The American Immigration Lawyers Association (AILA) submits the following comments on proposed regulations published in the Federal Register on July 9, 2002, that would provide for the adjustment to permanent resident status for certain aliens from Vietnam, Cambodia and Laos, and would amend the standards for waivers of the criminal grounds of inadmissibility under INA § 212(h).

AILA is a voluntary bar association of more than 7,800 attorneys and law professors practicing and teaching in the field of immigration and nationality law.   AILA takes a very broad view on immigration matters because our member attorneys represent hundreds of thousands of families, businesses, educational institutions, students, workers and visitors, in navigating the complex minefield that comprises today’s immigration rules.

Congress promulgated the legislation that the proposed rule would implement in response to a gap in existing law regarding the treatment of Indochinese parolees. We believe that the historical background to this legislation, including its legislative history, is critical to its proper implementation. The intent of Congress was to address that gap in as fair and thorough a manner as possible.

The purpose of section 586 of Pub. L. No. 106–429 was to address this anomaly that required that parolees first be denied refugee status in order to be eligible to adjust to permanent resident status.  The conference report provides useful background for understanding Congress’s intent in passing this legislation:

Since these individuals were paroled into the United States as part of U.S. government programs at a time when their eligibility for refugee status was never considered, the managers believe that this provision is both necessary and appropriate….The managers note that the potential beneficiaries of this provision are a fixed number of individuals who were lawfully admitted into the United States.  While the conference agreement includes a ceiling on the number of aliens who may benefit from this provision, the managers recognize that it is difficult to determine precisely the number of potential beneficiaries and that such number may need to be revised in the future to ensure that no eligible alien is arbitrarily denied adjustment of status. H.R. Rep. No. 106–997 at 106.  (emphasis added).

Our comments are informed by this legislative history, in particular, the mandate that no eligible alien be arbitrarily denied adjustment of status under this provision.

The Processing Hierarchy Proposed in the New Regulation Runs Contrary to the Congressional Intent Behind the Legislation

The regulation proposes a processing hierarchy that would assign a number chronologically to applicants according to the filing date, with the exception of those seeking waivers of inadmissibility under INA § 212(a)(2), (a)(6)(B), (a)(6)(F), (a)(8)(A), or (a)(10)(D).  The proposed rule provides that the Service may exercise its discretion to assign a number to applications requiring a waiver based on the date of the approval of the necessary waiver, rather than the filing date.  Such a policy clearly penalizes those applicants seeking waivers, and is in no way supported by the statute or the legislative history.

While there is a cap on the number of adjustments that can be granted under the current legislation, there is no evidence that Congress intended there to be a “rationing scheme” for granting adjustments under this provision, with those not requiring waivers being given preference over those applicants who do require waivers.  We fear that the proposed processing hierarchy will prevent those applicants who require waivers from being able to adjust under this regulation if the 5,000 cap is reached before any applications for waivers have been adjudicated.

While the Service may be motivated by a desire to provide adjustment to “more deserving” applicants before, or instead of, others, we believe this policy is misguided.  Congress clearly intended for the legislation to cover qualified persons able to obtain the required waivers of inadmissibility.  The proposed processing hierarchy may have the affect of limiting eligibility to those who do not require waivers.  Persons needing waivers should not be penalized.  They should be assigned a number based on their filing date, as are all other applicants.

While we recognize that more than 5,000 persons will meet the eligibility criteria of this provision, we believe that Congress has been clear about how that issue should be addressed.  It needs to be handled legislatively, through an upward revision of the cap, thus accomplishing the goal of ensuring that no eligible individual is denied adjustment of status under this provision.

Other provisions that we fear may interfere with the ability of eligible persons to adjust are the provisions governing the treatment of eligible persons already in immigration proceedings and the provision regarding stays of removal, deportation or exclusion for individuals with final orders.

The proposed regulation bars immigration judges (IJs) and the Board of Immigration Appeals (BIA or Board) from adjudicating applications for adjustment of status under this section.  It requires an individual in pending immigration proceedings who is eligible to adjust under this provision to apply directly to the Service, then request Service consent to the filing of a joint motion for administrative closure of the pending immigration hearing.  The proposed regulation provides that if the Service does not consent to the motion, “the immigration judge or the Board may not defer or dismiss the proceeding in connection with section 586 of Public Law 106–429.”

