property maintenance company, all based in Salt Lake County.

The indictment alleges several overt acts were committed by defendants in furtherance of the conspiracy. For example, in October 2006, a company met with Alcala at the law firm and told the law firm his employees were illegally in the country and he wanted to make them legal. Alcala explained the H-2B visa program and said the foreign-national workers had to return to Mexico to obtain the visa but could then come back and continue to work for the company. The firm advised that if the company needed more workers than those requested in the petition they could be moved from another company. Employees were instructed to travel to Monterrey, Mexico, to meet with the “Mexican Division of the Alcala Law Firm,” prior to the interview at the consulate. One of the employees purchased a plane ticket to Mexico but was instructed not to fly to Mexico because it would create a record of his presence in the United States. The indictment also alleges Ayala used “white-out” to change a document showing one of the workers had previously been caught crossing the border and told them they had to lie and tell the interviewers that they had never been in the United States. In April 2007, three of the employees obtained H-2B visas, however, these visas were given on behalf of a different company.

Westside Property Management, also named in the indictment, was a Salt Lake County company that owned, leased, developed and managed property. Janet Alcala, James Alcala’s wife, was listed as the managing member of this business. The company is charged with visa fraud in a count alleging the company petitioned for visas and falsely indicated in its petition that the workers would be employed at Westside Property Management when they knew that the foreign-national employees were going to work for a different Utah company.

The potential penalty for conspiracy to commit alien smuggling and visa fraud is up to five years in prison. Encouraging and inducing illegal aliens to come to, enter or remain in the United States and visa fraud carry maximum potential penalties of up to 10 years in prison per count. The potential maximum fine for each count of the indictment is $250,000.

Defendants charged in indictments are presumed innocent unless or until proven guilty in court.

Contact:
Brian Leventhal
Diplomatic Security Public Affairs
202-997-5747

San Francisco Marriage Broker Who Arranged Fake Marriages Between Chinese Citizens And American Citizens For Immigration Benefits Sentenced To 19 Months Prison

Marriage Broker Sentenced To 19 Months Prison

San Francisco, CA
August 18, 2009

United States Department of Justice
United States Attorney Joseph P. Russoniello
Northern District of California

Federal Investigation Targeted San Francisco Broker Who Arranged Fake Marriages Between Chinese Citizens And American Citizens For Immigration Benefits

Kwan Tsoi also known as Joyce Cai was sentenced today to 19 months in prison, followed by three years of supervised release, and ordered to forfeit $250,000 in proceeds for arranging fake marriages for immigration benefits, United States Attorney Joseph P. Russoniello, Diplomatic Security Service Special Agent in Charge Patrick Durkin, and U.S. Immigration and Customs Enforcement Special Agent in Charge Mark Wollman, announced.

According to court records and proceedings, Tsoi admitted that she was the leader of a conspiracy that between February 2007 and February 2008 arranged sham marriages between non-U.S. and U.S. citizens. Tsoi advertised in Chinese-language newspapers and charged approximately $30,000 to broker each marriage. Tsoi admitted as part of her guilty plea that she brokered nine marriages.

Tsoi also admitted that she submitted or aided in the submission of Spousal Petitions to the Citizenship and Immigration Services agency, requesting that the Chinese citizens be issued “Green Cards” based on the fake marriages to the American citizens. In pleading guilty, Tsoi admitted that these nine marriages were fake and were performed to take advantage of immigration laws granting almost immediate “Green Cards” to foreign spouses who marry American citizens. Tsoi brokered these marriages in the Tenderloin neighborhood of San Francisco, where federal search warrants were served on her business in June 2008.

Tsoi pleaded guilty in April to one count of Conspiracy, a violation of 18 U.S.C. § 371, six counts of Marriage Fraud, violations of 8 U.S.C. § 1325(c), and five counts of False Statements on Immigration Documents, violations of 18 U.S.C. § 1546(a).

Tsoi was ordered by United States District Court Judge William H. Alsup to surrender for service of her prison sentence on Sept. 30.

“We take all violations of U.S. immigration laws seriously, but are especially aggressive in identifying and prosecuting those involved in marriage frauds and related scams,” U.S. Attorney Joseph P. Russoniello said. “People who attempt to profit from these ruses will be brought to justice. Those who knowingly avail themselves of these ploys will be caught and deported."

“The investigation is yet another example of the Diplomatic Security Service's vigilance in combating visa and passport fraud. We investigate multi-defendant criminal enterprises that broker in false visas, false immigration forms, and other false documents, to keep imposters and criminals out of the country,” Special Agent In Charge Patrick Durkin of the Diplomatic Security Service, San Francisco Field Office stated.

“Marriage fraud and other forms of immigration benefit fraud undermine the integrity of our nation's legal immigration system and potentially rob deserving immigrants of benefits they rightfully deserve,” said Special Agent In Charge Wollman of the ICE Office of Investigations in San Francisco. “This sentence should send a clear message that ICE is working aggressively to target those who conspire to corrupt our nation's proud immigration tradition for the sole purpose of enriching themselves.”

Also charged in this investigation were Henry Navarro and Kelly Ecker.

Navarro pleaded guilty to one felony count of the Conspiracy for his role in being an official and recorded witness to one fake marriage. Navarro is scheduled to be sentenced by Judge Alsup on September 29, 2009.

Ecker pleaded guilty to one related misdemeanor count of the Conspiracy for her role in marrying a Chinese citizen for a fee of $17,000. On July 7, 2009, Ecker was sentenced to two years probation and was ordered to give a public speech to deter others from participating in fake marriages.

