September 11 Ushers in a New Era in Immigration Law and Practice - Part II
ADDITIONAL POST-SEPTEMBER 11 DEVELOPMENTS
The post-September 11 era may well include new developments that fundamentally change the way the INS conducts operations. Two likely areas of development of critical importance will involve restructuring of the INS itself and changes in the use of technology. In addition, legislation and federal cases not involving the events of September 11 continue to change immigration law, sometimes in ways that benefit aliens.
INS Restructuring Proposal
Although the INS's recent proposal for restructuring and splitting the agency into two separate entities promises more efficient enforcement of the immigration laws while producing better customer service in the adjudication of applications, there are ominous signs that the INS's major focus will be more on enforcement and less on service. Evidence of this emphasis can be found in INS's proposal to keep the inspections function in the Bureau of Immigration Enforcement rather than in the Bureau of Immigration Services, despite its recognition in the proposal that "Inspectors have a unique role as both facilitators of bona fide travelers and as law enforcement personnel."
INS has declined to a follow a suggestion by some to create a separate Inspections Bureau reporting directly to the Commissioner. By creating a separate Inspections Bureau, the agency could establish a unit that would theoretically place an equal emphasis on service and enforcement goals. Instead, the INS's proposal aims to place this unit within the enforcement arm of the INS in order to "ensure law enforcement coordination at ports of entry." Query how inspectors working under newly revised policies limiting the use of discretionary powers and separated from the Bureau of Immigration Services will be trained on current standards of eligibility for admission under the family-based and employment-based categories. History teaches that inspectors have often been among the last to learn of new eligibility criteria. These new changes are likely to make matters worse for some applicants for admission.
Other noteworthy recommendations in the INS restructuring proposal include:
New Uses of Technology
New, advanced technologies will play a prominent role in the post-September 11 methods of operations for both the INS and the Department of State. According to a report in the Los Angeles Times, in January 2002, the State Department planned to begin relaying digital images of foreign travelers to INS officials at ports of entry in the United States. The agencies hope that this new procedure will, for the first time, permit INS inspectors to confidently compare the physical appearance of travelers to the United States standing before them to authentic pictures of these aliens taken at the time they applied for visas abroad at a U.S. consulate or embassy. The report also stated that Congress may approve legislation that would mandate unique, personal identifiers - such as digitized fingerprints - on visas that the State Department grants to foreign nationals who wish to travel to this country, as well as on passports of aliens from 29 nations. This bill passed the House on December 19, 2002 and enjoys broad support in the Senate. Jonathan Peterson, Digital Images Will Verify Identity of Visitors to U.S., Los Angeles Times, January 2, 2002.
The State Department is also relying on new technologies for security measures involving the Olympic games. The State Department has reportedly issued more than 9,000 visas to Olympic participants using a new high-tech security system that makes it possible to check the applicants' backgrounds for terrorist connections before electronically issuing a forgery-proof document. The secure document includes a digital picture of the participant on the visa and threads of colored paper that help prevent forgeries. The Olympic Visa Information Database 2002 (OVID 2002) began approving credentials on November 15, 2001. State Department officials anticipate the system will issue as many as 20,000 visas to athletes, coaches, the media and other officials for the Olympic and Paraolympic Winter Games scheduled to begin Feb. 8 in Salt Lake City. The procedures followed by the State Department mark "the first time that the State Department has issued visas electronically." Judi Hasson, IT in Play at Olympics, Federal Computer Week, December 10, 2001 (see www.fcw.com).
Current national security concerns, as well as the need for more efficient processing of immigration applications, will place increased demand on government officials to develop and implement new technologies. To meet the practice demands caused by these changes, lawyers must likewise be prepared to commit time and resources to the introduction of technology enhancements in their offices. They must also make a daily commitment to continuing education through frequent visits to immigration portals like www.ilw.com and AILA infonet, so that they can remain up-to-date on technology advancements used by INS and adapt their use of technology accordingly.