The rationale for this procedure is explained in the supplementary information as follows:

In order to maintain control of the adjudication of applicants under the 5,000 limit, this rule provides that the Service will adjudicate all of these cases, not the immigration judges, or the Board of Immigration Appeals. (67 Fed. Reg. 45405)

There is no reason that an IJ or the Board should not be able to adjudicate an adjustment case under a provision with a cap.  IJs and the Board adjudicate other forms of relief, such as suspension of deportation and cancellation of removal, that have caps on the number of beneficiaries.  Furthermore, as noted previously, Congress has clearly indicated its intent that no eligible alien be denied adjustment under this provision and its recognition that the cap may need to be revised in order to accomplish that.

If the Service wishes to maintain complete control of the adjustment process under this provision, it should do so in a way that is not as burdensome and risky for eligible individuals as the procedure proposed.  Under the proposed procedure, the Service must affirmatively join a motion to administratively close proceedings in order for the proceedings to be closed.  If the Service does not consent, neither the IJ nor the Board has authority (under the proposed regulation) to defer or dismiss the proceedings pursuant to this provision, thus leaving the respondent in the position of continued immigration proceedings without eligibility to apply for the relief Congress intended to be available.

A preferable approach would be to allow persons in proceedings to submit a motion for administrative closure which does not require the Service to join, but that would allow the Service to oppose for good cause.  Such a procedure would protect against worthy cases going unheard because the Service does not respond to a request to join, for example.

The Proposed Guidelines for Demonstrating Eligibility are Problematic

The supplemental information to the proposed regulation provides guidelines for demonstrating eligibility for this relief.  Under the heading “How Do Applicants Demonstrate That They Were Paroled Under the Auspices of the ODP?,” potential beneficiaries are advised that they “may locate their tracking number, the IV file number, in several places.”  In fact, the IV number will not appear in the places mentioned.  What will appear instead is a V number.  The IV number was used to record the date the file was opened.  The V number is the date the individual departed and it is what will appear on the parole authorization document and other records. 

Some persons who will be eligible to adjust under this legislation will not have the documentation discussed in the proposed regulation because they were not public interest parolees, but were granted humanitarian parole.  The individuals will have an alien registration number on their humanitarian parole letters that can be used as a tracking number.

We urge the Service to be conscious of the fact that some persons paroled in under the affected programs left the country temporarily pursuant to a grant of advance parole and returned.  These individuals will have I-94s that reflect the date of their return to the U.S., not the date they were paroled in.  For such individuals, the I-94 should not be the controlling document for determining the date of arrival in the United States.  Rather the relevant databases should be searched to determine the date the individual arrived in the United States.  If that date is not available, then the date the person departed Southeast Asia should be the controlling date.

The Proposed Changes Affecting Adjudication of Waivers Pursuant to INA § 212(h) are Ultra Vires

One of our greatest concerns regarding the proposed regulation is the agency’s attempt to rewrite, via regulation, the current law regarding waivers pursuant to INA § 212(h).  We strongly object to the use of the rule-making process to create new law generally.  In this specific case, we also object to the inclusion of a rule change with such broad impact within a proposed rule that implements a law affecting only a narrow segment of the population that would ultimately be affected by any change in the required criteria for § 212(h) waivers.  Rules affecting § 212(h) waivers or other forms of relief that are available in a variety of contexts should not be published as part of rule which affects only a small fraction of those who would ultimately be affected by the changes made.

The proposed regulation would amend the Code of Federal Regulations to replace the statute’s requirement of a showing of “extreme hardship” for a § 212(h) waiver, with a requirement of a showing of “extraordinary circumstances” or “exceptional and extremely unusual hardship” in certain cases. 

The proposed regulation creates the new test for § 212(h) waivers by amending 8 CFR § 212.7 with an additional subsection (d), which provides that:

[t]he Service, in general, will exercise discretion not to grant waivers of the criminal grounds of inadmissibility involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship.  Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient.

These new requirements are clearly contrary to the statute’s requirement of a showing of “extreme hardship” and, thus, outside the authority of the INS to promulgate.  Although agency interpretations are afforded great deference when a statute is ambiguous, when the law is clear—as it is in this case—an agency does not have the authority to promulgate a contrary regulation. [1]  When “Congress has directly spoken to the precise question at issue,” then the agency “must give effect to the unambiguously expressed intent of Congress.”[2]  In this case, Congress has unambiguously expressed its intent that one of the criteria for a § 212(h) waiver should be a showing of “extreme hardship,” not the higher standard of “extraordinary circumstances” or “exceptional and extremely unusual hardship.”