Assistant U.S. Attorneys Nat Cousins and Allison Danner prosecuted the case, with the assistant of Rosario Calderon. The prosecution is the result of a two-year investigation by Diplomatic Security Service and U.S. Immigration and Customs Enforcement.

In re Mario Eduardo VELARDE-Pacheco, 23 I&N Dec. 253 (BIA 2002) - Adjustment of Status in Removal Proceedings - Five Factors

BIA found that a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur.



Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
In re Mario Eduardo VELARDE-Pacheco, Respondent
File A70 178 696 - San Diego
Decided March 6, 2002
U.S. Department of JusticeExecutive Office for Immigration Review Board of Immigration Appeals
A properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien’s behalf, where: (1) the motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations;
(3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and convincing evidence is presented indicating a strong likelihood that the marriage is bona fide; and (5) the Immigration and Naturalization Service does not oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). Matter of H-A-, Interim Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.
FOR RESPONDENT: Manuel Armando Rios, Esquire, San Diego, California
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Alan S. Rabinowitz, Deputy District Counsel
BEFORE: Board En Banc: SCHMIDT, VILLAGELIU, GUENDELSBERGER, MOSCATO, MILLER, BRENNAN, and OSUNA, Board Members. Concurring Opinions: HOLMES, Board Member, joined by HURWITZ, Board Member; ROSENBERG, Board Member; ESPENOZA, Board Member. Dissenting Opinions: GRANT, Board Member; PAULEY, Board Member, joined by SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; FILPPU, COLE, OHLSON, and HESS, Board Members.
VILLAGELIU, Board Member:
This case was last before us on June 12, 2001, when we dismissed the respondent’s appeal from an Immigration Judge’s decision finding him removable as an alien who was inadmissible at the time of entry and ineligible for any form of relief. The respondent now seeks to reopen the proceedings, arguing that he is prima facie eligible for adjustment of status based on his bona fide marriage to a United States citizen. The motion will be granted and the record will be remanded to the Immigration Judge for further proceedings.
253
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 25-year-old native and citizen of Mexico. At a hearing on October 27, 1997, the Immigration Judge ordered the respondent deported to Mexico. The respondent filed a timely appeal from that decision.
On February 23, 1999, the respondent married a United States citizen. The couple’s son was born on July 24, 1999. On April 30, 2001, the respondent’s wife filed a Petition for Alien Relative (Form I-130) with the Service on the respondent’s behalf, and he simultaneously filed an Application to Register Permanent Residence or Adjust Status (Form I-485), pursuant to 8 C.F.R. § 245.2(a)(2)(i) (2001), seeking the benefits of section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000).
We dismissed the respondent’s appeal on June 12, 2001. On September 10, 2001, the respondent filed the present motion to reopen with supporting documentation that includes a copy of his marriage certificate, a copy of his son’s birth certificate, and copies of his filing fee receipts. He has also submitted copies of his adjustment application and supporting documentation, as required by 8 C.F.R. § 3.2(c)(1) (2001). These materials include the birth certificate of the couple’s United States citizen son as evidence of the bona fide nature of their marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B)(4), 245.1(c)(9)(v)(D) (2001).
The respondent argues that he should be given an opportunity to adjust his status to that of a lawful permanent resident as a result of his marriage to a United States citizen, and he urges us to reopen proceedings and remand his case to the Immigration Judge to allow him to apply for such relief.
In its response to the respondent’s motion, the Immigration and Naturalization Service argues that we are precluded from reopening this case by our decisions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H-A-, Interim Decision 3394 (BIA 1999).
II. ISSUE
The issue before us is whether we should modify our policy, stated in Matter of Arthur, supra, and reaffirmed in Matter of H-A-, supra, to deny a motion to reopen to apply for adjustment of status that is based on an unadjudicated visa petition filed by a United States citizen or lawful permanent resident on behalf of his or her spouse, in light of the Service’s recently revised procedures regarding the joining of untimely motions to reopen that are submitted after visa petition approval.
III. ANALYSIS
In Matter of Arthur, supra, the respondent filed a motion to reopen with the Immigration Judge, claiming eligibility for adjustment of status based on his
254
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
marriage to a United States citizen after the commencement of deportation proceedings. The respondent filed a Form I-485, and a Form I-130 was submitted on his behalf. The Immigration Judge denied the respondent’s motion because the I-130 had not yet been adjudicated by the Service. We affirmed, modifying our holding in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), which treated pending visa petitions that are prima facie approvable as already approved for purposes of reopening based on the simultaneous filing provisions of 8 C.F.R. § 245.2(a)(2)(i). Matter of Arthur, supra, at 477.
In Matter of H-A-, supra, we addressed a situation in which we initially denied the respondent’s motion to reopen to apply for adjustment of status under section 245(i) of the Act, in accordance with the policy articulated in Matter of Arthur, because a Form I-130 filed on the respondent’s behalf had not yet been approved by the Service. After the visa petition was eventually approved, we denied a subsequently filed motion to reconsider based on the time and number limits set forth in 8 C.F.R. § 3.2(c)(2). Matter of H-A-, supra.
The effect of our policy in Matter of Arthur, supra, coupled with the regulation limiting respondents to one motion to reopen filed within 90 days of a final administrative decision and the Service’s inability to adjudicate many I-130 visa petitions within that time frame, has been to deprive a small class of respondents, who are otherwise prima facie eligible for adjustment, of the opportunity to have their adjustment applications reviewed by an Immigration Judge. See sections 204(g), 245(e) of the Act, 8 U.S.C. §§ 1154(g), 1255(e) (2000); Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5, 100 Stat. 3537, 3543; Immigration Act of 1990, Pub. L. No. 101-649, § 702, 104 Stat. 4978, 5086; 8 C.F.R. §§ 3.2(c)(2), 3.23(b)(3) (2001); see also INS v. Doherty, 502 U.S. 314 (1992); INS v. Abudu, 485 U.S. 94 (1988); Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992); H.R. Conf. Rep. No. 101-955, at 128 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6793.
