June 24, 2009
LOUISVILLE, Ky. - An illegal alien from Mexico pleaded guilty Monday to conspiracy charges for his role in a local fraudulent document ring. This guilty plea resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE) and the Louisville Metro Police Department.
Juan Manuel Calderon-Santana, 34, pleaded guilty June 22 to charges he conspired to possess document-making implements and false identification documents with the intent to illegally transfer them. The documents included: Permanent Resident Alien Cards (green cards), Social Security cards, Mexican driver's licenses and Mexican birth certificates.
Calderon-Santana admitted to being a member of an organized conspiracy that produced and sold false identification documents. The conspiracy solicited customers going in and out of businesses in the Louisville area, including Mexican grocery stores and restaurants, by handing out business cards bearing a name and a telephone number. After being contacted by a customer, a member of the conspiracy produced and delivered the requested documents.
ICE and Louisville police executed a search warrant Dec. 10, 2008, at Calderon-Santana's residence and recovered a commercial grade printer, supplies for the mass production of false documents, and business records detailing the conspiracy's sales of false documents. Based on records and ledgers recovered, ICE agents estimate that the organization collected approximately $1,500 a day for the false documents sold.
Calderon-Santana further admitted that he arrived at the residence from North Carolina the day before the search warrant and it was his intent to work for the organization by selling false documents in the metro Louisville area. He and three co-conspirators were indicted in federal court January 22. Calderon-Santana is scheduled to for sentencing Sept. 21, 2009, before U.S. District Judge Jennifer B. Coffman, Western District of Kentucky.
"ICE places a high priority on investigating identity fraud and document fraud cases," said Jerry Phillips, resident agent-in-charge of the ICE office in Louisville. "Counterfeit documents create the illusion of legitimacy and allow dangerous criminals to hide in plain sight. ICE is committed to shutting down illegal enterprises that compromise the security of our nation."
The maximum potential penalty is 70 years in prison and a $1.2 million fine. As is standard procedure, after the criminal justice process is completed - including serving any imposed prison sentence - Calderon-Santana will be transferred to ICE for deportation to Mexico.
Assistant U.S. Attorney Mac Shannon, Western District of Kentucky, is prosecuting the case.
Tuesday, June 30, 2009
ICE arrests 81 transnational gang members and associates in DFW area during 'Operation Community Shield'
ICE arrests 81 transnational gang members and associates in DFW area during 'Operation Community Shield'
DALLAS - U.S. Immigration and Customs Enforcement (ICE) agents and other law enforcement officers arrested 81 transnational gang members, their associates and immigration status violators in a six-day operation throughout the Dallas-Fort Worth Metroplex that ended Saturday night. This is the latest joint local action of an ongoing national ICE effort to target foreign-born violent gang members. More than half of those arrested had outstanding local, state or federal warrants issued on them.
The arrests were made under an ongoing national initiative of ICE's National Gang Unit called Operation Community Shield. As part of this initiative, ICE partners with other federal, state and local law enforcement agencies to target the significant public safety threat posed by transnational street gangs. Partnerships with local law enforcement agencies are essential to the initiative's success, and they help further ensure officer safety during the operations.
"Street gangs are responsible for a significant amount of crime nationally and locally," said John Chakwin Jr., special agent in charge of the ICE Office of Investigations in Dallas. "ICE works closely with our local law enforcement partners to identify, locate and arrest these gang members. Ultimately, we remove from the United States those who are deportable."
The operation targeted foreign-born gang members and associates in the following north Texas cities: Arlington, Dallas, Carrollton, Fort Worth, Irving, Lewisville, and Plano. Those foreign-born who were arrested are from the following countries: Mexico, El Salvador, Honduras and Laos.
Gang members arrested were part of the following street gangs: 15th Street, Southside, 18th Street, Crips, 28th Street, 68th Street (Nuevo Laredo, Mexico), Aryan Brotherhood, Butter Bean Boys, East Side Homeboys, Easy Riders (Los Angeles), Five Deuce Crip, How High Crew, MS-13, Northside Locos, Laotian Oriental Killer Boyz, Mexican Clan Locos, Norteno, Sureno, Tango Blast, True Bud Smokers, Trueman Street Blood, Varrio Diamond Hill, Varrio Northside, and Zetas.
Specifics of those arrested include:
• 52 are active members of gangs;
• 14 are gang associates;
• 44 of those arrested were already wanted on local, state or federal warrants, or were arrested for criminal activity. ICE has placed detainers on 13 of those arrested with the local police departments;
• 28 were U.S. citizens who were wanted on warrants, or who were arrested by local law enforcement for criminal violations;
• 37 were arrested administratively on immigration violations;
• two individuals had previously been deported; their cases may be presented to the U.S. Attorney's Office for prosecution for "Reentry After Deportation," which is punishable by up to 20 years in prison;
• 15 of those arrested were not gang members or associates; they were arrested on outstanding warrants or immigration violations;
• 79 men and two women were arrested.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) participated in this operation, and officers from the following north Texas police departments: Arlington, Carrollton, Dallas, Fort Worth, Irving, Lewisville and Plano.
Many who were arrested had previous criminal conviction histories that include aggravated assault with a deadly weapon against a peace officer, discharging a weapon against a police officer, unlawfully possessing a firearm by an alien/felon, engaging in organized criminal activity, burglary of a vehicle, and robbery.
Since ICE began Operation Community Shield in February 2005, more than 13,000 gang members belonging to more than 900 different gangs have been arrested nationwide. More information on the National Gang Unit at ICE is available at: www.ice.gov.
DALLAS - U.S. Immigration and Customs Enforcement (ICE) agents and other law enforcement officers arrested 81 transnational gang members, their associates and immigration status violators in a six-day operation throughout the Dallas-Fort Worth Metroplex that ended Saturday night. This is the latest joint local action of an ongoing national ICE effort to target foreign-born violent gang members. More than half of those arrested had outstanding local, state or federal warrants issued on them.
The arrests were made under an ongoing national initiative of ICE's National Gang Unit called Operation Community Shield. As part of this initiative, ICE partners with other federal, state and local law enforcement agencies to target the significant public safety threat posed by transnational street gangs. Partnerships with local law enforcement agencies are essential to the initiative's success, and they help further ensure officer safety during the operations.
"Street gangs are responsible for a significant amount of crime nationally and locally," said John Chakwin Jr., special agent in charge of the ICE Office of Investigations in Dallas. "ICE works closely with our local law enforcement partners to identify, locate and arrest these gang members. Ultimately, we remove from the United States those who are deportable."
The operation targeted foreign-born gang members and associates in the following north Texas cities: Arlington, Dallas, Carrollton, Fort Worth, Irving, Lewisville, and Plano. Those foreign-born who were arrested are from the following countries: Mexico, El Salvador, Honduras and Laos.
Gang members arrested were part of the following street gangs: 15th Street, Southside, 18th Street, Crips, 28th Street, 68th Street (Nuevo Laredo, Mexico), Aryan Brotherhood, Butter Bean Boys, East Side Homeboys, Easy Riders (Los Angeles), Five Deuce Crip, How High Crew, MS-13, Northside Locos, Laotian Oriental Killer Boyz, Mexican Clan Locos, Norteno, Sureno, Tango Blast, True Bud Smokers, Trueman Street Blood, Varrio Diamond Hill, Varrio Northside, and Zetas.