Silver Linings: Positive Changes in Immigration Law in the Post-September 11 Era
Notwithstanding the events of September 11, immigration law changes, unrelated to national security concerns, continue to unfold. Pressure from immigrant activists, the business sector, attorneys, and others is a key factor in motivating Congress to make sensible immigration laws that benefit the nation, immigrants, and the economy.
Recently enacted bills liberalizing the Immigration and Nationality Act include the following benefits:
Equitable Tolling - An Opportunity for Effective Advocacy
One line of cases that promises to arm immigration lawyers with new legal arguments in the defense of their clients in the post-September 11 era is best illustrated by Socop-Gonzalez v. Immigration & Naturalization Service, No. 98-70782 (9th Cir. December 5, 2001); see also, Varela v. INS, 204 F.3d 1237 (9th Cir. 2000) and Iavorski v. INS, 232 F.3d 124 (2nd Cir. 2000). In Socop-Gonzalez, the Ninth Circuit Court of Appeals found that the principle of equitable tolling applies to the 90-day period to reopen a deportation case after a Board of Immigration Appeals decision under 8 CFR 3.2(c)(2), and applies even if the applicant knew, or should have learned of, the tolling event before the expiration of the original period of limitations.
The Socop-Gonzalez Court ruled that the factual circumstances of the case warranted equitable tolling of the 90-day period to reopen a deportation matter. Of particular importance to the case, was the Court's finding that the plaintiff had received incorrect advice from an INS officer while his appeal of the denial of an asylum application and order of deportation was pending at the Board of Immigration Appeals ("the BIA"). Subsequent to the immigration judge's order of deportation, the plaintiff married a U.S. citizen. Acting without the advice of counsel, he approached an INS officer at an INS office in Westminster, California. That officer advised the plaintiff to withdraw his appeal and file an immigrant visa petition and adjustment of status application with the INS. This advice was faulty. The plaintiff's spouse should have filed an immigrant visa petition with the INS. After approval of the immigrant visa petition, the plaintiff could have submitted a motion to remand his case from the BIA to the Immigration Court, along with the immigrant visa approval notice and an application for adjustment of status.
Following the INS officer's advice, the plaintiff submitted his request to withdraw his appeal to the BIA, which resulted in a final order of deportation. Before the plaintiff was able to sort out his confusion over the matter, caused primarily by faulty advice from an INS officer, the limitations period for filing a motion to reopen with the BIA expired.
Socop-Gonzalez contains the following useful observations:
The post-September 11 era is a time of increased awareness of the need for greater national security. Concerns over national security have led to greater scrutiny of our immigration laws and practices. Within this period, while perhaps more difficult than previously, immigration lawyers will be called upon to develop creative legal arguments to protect clients and advance the development of immigration law in a manner that protects and supports our constitutional due process protections and our bedrock principle that we are a nation of immigrants.
Copyright © 2002 Paparelli & Partners LLP. Published with permission. All rights reserved.
1 For a sample of documents on the "last action rule," see Memorandum from Thomas Cook, Travel After Filing a Request for a Change of Nonimmigrant Status, June 18, 2001, reported in 78 IR 1378 (Aug. 27, 2001); Advisory letter from INS concerning a filing for H-1B status change of employer and validity date of the petition subsequent to travel, by Thomas W. Simmons, October 20, 1999, reported in 76 IR 1723 (Dec. 3, 1999); and INS Letter from Jacquelyn A. Bednarz, INS on Effect of H&L Alien Departure, May 6, 1993, reported in 70 IR 1604 (Dec. 6, 1993).
About The Author
Angelo A. Paparelli (email@example.com) is the managing partner of Paparelli & Partners LLP (http://entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, he has been practicing business-sponsored immigration law for over 20 years. Mr. Paparelli is a nationally recognized expert on business immigration issues. He is named in the 1990-2001 editions of Best Lawyers in America under "Immigration Law."
John C. Valdez (firstname.lastname@example.org) is an associate at Paparelli & Partners LLP. Mr. Valdez is admitted to practice law in California and has been practicing immigration law since 1996. His areas of focus include nonimmigrant employment visas, employment-based adjustment of status, and immigration law issues dealing with public school entities. He graduated from UCLA School of Law in 1995.