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Is My Client In A Period Of Stay Authorized By The Attorney General? It Depends On Who You Ask!

by Danielle Rizzo

INA 237(a)(1)(C) makes deportable any alien who is present in the United States in violation of law. Only aliens who are in a currently valid nonimmigrant status, or who are lawful permanent residents, are clearly not deportable under this section. Those who are out of status and have no applications pending are clearly deportable under this section. But there is a large gray area for those who have pending applications for adjustment of status but no nonimmigrant status; and for those who have timely filed applications for extension or change of status pending and whose prior status has expired. It is unclear whether such aliens are present in the United States in violation of law and thus deportable under INA 237(a)(1)(C) based on a plain reading of the Act.

In 1996, IIRAIRA created the 3 and 10 year bars at INA 212(a)(9)(B).1 Also introduced by this amendment was the concept of "unlawful presence," which successive INS memoranda interpreted as a concept distinct from being "out of status." Interim guidance on applicability of "unlawful presence" provisions of INA 212(a)(9)(B) was released in a March 31, 1997 INS memo, which stated that "unlawful presence" included any time spent in the U.S. by aliens "after they have violated the terms and conditions of any form of nonimmigrant status," i.e. "unlawful presence" was synonymous with being out of status.2 However, in revised guidance, the Service stated that unlawful presence was not synonymous with being out of status and does not begin to run from the date of a status violation. Instead unlawful presence was deemed to include "only periods of stay in the United States beyond the date noted on form I-94, Arrival/ Departure Record."3 The same memo noted that unlawful presence may accrue prior to the I-94 expiration date where an Immigration Judge or the Service makes a determination that the alien has violated his status. In the case of a Service determination of a status violation, the memo states that unlawful presence shall begin to accrue as of the date of the determination.

The Service also stated in a June 17, 1997 memo that aliens who have properly filed adjustment of status applications pending are considered to be in a period of stay authorized by the Attorney General.4 This pronouncement is nowhere to be found in statute or regulation; it exists only in Service memoranda.

The Act does explicitly toll accrual of unlawful presence at INA 212(a)(9)(B)(iv) for up to 120 days while a timely filed extension or change of status request is pending. This 120-day period has been extended by legacy INS memoranda to include the entire period during which an extension or change of status request remains pending.5 Again, this is only Service policy and does not exist in any binding regulations or statutes.

Despite the fact that INA 212(a)(9)(B)(iv), on its face, only tolls unlawful presence for up to 120 days, 8 CFR 274a.12(b)(20) provides an automatic 240-day extension of employment authorization, following expiration of the previously authorized status, to certain nonimmigrants who have timely filed a petition for extension of stay with the same employer.

In short, based on legacy INS memoranda, current USCIS policy is to consider aliens to be in a period of stay authorized by the Attorney General when they have a pending change of status or extension of stay request or when they have a pending adjustment of status application. Prior to creation of the Department of Homeland Security, this was the INS position across the board, whether it be for the purpose of determining whether someone had triggered the 3 or 10 year bar, or whether they were deportable. However, since the various immigration functions have splintered with the creation of Homeland Security, CBP and ICE no longer follow USCIS interpretations. It appears, based on recent events discussed below, that CBP and ICE have made a radical departure from USCIS on the interpretation of when an alien is in a period of stay authorized by the Attorney General, and thus when they will place an alien in removal proceedings under INA 237(a)(1)(C) for being present in the U.S. in violation of law.

In an August 20, 2008 AILA/ CBP liaison meeting between members of the Upstate NY Chapter of AILA and local CBP and Border Patrol agents, the following exchange took place6

It has been mentioned that CBP is interpreting overstay and unlawful presence to accrue as of the date of expiration of an I-94, EVEN when someone has filed a timely application for adjustment of status that remains pending. Apparently, CBP is arresting people and issuing NTAs. However, ICE is interpreting this issue differently and terminating the NTAs without filing with the court. Can you please clarify this issue?

CBP: ICE and CBP interpret the date of expiration of the I-94 as out-of-status and thus, subject to removal proceedings under INA 240. CBP acknowledges that under 8 CFR 274a.12(b)(20), an alien is eligible to work in the U.S. while an extension petition is pending. However, this provision only applies to work authorization. CBP takes the position that an alien in possession of an expired I-94 card is out-of-status, regardless of whether an extension petition is pending before CIS. If encountered, such aliens will be picked up by the Border Patrol and will be placed in removal proceedings.