The Service recently revised its policy on joining untimely motions to reopen for adjustment of status. In a memorandum dated July 16, 2001, the Service’s General Counsel stated that, given changes to the Act, including the “stop-time rule” of section 240A(d) of the Act, 8 U.S.C. § 1229b(d) (2000), and repeated amendments to section 245(i) of the Act, an amendment to the Service’s guidance as it relates to adjustment of status and motions to reopen was warranted. See Memorandum for Regional Counsel for Distribution to District and Sector Counsel, Office of the General Counsel (July 16, 2001). The Service withdrew its “extraordinary and compelling circumstances” standard for joining such a motion, stating that assistant district counsels may now join in a motion to reopen for consideration of adjustment of status if that
255
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
relief was not available to the alien at the former hearing, the alien is statutorily eligible for adjustment, and the alien merits a favorable exercise of discretion. Id.
We conclude that a properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur, supra.
In the instant case, the respondent filed his first and only motion to reopen before this Board within 90 days of our decision dismissing his appeal. The respondent was not granted voluntary departure during proceedings before the Immigration Judge, and he is therefore not barred from adjustment of status for overstaying a voluntary departure period. See Matter of Shaar, supra. We find no other procedural bars to his motion to reopen.
Most importantly, the respondent has submitted clear and convincing evidence that his marriage is bona fide, based on the evidentiary standard set forth at 8 C.F.R. § 204.2(a)(1)(iii)(B). The respondent has submitted copies of his receipt for the I-485 filing fee; his receipt for the I-130 filing fee that was submitted on his behalf by his wife; his receipt for the additional sum prescribed by 8 C.F.R. § 245.10(b) (2001); his marriage certificate; and the birth certificate of his United States citizen son. He has also submitted an affidavit attesting that he has known his wife since 1995.
The Form I-485 filed by the respondent indicates that he and his wife have lived together at their current address since June 1999. Submission of such evidence, in compliance with the standards prescribed by 8 C.F.R. § 204.2(a)(1)(iii)(B) for establishing the bona fide nature of a marriage by clear and convincing evidence, indicates a high probability that the respondent’s marriage is bona fide. See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). The respondent has therefore met the above requirements for reopening of these proceedings.
We emphasize that we do not endorse granting adjustment of status in every case in which a respondent makes a prima facie showing of eligibility, nor do we address motions to reopen filed after the 90-day deadline has passed. Every application necessarily requires examination of the relevant factors and a determination of the weight such factors should be accorded in the exercise of discretion, with respect both to reopening and to the ultimate determination on the application for relief. Similarly, motions submitted after the 90-day period prescribed by regulation present additional considerations
256
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
regarding the finality of proceedings, which can best be addressed through the Service’s recently announced policy on joining such a motion. The Service is in a better position to ascertain whether additional factors, which may not be readily apparent, militate against reopening.
In addition, our decision today does not require Immigration Judges to reopen proceedings pending adjudication of an I-130 visa petition in every case in which the respondent meets all five of the aforementioned factors. Immigration Judges may still deny motions to reopen if they determine that a respondent’s visa petition is frivolous or that adjustment would be denied in any event, either on statutory grounds or in the exercise of discretion. A prima facie showing of eligibility merely affords respondents who present sufficient evidence a single opportunity to have their adjustment applications adjudicated. Such an opportunity is consistent with Congress’ legislative intent in amending the marriage fraud provisions: that aliens who marry after proceedings have been initiated, and who seek adjustment of status, should be afforded one opportunity to present clear and convincing evidence that their marriage is bona fide. Compare H.R. Rep. No. 101-723 (I), at 50-52 (1990), reprinted in 1990 U.S.S.C.A.N. 6710, 6730-32, with H.R. Conf. Rep. No. 101-955, at 128.
At the same time, the Service is also provided an opportunity to fully investigate a respondent’s claim and present the results of that investigation to the Immigration Judge, as suggested in the Service’s Operations Instruction 245.2(f) (2001). See generally Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980) (finding the policy manifest in an Immigration and Naturalization Service Operations Instruction appropriate for consideration by the Immigration Judge and the Board in the exercise of discretion).
IV. CONCLUSION
Accordingly, we modify our decisions in Matter of H-A-, supra, and Matter of Arthur, supra, to allow for the granting of a motion to reopen to apply for adjustment of status, pending approval of the I-130 visa petition by the Service, in cases where an alien has satisfied the five factors listed above. The respondent has met the requirements for reopening of the proceedings in this case. The respondent’s motion to reopen will therefore be granted, and the record will be remanded to the Immigration Judge for further proceedings.
ORDER: The motion to reopen is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
257
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
CONCURRING OPINION: David B. Holmes, Board Member, in which Gerald S. Hurwitz, Board Member, joined
I respectfully concur. In my view, the issue before us is whether those respondents who can satisfy all of the other rigorous eligibility requirements for reopening proceedings to pursue an application for adjustment of status based on a marriage entered into while in proceedings should nonetheless be subject to an additional, absolute bar to reopening that arises neither from statute nor regulation, but instead is solely of the Board’s own creation. See Matter of H-A-, Interim Decision 3394 (BIA 1999); Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). I find that such a bar is not appropriate given the development of the law in this area.
