The Green Card

Winter 2013/2014

Welcome to the Newsletter of the FBA’s Immigration Law Section H. Raymond Fasano, section cHaiR

In This Issue

Published by the Immigration Law Section of the Federal Bar Association

Quote of the Month“Necessity is the plea for every infringement of human free-dom. It is the argument of tyrants; it is the creed of slaves.” —William Pitt (the Younger), 1783

From the ChairThe Immigration Law Section (ILS) is very active now. In

October we co-sponsored a conference in Rome Italy on the subject of citizenship in a global era. This was a fascinating conference that addressed international adoptions, the impact of surrogacy relationships on immigration law, the concept of global citizenship and other fast paced topics that opened doors for consideration. For instance, there was a topic discussion on American Indians and the fact that under the Jay Treaty any North American-born Indian can exercise virtually the same rights as a Lawful Permanent Resident of the United States. The conference was attended by the conference organizer and ILS board member Peggy McCormick and ILS board members Judge Lawrence Burman, Judge Mimi Tsnakov, and ILS past chair and CLE coordinator, Barry Frager. I look forward to next year’s Rome conference.

The ILS is also very busy now coordinating our Asylum

Symposium that will be held at American University in Washington, D.C. in February 2014. ILS board member Mark Shmueli has secured the space and is working with his com-mittee in organizing course content and speakers. I cannot wait to attend.

It would seem that the ILS may have to switch names to the CLE Section since we are also in the throes of organizing our 2014 Memphis CLE. We are in the process of securing hotel rooms and will notify the Section as soon as we have hotel information.

Finally, I want to mention the very successful monthly “Immigration Leadership Luncheon Series” which is held on the second Wednesday of each month in Washington, D.C. ILS board member Prakash Khatri has done a fantastic job securing speakers who are leaders in the Immigration Community.

The following have been recent speakers:• February 2013: Juan Osuna, Director of EOIR • March 2013: Peter Vincent, the Principal Legal Advisor

of ICE • April 2013: Jeff Gorsky, Chief, Legal Advisory Opinion

Section, Visa Office, Bureau of Consular Affairs, DOS. • May 2013: Maria Odom, the Citizenship and Immigration

Services Ombudsman.

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Section News ........................................................................................................................3

The End of Asylum as We Know It? ........................................................................................5

Vartelas v. Holder: The Revival of the Fleuti Doctrine ..............................................................8

Human Rights in Syria ........................................................................................................ 15

Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency ...................... 19

Memo to GCs: If Ever There is a Time for Immigration Portfolio Management, It’s Now .......... 21

Expert Witnesses in Immigration Proceedings ........................................................................ 24

Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers ........... 31

2 | The Green Card

Section LeadershipCHAIR

H. Raymond FasanoYouman, Madeo & Fasano, LLP

New York, NY

VICE CHAIRHon. Robin Feder Immigration Judge

Executive Office for Immigration ReviewBoston, MA

TREASUREREileen M.G. Scofield

Alston & BirdAtlanta, GA

SECRETARYHon. Mimi E. Tsankov

Immigration JudgeExecutive Office for Immigration Review

Denver, CO

CLE COORDINATORBarry L. Frager The Frager LawMemphis, TN

IMMEDIATE PAST CHAIR/ NEwSLETTER EDITOR

Lawrence O. BurmanImmigration Judge

Executive Office for Immigration ReviewArlington, VA

uuu

The Green Card is published by the Federal Bar Association’s Immigration Law Section, 1220 North Fillmore Street, Suite 444, Arlington, VA 22201, (571) 481-9100, (571) 481-9090 fax.

For more information about the section, please visit www.fedbar.org/Sections/Immigration-Law-Section.aspx.

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• June 2013: Robin M. Stutman, the Chief Administrative Hearing Officer at EOIR.

• July/ August: summer break• September 2013: Elizabeth Stevens, Assistant Director,

U.S. Department of Justice, Office of Immigration Litigation

• October 2013: Raphael Choi, Chief Counsel, WAS, Office of the Principal Legal Advisor, ICE/ US Department of Homeland Security

The meetings are held on the second Wednesday of each month at La Tasca Spanish Tapas Restaurant at Gallery Place in Downtown D.C. The event is from 11:30 a.m. to 1:30 p.m.

Please make time in your schedule to attend one of our sponsored events. u

H. Raymond Fasano Chair, FBA Immigration Law Section

Dec 2012 | 3

Section NewsSan Juan, Puerto Rico. Our section’s Green Card newslet-ter received an award at the FBA National Convention.

Rome, Italy. The section’s second annual conference on world citizenship was held on October 7-8, 2013. Organized by Peggy McCormick, the conference was a rousing success, with a varied group of attendees. It was held in a renais-sance palazzo owned by the Centro di Studi Americani. The conference room was decorated with amazing frescos across the entire ceiling. In addition to fascinating presenta-tions, the food was magnificent—two dinners in Trastevere, and two receptions. Plan on attending next year!

Arlington, Va. Distinguished Immigration Judge wayne Iskra (a section member) has announced that he will retire in January. Judge Iskra has served the Immigration Court for over 20 years, in New York and Arlington. His appoint-ment followed a distinguished military career, in which he served as the chief trial judge of the U.S. Army. His total federal service exceeds 50 years!

washington, D.C. The superb Immigration Leadership Monthly Luncheon Series has resumed after a summer hiatus. In October, a sold-out crowd heard Arlington, VA Chief Counsel Raphael Choi. The future dates are: January 8, February 12, and March 12, 2014. The food is also great, at La Tasca Spanish Tapas Restaurant, 722 Seventh Street NW, Washington D.C. Thanks to board member Prakash Khatri and the D.C. FBA chapter for running this amazing series. You may contact him at prakash@khatrilaw.com.

If you are in the D.C. area, mark your calendars for a superb CLE devoted to asylum law. The one-day program will have tracks for both experienced practitioners and new/pro bono attorneys. It will be held at American University on February 21, 2014. Cost will be a very reasonable $99, which includes lunch and snacks. Kudos to board member Mark Shmueli for organizing this event. Contact him at Mark@markshmueli.com.

Los Angeles, CA. Tara Lundstrom, law clerk to the Hon. Arthur L. Alarcon, Court of Appeals for the Ninth Judicial Circuit, has joined the section board. Prior to serving the Ninth Circuit, Tara served as a judicial law clerk to the San Francisco Immigration Court.

Memphis, TN. section board member Alicia Triche has just been granted a doctor of philosophy in law from Oxford University. The “DPhil” is the Oxford equivalent of a PhD, and in the law faculty it is the highest available of several different research degrees. Dr. Triche began her Oxford years in Fall 2001, when she was admitted to the College of Lady Margaret on a Fulbright grant to pursue the Master of Studies in Legal Research. She earned that “MSt” with distinction in 2003, and then set foot upon the long

From left to right: Barry Frager, Hon. Lawrence Burman, Hon. Mimi Tsankov, H.Raymond Fasano (Section Chair), Peggy McCormick, and Margaret Stock [recipient of the 2013 MacArthur Foundation “genius” award]. Below: a nice classroom.

Receiving the award (from right to left): Section board members Barry L. Frager, Hon. Robin Feder (section vice-chair), and Peggy McCormick.

Mr. Choi speaks.

section news continued on next page

4 | The Green Card

Robert H. BeerHon. Lawrence Burman

Justin BurtonH. Raymond FasanoHon. Robin FederBarry L. FragerR. Mark Frey

Amy Gell

Hon. Dorothy HarbeckHon. William P. Joyce

Hon. Amiena KhanClaire Kelly

Linda KenepaskePrakash KhatriKevin Lashus

Tara Lundstrom

Margaret (Peggy) McCormick

James McFaddenHon. Lee O”Connor

Angelo PaparelliJan M. Pederson

Christine Lockhart PoarchEileen M. G. Scofield

Mark ShmueliElizabeth StevensKimberly SuttonGeorge Terezakis

Alicia TricheHon. Mimi Tsankov

David Ware

Section Governing Board

road to the DPhil—on which she worked in Oxford and, in later years, long distance from New Orleans and Memphis. The dissertation is titled “International Refugee Law and National Security.” It examines the extent to which interna-tional treaty obligations might place structure and limits on the legal definition of “national security.” Dr. Triche recently co-founded Memphis Immigration Advocates Inc. (MIA). MIA is a Tennessee chartered not-for-profit corporation with a mission to provide high quality affordable legal representation to low income non-citizens within the jurisdiction of the Memphis Immigration Court. With over 6000 pending cases, the Memphis Immigration Court has the largest per-judge caseload in the country; and the Center for Migration Studies records a population of

some 230,000 low income, foreign-born residents within the Court’s geographic jurisdiction. For now MIA is operating with opening donations from its founders and small sliding-scale fees, but the organization hopes to obtain funding to grow substantially in the years to come.As always, our section’s flagship event, the Immigration Law Seminar, will be held in Memphis on May 16-17, 2014. Watch the FBA website for registration information (coming soon). Details from Barry Frager at bfrager@fragerlaw.com.

Section Members: please send any news items to Green Card editor Larry Burman at LBurman@aol.com. We definitely need more news, and especially photos. u

section news continued from page 3

The End of Asylum as we Know It?Jason dzubow

Immigration Rant

The “Dream 9” are nine Dream Act activists who were detained at the border when they tried to enter the United States without permission. They were released from deten-tion after DHS determined that they had a credible fear of persecution in their country of nationality, Mexico. The burden of proof for determining whether an alien has a credible fear of persecution is relatively low (lower than the burden of proof to receive asylum). Essentially, if they tell the asylum officer that they fear persecution in their home country based on race, religion, nationality, particu-lar social group or political opinion, they will “pass” the interview and, very likely, be released from custody with an order to appear before an immigration judge who will later decide their asylum claim. The danger is that aliens who can legitimately (or fraudulently) show a credible fear of persecution, but who have little chance of receiving asy-lum, will overwhelm the system. That has not really been a major problem in the past. But as Don Ameche says, “Things Change.”

Here are some recent statistics from the Department of Homeland Security:

Number of Credible Fear Cases Completed

• FY09: 5,523• FY10: 8,926• FY11: 11,716• FY12: 13,607

So you can see that over the last several years, the num-ber of credible fear cases has been steadily rising, but this year, FY 2013, there has been a significant increase (and remember that FY 2013 is not yet done—these statistics only cover the first three quarters of the year). The numbers look even more dramatic when we look at FY 2013 month by month:

• October: 1,596• November: 1,242• December: 1,603• January: 1,795• February: 1,921• March: 2,139• April: 3,124• May: 3,336• June: 3,776

Comparing October to June (the most recent month where statistics are available), you can see that the monthly numbers have more than doubled. While this is pretty dramatic, remember that these numbers are for

cases completed; not for new cases. It seems that DHS has shifted resources to the credible fear arena, so it is certainly possible that some of the increase is explained by DHS completing more cases. Nevertheless, something is clearly going on. So what is it?

The most obvious explanation is that escalating vio-lence in Mexico is driving people to the U.S. But this appears not to be the case. If you look at the top five source countries for credible fear applicants, Mexico has been consistently either number 4 or number 5, and for the last three months (April to June), it has dropped off the list. A recent report from Fox News claims that Mexicans are crossing in large numbers and claiming that they have a credible fear of persecution. While Fox is not always the most reliable source, the report is from last week, and so we won’t have the DHS statistics for a couple months. It would not be too surprising if violence in Mexico is one reason for the increasing number of credible fear cases, but—at least based on the statistical data we have now—that does not seem to be a factor.

