Copland and Brenner

Table of Contents

1. A Final Rule: Little Things Mean A Lot
2. Diversity Visa Lottery 2004: Applicants Selected
3. Bia Says Vacated Conviction Stands

1. A Final Rule: Little Things Mean A Lot

   On June 13, 2003, the Department of Homeland Security (“DHS”) published a final rule in the Federal Register regarding the “powers and authority of officers and employees.” The rule is intended to implement provisions of the Homeland Security Act of November 25, 2002, which created the DHS, and conform the text of immigration regulations found at Title 8 of the Code of Federal Regulations (“CFR”). Since the final rule ostensibly involves mere agency organization, management and personnel matters, it is deemed not to be a regulation or rule which requires notice of proposed rulemaking, a delayed effective date or regulatory impact analysis.

   A closer look, however, tells a different story. Certain provisions of the new rule clearly expand rather than simply reorganizing existing authority. Among them are those discussed below.

   Authority to Issue Notices to Appear
   

   A notice to appear (“NTA”) is issued to an alien when he or she is placed in removal proceedings for a violation under the Immigration and Nationality Act (“INA”). The new rule increases from 25 to 37 the list of officers specifically designated to issue NTA’s, with two additional catch-all provisions.

   Among those specifically designated are all Bureau of Customs and Border Protection (“BCBP”) officers conducting inspections at ports of entry and certain officers in the Bureau of Immigration and Customs Enforcement (“BICE”). Certain “benefits” officers within the Bureau of Citizenship and Immigration Services – including District Directors, Service Center Directors, Supervisory District Adjudications Officers, Supervisory Asylum Officers, and Officers in Charge – are also included in the 37 specific job titles listed.

   However, the new rule also grants NTA issuing authority to unspecified “[o]ther officers [or] employees of the Department or of the United States who are delegated the authority…to issue” NTA’s. More importantly, though, the rule authorizes any officer “acting in the capacity” of one of the listed officers to issue an NTA. This is significant because of the controversy surrounding efforts to expand immigration enforcement powers and authority to state and/or local law enforcement agencies.

   According to an American Immigration Lawyers Association (“AILA”) posting on March 17, 2003, the Department of Justice last year issued “a legal opinion that states and localities, as sovereign entities,” have the ‘inherent authority’ to enforce federal immigration laws, including civil violations of immigration law.” AILA states that “the DOJ has not formally issued the opinion and has refused to provide a copy of it,” but that “the DOJ acknowledges that the opinion exists and that it accurately reflects the Administration’s position.” AILA objected to the “reversal of the well-established view that civil violations of Federal immigration law are outside the jurisdiction of local law enforcement.” In addition, AILA reports that the American Civil Liberties Union filed a lawsuit on April 14, 2003 seeking to compel the DOJ to make public the revised policy. (AILA Document ID 03031750).

   That lawsuit against the DOJ, however, may be off the mark for at least two reasons. First, readers may recall that, in April 2002 and November 1996, we reported on provisions of the Immigration Reform and Immigrant Responsibility Act of 1996 authorizing the federal government to enter into written agreements with the states, or any political subdivision within the states, for a “qualified [person] to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” The law is found at Section 287(g) of the Immigration and Nationality Act (“INA”). However, the “written agreement” permitted by the law is not a requirement. The law is diluted by a subsection which states: “[n]othing in this subsection shall be construed to require an agreement under this subsection in order for any [state or local] officer or employee…to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States…or to cooperate with the Attorney General in the identification, apprehension, detention or removal of aliens not lawfully present in the United States.” INA Section 287(g)(10). (emphasis added)

   Generally speaking, an alien who has violated any of the provisions of the INA is likely to be a civil, rather than a criminal, immigration law violator. In turn, many civil immigration law violators are likely to be status violators. Common examples are nonimmigrants who have overstayed an authorized period of stay, or worked without permission. In any event, Section 287(g) of the INA makes no distinction between criminal and civil immigration law violators in authorizing state or local law enforcement officers to perform the function of an immigration officer.

   In March 2002, the New York Times reported that the Florida state government was in the process of “authorizing 35 state troopers, sheriff’s deputies and police officers to make an arrest solely for overstaying a visa or entering the country illegally.” On April 10, 2003 DHS Undersecretary Asa Hutchinson stated during a hearing before the House Subcommittee on Immigration, Border Security, and Claims that ICE has in place a Law Enforcement Support Center, located in Burlington, Vermont. The Center provides 24-hour support to “help local law enforcement agencies determine if a person they have contact with or have in custody, is in fact an illegal, criminal or fugitive alien. The second reason that an ACLU lawsuit against the DOJ may be off the mark is that, following enactment of the Homeland Security Act, many of the authorities previously held by the Attorney General are now vested in DHS Secretary Tom Ridge. A DHS final rule issued on March 6, 2003 authorizes DHS Secretary Tom Ridge to “administer and enforce the immigration laws,” to “delegate any such authority or function to any official, officer or employee of the [DHS], including delegation through successive redelegation, or to any employee of the United States to the extent authorized by law. Such delegation may be made by regulation, directive, memorandum or other means” and publication in the Federal Register is not required. 8 CFR Section 2.1.

