By Scott D. Pollock, AILA Amicus Committee member
Several federal courts have addressed provisions of the INA that raise the issue of when a person is in “status” in the U.S. The resolution of this issue seems to depend largely on the context in which the question is asked, and partially whether the government’s actions are seen as reasonable or fundamentally unfair.
Samirah v. Holder- Return to “status” held upon termination of parole or advance parole
In Samirah v. Holder, 08-1889 (7th Cir. 12/3/2010) the Seventh Circuit Court of Appeals ordered the Attorney General to return an applicant for adjustment of status to the U.S. so that he could pursue his pending application. While Mr. Samirah was temporarily outside the U.S., the government revoked the advance parole document it previously approved (would have allowed for his return to the U.S. It then claimed that its action deprived Mr. Samirah of a right to return to the U.S. and also that its action was unreviewable by any court. The court granted relief under the mandamus statute, which provides authority for a court to compel a government official to perform a non-discretionary legal duty. 28 U.S.C. § 1361. The court found such a legal duty in the USCIS regulations at 8 C.F.R. § 212.5(e)(2)(i), which states that “upon accomplishment of the purpose for which parole was authorized, or when in the opinion of one of [designated] officials… neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be restored to the status that he or she had at the time of parole.” The court decided this regulation required the government to restore Mr. Samirah to the status of an applicant for adjustment of status, which requires him to be physically present in the U.S. The court rejected the government’s argument that an applicant for adjustment of status is not a “status” within the meaning of the regulation.
Bokhari v. Holder- lawful status for adjustment of status eligibility
The 7th Circuit court‘s rejection of the government’s restrictive interpretation of the regulatory term “status” is significant. Earlier this year, the Fifth Circuit Court of Appeals in Bokhari v. Holder, No. 09-60538, 2010 WL 3768016 (5th Cir. 2010), upheld an adjustment of status denial based on a technical reading of what is “lawful immigration status.” Mr. Bokhari had sought to extend his L-1A status, but USCIS denied the extension. He appealed this to the AAO and, while the appeal was pending, filed an I-140 and adjustment of status application. The AAO rejected the L-1A appeal, and later USCIS denied the adjustment application, finding that even though the I-140 petition was approved, he had been in unlawful immigration status for longer than 180 days, and thus could not adjust his status under INA § 245(k). In challenging this decision, Mr. Bokhari argued that he was not in “unlawful immigration status” while he was pursuing his L-1A appeal and when he had been granted employment authorization pursuant to his pending adjustment application. But the court agreed with the government’s argument and sustained an immigration judge’s finding that his L-1A status had expired and neither the extension, appeal, nor work authorization conferred lawful status on him, citing 8 C.F.R. § 1245.1(d)(1)(ii) and Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). Interestingly, the court did not refer to the parenthetical exception contained in INA § 245(c)(2) that permits adjustment of status notwithstanding a violation of status if the violation was through no fault of the applicant or for technical reasons. If this argument was made, then the court should have interpreted 8 C.F.R. § 1245.1(d)(2)(i)-(iv) to determine if Mr. Bokhari was still eligible for adjustment notwithstanding the expiration of his nonimmigrant L-1A status.
The regulation relied upon by the Bokhari court, 8 C.F.R. § 1245.1(d)(1)(ii) provides that lawful immigration status is held by “[a]n alien admitted to the United States in non-immigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter I.”
The court thus did not find it significant that Mr. Bokhari was allowed to remain in the U.S. or authorized to be employed in the U.S.
El Badrawi- in a status or unlawfully present while an extension of status is pending?