Specifics of those arrested include:
• 52 are active members of gangs;
• 14 are gang associates;
• 44 of those arrested were already wanted on local, state or federal warrants, or were arrested for criminal activity. ICE has placed detainers on 13 of those arrested with the local police departments;
• 28 were U.S. citizens who were wanted on warrants, or who were arrested by local law enforcement for criminal violations;
• 37 were arrested administratively on immigration violations;
• two individuals had previously been deported; their cases may be presented to the U.S. Attorney's Office for prosecution for "Reentry After Deportation," which is punishable by up to 20 years in prison;
• 15 of those arrested were not gang members or associates; they were arrested on outstanding warrants or immigration violations;
• 79 men and two women were arrested.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) participated in this operation, and officers from the following north Texas police departments: Arlington, Carrollton, Dallas, Fort Worth, Irving, Lewisville and Plano.
Many who were arrested had previous criminal conviction histories that include aggravated assault with a deadly weapon against a peace officer, discharging a weapon against a police officer, unlawfully possessing a firearm by an alien/felon, engaging in organized criminal activity, burglary of a vehicle, and robbery.
Since ICE began Operation Community Shield in February 2005, more than 13,000 gang members belonging to more than 900 different gangs have been arrested nationwide. More information on the National Gang Unit at ICE is available at: www.ice.gov.
Monday, June 29, 2009
Religious workers with pending I-360 petition with USCIS, may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL
If you have a pending Form I-360 religious worker petition with USCIS, you may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009).
Persons with pending Form I-360 religious worker petitions are immediately eligible to file a Form I-485 and/or Form I-765. Individuals whose applications are properly filed with appropriate filing fees and supporting documentation with USCIS by September 9, 2009 will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision. Failure to file prior to September 9, 2009, will result in the accrual of unlawful presence or unauthorized employment time.
Persons who want to file an Application to Register Permanent Residence or Adjust Status (Form I-485) and/or an Application for Employment Authorization (Form I-765)1 must mail the applications, with the required fees, to:
California Service Center
P.O. Box 10485
Laguna Niguel, CA 92677-1048
Any person who has a Form I-360 religious worker petition pending with USCIS as of June 11, 2009, will have any period of unlawful presence that began accruing as of the date of filing of the I-360 tolled until September 9, 2009. In addition, any period of unauthorized employment that occurred after filing of the I-360 will be tolled until September 9, 2009.
Persons who properly file the Form I-485 and Form I-765 applications on or after June 11, 2009 and have their applications received by USCIS prior to September 9, 2009 also will have the accrual of unlawful presence and unlawful employment tolled until USCIS issues a final administrative decision.
Spouses and children who are the beneficiaries of properly filed Forms I-360 by religious workers may be accorded the same status and order of consideration as the principal, unless the spouse and child are already entitled to another immigrant status and immediate issuance of a visa under section 203(a), (b), or (c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(a), (b), or (c).
For additional information please see the USCIS webpage at www.uscis.gov.
1 Applicants may also file an Application for Travel Document, Form I-131, as long as they are eligible and properly file the application.
Persons with pending Form I-360 religious worker petitions are immediately eligible to file a Form I-485 and/or Form I-765. Individuals whose applications are properly filed with appropriate filing fees and supporting documentation with USCIS by September 9, 2009 will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision. Failure to file prior to September 9, 2009, will result in the accrual of unlawful presence or unauthorized employment time.
Persons who want to file an Application to Register Permanent Residence or Adjust Status (Form I-485) and/or an Application for Employment Authorization (Form I-765)1 must mail the applications, with the required fees, to:
California Service Center
P.O. Box 10485
Laguna Niguel, CA 92677-1048
Any person who has a Form I-360 religious worker petition pending with USCIS as of June 11, 2009, will have any period of unlawful presence that began accruing as of the date of filing of the I-360 tolled until September 9, 2009. In addition, any period of unauthorized employment that occurred after filing of the I-360 will be tolled until September 9, 2009.
Persons who properly file the Form I-485 and Form I-765 applications on or after June 11, 2009 and have their applications received by USCIS prior to September 9, 2009 also will have the accrual of unlawful presence and unlawful employment tolled until USCIS issues a final administrative decision.
Spouses and children who are the beneficiaries of properly filed Forms I-360 by religious workers may be accorded the same status and order of consideration as the principal, unless the spouse and child are already entitled to another immigrant status and immediate issuance of a visa under section 203(a), (b), or (c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(a), (b), or (c).
For additional information please see the USCIS webpage at www.uscis.gov.
1 Applicants may also file an Application for Travel Document, Form I-131, as long as they are eligible and properly file the application.
Ruiz-Diaz v. US - C07-1881RSL - I-360 Religious Worker
United States District Court, W.D. Washington,
at Seattle.
Gabriel RUIZ-DIAZ, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
No. C07-1881RSL.
March 23, 2009.
Robert H. Gibbs, Robert Pauw, Mari Lise Matsumoto, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs.
Lyle D. Jentzer, Melissa Leibman, U.S. Department of Justice, Office of Immigration Lit., Washington, DC, J. Michael Diaz, United States Attorney's Office, Seattle, WA, for Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on plaintiffs' “Motion for Summary Judgment” (Dkt.# 92), defendants' “Cross-Motion for Summary Judgment” (Dkt. # 96), defendants “Motion for Continuance of Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment” (Dkt.# 106), and defendants' “Motion to Amend Pleadings to Include Evidence from Depositions (Dkt.# 114). Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:
A. SUBJECT MATTER JURISDICTION PURSUANT TO 8 U.S.C. § 1252(a) (2)(B)(I) and (ii)
Defendants argue that dismissal is appropriate because the Court lacks jurisdiction to review defendants' discretionary determination. This issue has already been resolved in plaintiffs' favor. See Dkt. # 46 at 5.
B. IMMIGRATION AND NATIONALITY ACT (“INA”) CLAIM
The individual plaintiffs allege that they were statutorily eligible to file applications for adjustment of status, but that their applications were rejected in violation of INA § 245(a), 8 U.S .C. § 1255(a). Section 1255(a) provides that:
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
Defendants argue that plaintiffs have no statutory right to concurrently file I-360 visa petitions and I-485 applications for adjustment of status and that the Attorney General has the power to promulgated regulations addressing this issue. The challenged regulation, 8 C.F.R. § 245.2(a)(2)(i)(B), permits some aliens to file concurrently while requiring others, including religious workers, to wait until CIS has approved the employer's visa petition before filing their application for adjustment of status.
The Court must determine whether 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General's discretion to issue regulations regarding adjustment of status or whether it is contrary to the governing statute. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the first issue is whether Congress has unambiguously expressed its intent regarding the precise questions raised in this case, namely, whether plaintiffs are eligible to apply for adjustment of status and whether they are entitled to concurrent filing. If Congress has clearly spoken, the Court gives effect to “the unambiguously expressed intent of Congress.” Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1303 (9th Cir.2004). Where the statutory language is ambiguous and the intent of Congress is unclear, the Court must determine “whether the regulation enacted by the agency is a permissible construction of the statute. If so, we must defer to the agency's interpretation.” Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir.2005) (internal citation omitted).