Another, more likely, explanation is that all the talk of immigration reform is spurring people to come to the U.S. in the hope of taking advantage of any “amnesty.” The smug-glers who encourage people to come illegally to the United States are not stupid. My guess is that they are convincing their “clientele” that anyone who reaches our country prior to the reform will obtain residency. This is almost certainly false (even assuming that some type of bill passes), but that does not stop unscrupulous smugglers from using the immigration reform debate as a selling point.

Further evidence that smugglers are driving the increase in arrivals can be found by examining the source coun-tries. For FY 2013, the top three source countries were El Salvador, Guatemala, and Honduras. The numbers from all those countries have increased significantly from October 2012 to June 2013: El Salvador went from 586 per month to 1,410 per month, Honduras went from 435 to 815, and Guatemala went from 308 to 606. Another country, India, did not appear on the top five list until March, when it debuted at number 4 with 174 credible fear interviews. By June, the last month when data is available, India had moved to the number 3 spot, with 741 arrivals. Compare this to FY 2012, when a grand total of 377 Indian nationals were granted asylum. To me, the sudden surge from mul-tiple countries indicates that “pull” factors (i.e., the immi-gration reform debate) are playing a larger role than “push” factors (problems in the source countries).

The increasing number of people arriving in the United States and expressing a credible fear of persecution is

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Winter 2013/2014 | 5

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straining the entire asylum system (the same officers who adjudicate asylum cases also do credible fear interviews). At my local asylum office (Arlington, VA), for example, the interview process has basically ground to a halt. I have over 25 asylum seekers waiting for interviews, and only one case scheduled for an interview (which was set for Rosh HaShana–thanks a lot, ZAR). So, is this the end of the U.S. asylum system as we know it? I will discuss that next time.

The End of Asylum as we Know It: Part IILast time, I wrote about the influx of credible fear

applicants and how this is straining the asylum system all across the United States. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that asylum offices are interviewing very few asylum applicants anywhere. Instead, they are focus-ing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?

I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:

First, the asylum offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the asylum offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).

Second, the influx at the border will eventually slow down. If my theory is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.

Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.

All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.

For one thing, there is some evidence that aliens arriv-ing at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since asylum officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government

expense), DHS will do the fiscally responsible thing and pri-oritize the credible fear cases. This could lead to increased waiting times for asylum seekers.

In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pend-ing asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.

Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.

Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum—these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic vio-lence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system.

All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environ-ment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.

The Most Important words in Every Lawyer’s Vocabulary: I Don’t Know

Recently, I worked on a couple cases where my clients got bad advice, which got them into trouble.

The first case involved a woman with an otherwise strong asylum claim. As a young girl, she and her family were refugees in Iran. Someone in her community advised her it would be better not to tell the U.S. government (or her attorney) that she had been in Iran. The community adviser thought it would harm my client’s chances for relief if she revealed that she spent time in Iran. The client took this advice and did not tell the U.S. government (or me) that she lived in Iran for a few years. The problem, of course, was that the U.S. government—and the asylum officer who interviewed her—knew that she had been in Iran. Nevertheless, she denied having been there. After the interview, she told me that she had, in fact, been in Iran, and we submitted a letter to the asylum office explaining what happened. She may still get asylum, but her lie dam-aged her credibility, which could easily result in a denial. We shall see.

The second case involved a woman who had been in the United States for more than one year. She was still in

Winter 2013/2014 | 7

lawful status when conditions in her country changed caus-ing her to fear return. About eight months after the changed circumstances, she went to a reputable non-profit organiza-tion to ask about asylum. She did not speak to an attorney, but was advised by a paralegal (or maybe a secretary) that she was ineligible for asylum since she missed the one year filing deadline. In fact, the client met two exceptions to the one-year filing deadline: First, changed circumstances, since country conditions changed, giving rise to her fear of persecution, and second, extraordinary circumstances given that she was still in lawful status when she went to the non-profit seeking advice about asylum. I recently litigated this case and the immigration judge granted asylum, but it was a close call. Had the client filed for asylum in a more timely manner, it would have been a much cleaner case.

In both cases, the advisers were (probably) well mean-ing, but in each case, they gave advice that greatly reduced the client’s chances for success. So my question is, when people don’t know what their talking about, why do they feel compelled to open their mouths and release some sort of useless—and worse than useless—noise?

I remember a similar phenomenon from when I lived in Nicaragua (and I and other people have experienced it in different countries). I would need to find the post office, for example, and so I would ask someone on the street. The person would give an answer, like “Walk two blocks towards the lake, make a left at the church and you’ll see it on the next block.” In fact, the person had no idea where the post office was; he just didn’t want to admit that he didn’t know.

So what gives? Maybe in part, it’s because people like to look knowledgeable and don’t like to admit ignorance. People often think they know more than they do, or that they understand the way things work, when they don’t. This can be a particular problem in an area like immigra-tion law, where the rules of logic and common sense often do not apply.

To quote Noah ben Shea, “To be wise, we only have to go in search of our ignorance.” Indeed, had my clients’ advisers simply stated that they did not know, it would have saved everyone a lot of trouble. And so here is my advice for asylum seekers: Be careful when taking advice from friends or community members who “know how things work.” The law can be complicated and it some-times changes. Just because your friend got asylum does not make him an expert—no two cases are the same, and what worked for one person might result in disaster for another. It feels uncomfortable and self serving for me to tell people to hire a lawyer, but time and time again, I see people whose cases (and lives) have been screwed up by bad advice. So find a reputable attorney and pay for some decent advice. In the long run, it may save you a lot of money and a lot of heartache. u

Jason Dzubow is a partner in Dzubow & Pilcher PLLC, an immigration law firm in Washington DC. His blog, “The Asylumist,” is the only blog in the United States devoted to asylum law.

8 | The Green Card

Article

The Supreme Court’s decision in Vartelas v. Holder, 132 S. Ct. 1479 (2012), is the most recent case to address which parts of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (IIRIRA), can be retroactively applied in a manner consistent with an alien’s due process rights. The Court determined that section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C), could not be retroactively applied to Panagis Vartelas, a lawful permanent resident. In so finding, the court revived its decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), long considered abrogated by many courts. This article will provide a brief historical overview of the pre-Fleuti cases that analyzed the defini-tion of entry, as well as the holdings and implications of Fleuti and Vartelas, and will then proceed to examine the state of the Fleuti-related case law issued by the Board of Immigration Appeals and each circuit court of appeals.

The Definition of “Entry” and Rosenberg v. FleutiThe Supreme Court’s decision in Fleuti focused on the

meaning of the word “entry,” as defined in former sec-tion 101(a)(13) of the Act. Although a constitutional issue had been raised, the court found the threshold issue to be whether George Fleuti, who had been a lawful permanent resident for four years, was making an entry within the meaning of the statute when he returned to the United States after visiting Ensenada, Mexico for “a couple hours.” Fleuti, 374 U.S. at 452. Before beginning its analysis of this question, the court reviewed its prior precedent defining the term “entry,” as employed in the immigration laws.

First, it examined its decision in United States ex rel. Volpe v. Smith, 289 U.S. 422, 425 (1933), in which it strictly defined an entry as including “any coming of an alien from a foreign country into the United States whether such com-ing be the first or any subsequent one.” Employing this definition, the court upheld the exclusion of an alien who made a brief visit to Cuba after 24 years of residence in the United States. The Fleuti court noted that this rather severe definition of entry was subsequently employed “with express reluctance and explicit recognition of its harsh con-sequences” by lower courts. 374 U.S. at 454.

Next, the court turned to its decision in Delgadillo v. Carmichael, 332 U.S. 388 (1947), in which it reversed the deportation of an alien who was serving on an American merchant ship that was torpedoed during World War II. Degadillo was rescued and brought to Cuba to recuperate for a week before returning to the United States. The court, noting that it was the “exigencies of war, not his voluntary act,” that led to Degadillo’s presence in a foreign country,

concluded that it would be “a capricious application” of the law to deem his return to the United States an entry. Id. at 391. In reaching this decision, the court cited approv-ingly the Second Circuit’s prior decision in Di Pasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir. 1947), in which the court refused to find that an alien traveling on a train from Buffalo to Detroit had effectuated an entry when the train’s route took it through Canada. The Fleuti court character-ized the decision in Delgadillo as creating an “increased protection of returning resident aliens.” 374 U.S. at 456. The court noted that this increased protection influenced at least two subsequent decisions by the Ninth Circuit, which refused to find that aliens had effectuated entries into the United States when their presence in foreign countries was beyond their control. See Carmichel v. Delaney, 170 F.2d 239 (9th Cir. 1948) (finding that a resident alien serving with the U.S. Maritime Service during wartime did not effectuate an entry even though his ship stopped at foreign ports pursuant to Navy orders); Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947) (finding no entry by an alien whose ship made an unscheduled stop in Canada).

The codification of the term “entry” in section 101(a)(13) of the Act in 1952 reflected this state of the judicial interpretation. The court noted that the legislative his-tory of section 101(a)(13) indicated Congress’ intent to “ameliorat[e] the harsh results visited upon resident aliens by the rule” established in Volpe. Fleuti, 374 U.S. at 458.

Turning to the specific issue in Fleuti, the court focused on the portion of section 101(a)(13) of the Act that stated that a lawful permanent resident “shall not be regarded as making an entry . . . if the alien proves . . . that his depar-ture . . . was not intended or reasonably to be expected by him.” Based on this statutory language, the court held that for a returning lawful permanent resident, an entry requires “an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent resi-dence.” Fleuti, 374 U.S. at 452, 462. Thus, “an innocent, casual, and brief excursion by a resident alien . . . may not have been ‘intended’ as a departure disruptive of his resi-dent alien status and therefore may not subject him to the consequences of an ‘entry’ into the country on his return.” Id. at 462. The court further elaborated on the “innocent, casual, and brief” criteria1 by noting that the length of the resident alien’s absence, the purpose of the visit abroad, and the alien’s need to procure travel documents should inform a court’s analysis whether a departure was mean-ingfully interruptive of the alien’s residence. In particular, if the alien traveled abroad “to accomplish some object which is itself contrary to some policy reflected in our immigra-tion laws,” the interruption of the alien’s residence would

Vartelas v. Holder: The Revival of the Fleuti DoctrinesabRina Gillespie

Winter 2013/2014 | 9

“properly be regarded as meaningful.” Id. at 462. Effective April 1, 1997, after over 40 years of decisions

by the board and circuit courts interpreting and applying the Fleuti factors, Congress amended section 101(a)(13) of the Act by replacing the definition of “entry” with defini-tions of the terms “admission” and “admitted.” See IIRIRA § 301(a), 110 Stat. at 3009-575; Matter of Collado, 21 I&N Dec. 1061, 1063-64 (BIA 1998).