In this regard, I am guided by the fact that in 1986 Congress included in the Immigration and Nationality Act an absolute bar to adjustment for respondents who entered into marriages during the course of deportation or exclusion proceedings. See Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5(b), 100 Stat. 3537, 3543 (codified as amended at section 245(e) of the Act, 8 U.S.C. § 1255(e) (Supp. IV 1986)). This preclusion to adjustment was easy for the Service, the Immigration Judges, and the Board to administer because it was absolute. Moreover, it was exceedingly effective at screening out suspect marriages because all marriages entered into during the course of proceedings were included in its sweep. However, this same broad sweep also excluded from adjustment many respondents, including those with United States citizen children, whose marital relationships were bona fide, with obvious resulting hardship to citizens and lawful permanent residents of this country. In response, Congress amended the Act in 1990 by exempting from the bar an alien who could establish “by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and . . . was not entered into for the purpose of procuring the alien’s entry as an immigrant.” Immigration Act of 1990, Pub. L. No. 101-649, § 702, 104 Stat. 4978, 5086 (codified as amended at section 245(e)(3) of the Act, 8 U.S.C. § 1255(e)(3) (Supp. II 1990)).
This development of the law reflects Congress’ intent to rigorously screen out fraudulent or suspect marriages from eligibility for adjustment of status, but to not do so in a manner that unnecessarily includes within its scope genuine marital relationships. Given Congress’ decision in 1990 to replace an absolute bar with one that instead imposes a higher standard of proof, it does not seem appropriate to me for the Board to create an absolute bar to reopening in circumstances in which the statutory goals can similarly be met by the imposition of a more rigorous standard of proof. Accordingly, I would modify the Board’s decisions in Matter of H-A-, supra, and Matter of Arthur, supra, and apply the standards enunciated by the Board in Matter of Garcia,
258
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
16 I&N Dec. 653 (BIA 1978), to cases such as the respondent’s, with the additional requirement that the underlying visa petition be prima facie approvable under the more rigorous “clear and convincing evidence” standard set forth in section 245(e)(3) of the Act, rather than under the “preponderance of the evidence” standard that governs other motions within the scope of Matter of Garcia.
In the present case, but for the Board’s decisions in Matter of H-A-, supra, and Matter of Arthur, supra, the respondent appears eligible under Matter of Garcia, supra, to have his proceedings reopened to provide him the opportunity to pursue an application for adjustment of status. I find a prima facie showing that the visa petition filed on his behalf is approvable under the “clear and convincing evidence” standard. See 8 C.F.R. § 204.2(a)(1)(iii)(B) (2001). Accordingly, I agree with the majority that the motion should be granted to permit the respondent an opportunity both to establish his eligibility for adjustment of status and, if eligible, to demonstrate that he warrants such relief in the exercise of discretion.
CONCURRING OPINION: Lory Diana Rosenberg, Board Member
I respectfully concur in the majority’s decision to grant the respondent’s motion to reopen, as I am in complete agreement that reconsideration of our opinions in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H-A-, Interim Decision 3394 (BIA 1999), is warranted. Upon reconsideration of those decisions, I also agree with the majority that it is within our discretion to grant a timely motion to reopen seeking a remand to apply for adjustment of status based on a showing of “clear and convincing evidence . . . indicating a strong likelihood that the respondent’s marriage is bona fide.” Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002).
However, I would not find it necessary to restrict our discretion by imposing the additional condition that “the Service does not oppose the motion or bases its opposition to the motion to reopen solely on our decision in Matter of Arthur, supra.” Matter of Velarde, supra, at 256. Such a restriction is not warranted by sections 204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (2000), which prompted our prior decision in Matter of Arthur, supra.
First, the respondent’s motion to reopen is timely, as it was filed within 90 days of our ruling on the respondent’s timely appeal from the October 27, 1997, decision of the Immigration Judge. See 8 C.F.R. § 3.2(c) (2001). It is a reasonable assumption that the considerations underlying the Immigration and Naturalization Service’s current policy of joining meritorious, untimely motions to enable a respondent to apply for adjustment of status also would extend to meritorious, timely motions. See Memorandum for Regional Counsel for Distribution to District and Sector Counsel, Office of the
259
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
General Counsel (July 16, 2001) (authorizing the Service to join a motion to reopen seeking adjustment of status if adjustment was not previously available, and the respondent is eligible and merits a favorable exercise of discretion). Indeed, all things being equal, it is difficult to imagine a rational reason why the Service would acquiesce in an untimely motion to facilitate the consideration of an adjustment of status application, but object to a timely filed one.
Second, at the time we dismissed the respondent’s appeal on June 12, 2001, the respondent had been married to a United States citizen for over 2 years, and the couple had a son who was 2 years old. In addition, the respondent had filed an application for adjustment of status with the Immigration Judge under section 245(i) of the Act. See 8 C.F.R. § 245.2(a)(1) (2001) (requiring that once an alien is in proceedings, the adjustment application shall be made and be considered only in such proceedings). His application had been properly filed originally in conjunction with his wife’s immediate relative petition seeking an exemption of the prohibition on approval of such petitions. See 8 C.F.R. § 245.2(a)(2)(i) (instructing that adjustment applications filed simultaneously with immediate relative visa petitions are to be retained when approval of the visa petition would make a visa immediately available at the time of filing the adjustment application).
