AAO Reverses CIS Denial of Professional Manager

We recently received welcome news of an appeal having been granted by the Administrative Appeals Unit of the U.S. CIS. The case involved a permanent resident petition in the EB-2 category for an 'exceptional ability' worker - in this case, a professional baseball manager for a Major League affiliate.

The government originally denied the case, holding that the manager's abilities weren't exceptional because his record was perhaps only in the 70th percentile of MLB managers. On appeal, we argued that the relevant pool of workers against which his record, salary and other objective signs of achievement should be measured, was not MLB and affiliate managers; we instead argued his abilities should be measured against all professional baseball managers - those who earn a living managing the game of baseball. We calculated that pool to include more than 550 managers at the major college, minor league and MLB levels. Amongst that pool, the applicant was surely 'exceptional' as that term has been defined by the law, in terms of his record, but especially because he was turning out MLB stars with regularity.

Our brief stated, in part,

The Service has been chastised by the courts and Board with regard to misapplying the extraordinary ability level for dismissing Nick Price’s petition, as well as NHL players Stu Grimson and Craig Muni’s petitions for EB-1 status. See Matter of Price, 20 I&N Dec. 953 (BIA 1994)(where the Board found that his ranking of 10th internationally on the PGA tour qualified him for EB-1 status; as an aside, Mr. Price has turned out to be nothing short of a legendary PGA player); Grimson v. INS, 1995 WL 134755 (N.D. Ill. 1995)(where the Court remanded the case to the NSC with instructions on how to apply the EB-1 standard after it denied Stuart Grimson’s petition; as an aside, Stu Grimson became an icon of Chicago defensemen in the 1990s, both as an enforcer and as a checking, stay-at-home defenseman); Muni v. INS, 891 F.Supp. 440 (N.D. Ill. 1995)(where the Court, after the NSC denied an EB-1 petition, found that Craig Muni was a very good professional hockey player considered to be at the top of his field, as he was voted as the top hitting defenseman and most underrated player at his position). It appears that your office is in danger of making the same mistakes with respect to the EB-2 standard operative here....

The government, to its credit, understood and accepted the argument, reversing the Regional Service Center that had issued the denial.

Lawyering at every level, and perhaps especially within immigration law, requires thinking about problems in new ways. Anyone can research a question and regurgitate legal holdings. Changing the perspective of an analysis is hard work, but nearly always necessary, to successfully represent immigration clients against the government. This decision reflects that reality.

Now Tweeting

I found it frustrating to update this blog so infrequently; that infrequency was due to the fact that blogs are best suited for in-depth writing, which of course, requires time. I promise, and swear, under penalties of perjury, that I will write more frequently the remainder of this year and beyond; in the meantime, follow us on twitter.com. We are chicagoimmatt. http://twitter.com/chicagoimmatt. I'll be posting snippets about immigration developments and firm results (anonymously, of course) each day. Happy reading!

Persecuting Those Who Help Immigrants

We've all heard disturbing stories of over-reaching, over-zealous government actions in the last decade or so. It is perhaps the first time in many, many generations that ordinary, law-abiding citizens have reason to fear their own government. Especially if you happen to help immigrants.

First, there was the story of Brandon Mayfield, an immigration lawyer in Portland, Oregon, whose life was turned upside down when he was arrested on terrorism charges by the FBI. Only he wasn't a terrorist. He was simply a hard-working immigration lawyer.

Now, the government has decided to indict and convict a landlord. That's right, a person who owns a building in which undocumented foreign-nationals happen to reside.

The American Immigration Lawyers Association reports as follows:

US District Court Rules in Favor of Kentucky Landlord

Cite as "AILA InfoNet Doc. No. 08070968 (posted Jul. 9, 2008)"

On 06/27/08, William Jerry Hadden, a Kentucky landlord who faced 62 charges in US District Court of renting apartments without verifying the immigration status of the future tenants, was found not guilty on all charges.

The trial is thought to be the first time the federal government has prosecuted a landlord for renting to undocumented immigrants, defense attorneys said in court filings.

Hadden's defense attorneys steadfastly maintained his innocence and claimed that the federal government was twisting the intent of harboring laws, which they say were intended to target human traffickers or employers who are trying to hide their work forces. They further noted that it is not illegal to rent to undocumented immigrants, and Hadden therefore had no legal obligation to check any tenant's immigration status.

The court agreed with the defense and ruled that there had to be evidence that the defendant intended to violate the immigration laws by concealing or hiding tenants.

Fortunately, our judiciary has said enough. But that doesn't stop the government from continuing to try to broaden its reach and punish those who help immigrants.

All of this begs the question, what in the world have we become? And, is it time for a change yet?

Location, Location, Location

A simple, relatively unspoken reality exists within immigration law. Location can be the difference between winning and losing in removal proceedings, no matter whether the case involves an asylum claim, cancellation of removal, or any other asserted defense. TRAC, an agency dedicated to monitoring immigration judges' rates of asylum denials, recently published decision statistics for every immigration judge in America. You can check your immigration judge here.

The statistics tell a disturbing story. The story is one of preference to people who are lucky enough to live in certain cities. The often random fate of geographic location should not play a prominent role in their odds of success on an asylum application. But it clearly does. Consumers of immigration legal services, or attorneys looking to hire another lawyer to help a client in need of those services, can sometimes better their chances of success by simply.........moving.