ICE Counsel has prosecutorial discretion here. Although most (out-of-status/overstay) NTAs are filed, an individual case can be examined to determine whether prosecution will go forward by Chief Counsel's office.

Regardless, clients should be made aware of INA 212(a)(9)(B)(i)(I) and that the old INS memos are not recognized.

Based on an informal discussion with a local CBP officer in Buffalo, NY it appears that it is not only local, but national CBP policy to consider aliens who are in a period of authorized stay to be removable if they are out of status. Border Patrol officers, who are part of CBP and are responsible for patrolling the areas between ports of entry, are not given any discretion in terms of who to detain; anyone lacking proof of currently valid status is arrested and detained. It is not until an ICE attorney has a chance to review the case that discretion can be exercised to determine whether or not to issue an NTA to a detainee. Meanwhile, an alien who has an adjustment of status application or a timely filed extension or change of status request pending may be locked up in detention for days or weeks.

In New York State, Border Patrol officers have been observed at airports, bus stations and train stations, particularly in Buffalo, Rochester, and New York City, and boarding trains traveling through New York, requesting proof of immigration status from those disembarking. Anyone found to lack proper documentation is detained.

In one recent case, Buffalo attorney Jonathan Litwin represented a man who was detained by CBP at the Buffalo Niagara International Airport. At the time, he had a timely filed B-2 extension request pending. He was placed into removal proceedings and sought and obtained voluntary departure, as he wished to return to his home country as soon as possible.

In another case, reported at ___ F.Supp.2d ___, 2008 WL 4397657 (D.Conn. Sept. 22, 2008), the Connecticut USDC allowed the alien plaintiff to proceed with a false imprisonment claim where ICE detained him despite timely filed extension of stay request and employment authorization under the 240 day rule found at 8 CFR 274a.12(b)(20). The court considered the government's position, that even though the plaintiff was entitled to work in the United States, he was not entitled to be physically present here, and found this position "untenable." The government's "untenable" position as articulated in this case is identical to the position articulated by CBP in the liaison minutes quoted above. Nevertheless, it appears to remain national policy.

Based on these recent events, it is possible, and clients must be warned, that anyone whose change of status or extension of stay request remains pending beyond the previously authorized period of stay may be detained and/or placed in removal proceedings if they encounter a CBP or ICE officer. The same is true for an adjustment of status applicant who is out of status. No longer is this a theoretical legal possibility, but a national government policy.

There are two major causes of this phenomenon. The first is the splitting up of the adjudications and enforcement branches of the immigration service, causing a fractured approach to legal questions. The second is the government's practice of legislating fundamental immigration legal issues through non-binding memoranda. The issue of whether or not someone is legally present in the United States is a fundamental question over which different agencies within the Department of Homeland Security should not have opposing policies.

As agency memoranda are not binding in proceedings before an IJ, there is little legal authority on which an alien can rely when placed in removal proceedings for being out of status, even if she has a pending adjustment of status or change or extension of stay application pending. The best legal argument against such a removal is that if the alien is still in the 120 day statutory tolling period for an change or extension of stay, he is clearly in a period of authorized stay. Second best is that if the alien is within the 240 day period of employment authorization during an extension of stay, it is illogical that he may work in the U.S. but may not be physically present in the U.S. Apart from those situations, one's only reliance is on the prosecutorial discretion of the ICE officer who looks at his case.

End Notes

1See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009.

2Memorandum, Virtue (March 31, 1997), posted on AILA InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997).

3Memorandum, Virtue (September 19, 1997), posed on AILA InfoNet at Doc. No. 97092240 (posted Sep. 22, 1997).

4Memorandum, Virtue (June 17, 1997), posted on AILA InfoNet at Doc. No. at Doc. No. 97061790 (June 17, 1997).

5Memorandum, Pearson, Executive Associate Commissioner, Office of Field Operations (March 7, 2000), posted on AILA InfoNet at Doc. No. 00030773 (March 7, 2000).

6Unpublished minutes from CBP - AILA Upstate NY Chapter liaison meeting on August 20, 2008. (Copy available from the author).

About The Author

Danielle Rizzo is an associate attorney at the Law Offices of James D. Eiss located in Buffalo, NY. She limits her practice primarily to employment-based immigration law and frequently represents foreign nationals seeking admission at the ports of entry in the Buffalo area.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.