In the supplementary information of the proposed regulation, the INS argues that its amendment to 8 CFR § 212.7 merely codifies the decision of the Attorney General (AG) in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  In fact, it goes far beyond that, applying by analogy the AG’s decision in Jean regarding § 209(c) waivers to an entirely different waiver with entirely different criteria.  Section 209(c) of the INA provides for a broad discretionary waiver of certain criminal grounds of inadmissibility “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest” for refugees seeking to adjust status.  The 212(h) waiver, on the other hand, is much more narrowly drawn and applies to immigrants, not refugees.

In Jean the AG denied the respondent a § 209(c) waiver, finding that because of the gravity of the respondent’s underlying offense, she did not merit the grant of the waiver.  The AG stated that when evaluating requests for waivers under § 209(c), the adjudicator must balance the hardship to be suffered against the “nature of the criminal offense that rendered an alien inadmissible in the first place.”  The AG explained that:

It would not be a prudent exercise of the discretion afforded to me by this provision to grant favorable adjustments of status to violent or dangerous individuals except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship.  Jean, 23 I&N Dec. at 383.  (emphasis added.)

In Jean, the AG was limited to a consideration of § 209(c) waivers.  Nevertheless, based on the language in Jean, the INS has now inferred a new test for § 212(h) criminal waivers that is directly contradictory to the statute as passed by Congress and signed into law by the President.  The INS has no authority to rewrite statutory law administratively in an effort to change laws it finds disagreeable.  Only Congress can change the statute, and this must be done according to the law.  It is quite clear from the legislative history that Congress did not intend for § 212(h) waivers to require a showing of “extraordinary circumstances.”

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Pub. L. No. 104–208) which made vast changes to the INA including requiring higher standards of hardship showings for some types of relief.  For example, Congress amended the INA by creating cancellation of removal for certain nonpermanent residents, a new form of relief that replaced its predecessor form of relief, suspension of deportation.  In order to qualify for cancellation of removal, an otherwise qualified alien must show that:

removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.  INA § 240A(b)(1)(D).

Prior to the 1996 creation of cancellation of removal, qualified nonpermanent residents could apply for the relief of suspension of deportation, which required a showing that:

deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.  INA § 244(a)(1) (1995).

When Congress eliminated the relief of suspension of deportation and replaced it with cancellation of removal for nonpermanent residents, it made the standards of eligibility for relief from deportation for nonpermanent residents more difficult to meet.  Among other things, Congress changed the requirement of a showing of “extreme hardship” with that of “exceptional and extremely unusual hardship.”  In so doing, Congress demonstrated that it understood there to be a difference between the two standards and wished to create a higher standard in the suspension/cancellation context. 

Had Congress wished to make the same change in the context of § 212(h) waivers, it could have done so.  Clearly, Congress did not wish to make such a change and, therefore, left the “extreme hardship” standard unchanged in the context of § 212(h) waivers.  Congress’s intent has been clearly expressed that, in the context of § 212(h) waivers the hardship standard that must be met is that of “extreme hardship,” not that of “exceptional and extremely unusual hardship” or of “extraordinary circumstances.”  The INS should not attempt to revise the law by regulation.

The Regulations Should Clarify the Standards for the Granting of Advance Parole

We are concerned that this proposed regulation fails to provide reasonable criteria for the granting of advance parole so that applicants for adjustment may travel for any bona fide business or personal reason.  Currently, the District Offices of the INS apply inconsistent requirements in the adjudication of advance parole requests by public interest parolees, with some offices requiring a showing of “emergent” reasons.  In such districts, many of these parolees have not been able to travel for the decade or so that they have been in the U.S.

The regulations should adopt the policy, set forth in memoranda from INS Headquarters dated April 20, 1995, from James A. Puleo as Executive Associate Commissioner (HQ 212.28-P), and dated August 15, 1997, from Paul W. Virtue as Acting Executive Associate Commissioner (HQ 120/17.2).  That policy (limited therein, however, to applications under INA § 245), states that field offices shall approve advance paroles for any alien who has properly filed an application for adjustment of status and who is seeking to depart for any legitimate business or personal reason. Once eligibility to file is established, no further inquiry is to be made into the reasons for travel except as might relate to possible illegality.  We believe this same standard should be applied in the adjudication of advance parole requests by the Indochinese parolee population.

In conclusion, we urge the Department of Justice to revisit the proposed rule in light of these comments.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

[1] Chevron, U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837 at 842, 843 (1984).
[2] Id.