There is no law or regulation that prevents a person from moving to take advantage of a better forum in the EOIR or agency context. A forum can increase the odds of success in several ways - immigration judges may be more disposed to granting application for relief, or better law might exist on a particular issue in a given jurisdiction. The latter is true because while immigration law is indeed federal, it is not uniform. There are many instances where federal appellate law differs from Circuit to Circuit in the morass of tangled laws and regulations that make up the black letter immigration and nationality law in the U.S.

The most favorable Circuits are the Ninth and Seventh, in that order (depending on the issue at hand). The lesson? If you live in the Midwest, consider moving to Indiana, Southwest Wisconsin or Illinois to avail yourself of the Seventh Circuit decisions and of the Chicago Immigration Judges, who are far more likely to grant an asylum case (and every other kind of relief in my experience) than the very conservative immigration judges in Detroit. Similarly, the Sixth Circuit, while showing signs of following its sister circuit in Chicago, is historically much less apt to remand a case to an immigration judge on appeal.

Immigrants often feel helpless in the face of removal efforts instituted by the government. Rarely is that true. Relocating to a favorable jurisdiction may make it more likely that relief is available.

The Dream Act

Mark Brown, a columnist with the Chicago Sun-Times, recently wrote about the plight of many school-age kids who have no status. They typically entered the U.S. at a young age with their parents.

No matter your position on relief for foreign nationals who are in the U.S. unlawfully, it is difficult to argue that children who came with their parents unlawfully should suffer the consequences of those actions. Even to those who would argue they should go home, I'd say this: We need the ideas of bright, ambitious young people, no matter where they happen to be born. Our country thrives on that influx of intellect and diversity. It always has.

I was asked to comment on Mark Brown's article on WGN Radio in Chicago, and enjoyed the live conversation. I tried to give a backdrop to the discussion that ensued between host John Williams and listeners. I explained that the inequity of imposing the penalty of having no chance to regularize a teen's status, thereby preventing her from attending college, is exactly what The DREAM Act legislation seeks to remedy.

Call your Senator today to voice your support for this bill.

Full Speed, uh, Reverse!

The US CIS has reversed course on refusing to accept EB-based adjustment of status filings in July. This is welcome news for many people who faced having to leave the U.S. because of the broken promise caused by the CIS's shutting down the EB categories an hour into July.

The agency will now accept all EB filings that were current under the original July Visa Bulletin until the close of business on August 17, 2007. The extra time has been allotted to atone for the previous closure, which the agency evidently decided was not a defensible action when faced with litigation.

More information will be provided later.

Miscellaneous Observations

Immigration reform is dead for the time being. The prospects of a new law seemed good - so long as public opinion was in favor of legislation. But that changed at about the same time the immigrant rights demonstrations were held. Public opinion suddenly swung the other way, and not surprisingly, Senators began reversing course, which is what they are supposed to do. They are, after all, supposed to represent the majority's view. The Constitution represents the minority's interest, and that is the ying and the yang of our brilliant system.

The sudden change in the political wind should come as no surprise. The 12 million undocumented foreign nationals in the United States were on the precipice of being given a gift. A chance at becoming legal in the greatest country on Earth. The phrase "don't look a gift horse in the mouth" comes to mind. I'm not the only one to question the wisdom of holding demonstrations on the eve of getting what they wanted. The demonstrations were a bad idea.

I understand this view will not be popular with many of my readers, clients and colleagues. Sometimes the truth hurts.

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Maribel & Juan, detailed in the last entry, recently appeared for Juan's first removal hearing. The removal proceeding was terminated. This is a good thing that happens once in a blue moon, usually when someone fights back and/or the government's actions are indefensible. Updates will continue.

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You'll never guess who reads this blog quite often. The Department of Homeland Security. I am not sure if I'm more frightened by the fact that a national security agency doesn't mask its IP address, or more irritated that they evidently don't think I'm smart enough to track that stuff. Either way, welcome DHS agents. You are the 10th most frequent server to visit this blog.

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Speaking of wondering what we are up to, the employment-based priority date debacle is front- and-center on our plate, as it is with every immigration lawyer's office of late.

The EB-3 category, which includes professional workers, has been backlogged since October 2005. This means that foreign nationals for whom labor certification has been filed and certified, have had to wait for their priority date (their place in line) to become current before pursuing their green card. That all was to change on July 1, 2007, according to the June 2007 Visa Bulletin, published by the State Department. The numbers were current, meaning anyone with labor certification done could file for adjustment of status and remain in the U.S. until the application was adjudicated. The CIS's own regulations prescribe this procedure.

The CIS announced, at 10:30 a.m. cst on July 2, 2007, that it would not honor the system that it had set up. The State Department received so many applications for adjustment of status over the weekend that at 9:00 a.m. Monday, July 2, 2007, it projected all employment visas to be used for the rest of the fiscal year. The CIS, instead of honoring it's rules and accepting applications for adjustment of status, instead said no more would be accepted.

Some members of Congress have recognized the dangerous inequities of this development. AILA refers to it for what it is - a bait and switch move that will effect tens of thousand of law-abiding immigrants.

Our office is still filing those applications. The rejection notices will be exhibits for our suit in the Northern District of Illinois Federal District Court against the DHS for this radical departure from its own rules. AILF is planning to file suit in the DC District as well.

I'll provide updates on our suit, as well as AILF's, as both go forward.