Vartelas v. HolderIn Vartelas, the Supreme Court addressed the permis-

sibility of retroactively applying the definition of the term “admission” in section 101(a)(13)(C) of the Act to a law-ful permanent resident with a conviction that pre-dated the effective date of the IIRIRA. Pursuant to that section, returning lawful permanent residents are seeking admis-sion to the United States, regardless of the duration or nature of their departure, if they fall in one of six catego-ries. The fifth category includes resident aliens who have been convicted of an offense identified in section 212(a)(2) of the Act, which includes crimes involving moral turpi-tude. See section 101(a)(13)(C)(v) of the Act.

Vartelas was admitted to the United States as a lawful permanent resident in 1989 and pled guilty to conspiring to make a counterfeit security, a crime involving moral turpitude, in 1994. In 2003, he took a 1-week trip to Greece to visit his parents, and when he returned, he was charged with inadmissibility and placed in removal proceedings. The court concluded that the new definition of admission “attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and convic-tion)” because the law in force at the time of his conviction did not affect his ability to take brief trips abroad, while the current law prevented him, because of his conviction, from traveling abroad and returning as a lawful permanent resident. Vartelas, 132 S. Ct. at 1483-84. Therefore, the ques-tion whether Vartelas effectuated an entry, which would subject him to a charge of inadmissibility, was governed by the Fleuti doctrine, because it was in force at the time of his conviction, and not by the definition of admission contained in the IIRIRA. The court remanded the case for the Second Circuit to evaluate Vartelas’ trip under the Fleuti doctrine.

The effect of the court’s decision in Vartelas is to separate returning lawful permanent residents with convic-tions enumerated in section 212(a)(2) of the Act into two groups.2 The first group, consisting of individuals whose convictions were entered after the effective date of the IIRIRA, can be treated as applicants for admission under section 101(a)(13)(C)(v) and thus can be charged with inadmissibility under section 212 of the Act. The second group, consisting of individuals whose convictions were entered before the IIRIRA, is subject to the Fleuti doctrine. Thus, an adjudicator must first determine if the returning resident’s trip abroad was innocent, casual, and brief. If the trip can properly be characterized as such, the alien must be treated as a returning lawful permanent resident and is not subject to charges of inadmissibility, but only to charges of removability under section 237 of the Act. If the alien’s trip was not innocent, casual, and brief, he may

properly be considered an alien making an entry into the United States and may be charged with inadmissibility.

The State of the Fleuti DoctrineThe innocent, casual, and brief factors have been wide-

ly interpreted by the circuit courts and the Board. While some courts have primarily relied on the Fleuti factors, oth-ers have broadened the scope of their inquiry to include the manner of the alien’s entry, the alien’s age, and the hard-ship to the alien. In addition, there is disagreement about whether the doctrine applies to lawful permanent residents charged with entering the United States without inspection, applicants for legalization, and temporary lawful residents. See, e.g., Assa’ad v. U.S. Att’y General, 332 F.3d 1321, 1332 (11th Cir. 2003) (finding that the Fleuti doctrine has no bearing on whether an applicant for legalization can be placed in exclusion proceedings); Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1277 (9th Cir. 1996) (remanding to the Board for application of the Fleuti doctrine to an applicant for legalization); Matter of Singh, 21 I&N Dec. 427, 433 (BIA 1996) (holding that a returning applicant for legaliza-tion cannot invoke the Fleuti doctrine to challenge charges of excludability). Several circuits have applied the Fleuti factors to determine if an alien can establish the requisite continuous physical presence for suspension of deporta-tion.3 This article will discuss courts’ interpretations of the Fleuti factors in all of these contexts. Although it is beyond the scope of this article, an adjudicator should bear in mind that certain courts have expressed stricter or more liberal views of the Fleuti factors when applying them to aliens who are not lawful permanent residents. Thus, when evalu-ating the Fleuti doctrine in the context of nonresident aliens seeking relief, the courts may not employ the same analysis that they would to a returning lawful permanent resident.4

Board of Immigration AppealsThe board has often addressed the applicability of

the Fleuti doctrine, focusing on the length of the alien’s absence, the purpose of the trip, the need to procure travel documents, and the manner of the alien’s entry. Like sev-eral of the circuit courts, the board has also identified a variety of scenarios in which the Fleuti doctrine has no application. For those circuits that have not addressed the applicability or meaning of the Fleuti factors, the board’s case law remains binding. In addition, given the virtually infinite combination of lengths, purposes, and travel docu-ments required for trips abroad that may be considered in a Fleuti analysis, it is very likely that a circuit court will not have issued a decision addressing the exact set of facts that may be presented in a particular case. Thus, the board’s case law provides valuable guidance even in circuits that have interpreted the Fleuti factors.

The board has found that trips lasting up to one week do not interrupt an alien’s residence or physical presence when the trip was for an innocent purpose, such as visit-ing family or sightseeing, and when the alien required only his alien registration card to travel and reenter the United

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States. See, e.g., Matter of Quintanilla-Quintanilla, 11 I&N Dec. 432, 435 (BIA 1965); Matter of Yoo, 10 I&N Dec. 376, 379 (BIA 1963). In Matter of Karl, 10 I&N Dec. 480, 482-83 (BIA 1964), the board found that a 10-day vacation was sufficiently long to interrupt an alien’s permanent resi-dence, noting also that the alien had made a false claim to citizenship upon his return. The board has suggested that trips of such a length, even if innocent in nature, meaningfully interrupt a resident’s status when they are characterized by an element of personal choice. See Matter of Janati-Ataie, 14 I&N Dec. 216, 224 (BIA, A.G. 1972) (dis-tinguishing a trip of more than 1 month to visit family from the 3-week employer-mandated trip in Itzcovitz v. Selective Service Local Board Number 6, 447 F.2d 888 (2d Cir. 1971)).

In addressing the purpose of a trip abroad, the board has found that aliens interrupt their residence when they travel outside of the United States to smuggle aliens or con-trolled substances. See Matter of Valdovinos, 14 I&N Dec. 438, 440 (BIA 1973) (alien smuggling); Matter of Alvarez-Verduzco, 11 I&N Dec. 625, 626-27 (BIA 1966) (drug smug-gling). It is immaterial that the alien may have departed the United States before forming his criminal intent. Alvarez-Verduzco, 11 I&N Dec. at 626. The board has also deter-mined that an alien interrupts his residence or physical presence when he travels abroad to fraudulently procure a visa or to assist another in doing so. See Matter of Herrera, 18 I&N Dec. 4, 7-8 (BIA 1981) (finding that an alien’s trip abroad to fraudulently procure a visa was not innocent or casual); Matter of Leal, 15 I&N Dec. 477, 479 (BIA 1975) (finding that an alien who assisted his girlfriend’s attempt to procure a visa by fraud did not make an innocent or casual trip). Finally, the board has found that an alien who travels to countries restricted by the immigration laws has not made an innocent or casual departure. See Matter of Hemblen, 14 I&N Dec. 739, 742 (BIA 1974).

When addressing the “casual” factor, the board has explicitly rejected the proposition that the presentation of an alien registration card upon a laawful permanent resi-dent’s return to the United States is evidence of a meaning-fully interruptive departure. See Quintanilla-Quintanilla, 11 I&N Dec. at 434. The board has, however, consistently found that procurement of any other travel document, such as a passport or a visa, is evidence of such a departure. See, e.g., Hemblen, 14 I&N Dec. at 742 (holding that the alien’s procurement of travel documents evidenced that her depar-ture was not casual); Matter of Kukla, 14 I&N Dec. 681, 685 (R.C. 1974) (finding the alien’s departure was not casual because he procured a visa to enter Barbados); Janati-Ataie, 14 I&N Dec. at 224 (noting that the alien’s renewal of his passport and his wife’s obtainment of a passport and visa involved “far more than a casual ‘stepping across an international border’”); Matter of Guimaraes, 10 I&N Dec. 529, 532 (BIA 1964) (noting that the procurement of a pass-port and airline tickets evidenced a planned trip). Beyond the examination of travel documents, the board has also found that a departure to engage in long-term employment

in another country is not casual because it should reason-ably cause the resident alien to fully consider the implica-tions of leaving the country. See Matter of Nakoi, 14 I&N Dec. 208, 212 (BIA 1972). In addition, a resident alien who commutes each day across the border for employment in the United States is not protected by Fleuti because his daily departures to his home abroad cannot be considered casu-al. See Matter of Diaz, 15 I&N Dec. 488, 489 (BIA 1975).

The board has also addressed a number of cases involv-ing aliens whose trips abroad were required by foreign law enforcement or judicial bodies. In Matter of Scherbank, 10 I&N Dec. 522, 524 (BIA 1964), the board found that a trip to Canada to make a court appearance in connection with criminal charges was not innocent in nature. Similarly, in Matter of Wood, 12 I&N Dec. 170, 175-76 (BIA 1967), the board determined that an alien who departs to surrender himself to a foreign court on an outstanding warrant, and who subsequently departs to attend his trial, has not made innocent or casual trips. In other similar cases, the board has found that an alien’s departure was compelled by “legal process.” See, e.g., Matter of Caudillo-Villalobos, 11 I&N Dec. 15, 19 (BIA 1965) (finding that an alien’s departures to sign a bond book in Mexico following his conviction for incest were occasioned by legal process). Such departures fall outside of the intent exception in former section 101(a)(13) of the Act, which is not applicable to “a person whose departure from the United States was occasioned by depor-tation proceedings, extradition or other legal process.” Id. Thus, under the board’s precedent, a lawful permanent resident who leaves the country because of criminal pro-ceedings in a foreign jurisdiction is likely to be seeking entry upon return to the United States, either because he falls outside the intent exception upon which the Fleuti doctrine is based or because his departure is not sufficiently innocent or casual to be protected under Fleuti.

Additionally, the board has looked to the manner of an alien’s entry when analyzing whether his departure was brief, casual, and innocent. In Matter of Cervantes-Torres, 21 I&N Dec. 351, 356 (BIA 1996), the board found that the former Immigration and Naturalization Service’s decision to readmit an alien as a returning applicant for legaliza-tion supported the alien’s argument that his departure was brief, casual, and innocent and thus did not interrupt his physical presence for the purpose of suspension of deporta-tion. In Matter of Wong, 12 I&N Dec. 271, 274 (BIA 1967), the board determined, based on a controlling Ninth Circuit decision, that an alien who made multiple brief trips to Canada and, upon his returns, made false claims to United States citizenship was not precluded from establishing the requisite physical presence for suspension. See Git Foo Wong v. INS, 358 F.2d151 (9th Cir. 1966).

Finally, the board has excluded certain aliens from the ambit of the Fleuti doctrine. Specifically, the board has determined that lawful temporary residents and returning resident aliens charged with entering the United States without inspection are not protected by the Fleuti doctrine.

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See Matter of Chavez-Calderon, 20 I&N Dec. 744, 748 (BIA 1993) (lawful temporary residents); Matter of Kolk, 11 I&N Dec. 103, 105 (BIA 1965) (returning residents charged with entry without inspection).

First CircuitThe First Circuit has acknowledged the Fleuti decision

but has not issued any precedent decisions interpreting the Fleuti factors. See, e.g., Bernal-Vallejo v. INS, 195 F.3d 56, 62 (1st Cir. 1999).