Although section 204(g) of the Act restricts the approval of a marriage-based visa petition when the marriage is entered into during the period that administrative or judicial proceedings are pending, section 245(e)(3) provides an explicit exception to that restriction. Specifically, when a respondent establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the jurisdiction in which it took place, and that it was not entered into for the purpose of procuring the alien’s admission as an immigrant, the restrictions in section 204(g) of the Act and the prohibition on adjustment of status under section 245(e)(1) of the Act do not apply. Section 245(e)(3) of the Act; see also 8 C.F.R. § 204.2(a)(1)(iii)(B) (2001) (listing evidence to be relied upon to meet the bona fide marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the Act).
Accordingly, when a respondent supports a motion to reopen with documentation that contains clear and convincing evidence indicating the strong likelihood that his marriage is bona fide, he has made a prima facie showing of eligibility consistent with the exception provided in section 245(e)(3) of the Act. Although 8 C.F.R. § 204.1(e)(1) (2001) provides that jurisdiction lies with the Service office having jurisdiction over the petitioner’s residence, and 8 C.F.R. § 204.2(a)(1)(iii)(C) allocates the ultimate authority to approve the visa petition to the Service director, the Service’s authority is not exclusive. See Matter of Obaigbena, 19 I&N Dec.
260
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
533 (BIA 1988); accord Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). But see Dodig v. INS, 9 F.3d 1418 (9th Cir. 1993) (holding that the district director is charged exclusively with ultimately approving a visa petition).
The exception to adjustment preclusion in section 245(e)(3) of the Act, and the regulatory provisions that permit simultaneous filings and mandate that an adjustment application be filed with the Immigration Judge after an alien is in proceedings, indicate that the Immigration Judge and the Board share some of the authority delegated to the Attorney General under section 245(e)(3) of the Act. See 8 C.F.R. §§ 245.2(a)(1), (2)(i). As the Service explained in interim rules issued on July 23, 1997, there is no requirement that an adjustment applicant be the beneficiary of an approved, valid, and unexpired visa petition in order to file an application for adjustment of status. Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 62 Fed. Reg. 39,417, 39,419 (1997). Obviously, if the visa petition is filed simultaneously with the adjustment application in accordance with 8 C.F.R. § 245.2(a)(2)(i), the visa petition could not be already approved.
The submission of a pending visa petition accompanied by sufficient documentary evidence under 8 C.F.R. § 204.2(a)(1)(iii)(B) with a motion to reopen should suffice to establish prima facie evidence of a bona fide marriage for purposes of reopening. Looking to such a prima facie showing to determine whether to grant reopening under 8 C.F.R. § 3.2(c) is consistent with the statutory language in section 245(e)(3) of the Act, reflecting Congress’ express intent that an affected alien have an opportunity to provide clear and convincing evidence of a bona fide marriage. Id.
In Matter of Arthur, supra, we insisted on prior Service approval of a marriage-based visa petition before we would grant reopening for adjustment of status in cases subject to the marriage fraud provisions. Id. at 479 (holding that we would “hereafter decline to grant motions to reopen” until the Service approved the visa petition filed on the alien’s behalf). We found that, for purposes of reopening, a presumption that a marriage claimed on an unadjudicated visa petition was bona fide in the absence of clear ineligibility conflicted with the terms of the marriage fraud amendments. Id. (modifying Matter of Garcia, 16 I&N Dec. 653 (BIA 1978)).
With due respect, our reasoning in Matter of Arthur confuses the district director’s ultimate authority to approve a visa petition with the authority of the Immigration Judge or the Board to determine that a hearing to consider the merits of an adjustment application is warranted based on preliminary assessment that a respondent has made a prima facie showing that his marriage is bona fide. Matter of Arthur, supra, at 479. In Arthur, we reasoned that given the respondent’s burden of providing by clear and convincing evidence that his marriage is bona fide, a preliminary evaluation to determine prima facie eligibility was untenable and would amount to a
261
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
substantial and unwarranted intrusion into the district director’s authority. Id. at 478-79 (finding that the “clear and convincing evidence” standard is, of course, more stringent than the “preponderance of the evidence” standard ordinarily required to establish a claimed relationship between a petitioner and a beneficiary).
In addition, our conclusion in Arthur that “[a]n inquiry into whether the evidence submitted in support of a visa petition is sufficient, in light of the heavy burden imposed on the petitioner, to demonstrate prima facie eligibility . . . would necessarily involve an in-depth examination into the merits of the petition” is erroneous. Id. at 479 (emphasis added). In my view, it distorts what is meant by “prima facie” eligibility.
Black’s Law Dictionary defines “prima facie” as “[a]t first sight; on first appearance but subject to further evidence or information.” Black’s Law Dictionary (7th ed. 1999). “Prima facie case” is defined as “1. The establishment of a legally required rebuttable presumption” or “2. A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Id. Therefore, a prima facie showing is made when the facts asserted, if later proven in a full hearing, would establish eligibility under the statutory standard. Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (tying prima facie eligibility to statutory eligibility).
The prima facie eligibility standard does not vary according to the particular substantive burden of proof that is applicable. Rather, it is demonstrated when facts sufficient to sustain the respondent’s burden after a hearing are presented in his motion to reopen. In this case, the regulations specify quite clearly the kinds of facts necessary to sustain the respondent’s burden of producing clear and convincing evidence of a bona fide marriage and trigger the exception allowing adjustment of status under section 245(e)(3) of the Act. There is no dispute that the respondent not only asserted such facts, but provided proof of them in connection with his motion to reopen.
