AILA Comments on LIFE Legalization Regulations

July 31, 2001

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
Immigration and Naturalization Service
425 Eye St. NW, Room 4034
Washington, DC 20536

Re: Adjustment of Status under Legal Immigration Family Equity (LIFE) Act Legalization Provisions and LIFE Act Amendments Family Unity Provisions, 66 Federal Register 29661 (6/1/01); (Reference: INS No. 2115-01)

Dear Mr. Sloan:

The following are the comments of the American Immigration Lawyers Association (AILA) to the interim regulations regarding the LIFE legalization and family unity programs. AILA is a voluntary bar association of more than 7,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA members represent persons, entities and businesses across the immigration spectrum, as well as teach and advocate on all fronts involving immigration issues. 

As you know, the origins of the LIFE legalization provisions are rooted in the legalization program of the late 1980s. Inappropriate regulatory provisions under that program gave rise to a series of lawsuits that have continued until today. Ultimately, Congress in the LIFE legislation stepped in to direct the Immigration and Naturalization Service to adjust the status of the eligible class members from three of the major lawsuits that have been extant for more than a decade. 

In these interim regulations, INS takes several laudable approaches, but also repeats many of the erroneous provisions that gave rise to this lengthy litigation. We therefore urge the INS to learn from the past and abandon these provisions, as detailed below.

I. INS is to be congratulated for its use of the postmark rule in this context and for the introduction of new innovations in this program (section 245a.12(a) and p. 29664).

We are pleased to see INS make increasing use of the postmark rule to determine when a filing was made for deadline purposes, particularly in contexts such as LIFE legalization where applicants are more likely to be pro se. Given the public's lack of control over 

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
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either the Postal Service or the intake at the Service Center, basing an application filing date on the postmark rather than the date the Service Center receives the filing is a fair method that should be applied in even more contexts.

INS is also to be applauded for using a "specialized Service Center" approach. We have seen too many problems in recent years with adjudicators-even veteran adjudicators-sending needless RFEs and making adjudications errors because they are unfamiliar with the subject area. Concentrating specific types of filings in specific Service Centers will, it is hoped, help to build up a cadre of adjudicators with expertise in those filings. This kind of professionalization of INS' decision-makers should benefit all involved.

Experimentation with the lock-box for receipt and fee processing also is a laudable development. We congratulate INS for using a specialized and limited program like this to test this new system. If it works well, we would welcome its use in other contexts as well. We would ask, however, that a street address alternative could be offered for submissions, so that filers could have the benefit of using a courier service that provides package tracking services if they so choose.

II. INS concurrence should not be required to administratively close proceedings (section 245a.12(b)(1) and pp. 29663-4).

Section 245a.12(b)(1) improperly limits the authority of the Immigration Court and the Board of Immigration Appeals to administratively close proceedings by requiring "the concurrence of Service counsel." The EOIR is as capable of deciding whether a prima facie case for adjustment of status under these provisions has been made as it is of deciding an adjustment of status application in other contexts. There is no legal or practical reason to give INS counsel an effective veto over a matter that should be left to the decision of the EOIR. Indeed, that kind of power should never be given to one side in an adversarial proceeding. This provision oversteps INS' authority and should be deleted.

III. The "clearly and beyond doubt" standard for establishing eligibility for readmission is excessive (section 245a.13(e)(3)).

In this interim regulation, INS introduces in section 245a.13(e)(3) a new and startlingly onerous burden of proof, "clearly and beyond doubt," for an applicant returning without advance parole. Indeed, since "beyond doubt" is not even moderated by the word "reasonable," INS is establishing a standard more difficult than that applied to accused murderers. Contrast this to the lighter "preponderance of the evidence" standard the INS applies to itself in section 245a.13(e)(2) for inadmissibility when an alien returns using an 

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
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advance parole. There is not any reason to invent a new standard for the returning applicant: the same standards should be used in both contexts.