Second CircuitThe Second Circuit’s interpretation of the Fleuti doc-

trine, although addressing the length of the alien’s absence and the need for travel documents, has primarily focused on the “innocent” factor, including the manner of the alien’s entry upon his return to the United States. For example, a 3-week trip mandated by an alien’s employer for training purposes was deemed to be both brief and innocent and thus not meaningfully interruptive of an alien’s permanent residence. See Itzcovitz, 447 F.2d at 894. However, a 6-week trip by nonresident aliens to visit ailing relatives, which required the procurement of new passports and visas, was meaningfully interruptive of the physical presence required for suspension of deportation. See Heitland v. INS, 551 F.2d 495, 502 (2d Cir. 1977). Significantly, the use of nonimmi-grant visas by these aliens to reenter the United States was not innocent because they intended to remain permanently, in violation of the terms of the visas. The Second Circuit considered the manner of the aliens’ entries to be another indicator of whether the trip abroad was “innocent.” Finally, the court, like the Board in earlier decisions, found that a lawful permanent resident who attempted to smug-gle controlled substances into the United States was not returning from an innocent trip abroad and therefore could properly be placed in exclusion proceedings. See Correa v. Thornburgh, 901 F.2d 1166, 1174 n.9 (2d Cir. 1990); accord Alvarez-Verduzco, 11 I&N Dec. at 626-27.

Third CircuitWhen evaluating the Fleuti factors, the Third Circuit

has addressed the length of the alien’s absence, the neces-sity of procuring travel documents, and the manner of the alien’s reentry. A 2-month business trip, which required the procurement of two visas, was meaningfully interrup-tive of an alien’s permanent residence, despite the innocent nature of the trip. See Dabone v. Karn, 763 F.2d 593, 596 (3d Cir. 1985). The fact that the resident had frequently taken international trips did not convert his last trip into a “casual” one for the purposes of the Fleuti doctrine. Id. Like the Second Circuit, the Third Circuit has also looked to the manner of a resident’s reentry as an indicator of whether his trip was innocent. In Bufalino v. INS, 473 F.2d 728, 731 (3d Cir. 1973), the court determined that a lawful perma-nent resident was not returning from an innocent excursion when he reentered the country by falsely claiming United States citizenship. Such a return could not be characterized as innocent because it frustrated the immigration law’s pol-icy of inspecting entering aliens. The decision in Bufalino

may be a break from the board’s earlier decision in Wong, although it should be noted that the board was applying the Fleuti factors to an applicant for suspension of deportation, not a returning resident.

Fourth CircuitThe Fourth Circuit initially appeared to take a strict

reading of the Fleuti doctrine. In McColvin v. INS, 648 F.2d 935, 938 (4th Cir. 1981), the court expressed doubt that the doctrine was even applicable in the context of sus-pension of deportation, and then it found that even if the doctrine did apply, an alien’s 1-day absence under an order of voluntary departure was meaningfully interruptive of his physical presence. Two years later, the court construed the doctrine in a seemingly more generous fashion in the case of an applicant for adjustment of status. In Joshi v. District Director, INS, 720 F.2d 799 (4th Cir. 1983), the alien returned from a 6-week business trip pursuant to a grant of advance parole authorization. The court determined that his procurement of the advance authorization reaffirmed his intent “to preserve, rather than meaningfully interrupt” his presence. Id. at 801. The court’s decision may diverge from the Board’s earlier decisions, which consistently found that the procurement of travel documents evidenced a meaningfully interruptive departure. See, e.g., Hemblen, 14 I&N Dec. at 742; Kukla, 14 I&N Dec. at 685; Janati-Ataie, 14 I&N Dec. at 224; Guimaraes, 10 I&N Dec. at 532.

Fifth CircuitThe Fifth Circuit’s examination of the Fleuti doctrine,

although touching on the length of absence and the alien’s intent, has focused heavily on the “innocent” factor, exam-ining the purpose of the trip abroad and the manner of the alien’s reentry. In Yanez-Jacquez v. INS, 440 F.2d 701 (5th Cir. 1971), a lawful permanent resident entered Mexico with an ice pick, seeking to avenge an earlier assault and rob-bery in Juarez. He failed to find his attackers and reentered the United States by crossing the Rio Grande River half a mile from a port of entry. The court, while acknowledging that the alien’s purpose was “less than salutory in nature,” found that he did not intend to interrupt his permanent residence with this brief trip abroad. Id. at 704. Moreover, contrary to the Third Circuit’s approach in Dabone, the Fifth Circuit found that Yanez-Jacquez’s frequent, brief visits to Mexico supported the conclusion that he did not intend to meaningfully interrupt his permanent residence with his most recent brief visit.

In Solis-Davila v. INS, 456 F.2d 424, 427 (5th Cir. 1972), the court determined that a lawful permanent resident was not returning from an innocent excursion when he departed for “the express purpose of unlawfully smuggling several aliens into this country.” According to the court, such an objective is “‘itself contrary to some policy reflected in our immigration laws.’” Id. (quoting Fleuti, 374 U.S. at 462). In Vargas-Banuelos v. INS, 466 F.2d 1371, 1373-74 (5th Cir. 1972), the court refined this proposition, finding that a resident’s intent to smuggle aliens must be formed

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Fleuti continued from page 11

at the time of his departure from the United States for the departure to be meaningfully interruptive of his residence. Vargas-Banuelos, who did not form his criminal intent until he was already in Mexico, did not effectuate an entry upon his return. In this regard, the Fifth Circuit has diverged from the Board, which has declined to draw a distinction between a criminal intent formed before departure and one formed while outside of the United States. See, e.g., Alvarez-Verduzco, 11 I&N Dec. at 626.

Five years later, the court again addressed the intersec-tion of alien smuggling and the Fleuti doctrine. See Laredo-Miranda v. INS, 555 F.2d 1242 (5th Cir. 1977). Laredo-Miranda, a lawful permanent resident, traveled to Mexico with a companion who he knew intended to smuggle aliens into the United States, but he did not intend to participate in the smuggling himself. While in Mexico, he realized that he had left his alien registration card in the United States and decided to reenter the country by wading across the Rio Grande River with the group of smuggled aliens, while his companion lawfully reentered at a port of entry. Laredo-Miranda was charged with deportability for entering the United States without inspection. The court distinguished the case from Yanez-Jacquez and Vargas-Banuelos, finding that the combination of Laredo-Miranda’s illicit intent to smuggle aliens formed after his departure and his subse-quent unlawful reentry was sufficient to meaningfully inter-rupt his residence.

The precedent continued to develop when the court addressed the actions of an inebriated lawful permanent resident who reentered the United States with a compan-ion to purchase beer. See Carbajal-Gonzalez v. INS, 78 F.3d 194 (5th Cir. 1996). The two men were not inspected by an immigration officer at the time of their entry, and Carbajal-Gonzalez’s companion was not in possession of documentation that allowed him to enter the United States. Carbajal-Gonzalez was charged with deportability for enter-ing without inspection and for alien smuggling. The court distinguished his actions from those of Laredo-Miranda, finding that the resident alien must have a “fully consum-mated intent to participate actively in alien smuggling, whether formed prior to or after departure from the United States,” to meaningfully interrupt his residence. Id. at 199. Carbajal-Gonzalez’s “drunken imprudence” did not consti-tute such an intent. Id. at 201. Sixth Circuit

The Sixth Circuit’s Fleuti doctrine case law is limited. The court determined that the doctrine provided no protec-tion to a border commuter who traveled over the Mexican-American border on a daily basis for more than a year to attend school in Juarez. See Kabongo v. INS, 837 F.2d 753, 757 (6th Cir. 1988); accord Diaz, 15 I&N Dec. at 489. Although the most recent of these trips lasted less than 1 day, the trips cumulatively created a meaningful interrup-tion of his presence in the United States.

Seventh Circuit

The Seventh Circuit has expanded the Fleuti doctrine beyond the traditional factors by also considering the alien’s intent and the uprooting that would be caused by deportation. In Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir. 1965), the court applied the Fleuti doctrine to a lawful permanent resident who had taken a 6-day family vacation and a subsequent 24-hour trip to Canada, finding that both of these trips were brief and that the vacation was also inno-cent. Moreover, Zimmerman’s mistaken claim to U.S. citi-zenship, based upon a genuine belief that he had acquired citizenship through an adoption, did not change the nature of his excursion. Although the court did not directly address the hardship to Zimmerman, it did note that he had main-tained his resident alien status for 39 years, was married to a U.S. citizen, had three U.S. citizen children, and owned a residence and a business in Chicago. Thus, it “would border on the absurd to ascribe to him an intention of impairing his status as a permanent resident.” Id. at 949.

In Lozano-Giron v. INS, 506 F.2d 1073, 1077 (7th Cir. 1974), the court took the extra step and declared that the “effect of the uprooting caused by the deportation” was a relevant factor in the Fleuti analysis. The analysis of this effect is informed by factors including how long the alien had been a permanent resident; whether he had a spouse or children in the United States; whether he owned a busi-ness, home, or other property in United States; the nature of the environment to which he would be deported; and his relation to that environment.

Despite the court’s consideration of these new factors, it still determined that Lozano-Giron’s departure had meaning-fully interrupted his residence. The court first noted that his 27-day absence might not be brief, given that he had been absent three times in the last two years for a total period of seven months. Moreover, Lozano-Giron flew to Colombia for the purpose of marrying a Colombian citizen. Such a depar-ture was meaningfully interruptive of his residence because his future wife might not be admissible to the United States or might insist that the couple reside in Colombia. The court also suggested that his trip to Colombia, which is not con-tiguous to the United States, and which would likely require him to show his alien registration card upon his return, was not as casual as Fleuti’s across-the-border excursion to Mexico. Turning to the alien’s intent, the court found that Lozano-Giron evidenced an intent to remain in Colombia for an extended period of time because he traveled with a sizable amount of Colombian currency, despite knowing that the Colombian Government did not permit individuals to depart the country in possession of more than a nominal amount of Colombian currency and that Colombian banks would not exchange a traveler’s Colombian currency for American dollars. Finally, his deportation was likely to cause minimal uprooting in his life, because he presented no evidence of a spouse, children, property ownership, or gainful employment in the United States or that his life would be in danger in Colombia.

More recently, the Seventh Circuit has interpreted

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the “innocent” factor as it applies to resident aliens who engage in alien smuggling. The court broke from the Fifth Circuit’s approach in Vargas-Banuelos and followed the board’s lead, finding that even when a resident alien departs the United States with an innocent intention, his trip cannot be characterized as innocent if he subsequently forms the intent to smuggle aliens and acts on that inten-tion. See Selimi v. INS, 312 F.3d 854, 860 (7th Cir. 2002); accord Alvarez-Verduzco, 11 I&N Dec. at 626.

In addition, the Seventh Circuit diverged from the Fifth Circuit’s application of the Fleuti doctrine to lawful per-manent residents charged with entering the United States without inspection. The court instead followed the board’s approach and found Fleuti inapplicable in such situations, regardless of the purpose or duration of a resident’s trip abroad. See Leal-Rodriguez v. INS, 990 F.2d 939, 948 (7th Cir. 1993) (finding “that the Fleuti doctrine should not apply to cases of entries without inspection”); see also Rosendo-Ramirez v. INS, 32 F.3d 1085, 1090 (7th Cir. 1994) (citing Leal-Rodriguez and rejecting the rule established by the Fifth Circuit in Laredo-Miranda); accord Kolk, 11 I&N Dec. at 105.