Pursuant to 8 U.S.C. § 1255(a)(1), an alien must affirmatively apply for the benefit of adjustment of status: adjustment is not automatic or presumed. Defendants argue that because Congress has not expressly addressed the concurrent filing issue, 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General's broad discretion to regulate the “timing and procedures aliens must follow when requesting adjustment ....” Opposition (Dkt. # 96) at 7. Plaintiffs do not dispute that the Attorney General has the authority to regulate the manner in which adjustment of status applications are made. The regulation challenged by plaintiffs goes beyond regulating the form of application, the materials to be supplied therewith, or the process of filing, however. Section 245.2(a)(2)(i)(B) prevents, sometimes permanently, otherwise eligible aliens from submitting the application for adjustment of status that is required by 8 U.S.C. § 1255(a)(1). The regulation has been used to affirmatively reject applications for adjustment submitted by members of the plaintiff class. The question before the Court is whether such a regulation is permissible under the statute.
Section 1255(a) applies to aliens who were “inspected and admitted or paroled into the United States ... [or have] an approved petition for classification as a VAWA self-petitioner ....” Congress has clearly determined which aliens are eligible to apply for adjustment of status. Bona, 425 F.3d at 670-71. Where Congress intended to limit the categories of aliens who are eligible for adjustment of status, it did so explicitly in 8 U.S.C. § 1255(c), as further modified by 8 U.S.C. § 1255(i). See Succar v. Ashcroft, 394 F.3d 8, 25 (1st Cir.2005). Plaintiffs maintain, and defendants do not contest, that they are statutorily eligible to apply for adjustment of status. Nevertheless, defendants rejected or prevented the filing of their applications on the ground that they did not meet an additional, unmentioned requirement, namely the possession of approved visa petition. Even if 8 C.F.R. § 245.2(a) (2)(i)(B) can properly be characterized as a timing or procedural regulation, it is not a permissible exercise of the Attorney General's discretion because it conflicts with Congress' unambiguous determination of who is eligible to apply.
Furthermore, the language of 8 C.F.R. § 245.2(a)(2)(i)(B) suggests that it is not a regulation of the application process under § 1255(a)(1), but rather an interpretation of “immediately available” as that phrase is used in § 1255(a)(3). Congress has determined that an alien is eligible for adjustment of status if “an immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C. § 1255(a)(3). There are at least two possible interpretations of this requirement. First, one could argue that a visa is “immediately available” to an applicant if the Department of State has an immigrant visa number available for distribution on the date the I-485 application is filed. In the alternative, this requirement could mean that the alien must be eligible for immediate assignment of an immigrant visa number, i.e ., that the visa petition filed by the employer on the alien's behalf has already been approved and the government simply needs to process the I-485 application. Based on the record produced by the parties, the Court assumes that either of these interpretations would be a permissible construction of the statutory language.
It appears, however, that defendants declined to choose between the competing interpretations. The challenged regulation either defines “immediately available” differently depending on the classification of the applicant or waives the requirement in certain circumstances. The first tact is unreasonable and the second is contrary to Congress' intent. The effect of 8 C.F.R. § 245.2(a)(2) (i)(B) is to allow certain aliens, such as priority workers under 8 U.S.C. § 1153(b)(1), to file applications for adjustment of status if the State Department still has numbers available and a visa petition has been filed. Religious workers, however, may not apply for adjustment of status until CIS has actually approved the visa petition. Under the regulation, having an “immigration visa immediately available” means two different things depending on the classification of the alien. Because there is no canon of statutory construction that allows the same language in the same statutory provision to have two conflicting meanings, the Court finds that, to the extent “immediately available” is defined in multiple ways, the interpretation set forth in 8 C.F.R. § 245.2(a)(2)(i)(B) is not permissible. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (where deference is appropriate, the question for the court is whether the agency's interpretation “is based on a permissible construction of the statute”) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
In the alternative, one could argue that the Attorney General has determined that approval of a visa petition is necessary to make a visa “immediately available” to an alien beneficiary, but that he waived that requirement for certain non-religious workers through the promulgation of 8 C.F.R. § 245.2(a)(2)(i)(B). The language and syntax of the regulation support this argument. In effect, the Attorney General has interpreted 8 U.S.C. § 1255(a)(3) restrictively and then waived its application to certain classes of aliens. Congress, however, has determined that an immigrant visa must be “immediately available to [the alien] at the time his application is filed.” 8 U.S.C. § 1255(a). The challenged regulation is inconsistent with this statutory requirement to the extent it authorizes defendants to ignore the “immediately available” language for certain categories of applicants. Although the Attorney General is entitled to deference when interpreting ambiguous statutory language, he may not adopt one possible interpretation and then ignore the statutory requirement whenever he sees fit.
For all of the foregoing reasons, the Court finds that 8 C.F.R. § 245.2(a)(2)(i)(B) is an unreasonable and impermissible construction of the governing statute. The Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs' applications for adjustment of status based on the regulation barring religious workers from concurrent filing.
Having found that 8 C.F.R. § 245.2(a)(2)(i)(B) is inconsistent with the governing statute and therefore invalid, there does not appear to be a need for the Court to evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act (“RFRA”).FN2 Plaintiffs' motion for summary judgment (Dkt.# 92) is GRANTED and defendants' cross-motion (Dkt.# 96) is DENIED. Plaintiffs have requested various forms of relief in the proposed order submitted with their motion. Dkt. # 92. Although the directives and injunctions sought are properly focused on avoiding or ameliorating the injuries that arise from enforcement of the invalid regulation, the proposed order is far-reaching. Defendants, whose papers addressed the merits of plaintiffs' claims, have not commented on the propriety of the proposed order.
The parties shall, within twenty days of the date of this Order, conduct a good faith conference regarding the form of order and judgment to be entered in this matter. If agreement can be reached, a joint proposed order and judgment shall be submitted on or before April 17, 2009, for the Court's review. If agreement cannot be reached, each side may simultaneously file and serve a proposed order and judgment, with a supporting memorandum, on that date: opposition memoranda, if any, would be due ten days later.
at Seattle.
Gabriel RUIZ-DIAZ, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
No. C07-1881RSL.
March 23, 2009.
Robert H. Gibbs, Robert Pauw, Mari Lise Matsumoto, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs.
Lyle D. Jentzer, Melissa Leibman, U.S. Department of Justice, Office of Immigration Lit., Washington, DC, J. Michael Diaz, United States Attorney's Office, Seattle, WA, for Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on plaintiffs' “Motion for Summary Judgment” (Dkt.# 92), defendants' “Cross-Motion for Summary Judgment” (Dkt. # 96), defendants “Motion for Continuance of Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment” (Dkt.# 106), and defendants' “Motion to Amend Pleadings to Include Evidence from Depositions (Dkt.# 114). Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:
A. SUBJECT MATTER JURISDICTION PURSUANT TO 8 U.S.C. § 1252(a) (2)(B)(I) and (ii)
Defendants argue that dismissal is appropriate because the Court lacks jurisdiction to review defendants' discretionary determination. This issue has already been resolved in plaintiffs' favor. See Dkt. # 46 at 5.
B. IMMIGRATION AND NATIONALITY ACT (“INA”) CLAIM
The individual plaintiffs allege that they were statutorily eligible to file applications for adjustment of status, but that their applications were rejected in violation of INA § 245(a), 8 U.S .C. § 1255(a). Section 1255(a) provides that:
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
Defendants argue that plaintiffs have no statutory right to concurrently file I-360 visa petitions and I-485 applications for adjustment of status and that the Attorney General has the power to promulgated regulations addressing this issue. The challenged regulation, 8 C.F.R. § 245.2(a)(2)(i)(B), permits some aliens to file concurrently while requiring others, including religious workers, to wait until CIS has approved the employer's visa petition before filing their application for adjustment of status.