We have ruled that reopening is warranted under the prima facie eligibility standard. See Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996). There is no question that we may determine prima facie eligibility under a clear and convincing evidence standard without ruling on the petition itself. Id. at 418-19 (recognizing that “the Board historically has not required a conclusive showing that, assuming the facts alleged to be true, eligibility for relief has been established”). By finding prima facie eligibility, we are deciding only that there is a reasonable likelihood that the statutory requirements for the relief sought will be satisfied. See M.A. v. United States INS, 899 F.2d 304 (4th Cir. 1990); Marcello v. INS, 694 F.2d 1033 (5th Cir.), cert. denied, 462 U.S. 1132 (1983).
Consequently, I must question the Board’s unsupported conclusion in Matter of Arthur, supra, that a prima facie eligibility test cannot be used
262
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
merely because the standard the petitioner must satisfy in order for the respondent to be eligible to adjust his status to that of a lawful immigrant is greater than a preponderance of the evidence. Id. at 478-79. Moreover, instead of requiring prima facie evidence to support the motion to reopen, the Board in Arthur required conclusive evidence of eligibility: an approved visa petition. See 8 C.F.R. § 3.2(c). Such a conclusive showing for reopening is an inappropriate basis on which to deny a motion to reopen.
By contrast, the test proposed by the majority—clear and convincing evidence indicating the strong likelihood that the respondent’s marriage is bona fide—is within the authority of the Board to apply. The applicability of such a test in adjudicating a motion to reopen comports with our use of a prima facie eligibility standard to decide motions to reopen generally. See 8 C.F.R. § 3.2(c); Matter of L-O-G-, supra.
Furthermore, 8 C.F.R. § 204.2(a)(1)(iii)(B), specifying the type of evidence that can meet the bona fide marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the Act, was promulgated in conformity with our interpretation of the standard in Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). See Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant, 57 Fed. Reg. 41,053, 41,058 (1992). In Matter of Laureano, supra, at 3, issued after Arthur, we ruled that “[t]he conduct of the parties after the marriage is relevant to their intent at the time of marriage,” and specified that “[e]vidence to establish intent may take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner’s spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences.” Our participation in such an assessment at the appellate level is clearly contemplated, as 8 C.F.R. § 204.2(a)(1)(iii)(E) specifies that the Board decision constitutes the single level of appellate review of bona fide visa petition denials provided in section 245(e)(3) of the Act. See 8 C.F.R. § 3.1(b)(5) (2001).
A prima facie showing consistent with our decision in Matter of Laureano provides a better guideline than the Arthur rule for purposes of reopening under 8 C.F.R. § 3.2. As 8 C.F.R. § 245.2(a)(1) requires that after an alien is in deportation or removal proceedings the adjustment application shall be made and be considered only in such proceedings, the Arthur rule denying reopening unreasonably encumbers the respondent’s statutory right to apply for residency in the United States through the adjustment of status process.1
Although one might argue that a respondent may obtain his immigrant visa through the consular process, this alternative is not a realistic one, as deportation or removal renders an alien inadmissible to the United States. See section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9) (2000); see also section 212(a)(9)(A)(iii) of the Act (providing an exception if the
(continued...)
263
1
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
See sections 201(b)(2)(A)(i), 212(a)(9),(o), 245(a), (i) of the Act, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9), (o), 1255(a), (i).
Contrary to our prior rulings, there is no conflict between our concluding that a marriage appears bona fide for purposes of granting such a hearing and the district director’s ultimate determination of the visa petition. See Matter of Arthur, supra, at 478-79. Furthermore, the determination whether to grant a motion to reopen is essentially a discretionary one. Although the regulations provide certain requirements, such as time and number limitations, those limits are not at issue here. See 8 C.F.R. § 3.2.
Thus, I see no justification for the degree of deference extended to the Service under the fifth condition articulated in the majority opinion. I do not believe that Service opposition is an appropriate “condition” that, as a rule, should result in denial of a motion to reopen. Our role is to engage in impartial and independent adjudications, not to rubberstamp the preferences of the Service. See 8 C.F.R. § 3.1(d) (2001) (providing that the Board shall exercise such authority as is necessary and appropriate for the disposition of the case). In the exercise of discretion in adjudicating such a motion in the absence of visa petition approval, we certainly may consider any substantive objections to reopening offered by the Service. In particular, objections challenging the bona fides of the marriage may be entitled to considerable weight. However, such objections should not constitute an insurmountable barrier to granting a motion to reopen.
If the Service has serious concerns about the merits of the visa petition, the best way to defeat a motion to reopen is to adjudicate the visa petition and deny it. Even if that cannot be accomplished during the time that the motion is pending, the Service still could present evidence that would undermine the respondent’s prima facie case. And, even if the Service is unable to defeat a prima facie showing of eligibility before the motion to reopen is granted, the Service can adjudicate the petition and issue a denial that would ultimately defeat the application for adjustment of status before it is adjudicated on its merits in a hearing before the Immigration Judge.
I conclude that, in view of section 245(e)(3) of the Act, as implemented by 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.2(a)(1), and 245.2(a)(2)(i), a respondent’s motion to reopen seeking an opportunity to apply for adjustment of status in a case in which the marriage was entered after proceedings began should be granted when the motion is supported by prima facie evidence, i.e., clear and convincing evidence indicating the strong likelihood that the respondent’s marriage is bona fide. Therefore, I concur in the majority opinion.
1 (...continued)
Attorney General permits an application for readmission). But see Matter of Tin, 14 I&N Dec.
371 (R.C. 1973) (conditioning such discretionary permission in large part on the length of time
spent outside the United States).
264
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