Eighth CircuitThe Eighth Circuit has addressed only one of the Fleuti

factors: the purpose of the trip. Like the Board, the court found that a lawful permanent resident’s intent to engage in alien smuggling at the time of his departure from the United States converted his otherwise “short, casual sojourn” into a meaningful disruption of his residence. See Longoria-Castenada v. INS, 548 F.2d 233, 237 (8th Cir. 1977); accord Valdovinos, 14 I&N Dec. at 440. In addition, the court joined the Seventh Circuit and determined that the uproot-ing caused by deportation is a relevant factor in the Fleuti analysis. The court concluded that Longoria-Castenada’s illicit purpose, however, outweighed the uprooting effect of deportation, even though he was married to a lawful per-manent resident, had eight U.S. citizen children, and had lived and worked lawfully in the United States for nearly 20 years.

Ninth CircuitThe Ninth Circuit has been the most prolific circuit

to address the Fleuti doctrine. As discussed below, it has expanded the doctrine beyond its traditional factors. At the same time, the court has clearly indicated that the doctrine only applies to returning lawful residents, including tem-porary lawful residents. See Mendoza v. INS, 16 F.3d 335, 337 (9th Cir. 1994); see also Aguilera-Medina v. INS, 137 F.3d 1401, 1403-04 (9th Cir. 1998) (noting that the Fleuti doctrine applies to temporary lawful residents under the Special Agricultural Workers program and rejecting the Board’s decision in Chavez-Calderon). But see Biggs v. INS, 55 F.3d 1398, 1401 (9th Cir. 1995) (finding that the Fleuti doctrine does not apply to an alien who obtained her per-manent residence through fraud).

When addressing the length of an alien’s trip abroad, the court has found that trips of up to 3 days’ duration are sufficiently brief as to not constitute a meaningful inter-

ruption of the alien’s presence. See Maldonado-Sandoval v. U.S. INS, 518 F.2d 278, 281 (9th Cir. 1975). On the other hand, an absence of 30 days to care for an ailing relative was long enough to meaningfully interrupt an alien’s per-manent residence. See Munoz-Casarez v. INS, 511 F.2d 947, 948 (9th Cir. 1975). The court’s interpretation of the “brief” factor, however, expands beyond the length of the trip. In Toon-Ming Wong v. INS, 363 F.2d 234, 236 (9th Cir. 1966), the court remanded the case of a minor child seeking sus-pension of deportation who was sent by his guardians to reside with relatives abroad for 6 months, directing the board to determine “whether the minor’s intent, that of the parent, or of both, is controlling” in the Fleuti analysis.

When addressing the purpose of the trip, the court, like the board, has examined whether an alien traveled to a country restricted by the immigration laws. Thus, it found a two-month trip to be meaningfully interruptive of an alien’s permanent residence because, during his absence, the alien traveled to Cuba for two weeks. See Bilbao-Bastida v. INS, 409 F.2d 820, 823 (9th Cir. 1969); accord Hemblen, 14 I&N Dec. at 742. Similarly, the court has followed the board’s lead regarding aliens engaged in criminal activ-ity at the time of their reentry and has determined that aliens interrupt their permanent residence or presence in the United States by engaging in alien or drug smuggling after their departure, regardless of when they form their unlawful intent. See Cuevas-Cuevas v. INS, 523 F.2d 883, 884 (9th Cir. 1975) (alien smuggling); Palatian v. INS, 502 F.2d 1091, 1093 (9th Cir. 1974) (drug smuggling); accord Alvarez-Verduzco, 11 I&N Dec. at 626-27.

Conversely, the court has found that a “bona fide and lawful purpose” that demonstrates a resident alien’s “intent to preserve, not interrupt, his permanent resident status,” such as tying up affairs and preparing to immigrate the resident’s relatives to the United States, can outweigh a longer absence. See Jubilado v. United States, 819 F.2d 210, 213 (9th Cir. 1987) (finding that a 3-month absence was not meaningfully interruptive of an alien’s residence). Similarly, an alien who departs the United States to apply for an immigrant visa does not interrupt his presence for the purpose of suspension of deportation. See Castrejon-Garcia v. INS, 60 F.3d 1359, 1362-63 (9th Cir. 1995) (not-ing that a contrary holding would “penalize[] a good faith effort to comply with the immigration laws”).

The Ninth Circuit has construed the procurement of travel documents in an apparently contradictory manner. For example, the court determined that acquiring a pass-port or a visa to enter another country indicated that an alien’s departure was meaningfully interruptive of his resi-dence because “the necessity of procuring the[] documents should have caused [the alien] ‘to consider more fully the implications involved in his leaving the country.’” Bilbao-Bastida, 409 F.2d at 823 (quoting Fleuti, 374 U.S. at 462). However, the court also noted that acquiring travel docu-ments for relatives who intend to immigrate to the United States could demonstrate an alien’s intent to preserve his permanent residence, because these documents would

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14 | The Green Card

enable his relatives to return with him. See Jubilado, 819 F.2d at 214. Similarly, an alien who departed with the docu-ments required to acquire another nonimmigrant visa at a consulate abroad might also indicate his intent to preserve his presence in the United States, even if his travel required renewing his passport. See Kamheangpatiyooth, 597 F.2d at 1258-59. This decision, in particular, seems to diverge from the Board’s stricter interpretation of the procurement of travel documents, including the renewal of passports. See, e.g., Janati-Ataie, 14 I&N Dec. at 244.

Tenth CircuitThe Tenth Circuit’s analysis of the Fleuti factors is lim-

ited to examining the length and casualness of the alien’s absence. In Rubio-Rubio v. INS, 23 F.3d 273, 277 (10th Cir. 1994), the court determined that an alien who traveled to Mexico to remain indefinitely interrupted her physical presence in the United States during her 9-month absence. Given her intent to remain in Mexico permanently, her departure could not be considered brief or casual.

Eleventh CircuitThe Eleventh Circuit has addressed the Fleuti factors

in a limited context. In Fidalgo/Velez v. INS, 697 F.2d 1026, 1029 (11th Cir. 1983), the court found that an alien’s 1-day trip to Canada to unlawfully obtain an immigrant visa meaningfully interrupted her physical presence for the purpose of suspension of deportation. Similar to the board’s earlier decision in Herrera, the court acknowledged that although Fidalgo-Velez’s departure was brief, it was not innocent because she had attempted to obtain a visa to which she was not entitled. Accord Herrera, 18 I&N Dec. at 7-8. Additionally, even though she did not need to obtain travel documents, the court found that her trip to obtain a visa was not casual.

ConclusionThe Vartelas decision heralded the return of the Fleuti

doctrine, and with it, the necessity for adjudicators to evaluate the Fleuti factors whenever the Department of Homeland Security seeks to charge that a returning lawful permanent resident is inadmissible based on a pre-IIRIRA conviction. Whether a returning resident is charged with inadmissibility will, in turn, impact what forms of relief are available to the resident. Thus, applying the Fleuti doctrine correctly will continue to be of critical importance for adju-dicators facing these cases. u

Sabrina Gillespie is an attorney advisor at the Los Angeles Immigration Court. This article was reprinted from the Immigration Law Advisor, vol. 7 no. 4.

The Immigration Law Advisor is a professional newslet-ter of the Executive Office for Immigration Review (EOIR) that is intended solely as an educational resource to dis-seminate information on developments in immigration

law pertinent to the Immigration Courts and the Board of Immigration Appeals. Any views expressed are those of the author and do not represent the positions of EOIR, the Department of Justice, the attorney general, or the U.S. gov-ernment. This publication contains no legal advice and may not be construed to create or limit any rights enforceable by law. EOIR will not answer questions concerning the publica-tion’s content or how it may pertain to any individual case. Guidance concerning proceedings before EOIR may be found in the Immigration Court Practice Manual and/or the Board of Immigration Appeals Practice Manual.

Endnotes1Throughout the article, the author will refer to these

three criteria as the “Fleuti factors.” 2The Court specifically noted that only the retroactive

application of section 101(a)(13)(C)(v) of the Act to return-ing lawful permanent residents was relevant in Vartelas. See 132 S. Ct. at 485. The question remains whether the Court’s retroactivity analysis would bar the application of other provisions in section 101(a)(13)(C) to a returning resi-dent’s pre-IIRIRA conduct. For example, the Vartelas deci-sion does not address whether section 101(a)(13)(C)(iii), which classifies a returning lawful permanent resident who has engaged in illegal activity after departing the United States as an alien seeking admission, can be applied to a resident with a pre-IIRIRA conviction for a crime that is not described in section 212(a)(2) of the Act.

3Former section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1), permitted the attorney general to suspend the deporta-tion of an alien who could demonstrate that he had been continuously physically present in the United States for seven years; that he had been a person of good moral char-acter throughout that time; and that his deportation would result in extreme hardship to himself, or to his spouse, child, or parent, who was a U.S. citizen or lawful perma-nent resident. Although the Supreme Court determined that the Fleuti doctrine did not apply to aliens applying for suspension of deportation, its holding was abrogated by the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. See former section 244(b)(2) of the Act, 8 U.S.C. § 1254(b)(2) (1994), United States v. Phinpathya, 464 U.S. 183, 194 (1984).

4An example of such a differing approach can be found in the Ninth Circuit’s decisions addressing the application of the Fleuti factors to requests for suspension of deporta-tion. See, e.g., Kamheangpatiyooth v. INS, 597 F.2d 1253, 1258 (9th Cir. 1979) (requiring a court to consider the tradi-tional Fleuti factors alongside the hardship that deportation would cause an alien when determining if the alien has established the requisite physical presence).

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Winter 2013/2014 | 15

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Human Rights in SyriaJosepH K. GRiebosKi, The INSTITUTe oN RelIgIoN & PUblIc PolIcy

Executive SummarySyria is in a time of great civil conflict that has greatly

threatened religious freedom in the country. The constitu-tion and other laws protect religious freedom in theory, but the recent unrest has led the Syrian government to impose severe restrictions. The government surveilled, killed, detained, and harassed members of faiths thought as threats to security, including the country’s Sunni majority. Groups labeled as “Muslim extremists” as well as Jehovah’s Witnesses were banned.

The U.S. report on religious freedom asserts that gov-ernment respect for religious freedom declined during the year. Syria continued to closely monitor all religious groups, and the state discouraged proselytizing as a potential for discord among different faiths. Over the course of the year, there were reports of abuse and discrimination based on religion. Government opposition began in 2011 peacefully calling for reform. The regime framed the protests as sec-tarian violence of extreme Islamists factions. The Alawi minority was incorrectly equated with the regime; thus, the Alawis were targeted for retribution when conflict rose between Sunni and Alawi. A majority of the 70,000 citizens killed so far in the conflict were Alawi, Shia, and Sunni, although reports of harassment of Christians increased during the year. The U.S. embassy was closed in February and diplomatic ties were cut. U.S. officials still work with religious leaders, civil society groups, and the opposition to combat the increasingly sectarian rhetoric in the country. High-level U.S. officials continue to urge the Syrian govern-ment to respect the human rights of its citizens, even in this time of conflict.1

THE INSTITUTE on Religion and Public Policy Nominated for the Nobel Peace Prize, THE

INSTITUTE on Religion and Public Policy is an interna-tional, inter-religious non-profit organization dedicated to ensuring freedom of religion as the foundation for security, stability, and democracy. THE INSTITUTE works globally to promote fundamental rights, and religious freedom in particular, with government policy-makers, religious lead-ers, business executives, academics, non-governmental organizations and others. THE INSTITUTE encourages and assists in the effective and cooperative advancement of religious freedom throughout the world.