The issue of status in the U.S. is also raised in the continuing case of El Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008). There the applicant for an extension of H-1B status, a pharmacologist, was arrested based on his prior H-1B status, even though the extension application was still pending. Unbeknownst to Mr. El Badrawi, the State Department had revoked his H-1B visa in a decision that said the revocation would be effective only upon his departure from the U.S. ICE agents, knowing that his employer, the University of Connecticut Health Services, had filed for an H-1B extension for him, arrested him, and he sued the United States in a Federal Tort Claims Act suit for claimed violations of his Fourth and Fifth Amendment rights. In denying the government’s motion to dismiss, the court relied on 8 C.F.R. § 274a.12(b)(20), which extends employment authorization for 240 days to certain nonimmigrants who file for extensions of their current nonimmigrant status. The court agreed with Mr. El Badrawi that this regulation, which was issued 15 years after Matter of Teberen, precluded the defendants’ argument that he was unlawfully present in the U.S. Since the regulation provides for employment authorization and necessarily includes the right to physically remain in the country, the defendants lacked probable cause to arrest Mr. El Badrawi. The government recently filed another motion to dismiss, which AILA opposed in an amicus brief prepared by Melissa Crowe and Michael Boyle for AILA and the American Immigration Council.
Lack of unlawful presence is not a lawful status?
The Illegal Immigration Reform and Individual Responsibility Act of 1996 (IIRIRA) added another layer of complexity to whether a noncitizen has a status in the U.S. The statute penalizes persons with periods of “unlawful presence” in the U.S. INA § 212(a)(9)(B) and (C). But the statute and the Attorney General designate certain periods in the U.S. as exceptions to unlawful presence, including where unlawful presence is tolled for good cause. This includes when a noncitizen has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General. INA § 212(a)(9)(B)(iv)(I)-(III). But the DHS has rejected any interpretation that equates a period of stay authorized by the Attorney General (the so-called “POSABAG”) with that of a lawful status in the U.S., a position that the court in Bokhari accepted.
Inconclusive lessons to be drawn from these cases
Taking these cases, statutes and regulation together, few definite conclusions can be made about whether someone who entered the U.S. on a nonimmigrant visa whose I-94 card expired can be said to have a particular “status” in the U.S. Both the Samirah and El Badrawi courts were able to point to a regulation that protected the alien’s right to return to or remain in the U.S. In addition, the facts in each case in some way can be said to shock the conscience. Samirah was induced by the immigration service’s grant of advance parole to visit his sick mother in Jordan, and then had the rug pulled out from under him once he left the U.S. El Badrawi was never told of the revocation of his visa, applied timely for an extension of status, enjoying the benefit of the regulation’s 240 day extension of authorization, and then was arrested despite having played by the rules. The drastic consequences of a restrictive interpretation of “status” in these contexts could not have been foreseen, and the immigration service’s actions would seem to threaten the utility of the federal regulations altogether.
By contrast, the Bokhari court purported to uphold a regulation that narrowly defined “lawful immigration status” to exclude periods in which the applicant was present in the U.S. in a period of stay authorized by the Attorney General. Since the operative statutes at issue in Bokhari, INA §§ 245(c)(2) and 245(c)(7), bar adjustment of status to someone who (except where through no fault of his or her own or for technical reasons) is “in unlawful immigration status” ((c)(2)) or who “is not in a lawful nonimmigrant status” ((c)(7)), it can be said that the regulations that define “lawful immigration status” are inapt or incomplete, since a “lawful immigration status” is arguably broader than a lawful nonimmigrant status.
Like Samirah and El Badrawi, Mr. Bokhari also appears to have played by the rules, but he lost based on a strict and technical interpretation of the term “status.” It would have been instructive to practitioners had the Bokhari court considered the exception for no-fault and technical reasons. It also seems very unfair that Mr. Bokhari would trigger a 10-year bar and be ineligible for consular processing after an I-140 was approved for him. Mr. Bokhari appears as a sacrificial lamb, after which practitioners can warn their clients and advise them to depart the U.S. to avoid the possibility of being barred in the future. In any event, it appears that there will need to be additional litigation to further define whether a noncitizen is technically in status in the U.S. If you have a case that raises these or related issues, please contact AILA’s Amicus Committee at email@example.com.