The Court must determine whether 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General's discretion to issue regulations regarding adjustment of status or whether it is contrary to the governing statute. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the first issue is whether Congress has unambiguously expressed its intent regarding the precise questions raised in this case, namely, whether plaintiffs are eligible to apply for adjustment of status and whether they are entitled to concurrent filing. If Congress has clearly spoken, the Court gives effect to “the unambiguously expressed intent of Congress.” Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1303 (9th Cir.2004). Where the statutory language is ambiguous and the intent of Congress is unclear, the Court must determine “whether the regulation enacted by the agency is a permissible construction of the statute. If so, we must defer to the agency's interpretation.” Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir.2005) (internal citation omitted).
Pursuant to 8 U.S.C. § 1255(a)(1), an alien must affirmatively apply for the benefit of adjustment of status: adjustment is not automatic or presumed. Defendants argue that because Congress has not expressly addressed the concurrent filing issue, 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General's broad discretion to regulate the “timing and procedures aliens must follow when requesting adjustment ....” Opposition (Dkt. # 96) at 7. Plaintiffs do not dispute that the Attorney General has the authority to regulate the manner in which adjustment of status applications are made. The regulation challenged by plaintiffs goes beyond regulating the form of application, the materials to be supplied therewith, or the process of filing, however. Section 245.2(a)(2)(i)(B) prevents, sometimes permanently, otherwise eligible aliens from submitting the application for adjustment of status that is required by 8 U.S.C. § 1255(a)(1). The regulation has been used to affirmatively reject applications for adjustment submitted by members of the plaintiff class. The question before the Court is whether such a regulation is permissible under the statute.
Section 1255(a) applies to aliens who were “inspected and admitted or paroled into the United States ... [or have] an approved petition for classification as a VAWA self-petitioner ....” Congress has clearly determined which aliens are eligible to apply for adjustment of status. Bona, 425 F.3d at 670-71. Where Congress intended to limit the categories of aliens who are eligible for adjustment of status, it did so explicitly in 8 U.S.C. § 1255(c), as further modified by 8 U.S.C. § 1255(i). See Succar v. Ashcroft, 394 F.3d 8, 25 (1st Cir.2005). Plaintiffs maintain, and defendants do not contest, that they are statutorily eligible to apply for adjustment of status. Nevertheless, defendants rejected or prevented the filing of their applications on the ground that they did not meet an additional, unmentioned requirement, namely the possession of approved visa petition. Even if 8 C.F.R. § 245.2(a) (2)(i)(B) can properly be characterized as a timing or procedural regulation, it is not a permissible exercise of the Attorney General's discretion because it conflicts with Congress' unambiguous determination of who is eligible to apply.
Furthermore, the language of 8 C.F.R. § 245.2(a)(2)(i)(B) suggests that it is not a regulation of the application process under § 1255(a)(1), but rather an interpretation of “immediately available” as that phrase is used in § 1255(a)(3). Congress has determined that an alien is eligible for adjustment of status if “an immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C. § 1255(a)(3). There are at least two possible interpretations of this requirement. First, one could argue that a visa is “immediately available” to an applicant if the Department of State has an immigrant visa number available for distribution on the date the I-485 application is filed. In the alternative, this requirement could mean that the alien must be eligible for immediate assignment of an immigrant visa number, i.e ., that the visa petition filed by the employer on the alien's behalf has already been approved and the government simply needs to process the I-485 application. Based on the record produced by the parties, the Court assumes that either of these interpretations would be a permissible construction of the statutory language.
It appears, however, that defendants declined to choose between the competing interpretations. The challenged regulation either defines “immediately available” differently depending on the classification of the applicant or waives the requirement in certain circumstances. The first tact is unreasonable and the second is contrary to Congress' intent. The effect of 8 C.F.R. § 245.2(a)(2) (i)(B) is to allow certain aliens, such as priority workers under 8 U.S.C. § 1153(b)(1), to file applications for adjustment of status if the State Department still has numbers available and a visa petition has been filed. Religious workers, however, may not apply for adjustment of status until CIS has actually approved the visa petition. Under the regulation, having an “immigration visa immediately available” means two different things depending on the classification of the alien. Because there is no canon of statutory construction that allows the same language in the same statutory provision to have two conflicting meanings, the Court finds that, to the extent “immediately available” is defined in multiple ways, the interpretation set forth in 8 C.F.R. § 245.2(a)(2)(i)(B) is not permissible. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (where deference is appropriate, the question for the court is whether the agency's interpretation “is based on a permissible construction of the statute”) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
In the alternative, one could argue that the Attorney General has determined that approval of a visa petition is necessary to make a visa “immediately available” to an alien beneficiary, but that he waived that requirement for certain non-religious workers through the promulgation of 8 C.F.R. § 245.2(a)(2)(i)(B). The language and syntax of the regulation support this argument. In effect, the Attorney General has interpreted 8 U.S.C. § 1255(a)(3) restrictively and then waived its application to certain classes of aliens. Congress, however, has determined that an immigrant visa must be “immediately available to [the alien] at the time his application is filed.” 8 U.S.C. § 1255(a). The challenged regulation is inconsistent with this statutory requirement to the extent it authorizes defendants to ignore the “immediately available” language for certain categories of applicants. Although the Attorney General is entitled to deference when interpreting ambiguous statutory language, he may not adopt one possible interpretation and then ignore the statutory requirement whenever he sees fit.
For all of the foregoing reasons, the Court finds that 8 C.F.R. § 245.2(a)(2)(i)(B) is an unreasonable and impermissible construction of the governing statute. The Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs' applications for adjustment of status based on the regulation barring religious workers from concurrent filing.
Having found that 8 C.F.R. § 245.2(a)(2)(i)(B) is inconsistent with the governing statute and therefore invalid, there does not appear to be a need for the Court to evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act (“RFRA”).FN2 Plaintiffs' motion for summary judgment (Dkt.# 92) is GRANTED and defendants' cross-motion (Dkt.# 96) is DENIED. Plaintiffs have requested various forms of relief in the proposed order submitted with their motion. Dkt. # 92. Although the directives and injunctions sought are properly focused on avoiding or ameliorating the injuries that arise from enforcement of the invalid regulation, the proposed order is far-reaching. Defendants, whose papers addressed the merits of plaintiffs' claims, have not commented on the propriety of the proposed order.
The parties shall, within twenty days of the date of this Order, conduct a good faith conference regarding the form of order and judgment to be entered in this matter. If agreement can be reached, a joint proposed order and judgment shall be submitted on or before April 17, 2009, for the Court's review. If agreement cannot be reached, each side may simultaneously file and serve a proposed order and judgment, with a supporting memorandum, on that date: opposition memoranda, if any, would be due ten days later.
Wednesday, June 24, 2009
INS on Effect of Failure to Register for Selective Service on Naturalization Eligibility
INS on Effect of Failure to Register for Selective Service on Naturalization Eligibility
June 18, 1999
Memorandum For Regional Directors
District Directors
Service Center Directors
From: William R. Yates
Deputy Executive Associate Commissioner
Office of Field Operations
Immigration Services Division
Subject: Effect of Failure to Register for Selective Service on Eligibility for Naturalization
This memorandum provides guidance to Immigration and Naturalization Service (INS) field offices regarding the effect of a naturalization applicant's failure to register for Selective Service on the applicant's eligibility for naturalization. This guidance is based on the attached legal opinion issued by the Office of General Counsel on April 27, 1998.