History and Religious Demographics of SyriaSyria established complete independence in September

of 1961. From this point forward, Syria existed in a mod-erately tumultuous environment. In May of 2007, Bashar al-Asad was elected president for his second term by popu-

lar referendum. Uprisings began else where in the region sparked popular demonstrations for reform in March of 2011. Since then, demonstrations and conflict have spread across Syria in cycles of intensity and size. The government responded to the demonstrations with a confusing mix of concessions and force. The government has still failed to meet opposition demands for al-Asad to resign from office. The government now operated to quell unrest in violent clashed with citizens it has labeled as sectarian violence. Sanctions have been imposed on Syria by the Arab League, the European Union, Turkey, and the United States. While peace is brokered, human rights are violated increasing numbers.2

About 22 million people live in Syria as of the 2013 estimate with 90 percent identifying as Arab..The other 10 percent is made of Kurds, Armenians, and other minority groups. Islam is the states official religion with almost 75 percent of the population adhering to the Sunni sect. Other Muslim sects make up another 16 percent, and Christians (and a tiny fraction of Jews) make up the rest of the population.3 Emigration from the country has increased through the year due to violence and economic insecurity. Many Christians belong to autonomous Orthodox churches Uniate churches, or independent Nestorian Church, and approximately two percent have already fled the country. Most of the 100 Jews left at the beginning of the year.

Legal Status The current state of strife in Syria has strained religion

freedom. The state technically allows freedom of religion and worship so long as its practice does not disturb public order, and there is established procedure to sue the govern-ment if these rights are violated. The state has no official religion; although, the president is required to be Muslim and Islamic law is a primary source for legislation. The state does not recognize Muslims who convert, but as there is no state religion it is not illegal. The government also restricts proselytizing. It discourages, expel, and prosecutes missionary on the groups that they pose a threat to exist-ing relations between religious groups. The production and distribution of religious media is similarly restricted.

Many groups were allowed to worship freely, but groups considered “Muslim extremists” and Jehovah’s Witnesses must worship without attracting government notice. Two “extremist” Muslim groups noted by the Syrian government are the Salafist and the Syrian Muslim Brotherhood. The government has yet to define what it considers a Salafist organization or explained why it is illegal. In the past, par-

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ticipate in the Syrian Muslim Brotherhood was punishable by deal. Until 2012, the sentence was usually served as 12 years in prison. The sentence has been elevated again to the death penalty.

All religious groups must registered through the gov-ernment which it then uses registration information to track fundraising. Any meeting, religious or otherwise, must also be registered with the state excluding worship, and all state-recognized religious groups receive free utilities and do not pay property taxes on buildings or personal tax on their official vehicles. The religion (Muslim, Christian, or Jewish) of every citizen is noted on their birth certificates, thus, every citizen must be affiliated to one of these mono-theistic faith, at least nominally. Members of each religion are subject to their own religious laws for matters of mar-riage and divorce, while inheritance is based on Islamic law for everyone expect Christians.

Contact between Syrian Jews and Jews in Israel is ille-gal, and Jews are the only minority not represented among the senior officers corps. The Syrian government does not allow for conscientious objection, although Muslim and Christian religious leaders have traditionally exempt. Religious instruction is required for all students attending public school in their designated religions. Other minori-ties must either choose between the two or attend public school.4

Specific Instances of Discrimination in SyriaAs Syrians will report, religious freedom and tolerance

was deeply engrained in Syrian society prior to the revolu-tion. The Assad regime notably institutionalized policies to enforce religious tolerance as a measure to protect the ruling Alawite minority from persecution. For decades, Christians and Muslims lived side-by-side, in the country’s major cit-ies, Aleppo and Damascus, as well as small villages spread throughout the country but concentrated in the northeast. Today, however, religion has become a dividing line in the conflict and Syrians, particularly Alawite, Christian, Druze, and Sunni and Shia Muslims living as minority communi-ties, have reportedly been the victims of targeted violence, causing them restrict public demonstrations of their faith or flee their homes.

The Current State of Crisis More than 70,000 people have died in the Syrian crisis,

according to UN reports, and the rate of deaths is increas-ing. According to monitors, March 2013 represented the bloodiest month of the conflict to date, with more than 3480 civilians killed, nearly 300 of who were children.5 While the government continues to employ more destructive air and military technology in its efforts to defeat opposition rebel forces, both sides have grown increasingly violent. Rebel fighters have been responsible for civilian executions and targeted assassinations,6 as well as kidnappings and other forms of violence.

There are presently more than 1.1 million Syrian refu-gees registered with the UNHCR, which excludes the number of Syrians who have fled and not registered as refugees. In March 2013, the Lebanese government estimated that there were more than one million Syrians living within its borders, including over 350,000 registered refugees. Approximately 48% of the current registered refugees have fled Syria since the beginning of 2013. Estimates place the number of Syrian IDPs within the country at over 2.5 million.

Food security has become a critical issue for a growing number of Syrians as basic commodities become difficult to find and increasingly expensive. Civilians, both those who have been displaced and those who remain in their homes, lack access to basic humanitarian services and commodi-ties, such as water sanitization, health care, immuniza-tions, etc. Numerous aid groups, including UNICEF and other UN agencies warn they will need to halt activities in the coming months due to insufficient funding. The UN reports that it has only received 20% of the $1 billion it has requested to assist refugees alone.7

The opposition in Syria continues to be rife with infighting among its political, religious and militant groups. Among rebel militias there is a growing rift between con-servative Islamist fighters, led by groups such as Jabhat Al-Nusra that the US defines as a terrorist organization with links to Al Qaeda, and rebel groups loosely aligned under the Free Syrian Army, now renamed the Supreme Military Council.8 Targeted killings and militant combat frequently occurs between members of this group, despite their common objective against the Assad regime. In recent months, Islamist groups have taken over key airfields and arms caches, and have also set up a civil-works office that provides humanitarian assistance to local Syrians

Progress towards adopting a cohesive identity and mission was further undermined by the resignation of the Moaz Al-Khatib from his position as President of the Syrian Opposition Coalition. According to Washington Post reports, his resignation was prompted by an alleged Muslim Brotherhood effort to install an opposition Prime Minister, which Khatib firmly rejected. Despite his pronounced res-ignation, Khatib is currently representing Syria at a meet-ing of the Arab League after he was formally invited by the hosting President of Qatar, representing broad Arab support for the legitimacy of his leadership and that of the opposition.

While the international community has increasingly labeled the revolution as a sectarian conflict between Sunni and Shia sects, both the opposition movement and pro-Assad supporters continue to deny that the conflict is sectarian in nature. There is increasing fear of what role Jihadists and Islamists might play in the aftermath of the revolution.

The international community has yet to take significant steps to intervene in the Syrian crisis, largely due to China and Russia’s successful efforts to block UN intervention

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through the Security Council. A number of Arab states, notably Saudi Arabia the Gulf region, who were alleged to have been sending arms to rebels since early 2012 pro-nounced publically that they are providing military aid to the opposition. At its most recent meeting in March 2013, the Arab League affirmed its members rights to provide military support to the Syrian opposition, a move seen by some as a step that would allow for more open media coverage of activities already taking place.9 The US has been providing covert support, mainly in the form of train-ing and non-military technology, but has announced that it will refrain from further action unless the Assad regime employs or begins mobilizing chemical weapons, which the US has declared as a red line. Reports by both the opposi-tion and the government that their respective counterparts had employed chemical weapons in early March 2013 has raised the question as to whether the US will act on this declaration. Investigations to confirm the legitimacy of these allegations are ongoing.

Increased Violence

Violence against Christians, historically allied with the Assad regime, has been increasing in the form of targeting killings and some cases, the burning of churches. Many Christians feel stuck between the rebel groups and govern-ment forces, fearing attack by Islamist militants, which represent a growing force among rebel fighters.10 While Christians vary as to whether they believe the violence against them to be a genuine attack on their religion or an attempt to take over their wealth, Christians inside Syria have actively halted many public manifestations of their religion.11

A large number of Christians have fled from their homes for northern Syria or refugee camps over the border, many in fear of ethnic cleansing. There, however, Christians con-tinue to be subject to targeted harassment and kidnappings by rebels. Moreover, Christians fear Turkish refugee camps do not provide a safe haven, as they are deeply infiltrated by rebel forces.12 As a result, many who flee over the border are turning to Turkish churches, monasteries, and Christian families for refuge.13 Armenians, who account for a signifi-cant percentage of Syria’s Christian population, have also reportedly been targeted by rebels in Aleppo and other areas where they live in high concentrations. However, it is unclear whether these attacks have been ethnically, finan-cially or religiously motivated.14

The Alawites represent the religious sect of the Assad regime and are a minority in Syria. Although technically an offshoot of Shia Islam, beginning in 1947 former President Hafez Al-Assad pursued a policy of “Sunnification,” encour-aging members of his own Alawite sect to adopt Sunni practices and limited their expressions of allegiance to Shia leaders. The result produced unique class of Alawite citizens who saw the religious identity more as a ethnic affiliation akin to that of secular Jews, widely perceived as relatively secular compared to other religious groups.

The current position of the Alawite community is pre-

carious. As the conflict in Syria has taken an increasingly Sunni-Shia divide, many Alawites have fled their homes in fear of ethnic cleansing. Those who side with the regime are targeted by rebel groups. Those who opt to support the opposition are subject to harassment by fellow Alawites. One report of an Alawite attack on opposition protestors at a University in Damascus recounted how Alawite protestors where specifically singled out and assaulted. Alawites who have attempted to join the opposition refrain from revealing their religious identity to Sunni counterparts.15

Fears of persecution are not limited to Syria’s Christian and Alawite religious minorities. Shia families living in pre-dominantly Sunni communities have fled along with other minority groups, likewise fearing retaliation for their affili-ation with government brutality. In January 2013, Human Rights Watch released a report on attacks on sites of wor-ship, and while churches were among those subject to vandalism, so too were Shia and Sunni mosques.16 Thus the reality of attacks on religious sites appears to be connected with the minority status of religious groups, rather than any clear division along Christian or Muslim lines.

While the Druze have been in some cases subject to violence similar to that of their minority counterparts, there are comparably fewer reports that they have been the tar-gets of violence as a religious group. Druze have remained relatively neutral in the conflict to date, however reports in February and March of 2013 indicate that a growing num-ber of Druze are joining the opposition and taking up arms against the regime. It remains to be seen that effect this increasing activism will have on their security.

U.S. Government PolicyWith the shut down of the U.S. embassy in February,

U.S. activity in Syria has been limited. This aside, the U.S. government has maintained strong relations with religious groups and leaders in the country to try to foster peace. Throughout the year, high-level officials have met with Sunni, Shia, and Orthodox Christian leaders in dialogue about protecting vulnerable populations and combatting sectarian violence. The U.S. government maintains a strong rhetoric urging Syria to respect the universal rights of all its citizen, even religious rights, even in the time of civil upheaval.