   It seems it will be straightforward enough for Secretary Ridge to enter into the written agreements authorized by INA Section 287(g). Even if there are no such agreements in place, the statute does not require one for state and local law enforcement agencies to communicate and cooperate with the Attorney General (and now, presumably, Secretary Ridge and both their delegates) regarding the identification, apprehension, detention or removal of unlawfully present aliens. In litigating its case, therefore, the ACLU may want to research the doctrine of agency deference, which generally requires that courts uphold agency interpretations of the law unless they are clearly in error or irrational.

   Cancellation of Notices to Appear

   For those not sufficiently concerned as to those authorized to issue NTA’s, there is also bad news as to who is authorized to cancel them. As a preface, we note that the District Counsel (i.e., trial attorneys) of the legacy Immigration and Naturalization Service have been subsumed into the Bureau of Immigration and Customs Enforcement (“ICE”). This move renders the efforts of the trial attorneys more clearly than ever a part of the enforcement, rather than the services, aspect of our immigration laws. And therein lies the problem regarding aliens who were not properly placed in removal proceedings.

   As revised, the June 13 final rule states that “[a]fter commencement of proceedings…ICE counsel, or any officer [authorized to issue an NTA] may move for dismissal” on certain grounds. 8 CFR Section 239.2. With ICE in the business of apprehending, detaining and removing aliens it deems unlawfully present, it is unclear what will transpire when a BCIS officer moving to dismiss an NTA is challenged by an ICE trial attorney whose opinion differs.

   Another significant change is the elimination of 8 CFR Section 239.2(f), which authorized Immigration Judges to terminate removal proceedings “to permit the alien to proceed to a final hearing on a pending application or petition for naturalization” under certain circumstances. With this change, an otherwise eligible alien will lose any opportunity to pursue a pending naturalization application. Affected aliens may reasonably conclude that this change represents far more than a simple organizational, management or personnel matter required by the Homeland Security Act.

2. Diversity Visa Lottery 2004: Applicants Selected

   On June 24, 2003, the Department of State (“DOS”) confirmed that selections have been made for the Diversity Visa Lottery Program for 2004 (“DV-2004”). Approximately 7.3 million applications were submitted (about one million fewer than for DV-2001). Among that 7.3 million, about 2.9 million were disqualified for failure to follow instructions, and approximately 111,000 were chosen in accordance with a random selection process following the one-month mail-in period that ran from October 7 – November 6, 2002.

   
   

   Registrants selected in DV-2004 must be processed for permanent residence during Fiscal Year 2004, which will run from October 1, 2003 through September 30, 2004. From the 111,000 selected, only the first 50,000 eligible applicants to complete their cases during the statutory processing period will actually receive permanent resident status in the DV category. The remaining 61,000 individuals will be unable to derive any benefit from selection in DV-2004.

   Derivative family members, which include a spouse and/or children under 21 years of age, may seek DV-2004 green cards along with the family member whose application was selected. Derivative family members do not count against the 50,000 total of DV-2004 visas, and may only be granted permanent residence if the selected principal applicant’s case is completed. Applications for any derivative family members must also be processed to completion during the one-year period from October 1, 2003 – September 30, 2004 and should be submitted along with that of the principal applicant.

   
   

   In connection with processing of their immigrant visa or adjustment of status cases, any selected applicant must document that he/she is a native of a qualifying country and that he/she holds certain education or training credentials. Nativity is usually determined by place of birth. Nativity may also be established through a parent’s or a spouse’s country of birth using rules of cross-chargeability. As to the education or experience component, applicants must provide proof of at least a high school education (or equivalent) or document two years of work experience within the past five years in an occupation that requires two years of training or experience.

   
   

   The DOS notice indicates that DV-2005 instructions “will be widely publicized during August 2003.”

3. Bia Says Vacated Conviction Stands

   In a precedent case decided June 11, 2003, the Board of Immigration Appeals (“BIA”) struck another blow to aliens with prior criminal convictions. The BIA held that, if a court vacates an alien’s conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes. In re Christopher Pickering (23 I&N Dec. 621, Interim Decision 3493, BIA 2003). On that basis, the alien’s appeal of the denial of his adjustment of status application was dismissed.

   Persons interested in subscribing to the BIA’s new email notification service for precedent decisions may do so at http://www.mailermailer.com/x?oid=05990s