Selective Service Registration Requirements
Section 3(a) of the Military Selective Service Act [50 U.S.C. App. § 453(a)] provides that:
it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President, and by rules and regulations prescribed hereunder.
This requirement does not apply to aliens present in the United States in a lawful nonimmigrant status.
In 1980, the President directed that, except for aliens in lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. Proc. No. 4771 of July 2, 1980 § 1-101, 94 Stat. 3775 (1980). As provided by statute, this obligation continues in force until the man either registers or attains his twenty-sixth birthday. 50 U.S.C. App. § 456(a).
Although the Military Selective Service Act provides for civil penalties for failure to register, Section 12 of the Military Selective Service Act [50 U.S.C. § 462] also provides some relief from the adverse civil effects of failure to register:
(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 if --
(1) the requirement for the person to so register has terminated or become inapplicable to the person; and
(2) the person shows by a preponderance of the evidence that the failure of the person to register was not a knowing and willful failure to register.
Men Required to Register
Except for aliens maintaining lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service. Men living in the United States are required to register at 18. Men who enter the United States as immigrants are also required to register if they are between 18 and 26.
The requirement to register with Selective Service also applied to men born before March 29, 1957 who resided in the United States, other than as lawful nonimmigrants, between their 18th and 26th birthdays. Cf. Proc. No. 4360 of March 29, 1975, 40 Fed. Reg. 14,567 (1975).
Men Not Required to Register
The requirement to register with Selective Service ceases when a man reaches 26 years of age. Men who did not live in the United States between 18 and 26 years of age, and men who lived in the United States between 18 and 26 years of age, but maintained lawful nonimmigrant status for the entire period were not required to register.
Men born after March 29, 1957, and before December 31, 1959, were never under an obligation to register with Selective Service. Proc. No. 4771 and Proc. No. 4360, supra.
Eligibility for Naturalization
Section 316(a) of the Immigration and Nationality Act (INA) requires a naturalization applicant to prove that he or she is, and has been for the requisite period, a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed toward the good order and happiness of the United States. Section 337(a)(5)(A) of the INA also requires applicants to declare under oath his or her willingness to bear arms on behalf of the United States when required by law. Therefore, it is INS policy that refusal to or knowing and willful failure to register for Selective Service during the period for which an applicant is required to prove his compliance with § 316(a)(3) supports a finding that the applicant is not eligible for naturalization, because he has failed to establish his willingness to bear arms when required and his disposition to the good order and happiness of the United States.
Effect of Failure to Register for Selective Service
Failure to register for Selective Service is not a permanent bar to naturalization. In general, INS will find an applicant ineligible for naturalization on account of failure to register for Selective Service if a male applicant refuses to or knowingly and willfully failed to register during the period for which the applicant is required to establish his disposition to the good order and happiness of the United States. This period coincides with the more familiar good moral character period. Whether it is proper for the INS to determine that an applicant refused to or knowingly and willfully failed to register for Selective Service will depend on the applicant's age at the time of filing the naturalization application and up until the time of administration of the oath of allegiance.
Applicants Under 26 Years of Age
A man under 26 years of age who refuses to register for Selective Service cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant under 26 years of age must provide evidence of registration for Selective Service. The examination of a naturalization application filed by a man under 26 years of age who has not registered for Selective Service by the time of the naturalization examination must be continued to afford the applicant an opportunity to register. If the applicant refuses to register for Selective Service after being afforded a reasonable opportunity to register, the naturalization application must be denied. The decision denying the application must state specifically that the applicant has refused, after given an opportunity to do so, to register with Selective Service, and that the person, therefore, is not eligible for naturalization because he is not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Between 26 and 31 Years of Age
A man between 26 and 31 years of age[1] who was required to register for Selective Service and who knowingly and willfully failed to register cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant between 26 and 31 years of age who failed to register for Selective Service must provide evidence that his failure to register was not knowing and willful or that he was not required to register. If a male naturalization applicant between 26 and 31 years of age failed to register with Selective Service, the naturalization examination must be continued to give the applicant an opportunity to obtain evidence that his failure to register was not knowing and willful or that he was not required to register. If the applicant is unable to demonstrate that his failure to register was not knowing and willful or that he was not required to register, his naturalization application must be denied. Again, the decision must state explicitly that the INS has found that his willful failure to register with Selective Service means he cannot show that, during the requisite period before filing his application, he was not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Over 31 Years of Age
Failure to register for Selective Service will generally not prevent a man who was over 31 years of age on the day he filed his naturalization application from demonstrating that he is eligible for naturalization. Even if the applicant was required to register and the applicant's failure to register was knowing and willful, the failure occurred outside of the statutory period during which the applicant is required to establish his attachment to the good order and happiness of the United States. The INS may, of course, consider a person's conduct before the beginning of this period. INA § 101(f) (last sentence) and § 316(e). If the INS denies naturalization to a man who is at least 31, based on his failure to register with Selective Service, the decision must state explicitly the basis for finding that the failure to register warrants denial of naturalization. As a practical matter, a male applicant over 31 years of age who failed to register with Selective Service should, ordinarily, be found eligible for naturalization unless INS has other evidence, in addition to the past failure to register, that demonstrates that the applicant is not well disposed to the good order and happiness of the United States.
Evidence of Selective Service Registration
Men may obtain cards to register for Selective Service at their local post office. Men may also register on-line at the Selective Service System website at www.sss.gov. The Selective Service System website may also be accessed from the INS website at uscis.gov . After registration, men should receive a Selective Service registration card in the mail.
Men may obtain status information letters by calling the Selective Service System at 847/688-6888 or 847/688-2576, and requesting a questionnaire. Status information letters inform men whether, based on their age and immigration status in the United States, they had a Selective Service registration requirement with which they failed to comply.
INS officers may confirm a naturalization applicant's registration status by calling the Selective Service System at 847/688-6888 or 847/688-2576. Officers will need to enter the applicant's Social Security Number and date of birth to obtain status information.
Evidence of Registration
Naturalization applicants may present Selective Service registration acknowledgment cards or status information letters as proof of registration. INS officers may also accept other persuasive evidence presented by an applicant as proof of registration.
Evidence Relating to Failure to Register
INS officers must request that naturalization applicants submit status information letters before concluding that men failed to register with Selective Service when required. Status information letters do not forgive men for failing to register, nor do they provide them with an exemption from the requirement. The letters merely inform men if they had a registration requirement with which they failed to comply. Once it is established by a status information letter that a naturalization applicant failed to register when required, the INS officer must determine, based on other evidence, whether or not an applicant's failure to register was knowing and willful. INS officers must consider all persuasive evidence presented by an applicant relating to his failure to register. At a minimum, the INS officers must take a statement under oath from an applicant in order to determine whether or not failure to register was knowing and willful.
Evidence that Registration Was Not Required
Naturalization applicants need only demonstrate that they were 26 years of age or older when they first entered the United States as immigrants to prove that they were not required to register with Selective Service. Proof of an applicant's age and immigration status should be contained in the applicant's file. This evidence is all that is necessary to prove that the applicant was not required to register.