ConclusionRacked with internal violence, Syrian society was

plagued by human rights violations and discrimination over the course of the year. The constitution provides for religious freedom, but the state has done little to enforce, up-hold, and propagate religious freedom to the point that notable amounts of the religious discrimination and perse-cution was carried out by the government. The internation-al community has increasingly reduced cooperation and restrictions on Syrian to incentivize peace in the region. All through the conflict is currently classified as a stale-mate, sympathetic states supplying the regime with drones and

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weaponry could cause the violence to escalate.17 The inter-national community must increase pressure on the govern-ment to end the state-sponsored violence and respect the universal rights of its citizens. u

Endnotes1CIA- The World Factbook https://www.cia.gov/library/publications/the-

world-factbook/geos/sy.html2CIA- The World Factbook https://www.cia.gov/library/publications/the-

world-factbook/geos/sy.html3U.S. Department of State International Religious

Freedom Report 2012 http://www.state.gov/j/drl/rls/irf/religiousfree-

dom/index.htm#wrapper4U.S. Department of State International Religious

Freedom Report 2012 http://www.state.gov/j/drl/rls/irf/religiousfree-

dom/index.htm#wrapper5”Opposition Syrian activists: Clashes, shelling on the outskirts of Damascus http://

www.bbc.co.uk/arabic/middleeast/2013/04/130402_syria_tuesday_clashes.shtml

6http://syriahr.com/en/7Syria- Complex Emergency, Fact Sheet http://reliefweb.int/sites/reliefweb.int/files/

resources/Syria%20Complex%20Emergency%20Fact%20Sheet%2011%20FY%202013.pdf

8“In Syria, the rebels have begun to fight among them-selves”

http://world.time.com/2013/03/26/in-syria-the-rebels-have-begun-to-fight-among-themselves/?iid=gs-arti-cle-mostpop1

9“Feel free to report: ‘Sending arms to Syrian rebels is now legal and covered by the Arab League’”

http://rt.com/op-edge/syria-arab-league-military-aid-894/

10“A visit to a Christian community in Syria http://www.npr.org/2013/02/21/172566336/a-vis-

it-to-a-christian-community-in-syria11“Wary Easter weekend for Syrian Christians”

http://www.nytimes.com/2013/03/31/world/mid-dleeast/wary-easter-weekend-for-syrian-christians.html?pagewanted=all&_r=0

12“Chirsitans squeezed out by violent struggle in north-Syria

http://www.nytimes.com/2013/02/14/world/middleeast/christians-squeezed-out-by-violent-struggle-in-north-syria.html?pagewanted=all

13“Syrian Chiristians turn to Turkish churches not refu-gee camps for help” http://catholicphilly.com/2013/03/us-world-news/world-catholic-news/syrian-christians-turn-to-turkish-churches-not-refugee-camps-for-help/

14Christians in Syria http://www.meforum.org/3377/christians-in-syria

15“Looking at Alawites” http://www.aymennjawad.org/12686/looking-at-alawites

16“Syria attacks religious sites, raises tensions” http://www.hrw.org/news/2013/01/23/syria-

attacks-religious-sites-raise-tensions17“Russian-Iranian technology is boosting Asad’s assult

on Syrian Rebels” http://www.washingtonpost.com/world/national-security/russian-iranian-technology-is-boosting-assads-assault-on-syrian-rebels/2013/06/01/aefad718-ca26-11e2-9f1a-1a7cdee20287_story_1.html

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Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency

incoGnito*

Article

Once upon a time there was a government agency called the Immigration and Naturalization Service (INS), which many people hated. INS critics called upon Congress to restructure the agency, thinking that all faults would go away if that happened. Congress finally did a major restruc-turing, creating the Department of Homeland Security and abolishing INS. A funny thing happened on the way to restructuring, as Congress did what Congress meant to do, and not exactly as the INS critics meant for Congress to do.

The INS inspections function transferred to the Office of Field Operations (OFO) in a new agency called U.S. Customs and Border Protection (CBP). An unintended consequence was that the observed level of immigration expertise has dropped alarmingly in CBP’s new OFO. How may this have happened?

With any merger, there must be a melding of corpo-rate cultures. Immigration inspectors had been part of the Department of Justice, Customs inspectors had been part of the Treasury Department, and Agriculture inspectors had been part of the Agriculture Department. With the com-mon goal envisioned by DHS, the expectation that within a relatively short period, perhaps one to three years but not more than five years, the several cultures would unite into one common purpose.

Relatively quickly, with political backing, agriculture inspectors reestablished themselves and their mission as being unique. Their critical mission has thrived in the new agency, as better resources and inspection techniques have allowed this OFO/CBP component to better protect against invasive species.

On Day One, March 1, 2003, it was clear, however, that the former U.S. Customs Service had won the decades-old tension with INS over which agency’s culture and structure was better suited to take over the border inspections pro-gram. Ninety percent or more of OFO/CBP’s top managers came from Customs. The expectation was that the Customs and Immigration missions would be performed adequately by the same officers. Ten years later, this realistic expecta-tion has not been met, as observed by immigration practi-tioners.

Consider this:In the beginning, the attitude among legacy Customs

people was that the reason there was DHS restructuring was because INS had admitted alien terrorists who had car-ried out the 9/11 atrocities. As Congress had abolished INS as an agency, the perceived judgment was that all things Customs were good, and all things INS must be bad and not to be trusted. Also, if INS had not let “those aliens”

into the country, terroristic activities would not have hap-pened. The solution appeared obvious—just don’t let aliens into the country. However, that simple answer didn’t work, given the hundreds of millions of visitors to the country each year. Therefore, the new CBP culture fostered the idea of figuring out some reason, any reason, to not admit an alien. This culture also fit the mind-set of the INS cowboys who had made up a sub-set of the INS inspections program.

There were a certain number of INS district, regional, and headquarters personnel who transferred to CBP. The question became, what should be done with them? After all, Customs had operated since 1789 without that resource. In that way, former INS managers, who previously had managed port of entry operations, found themselves sud-denly stripped of wide-ranging responsibilities and assigned duties of little importance. Not fired, and not particularly valued, their presence was merely tolerated by the domi-nant culture of the new agency. Although many (especially younger field supervisors) have survived the new culture, some transferred to other agencies, and more retired when that option became available. CBP failed to stem the loss of that valuable immigration resource, with the predictable result that the quality of meaningful oversight of immigra-tion decisions has lessened greatly.

Similar things happened to the attorney resource that transferred from INS to CBP. The overwhelming percep-tion from attorneys who transferred was that CBP’s Office of Chief Counsel (OCC) did not value them as attorneys knowledgeable about immigration issues, but merely as positions that could eventually be filled with the personnel that Customs wanted all along in those slots. Part of that thought came from the reality that the journeyman grade for an INS attorney was GS-14, while journeymen Customs attorneys were only GS-13s. OCC welcomed the higher graded positions, but not the incumbents. Attrition worked its toll, through transfers and retirements, quickly resulting in diminished immigration expertise in OCC. Not to worry though, because when responsibility for legal counsel on immigration inspections issues was transferred to OCC, OCC attorneys attended a two hour briefing. Emerging from the briefing, OCC deemed themselves competent to advise on all immigration complexities. Contributing to the problem, as GS-14 and -15 level former INS attorneys left CBP, they were not replaced with experienced OCC (govern-ment) attorneys, but with new kids just out of law school. Bright people, but, nonetheless, new kids on the block hav-

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ing no experienced immigration attorneys to mentor them.Are things better now? At least one field office of

Associate Chief Counsel, when presented with an immi-gration question, simply declines to answer but refers the issue to Headquarters OCC. More than one former immi-gration attorney from the former INS/DOJ structure who transferred to the DHS structure has deplored the alarming lack of immigration competence in CBP’s OCC. From this, a casual observer may conclude that if OCC ever had a goal of maintaining or developing immigration expertise, it has fallen short of realizing that goal.

Lack of knowledgeable oversight has made meaning-ful decision-making review more difficult. In the old INS structure, the entire chain of command, from port of entry management, to the INS district, regional, and headquarters offices, consisted of career immigration officers. The chain of command managers had the knowledge to discern weak-nesses in cases when apparent ineligibilities had developed at lower levels. With expertise gained through time had come the additional experience of making decisions involv-ing discretionary authorities. In the new CBP environment, top managers were most likely (90%) to have come from legacy Customs and had neither the experience nor the expertise to spot weaknesses in questionable immigration cases. Also, with the old INS cowboys contributing their version of law and procedure, their attitude of “The only good alien is a refused alien” gained greater dominance.

Nor were the former Customs managers comfortable exercising discretionary authorities. The Customs culture, dealing with goods and merchandise, had developed a “good or bad” mentality. If something was good, or permitted, it was allowed entry. If something was bad, it either was not permitted entry, or penalized in some way. Therefore, the concept of detecting an inadmissible alien, but permitting that person to continue into the United States, was difficult to adjust to. Much easier just to send the inadmissible alien home, rather than take a chance of having a discretionary decision questioned by that manager’s chain of command, or agonizing whether the person who had been allowed to travel may commit some further sin.

Contributing to the reluctance of offering discretion is the Customs culture of hanging officers out to dry for the slightest perceived infraction. Over decades, this culture had trained the Customs chain of command to pass the buck when a decision was even slightly out of the ordinary. Not having been trained to make discretionary decisions, and, in fact, having been trained to not make discretionary decisions, it is little wonder that exercising discretion was such a difficult concept to embrace.

Over the years, criticism of discretionary decisions is no longer limited to those from the chain above. Line offi-cers have made reports to internal affairs that supervisors are abusing discretion authority in favor of aliens thought to be inadmissible by line officers. First and second line supervisors are now damned if they do and damned if they

don’t, both by chain of command or internal affairs second guessing.

Faced with diminishing immigration expertise in OFO/CBP, and with increasing negative publicity about poor decisions at ports of entry, former Commissioner Basham asked a Headquarters working group why “immigration” seemed to be such a dirty word. The answer should have come easily from OFO/CBP’s top managers, many of whom had developed well-deserved reputations in Customs of having little regard for immigration issues and immigra-tion personnel. Although publicly articulating allegiance to the combined immigration and customs missions, their actions spoke loudly in exposing their prejudices against that “immigration” dirty word. Is it any wonder then that line officers, trained observers as they are, pick up on the non-verbal clues noticed by Commissioner Basham when he asked why “immigration” seemed to be such a dirty word in OFO/CBP? It takes a truly determined effort for any individual officer to develop immigration expertise on the officer’s own initiative when doing so takes the officer outside the dominant agency culture.

Note also how CBP has eliminated the term “immigra-tion” whenever possible, largely replacing discussions of “immigration” issues with “admissibility” issues. One “Day One” proposal was that the best use of officers historically assigned to immigration secondary would be to reassign that resource to more intensive baggage examinations. There have even been top-level questions of whether OFO/CBP wasn’t now past using the term “immigration officer.” Those questions eased only when reminded that Congress had chosen to keep the term “immigration officer” in the INA. After all, if OFO/CBP had no one designated as immi-gration officers, who would make decisions about eligibil-ity/ineligibilities under the INA?

Also note the mid-level field manager who recently commented, “I came from Customs, and I just don’t get this Immigration stuff.” But now we’ve gone ten years down the road in the new agency, and managers still haven’t learned to properly apply Immigration issues. If legacy Customs managers still haven’t learned, where is the fault—with the manager for refusing to learn about Immigration com-plexities, or for the agency for not providing training and holding managers responsible for faulty chain of command decisions on immigration issues?