IV. The INS is correct in concluding that section 212(a)(9)(B) does not apply to LIFE legalization applicants.

The very nature of the LIFE legalization program is built around the notion that its applicants will have been unlawfully present in the U.S. for a significant length of time. At the same time, the legislation anticipates travel out of and into the U.S. by those same applicants. Thus, it is consistent with the letter and spirit of the legislation to conclude, as INS has, that 212(a)(9)(B) has no application here.

V. The regulation's preamble errs in its characterization of the burden of production for demonstrating that a claim has been filed under one of the three lawsuits (p. 29663).

We would like to point out an error in the preamble, which indicates that the "alien must prove" that he or she filed a claim under one of the three noted suits before October 1, 2000. The statute does not require that the alien prove this point. It only states that the alien is eligible for this program if he or she filed such a claim. Congress assumed that such a filing would be in INS' records, and thus would not be a subject of proof. Unfortunately, those who have dealt with these filings are all too well aware that the Service's records are highly incomplete in this regard. For that reason, it is understandable that INS is asking for evidence of filing as part of these regulations. But that evidence is only to make up for the Service's records system. It is not an evidentiary requirement whose burden falls on the alien. 

VI. The regulation's definition of "known to the government" is highly flawed (section 245a.15(d)(2) and p. 29666).

We strongly object to the summary conclusion that an absence of mandatory registration reports does not warrant a finding that the alien's status was in an unlawful status known to the government. The court in IAP, C88-379R (W.D.Wash.) held just the opposite. See 709 F.Supp. 998 and 717 F.Supp. 1444 (W.D.Wash. 1989). In March 1999 the district court reaffirmed these orders and ordered INS to process applications in accordance with the procedures adopted in these rulings. Even Matter of H-, cited in the preamble to the regulations, recognized that the failure to submit these mandatory registration reports puts one in an unlawful status, and that if this fact was known to INS then the applicant's violation of status would be "known to the government". If the INS files reflects an absence of such a report, then at a minimum there should be a rebuttable 

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
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presumption that the person had violated his or her status, and that this status was known to the government.

Also, the "known to the government" standard for F-1 students needs clarification. Although the regulation addresses those whose period to depart expired before January 1, 1982, it omits mention of students who failed to maintain a full course load, transferred without authorization or otherwise violated the terms of their admission. The regulation should make clear that these failures to maintain status also are included.

VII. Clarification is needed regarding the evidence required to establish continuous physical presence.

Thirteen to fifteen years after the fact, it will be very difficult to prove continuous physical presence for the period between November 6, 1986 and May 4, 1988. Few people will have documents "issued by any governmental or nongovernmental authority." Thus, INS needs to be reasonable in its documentation demands for this criterion. Congress, in enacting LIFE, had a model for documentation of earlier periods of stay in the regulations developed in the original legalization program. In requiring proof of presence from 13 to 15 years ago, it undoubtedly intended that INS would again accept those forms of documentation. Thus, just as INS has indicated in these regulations that it will accept the forms of documentation enumerated in 8 C.F.R. section 245a.2(d)(3), the Service should accept similar documentation for the physical presence requirement. Obviously, that documentation would not need to reflect presence every day or even every week or month. Instead, it should simply establish a pattern of presence in the U.S. during the relevant time frame.

VIII. The regulation's approach to brief, casual and innocent departures during the period required for physical presence period is inconsistent with case law and the statute (section 245a.16(b) and p. 29666).

The regulation attempts to impose, through back-door means, an advance parole requirement and a severe limitation on the length of absence that constitutes a brief and casual departure. By limiting absences to 30 days (or 90 days in the aggregate) unless emergent circumstances can be shown or unless advance parole was obtained, INS is in essence limiting absences to a short, strict, timetable that is beyond the scope of this detailed statute, or requiring an advance parole for those trips in direct contravention of the statute. 