Further Information
Further questions regarding the effect of failure to register for Selective Service on eligibility for naturalization may be directed to Cheryl Becker, Adjudications Officer, Office of Field Operations, Immigration Services Division, at 202/514-2982.
Attachments
Footnote:
[1] The 26 to 31 age range used in this memorandum must be adjusted for applicants filing under sections of the INA requiring different periods of good moral character. For example, the age range for an applicant filing under section 319(a) of the INA is between 26 to 29 years of age.
ATTACHMENTS
April 27, 1998
Memorandum For Jack Penca
Eastern Regional Counsel
From: Paul W. Virtue
General Counsel
Subject: Your February 13, 1998, Request for Legal Opinion: Failure to register for Selective Service as a bar to naturalization
I. QUESTION
In the subject memorandum, you request a legal opinion addressing the following question:
Is failure to register for Selective Service a bar to naturalization?
II. SUMMARY CONCLUSION
Failure to register for Selective Service bars naturalization only if the applicant knowingly and willfully failed to register during the period for which the applicant must establish good moral character. If the applicant knowingly and willfully failed to register, but this failure to register occurred outside the good moral character period, the failure to register is not an absolute bar to naturalization. The Service may, however, consider the failure to register in determining the applicant's naturalization eligibility.
III. ANALYSIS
An applicant for naturalization must be "a person of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States." INA § 316(a)(3), 8 U. S.C. § 1427(a)(3). The period during which the applicant must meet this requirement begins five years before the applicant files the naturalization application, and continues through the date that the applicant is admitted to citizenship. Id (The applicant must show that the applicant "has been and still is" of good moral character). Moreover, an applicant must be willing "to bear arms on behalf of the United States when required by the law." Id § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A).
Except aliens maintaining lawful nonimmigrant status, any many born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. 50 U.S.C. App. § 453(a); Proc. No. 4771 of July 2, 1980, § 1-101, 94 Stat. 3775, 3775 (1980). This obligation continues until the man's twenty-sixth birthday. Id. The INA does not make compliance with this requirement a condition for naturalization. The Service would be fully justified, nevertheless, in finding that a man who refuses to comply with this requirement is not willing to bear arms when the law requires. INA § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A). This finding would support the further inference that the applicant is not disposed to the good order and happiness of the United States. Id.
§ 316(a)(3), 8 U.S.C. § 1427(a)(3). Any naturalization application should be denied on this basis, if the applicant is a man who has not yet turned twenty-six, and who refuses to register for Selective Service.
The posture of the case changes once the applicant has turned twenty-six. In that case, there was, but no longer is, a duty to register. 50 U.S.C. § App. 453(a). The Service can still find that the applicant is ineligible to naturalization, based on the failure to have registered, unless the applicant establishes that his failure to file was not knowing and willful. 50 U.S.C. App. § 462(g). Note that this statute clearly places the burden of proof on the applicant. Id. Therefore, the Service may presume the failure to register to have been knowing and willful, unless the applicant proves the contrary "by a preponderance of the evidence." Id.
The posture of the case changes, again, the day after the applicant's thirty-first birthday. If the applicant files on that date, or later, then more than five years will have elapsed since the failure to register. That is, the event that reflects adversely on the applicant's eligibility will have occurred outside the period during which the applicant must show that he is of good moral character and disposed to the good order and happiness of the United States. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service should first consider whether the failure to register was knowing and willful. 50 U.S.C. § 462(g). If not then the Service should find the applicant to have satisfied § 316(a)(3), unless other adverse factors are present. Even if the applicant did knowingly and willfully fail to register, that fact would not be an absolute bar to eligibility. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service could grant naturalization, so long as the Service were satisfied that the applicant satisfies § 316(a)(3) now, even if he may not have been able to do so in the past.
But the Service need not automatically disregard the failure to register, once the applicant is at least thirty-one years old. The Service is entitled to consider improper conduct that occurred outside the statutory period, in determining whether the applicant can satisfy § 316(a)(3). Id. §§ 101 (f) (last sentence) and 316(e), 8 U.S.C. §§ 1101(f) and 1427(e); 8 C.F.R. § 316.10(a)(2). For this reason, the Service could properly consider a willful failure to register for Selective Service, together with other evidence concerning the applicant s compliance with § 316(a)(3), even if the willful failure to register is outside the good moral character period. For the sake of further review, it would be necessary for the Service to explain in its decision why an event outside the statutory period is taken to prove the applicant to be ineligible under § 316(a)(3). It would not be correct simply to say that a knowing and willful failure to register is a permanent bar to naturalization. There is also an important factor to keep in mind, when the failure to register is outside the good moral character period. An applicant may seek judicial review of a final decision denying naturalization. Id. § 310(c), 8 U.S.C. § 1421(c). In reviewing the case, the district court would have legal authority to decide the issue de novo, making its own judgment on the effect of the failure to register on the applicant's eligibility. Id.
We are aware of the argument that, drawing an analogy from INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426, an alien who knowingly and willfully fails to register should be permanently barred from naturalization. Letter from Russell A. Ezolt to Toni B. Florence (December 16, 1997). We agree with Mr. Ezolt that this analogy cannot be sustained. Congress has specifically enacted that convicted deserters, those convicted of departing to avoid the draft, and those who obtain an alienage exemption from induction or further service, are permanently barred from naturalization. INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426. But Congress has not enacted a similar provision for those who fail to register for the draft. We do not consider it proper to extend these bars to naturalization to persons Congress did no, chose to include within the scope of the bars. It is only under § 316(a)(3), if at all, that failure to register for Selective Service can warrant denial of naturalization in any given case.
June 18, 1999
Memorandum For Regional Directors
District Directors
Service Center Directors
From: William R. Yates
Deputy Executive Associate Commissioner
Office of Field Operations
Immigration Services Division
Subject: Effect of Failure to Register for Selective Service on Eligibility for Naturalization
This memorandum provides guidance to Immigration and Naturalization Service (INS) field offices regarding the effect of a naturalization applicant's failure to register for Selective Service on the applicant's eligibility for naturalization. This guidance is based on the attached legal opinion issued by the Office of General Counsel on April 27, 1998.
Selective Service Registration Requirements
Section 3(a) of the Military Selective Service Act [50 U.S.C. App. § 453(a)] provides that:
it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President, and by rules and regulations prescribed hereunder.
This requirement does not apply to aliens present in the United States in a lawful nonimmigrant status.
In 1980, the President directed that, except for aliens in lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. Proc. No. 4771 of July 2, 1980 § 1-101, 94 Stat. 3775 (1980). As provided by statute, this obligation continues in force until the man either registers or attains his twenty-sixth birthday. 50 U.S.C. App. § 456(a).
Although the Military Selective Service Act provides for civil penalties for failure to register, Section 12 of the Military Selective Service Act [50 U.S.C. § 462] also provides some relief from the adverse civil effects of failure to register:
(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 if --
(1) the requirement for the person to so register has terminated or become inapplicable to the person; and
(2) the person shows by a preponderance of the evidence that the failure of the person to register was not a knowing and willful failure to register.
Men Required to Register
Except for aliens maintaining lawful nonimmigrant status, any man born after 1959 and living in the United States must register for Selective Service. Men living in the United States are required to register at 18. Men who enter the United States as immigrants are also required to register if they are between 18 and 26.