CONCURRING OPINION: Cecelia M. Espenoza, Board Member
I respectfully concur in the result reached by the majority for the reasons stated herein.
A fundamental interest in our immigration laws is the preservation of the rights of United States citizens to process immigration visas for designated members of their families.1 The spouse of a United States citizen is a member of such a class. It is our duty to ensure that the competing interests of immigration enforcement and rights of citizens be recognized. The rule advanced today sets forth a reasonable, limited remedy.
I recognize that the right to petition for a spouse is not absolute, as it is balanced against the interests of the government to process and remove aliens who would fraudulently enter into marriages to evade immigration laws. See Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 5(b), 100 Stat. 3537, 3543 (“IMFA”); see also H.R. Rep. No. 99-906 (1986) (on H.R. 3737), reprinted in part in 1986 U.S.C.C.A.N. 5978-86;
S. Rep. No. 99-491 (1986) (on S. 2270). However, the issue presented here is whether the respondent is an individual who meets the exception to the rule because he has a bona fide marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.1(c)(9)(v) (2001) (setting forth the bona fide marriage exception and standards). In determining that this individual is entitled to relief, I agree with the analysis of Board Member Rosenberg regarding the error of our prior holding in Matter of Arthur, 20 I&N Dec. 475 (BIA 1992).
Consistent with the position of the majority, I believe that the evidence advanced by the respondent warrants reopening. The dissent essentially argues that the IMFA presumption justifies our prior holdings and can only be overcome if a visa petition is approved within 90 days of the issuance of our decision. If this were the law, there would be no need to set forth alternative evidence to demonstrate the bona fides of a marriage. See 8 C.F.R. §§ 204.2(a)(1)(iii)(B), 245.1(c)(9)(v).2
1 In fiscal year 2000, 69% of all legal immigrants were family sponsored immigrants. See Annual Report: Legal Immigration, Fiscal Year 2000, issued by the Office of Policy and Planning, Immigration and Naturalization Service, available at http://www.ins.gov/graphics/aboutins/statistics/Immigs.htm (“Legal Immigration”). Furthermore, in Boddie v. Connecticut, 401 U.S. 371, 376 (1971), the United States Supreme Court recognized that “marriage involves interests of basic importance in our society.” 2 The regulation setting forth these alternatives was issued subsequent to our ruling in Matter of Arthur, supra, and was promulgated to specify the evidence that can meet the bona fide marriage exemption to the marriage fraud provisions in sections 204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (2000). See Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant, 57 Fed. Reg. 41,053, 41,058 (1992).
265
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
In my view, the fundamental question we are faced with is whether sufficient facts exist to warrant a finding of a bona fide marriage in this case. The burden of the respondent is to demonstrate by “clear and convincing evidence . . . a strong likelihood that the respondent’s marriage is bona fide.” Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002). This finding is required to insure that the marriage was not entered into for the purpose of evading the immigration laws. The respondent’s marriage prior to the birth of his child demonstrates an intent to legitimate the child, which undermines the notion that he entered into this marriage for immigration purposes. In fact, as a matter of law under the Immigration and Nationality Act, his marriage establishes that this is his child.3 Furthermore, if the respondent’s intent were to evade the immigration laws, it is far more likely that his wife would have filed a Petition for Alien Relative (Form I-130) with the Immigration and Naturalization Service prior to April 30, 2001, or subsequent to our decision on June 12, 2001. As the application was filed independent of either of these dates, I conclude that the evidence meets the clear and convincing evidence standard required by the regulations. 8 C.F.R. § 245.1(c)(9)(v).
The respondent’s timely filing within 90 days of our final decision provides us with this opportunity to reevaluate Matter of Arthur, supra, and Matter of H-A-, Interim Decision 3394 (BIA 1999). Contrary to the speculation of the dissent, the facts demonstrate that neither this respondent nor individuals similarly situated to him have the visa petitions that are filed on their behalf adjudicated in a timely manner. In addition, there is no indication that resources or a procedure for that purpose exist.4 Therefore, I concur in the majority opinion.
DISSENTING OPINION: Edward R. Grant, Board Member
I respectfully dissent without opinion.
DISSENTING OPINION: Roger A. Pauley, Board Member, in which Lori L. Scialabba, Acting Chairman; Mary Maguire Dunne, Vice Chairman; Lauri Steven Filppu, Patricia A. Cole, Kevin A. Ohlson, and Frederick D. Hess, Board Members, joined
The operative, though never expressly stated, reason for the majority’s retreat from Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), and Matter of H-A-, Interim Decision 3394 (BIA 1999), is its belief that the Immigration and
3 The Immigration and Nationality Act sets forth who is a “child,” which, for purposes of the
Act, is “a child born in wedlock.” Section 101(b)(1)(A) of the Act, 8 U.S.C. § 1101(b)(1)(A)
(2000). Thus, paternity is established.
4 There were 1 million adjustment of status applications pending at the end of fiscal year
2000. See Legal Immigration, supra.
266
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
Naturalization Service frequently fails to adjudicate visa petitions based on marriage to a United States citizen in a timely fashion, causing a “small class of respondents, who are otherwise prima facie eligible for adjustment,” to lose their opportunity to have their adjustment applications reviewed by an Immigration Judge. Matter of Velarde, 23 I&N Dec. 253, 255 (BIA 2002). In order to remedy this perceived injustice, the majority has determined to modify the above decisions to permit Immigration Judges to reopen removal proceedings to adjudicate adjustment of status applications based on visa petitions filed by spouses whose marriages were entered into during the pendency of removal proceedings, where, inter alia, the alien spouse submits clear and convincing evidence of the bona fide nature of the marriage and the Service does not oppose the motion.