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
Reference No. 2115-01
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This was a major issue underlying the Catholic Social Services v. Meese lawsuit that is one of the touchstones of the current program, yet the INS persists in attempting to re-establish the rule discredited in that litigation. Indeed, the statute is clear: "an alien shall not be considered to have failed to maintain continuous physical presence…by virtue of brief, casual and innocent absences from the United States." (LIFE Act section 1104(c)(2)(C)(I).) No limitation is placed on the time for the absence; Congress only designated that the absence be brief, casual and innocent. Inclusion of this phrase was no accident. There is a long history of case law establishing and defining the concept of "brief, casual and innocent," and Congress clearly meant to refer to that history in this legislation. (see, e.g., Git Foo Wong v. INS, 358 F.2d 151 (9th Cir. 1966); Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979); Gutierrez v. Ilchert, 682 F.Supp. 467 (N.D.Cal. 1988).

It is therefore strongly urged that INS adopt a case-by-case approach to determining whether continuous physical presence was interrupted, and abandon this misguided attempt to impose a bright-line rule.

Further, the LIFE legislation clearly indicates that no advance parole requirement can be imposed: "brief, casual and innocent absences from the United States shall not be limited to absences without parole." (LIFE Act section 1104(c)(2)(C)(II). Note that during the pendency of the application, the statute requires INS to admit an applicant to return to the United States (1) "after such brief and casual trips abroad as reflect an intention" to adjust to permanent residence and (2) "after brief temporary trips abroad occasioned by a family obligation ..." Congress clearly did not intend that these departures must be sanctioned by an advance parole document. If anything, the standard for a returning applicant who has a pending application should be more lenient than the standard for an applicant who departed during the required physical presence period. In the latter case, the applicant must show that the departure is "brief, casual and innocent". See section 1104(c)(2)(C)(i). If the applicant departs from the United States while his or her application for legalization is pending, then s/he has to show only that the trip was "brief and casual". In any event, INS's requirement of advance parole is inconsistent with the statute. 

IX. The confidentiality provisions of the interim regulation contain an inherent violation of the confidentiality protections of the statute (section 245a.16).

We were shocked to find in these regulations an authorization for INS to violate the confidentiality provisions of the statute, which originally limited the use of information from applications to the decision on the legalization application, investigations of 

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
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allegations of false statements, and criminal investigations. The LIFE legislation expanded this authority to use such information to include rescission proceedings. This evinces a clear intent by both the Congress that enacted the original legalization provisions and the Congress that enacted these LIFE legalization provisions to limit use of information from the application to investigations of the application itself. Nevertheless, the interim regulation indicates that INS might use information from an application to make decisions on an immigrant petition or naturalization application. Use of such information violates the statute's criminal provisions. These regulatory provisions must be deleted.

X. INS should allow itself discretion to waive interviews (section 245a.19 and pp. 29666-7).

Because the regulation provides a means for documenting satisfaction of the citizenship and language skills requirements without an examination, interviews may not be necessary for persons who can provide such documentation. In the interests of efficiency for an already overburdened agency and of decreasing the expense for the applicant, INS should consider giving itself the flexibility to waive interviews in appropriate cases. It does not necessarily have to exercise this discretion, but the regulation should not foreclose its use.

XI. Children who have reached age 21 after applying for family unity benefits should nevertheless continue to be part of the program.

Much of the impetus behind the LIFE legalization legislation was to finally resolve the three lawsuits, and put beneficiaries into a position as close as possible to the one they would have been in had their applications been approved during the original legalization program. Had they received temporary residence at that time, and then the permanent residence that followed, they would have been able to petition for their minor children once they obtained permanent residence, and their children would have been in a legal status by the time they turned 21. Section 1504 of the LIFE legislation refers to "an alien who is the spouse or unmarried child" of a LIFE legalization applicant (emphasis added). Written in the present tense, the statute seems to anticipate the situation as it exists at the time of filing, and nothing in this legislation compels an "aging out" as time goes on. Thus, in the interests of family unity, INS should consider allowing children to continue in the program after reaching age 21.

Mr. Richard A. Sloan
Director, Policy Initiatives and Instructions Branch
Reference No. 2115-01
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XII. Provision should be made for a hearing or appeal when family unity benefits are terminated (section 245a.37 and p. 29670).

The interim regulation provides for termination of family unity benefits, but provides no procedural safeguards to ensure that the decision is fairly rendered. It is urged that provision be made for administrative appeal of such an important decision.




Cite as AILA Doc. No. 01081733.