The requirement to register with Selective Service also applied to men born before March 29, 1957 who resided in the United States, other than as lawful nonimmigrants, between their 18th and 26th birthdays. Cf. Proc. No. 4360 of March 29, 1975, 40 Fed. Reg. 14,567 (1975).
Men Not Required to Register
The requirement to register with Selective Service ceases when a man reaches 26 years of age. Men who did not live in the United States between 18 and 26 years of age, and men who lived in the United States between 18 and 26 years of age, but maintained lawful nonimmigrant status for the entire period were not required to register.
Men born after March 29, 1957, and before December 31, 1959, were never under an obligation to register with Selective Service. Proc. No. 4771 and Proc. No. 4360, supra.
Eligibility for Naturalization
Section 316(a) of the Immigration and Nationality Act (INA) requires a naturalization applicant to prove that he or she is, and has been for the requisite period, a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed toward the good order and happiness of the United States. Section 337(a)(5)(A) of the INA also requires applicants to declare under oath his or her willingness to bear arms on behalf of the United States when required by law. Therefore, it is INS policy that refusal to or knowing and willful failure to register for Selective Service during the period for which an applicant is required to prove his compliance with § 316(a)(3) supports a finding that the applicant is not eligible for naturalization, because he has failed to establish his willingness to bear arms when required and his disposition to the good order and happiness of the United States.
Effect of Failure to Register for Selective Service
Failure to register for Selective Service is not a permanent bar to naturalization. In general, INS will find an applicant ineligible for naturalization on account of failure to register for Selective Service if a male applicant refuses to or knowingly and willfully failed to register during the period for which the applicant is required to establish his disposition to the good order and happiness of the United States. This period coincides with the more familiar good moral character period. Whether it is proper for the INS to determine that an applicant refused to or knowingly and willfully failed to register for Selective Service will depend on the applicant's age at the time of filing the naturalization application and up until the time of administration of the oath of allegiance.
Applicants Under 26 Years of Age
A man under 26 years of age who refuses to register for Selective Service cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant under 26 years of age must provide evidence of registration for Selective Service. The examination of a naturalization application filed by a man under 26 years of age who has not registered for Selective Service by the time of the naturalization examination must be continued to afford the applicant an opportunity to register. If the applicant refuses to register for Selective Service after being afforded a reasonable opportunity to register, the naturalization application must be denied. The decision denying the application must state specifically that the applicant has refused, after given an opportunity to do so, to register with Selective Service, and that the person, therefore, is not eligible for naturalization because he is not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Between 26 and 31 Years of Age
A man between 26 and 31 years of age[1] who was required to register for Selective Service and who knowingly and willfully failed to register cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant between 26 and 31 years of age who failed to register for Selective Service must provide evidence that his failure to register was not knowing and willful or that he was not required to register. If a male naturalization applicant between 26 and 31 years of age failed to register with Selective Service, the naturalization examination must be continued to give the applicant an opportunity to obtain evidence that his failure to register was not knowing and willful or that he was not required to register. If the applicant is unable to demonstrate that his failure to register was not knowing and willful or that he was not required to register, his naturalization application must be denied. Again, the decision must state explicitly that the INS has found that his willful failure to register with Selective Service means he cannot show that, during the requisite period before filing his application, he was not well disposed to the good order and happiness of the United States. The decision must cite § 316(a)(3).
Applicants Over 31 Years of Age
Failure to register for Selective Service will generally not prevent a man who was over 31 years of age on the day he filed his naturalization application from demonstrating that he is eligible for naturalization. Even if the applicant was required to register and the applicant's failure to register was knowing and willful, the failure occurred outside of the statutory period during which the applicant is required to establish his attachment to the good order and happiness of the United States. The INS may, of course, consider a person's conduct before the beginning of this period. INA § 101(f) (last sentence) and § 316(e). If the INS denies naturalization to a man who is at least 31, based on his failure to register with Selective Service, the decision must state explicitly the basis for finding that the failure to register warrants denial of naturalization. As a practical matter, a male applicant over 31 years of age who failed to register with Selective Service should, ordinarily, be found eligible for naturalization unless INS has other evidence, in addition to the past failure to register, that demonstrates that the applicant is not well disposed to the good order and happiness of the United States.
Evidence of Selective Service Registration
Men may obtain cards to register for Selective Service at their local post office. Men may also register on-line at the Selective Service System website at www.sss.gov. The Selective Service System website may also be accessed from the INS website at uscis.gov . After registration, men should receive a Selective Service registration card in the mail.
Men may obtain status information letters by calling the Selective Service System at 847/688-6888 or 847/688-2576, and requesting a questionnaire. Status information letters inform men whether, based on their age and immigration status in the United States, they had a Selective Service registration requirement with which they failed to comply.
INS officers may confirm a naturalization applicant's registration status by calling the Selective Service System at 847/688-6888 or 847/688-2576. Officers will need to enter the applicant's Social Security Number and date of birth to obtain status information.
Evidence of Registration
Naturalization applicants may present Selective Service registration acknowledgment cards or status information letters as proof of registration. INS officers may also accept other persuasive evidence presented by an applicant as proof of registration.
Evidence Relating to Failure to Register
INS officers must request that naturalization applicants submit status information letters before concluding that men failed to register with Selective Service when required. Status information letters do not forgive men for failing to register, nor do they provide them with an exemption from the requirement. The letters merely inform men if they had a registration requirement with which they failed to comply. Once it is established by a status information letter that a naturalization applicant failed to register when required, the INS officer must determine, based on other evidence, whether or not an applicant's failure to register was knowing and willful. INS officers must consider all persuasive evidence presented by an applicant relating to his failure to register. At a minimum, the INS officers must take a statement under oath from an applicant in order to determine whether or not failure to register was knowing and willful.
Evidence that Registration Was Not Required
Naturalization applicants need only demonstrate that they were 26 years of age or older when they first entered the United States as immigrants to prove that they were not required to register with Selective Service. Proof of an applicant's age and immigration status should be contained in the applicant's file. This evidence is all that is necessary to prove that the applicant was not required to register.
Further Information
Further questions regarding the effect of failure to register for Selective Service on eligibility for naturalization may be directed to Cheryl Becker, Adjudications Officer, Office of Field Operations, Immigration Services Division, at 202/514-2982.
Attachments
Footnote:
[1] The 26 to 31 age range used in this memorandum must be adjusted for applicants filing under sections of the INA requiring different periods of good moral character. For example, the age range for an applicant filing under section 319(a) of the INA is between 26 to 29 years of age.
ATTACHMENTS
April 27, 1998
Memorandum For Jack Penca
Eastern Regional Counsel
From: Paul W. Virtue
General Counsel
Subject: Your February 13, 1998, Request for Legal Opinion: Failure to register for Selective Service as a bar to naturalization
I. QUESTION
In the subject memorandum, you request a legal opinion addressing the following question:
Is failure to register for Selective Service a bar to naturalization?
II. SUMMARY CONCLUSION
Failure to register for Selective Service bars naturalization only if the applicant knowingly and willfully failed to register during the period for which the applicant must establish good moral character. If the applicant knowingly and willfully failed to register, but this failure to register occurred outside the good moral character period, the failure to register is not an absolute bar to naturalization. The Service may, however, consider the failure to register in determining the applicant's naturalization eligibility.