Accepting the majority’s implicit premise that the Service often acts with insufficient celerity on this species of visa petition, I would nevertheless not modify the above decisions, which essentially require that, before reopening can be granted, an alien must present the Immigration Judge with an approved visa petition. The majority does not gainsay the validity of a principal underlying rationale of Matter of Arthur, supra, and Matter of H-A-, supra, that an “inquiry into whether the evidence submitted in support of a visa petition is sufficient . . . to demonstrate prima facie eligibility for the preference sought would necessarily involve an in-depth examination into the merits of the petition [that] would . . . constitute a substantial . . . intrusion into the district director’s authority over the adjudication” of such petitions. Matter of Arthur, supra, at 479. The majority evidently deems the intrusion justified by the fact that the Arthur/H-A-rule causes some applicants to lose their opportunity.
But changing otherwise salutary procedures because of resource constraints or allocations is of dubious merit. The Attorney General could tomorrow direct the Service to decide the pertinent class of visa petitions more speedily and provide additional resources to accomplish this task, whereupon the reason for today’s decision would vanish, leaving its burdens (discussed below) in place without any corresponding benefits. It is not for the Board, I submit, to alter its procedures (and arguably furnish a disincentive to the investment of additional resources in this area) based on its implicit speculation that such a change in executive policy is not likely to be forthcoming.
Moreover, nothing else suggests the wisdom of revisiting Arthur and H-A-. Those cases were grounded on the need to enforce the policy enacted by Congress in the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, as amended in 1990, specifically finding that marriages entered into during deportation proceedings were suspect and presumptively fraudulent. See sections 204(g), 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g), 1255(e) (2000). The majority cites as
267
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
a reason for reexamining Matter of Arthur and Matter of H-A-that the Service has recently revised and ameliorated its policy regarding joining untimely motions to reopen submitted after visa petitions are approved. But since the majority opinion is expressly limited to instances in which the motion is timely, this asserted justification is transparently insufficient. Accordingly, established principles of stare decisis dictate that the invitation to reconsider the Board’s decisions should be rejected. See generally Neal
v. United States, 516 U.S. 284 (1996) (indicating that stare decisis principles apply with utmost force to issues of statutory construction, because the legislature remains free to amend the statute); Hilton v. South Carolina Pub. Ry. Comm’n, 502 U.S. 197 (1991) (same). Notably, in the decade since Matter of Arthur, supra, was decided, neither the Congress through legislation nor an Attorney General through regulation has sought to amend the procedures established by that decision, notwithstanding numerous statutory and regulatory changes promulgated during that period.
Furthermore, the “modification” announced by the majority is not without its own costs. In addition to the problem identified in the quotation from Matter of Arthur, supra, the new doctrine will inevitably lead to disagreements among Immigration Judges, and panel disagreements within the Board itself, producing a lack of consistency in the determination of whether “clear and convincing” evidence of a strong likelihood of a bona fide marriage has been shown.1 And relaxing the standard for consideration of motions to adjust status based on presumptively fraudulent marriages entered into during the pendency of removal proceedings will likely cause an increase in this type of fraud and a consequent increase in the workload of the Service, the Immigration Judges, and this Board.
Even if one were to conclude that the balance of interests lay with some modification of the Matter of Arthur and Matter of H-A-rule, the majority opinion would not attract my vote since it fails to assure the objective it seeks. As I read the opinion, the Service is required only to register its opposition to the alien’s motion. The Service is not required to state the ground(s) for its opposition. Thus, if the Service wishes to preserve the status quo ante, it need only adopt a policy of filing a one-sentence
Moreover, I predict that, in future cases, Immigration Judges and the Board will have considerable difficulty in applying the cumbersome test laid down by the majority: “clear and convincing evidence . . . indicating a strong likelihood that the respondent’s marriage is bona fide.” Matter of Velarde, supra, at 256. It is not clear whether this standard is meant to be equivalent to, or more rigorous than, the normal standard of prima facie eligibility applicable to motions to reopen. If it is intended to be more rigorous, then the majority opinion has failed to provide relief for the entire class of aliens sought to be benefitted—namely the “small class . . . who are otherwise prima facie eligible for adjustment.” Id. at 255. Moreover, if it is more rigorous than prima facie eligibility, by what quantum? On the other hand, if no more rigorous test than prima facie eligibility is contemplated, then why use a formulation that is less than pellucid and will give rise to problems in application?
268
1
Cite as 23 I&N Dec. 253 (BIA 2002) Interim Decision #3463
“Opposition” to motions to reopen that previously would have been barred under Matter of Arthur and Matter of H-A-in all cases in which the Service had not yet completed its investigation of the bona fides of the alien’s marriage. The majority decision, far from remedying the perceived injustice on which it is predicated, may therefore prove to be nothing more than a source of useless additional paperwork.
Finally, the majority opinion appears to confer on Mr. Velarde-Pacheco an undeserved benefit. The logical outcome of the majority’s opinion should be a remand to permit the Service at least 13 days to determine whether or not to oppose the motion. See 8 C.F.R. § 3.2(g)(3) (2001). In this case, the Service reasonably relied solely on governing precedent (i.e., the Arthur and H-A-decisions of the Board) to oppose the respondent’s motion. It could not reasonably anticipate the “modification” of those decisions announced in today’s ruling. Hence, there seems no reason, under the majority opinion, not to allow the Service to indicate whether or not it opposes the motion to reopen on some other basis, as will occur with all future cases under the new procedures. Granting the respondent’s motion to reopen without affording the Service this opportunity is an unmerited windfall to this alien.
For all the above reasons, I respectfully dissent.
269