III. ANALYSIS
An applicant for naturalization must be "a person of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States." INA § 316(a)(3), 8 U. S.C. § 1427(a)(3). The period during which the applicant must meet this requirement begins five years before the applicant files the naturalization application, and continues through the date that the applicant is admitted to citizenship. Id (The applicant must show that the applicant "has been and still is" of good moral character). Moreover, an applicant must be willing "to bear arms on behalf of the United States when required by the law." Id § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A).
Except aliens maintaining lawful nonimmigrant status, any many born after 1959 and living in the United States must register for Selective Service when he attains his eighteenth birthday. 50 U.S.C. App. § 453(a); Proc. No. 4771 of July 2, 1980, § 1-101, 94 Stat. 3775, 3775 (1980). This obligation continues until the man's twenty-sixth birthday. Id. The INA does not make compliance with this requirement a condition for naturalization. The Service would be fully justified, nevertheless, in finding that a man who refuses to comply with this requirement is not willing to bear arms when the law requires. INA § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A). This finding would support the further inference that the applicant is not disposed to the good order and happiness of the United States. Id.
§ 316(a)(3), 8 U.S.C. § 1427(a)(3). Any naturalization application should be denied on this basis, if the applicant is a man who has not yet turned twenty-six, and who refuses to register for Selective Service.
The posture of the case changes once the applicant has turned twenty-six. In that case, there was, but no longer is, a duty to register. 50 U.S.C. § App. 453(a). The Service can still find that the applicant is ineligible to naturalization, based on the failure to have registered, unless the applicant establishes that his failure to file was not knowing and willful. 50 U.S.C. App. § 462(g). Note that this statute clearly places the burden of proof on the applicant. Id. Therefore, the Service may presume the failure to register to have been knowing and willful, unless the applicant proves the contrary "by a preponderance of the evidence." Id.
The posture of the case changes, again, the day after the applicant's thirty-first birthday. If the applicant files on that date, or later, then more than five years will have elapsed since the failure to register. That is, the event that reflects adversely on the applicant's eligibility will have occurred outside the period during which the applicant must show that he is of good moral character and disposed to the good order and happiness of the United States. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service should first consider whether the failure to register was knowing and willful. 50 U.S.C. § 462(g). If not then the Service should find the applicant to have satisfied § 316(a)(3), unless other adverse factors are present. Even if the applicant did knowingly and willfully fail to register, that fact would not be an absolute bar to eligibility. INA § 316(a)(3), 8 U.S.C. § 1427(a)(3). The Service could grant naturalization, so long as the Service were satisfied that the applicant satisfies § 316(a)(3) now, even if he may not have been able to do so in the past.
But the Service need not automatically disregard the failure to register, once the applicant is at least thirty-one years old. The Service is entitled to consider improper conduct that occurred outside the statutory period, in determining whether the applicant can satisfy § 316(a)(3). Id. §§ 101 (f) (last sentence) and 316(e), 8 U.S.C. §§ 1101(f) and 1427(e); 8 C.F.R. § 316.10(a)(2). For this reason, the Service could properly consider a willful failure to register for Selective Service, together with other evidence concerning the applicant s compliance with § 316(a)(3), even if the willful failure to register is outside the good moral character period. For the sake of further review, it would be necessary for the Service to explain in its decision why an event outside the statutory period is taken to prove the applicant to be ineligible under § 316(a)(3). It would not be correct simply to say that a knowing and willful failure to register is a permanent bar to naturalization. There is also an important factor to keep in mind, when the failure to register is outside the good moral character period. An applicant may seek judicial review of a final decision denying naturalization. Id. § 310(c), 8 U.S.C. § 1421(c). In reviewing the case, the district court would have legal authority to decide the issue de novo, making its own judgment on the effect of the failure to register on the applicant's eligibility. Id.
We are aware of the argument that, drawing an analogy from INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426, an alien who knowingly and willfully fails to register should be permanently barred from naturalization. Letter from Russell A. Ezolt to Toni B. Florence (December 16, 1997). We agree with Mr. Ezolt that this analogy cannot be sustained. Congress has specifically enacted that convicted deserters, those convicted of departing to avoid the draft, and those who obtain an alienage exemption from induction or further service, are permanently barred from naturalization. INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426. But Congress has not enacted a similar provision for those who fail to register for the draft. We do not consider it proper to extend these bars to naturalization to persons Congress did no, chose to include within the scope of the bars. It is only under § 316(a)(3), if at all, that failure to register for Selective Service can warrant denial of naturalization in any given case.
Tuesday, June 23, 2009
USCIS Issues Guidance Memorandum on EB-5 Immigrant Investor Program
USCIS Issues Guidance Memorandum on EB-5 Immigrant Investor Program
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today issued a guidance memorandum that provides USCIS adjudication officers with instructions related to the timing of job creation and the meaning of “full-time” positions in the EB-5 Immigrant Investor Program.
The guidance memorandum update to the Adjudicator’s Field Manual (AFM), clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and the job creation requirements, USCIS will consider the two-year period to begin six months after the adjudication of the Form I-526.
USCIS officers will ensure that the business plan filed with the Form I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.
USCIS also has concluded that certain direct and indirect jobs that would have previously been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for Form I-526 and the Petition by Entrepreneur to Remove Conditions (Form I-829) purposes if the positions can be expected to last at least 2 years.
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today issued a guidance memorandum that provides USCIS adjudication officers with instructions related to the timing of job creation and the meaning of “full-time” positions in the EB-5 Immigrant Investor Program.
The guidance memorandum update to the Adjudicator’s Field Manual (AFM), clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and the job creation requirements, USCIS will consider the two-year period to begin six months after the adjudication of the Form I-526.
USCIS officers will ensure that the business plan filed with the Form I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.
USCIS also has concluded that certain direct and indirect jobs that would have previously been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for Form I-526 and the Petition by Entrepreneur to Remove Conditions (Form I-829) purposes if the positions can be expected to last at least 2 years.
Thursday, June 18, 2009
DV-2010 Update - Green Card Lottery - Diversity Lottery
The online entry registration period for DV-2010 is now over and all submission processing has stopped. Therefore, Form DS-5501 Electronic Diversity Visa (e-DV) Application for online Diversity Visa Lottery entry, is not available now. This official form is available only on the Department State, Diversity Visa online entry website at http://www.dvlottery.state.gov/ during the online entry registration period, which ended December 1, 2008. There have been instances of fraudulent websites posing as official U.S. Government sites.
DV Lottery 2010 Status Check – Is not available at this time. Starting July 1, 2009 until June 30, 2010, entrants (who previously completed online DV entry through the official website at http://www.dvlottery.state.gov) will be able to check the status of their entry through the e-DV website at http://www.dvlottery.state.gov. Entrants will need to use their own confirmation page information from the time of their entry (October 2, 2008, to December 1, 2008), to check the status to find out if their Diversity Visa Lottery entry was or was not selected.
DV Lottery 2010 Status Check – Is not available at this time. Starting July 1, 2009 until June 30, 2010, entrants (who previously completed online DV entry through the official website at http://www.dvlottery.state.gov) will be able to check the status of their entry through the e-DV website at http://www.dvlottery.state.gov. Entrants will need to use their own confirmation page information from the time of their entry (October 2, 2008, to December 1, 2008), to check the status to find out if their Diversity Visa Lottery entry was or was not selected.
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