The Customs culture is alive and well. The Customs culture does not hold OFO top field managers responsible for poor decisions about immigration issues. There is a cul-tural lack of emphasis on developing or retaining immigra-tion expertise, in the officer corps, among OFO managers, and in OCC. Poo. u

*Incognito is a senior DHS official, now retired. Reprinted from Angelo Paparelli’s immigration blog, with permission from Incognito.

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Much has been written since April 17 when the bipartisan Gang of Eight senators introduced S. 744, a brobdingnagian immigration reform bill that overlays 844 pages of turgid text on top of the already gargantuan and complex Immigration and Nationality Act. The Migration Policy Institute, the National Immigration Law Center, and the American Immigration Lawyers Association (AILA) have each offered a helpful analysis of the bill. This leg-islative leviathan grew to 867 pages on April 30 with the substitution of a “managers’ amendment” (available at their respective web sites.)

Although most of the media focus has homed in on border security and the seemingly IED-laden roadway to citizenship for undocumented immigrants, U.S. compa-nies—especially the General Counsel (GCs) who advise them—are slated to be on the receiving end of shock and awe if the “Border Security, Economic Opportunity, and Immigration Modernization Act,” or BESSIE MAE, as wags like to call it, ever becomes law.

As I explained in a recent article (penned before the managers’ amendment), “Senate Immigration Reform Bill Offers Surprises Galore for Employers,” BESSIE MAE pres-ents American companies with a slew of opportunities and burdens. Consider just a few:

• The H-1B visa quota will rise from 65,00 to 110,000, with a phased escalation clause pushing the quota as high as 180,000 per fiscal year, based on employ-er demand and the unemployment rate for “man-agement, professional and related occupations.” Yet this Faustian gift will cost employers dearly in pre-hiring recruitment, higher filing fees, increased record-keeping, expanded enforcement authority for the Labor Department, and greater potential fines and penalties.

• Similarly, managers and executives who may or may not become L-1A intracompany transferees would be allowed to enter the U.S. as business visitors for up to 90 days “to oversee and observe the United States operations of their related companies, . . . [and] [e]stablish strategic objectives when needed,” while “employees of multinational corporations [may] enter . . . to observe the operations of a related U.S. company and participate in select leadership and development training activities . . .” Yet in return, employers lose the free hand heretofore available to devise creative incentives and bonuses for their inbound expatriate employees who now, like their H-1B brothers and sisters, must be paid the “pre-

vailing wage” under the watchful eyes of the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services.

• In like manner, employers would be given immu-nity (none dare call it “amnesty”) if they maintain on their payrolls workers who are undocumented immigrants but who express the intention to apply for the new Registered Provisional Immigrant status. Yet, enrollment in a veritable E-Verify on steroids will become mandatory for all employers, and the Form I-9 (Employment Eligibility Verification) will continue to be required. Worse yet, any new hires who fail to receive confirmation of employment eli-gibility from E-Verify on the first try must continue to be paid, trained and employed while they pursue a host of new administrative hearing and appeal rights of indeterminate length.

Proactive GCs of corporate America should therefore make sure that their companies are ready for the tsunami of change that will sweep over the enterprise if BESSIE MAE or any equally unreasonable facsimile thereof makes it into the statute books.

The old way of managing immigration, as a backwater area of law relegated to Procurement, Recruiting, Human Resources, and Payroll Administration, or—worse yet—to foreign nationals seeking work visas who are encouraged or allowed to find a low-cost immigration lawyer to “help” the company, will no longer do. Years back, it was sufficient to consider adopting tips from such articles as, “A Three-Point Immigration Manifesto For Chief Legal Officers And Outside Counsel,” and “Global Mobility Management—A Primer for Chief Legal Officers and HR Executives,” accessible at www.seyfarthshaw.com/AngeloPaparelli. Times since then, however, have changed.

To best manage risk, exploit opportunities and control costs across the enterprise while squeezing the most value out of limited resources, GCs must adopt a comprehensive plan of immigration portfolio management, whose key components should address a variety of essential concerns:

• Immigration-customized technology and tools. Immigration tech tools should include inte-grated dashboards (developed, prepared and main-tained by external immigration counsel and a client-dedicated project management expert at the law firm) with “single sign-on” capability and screen views customized to the specific but differing needs of in-house counsel, and all other essential

Memo to GCs: If Ever There is a Time for Immigration Portfolio Management, It’s Now

by anGelo a. papaRelli

memo continued on page 22

Immigration Quibbles & Bites

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stakeholders within the enterprise. Access would therefore be instantly available to:

o an online collaboration tool using secure FTP extranet technology to exchange and logi-cally organize immigration work product, thereby dispensing with the need to search for on-the-fly emails.

o a robust immigration case management system listing case status and key expira-tion dates for all employees on work visas or pursuing green cards,

o user-customizable and standard reports showing deviations from internal policies and service level agreements with outside immigration counsel,

o legal matter management, E-billing and per-formance analytics on immigration benefits procurement and compliance defense,

o an “E-Room” library that houses documents which FDNS or other immigration enforce-ment personnel might demand to see on short notice such as H-1B public access folders, individual and multi-slot Labor Condition Applications, petitions and appli-cations submitted to immigration agen-cies, recruiting and advertising materials required for immigrant and nonimmigrant work visa eligibility, vendor agreements with IT and business consulting firms that employ their own foreign workers onsite at company locations, and posting and nondis-placement attestations, and

o a consulting hotline and an online con-sulting log which serves as a knowledge-management repository for all responses to varying fact patterns, FAQs, memorandums and other oral or written guidance provided to the corporate client over time, with links to the contact information of the lawyer providing the guidance so that there is easy followup with a subject matter expert who can provide any new updates or more nuanced responses.

• Key Immigration Performance Indicators. Metrics would be based on real-time data derived from Human Resource Information Systems that are linked and updated bi-directionally for use by inter-nal recruiters and hiring personnel, and the busi-ness’s outside immigration lawyers.

• True Partnering with Outside Counsel. “Partnering” is a meaningless buzzword in too many law firms’ pitch kits—one tossed at chief procurement officers who claim to want quality and strategic counsel but are only willing to pay for commoditized immigra-

tion legal services offered by the lowest bidder. Real partnering looks more like this:

o It begins with a convergence process in which only one or at most two firms are selected after a carefully conceived request-for-proposal process is concluded, a process in which immigration lawyers come into corporate headquarters not to brag about their talents, but instead model what it would be like to work side-by-side with them to achieve the company’s business mission while minimizing risks and control-ling wasteful practices.

o The chosen law firm(s) would invest time, money and resources into a long-term relationship, offering all of the integrated legal services required in the immigration arena—not just Johnny and Jane One-Note visa and green card services, but scalable immigration benefits-procurement assistance, interdisciplinary immigration-compliance defense, federal court litigation and appellate law services, tax advice, U.S. and international employment law representation and export control law guid-ance—all under one roof.

o Immigration counsel would meet regularly and ad hoc as needed to evaluate the final immigration reform legislation, advocate for employer-friendly rulemaking, and map out action plans and task owners so that the enterprise is poised to pounce upon immigration opportunities with training programs and internal open-house forums for foreign nationals and managers, pre-pare Congressional outreach and media strategies, and eliminate or minimize old and new compliance risks. Also included in these meetings would be an annual “Client 101” orientation program taught by in-house counsel for the external team of immigration lawyers, paralegals, project managers and administrative staff to learn all about the company and its culture and a periodic client/law-firm summit.

o Immigration counsel would also provide benchmarking opportunities to help devel-op best practices based on the experience and wisdom of comparable businesses in similar industries and share knowledge and strategic thinking from other industry con-tacts with in-house counsel.

• Services would utilize the best principles of legal

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process innovation. Six Sigma, Lean Services, Voice of the Client, Scorecards, collaborative process map-ping, stakeholder satisfaction surveys and other innovative practices would be employed to man-age immigration compliance risks, measure per-formance metrics, reduce errors, speed cycle time, minimize costs and waste, and make sure that the corporate client becomes, and remains, an “immi-gration friendly company” to facilitate the hiring and retention of best-in-class talent.

No longer on hearing the word “immigration” should GCs be made to suffer that all-too-familiar form of queasi-ness which arises when an “alien” substantive-law problem

lands on his or her desk. Inoculation with a healthy dose of immigration portfolio management will provide GCs with immunity from the worst that the likes of BESSIE MAE can try to inflict on them. So there’s no reason to toss one’s most recent meal. Just take a prescription for immigration portfolio management and contact the most qualified immi-gration counsel to be found. u

Angelo Paparelli is a partner in Seyfarth Shaw LLC, Los Angeles, CA.

24 | The Green Card

Article

Expert Witnesses in Immigration Proceedingsby GaRRy malpHRus

Introduction Immigration judges have increasingly complex and

demanding jobs, and a good example of this trend can be seen in the expanding use of expert witnesses in immigra-tion court. Expert evidence, which includes both documen-tary and testimonial evidence, can be very significant and potentially determinative in whether a party meets his or her burden of proof. However, issues may arise regarding this evidence, posing challenges that the immigration judge must resolve. This article examines case law from the Board of Immigration Appeals and the federal circuit courts of appeals addressing the use of expert evidence in immigra-tion proceedings, including questions of admissibility and weight. In general, it can be difficult to discern broadly applicable rules from cases, particularly across circuits, because the issues regarding expert witnesses can be very fact specific. This article also discusses the Federal Rules of Evidence regarding expert evidence as a possible guide to assist in navigating this terrain.

Expert evidence that is relevant and reliable can be very helpful to immigration judges in reaching the proper outcome of a case. “Immigration judges, like other trial judges generally, are often required to determine factual disputes regarding matters on which they possess little or no knowledge or substantive expertise, and, in mak-ing such determinations, they typically rely on evidence, including expert testimony, presented by the parties.” Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA 2010). Expert witnesses are persons “with scientific, technical, or other specialized knowledge” who can “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Because of their specialized knowledge, “[e]xpert witnesses are often uniquely qualified in guiding the trier of fact through a complicated morass of obscure terms and concepts,” and they can provide conclu-sions and inferences drawn from facts that lay persons are not qualified to make. United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994). For these reasons, “their testimony can be extremely valuable and probative.” Id.

The Opportunity To Present Probative EvidenceExpert evidence is a form of evidence, and thus the

proper starting point is to discuss basic rules regarding evidence in immigration court. In immigration proceedings, the “‘sole test for admission of evidence is whether the evi-dence is probative and its admission is fundamentally fair.’” Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004) (quot-ing Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995); see also, e.g., Kholyavskiy v. Mukasey, 540 F.3d 555, 565 (7th Cir. 2008); Matter of Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988). It is well settled that the Federal Rules of Evidence

are not binding in immigration proceedings and that evi-dentiary considerations are more relaxed in immigration court than in federal court. See, e.g., Matter of De Vera, 16 I&N Dec. 266, 268-69 (BIA 1977); Navarrette-Navarrette v. Landon, 223 F.2d 234, 237 (9th Cir. 1955) (stating that “administrative tribunals may receive evidence which a court would regard as legally insufficient”).

Moreover, an alien has the statutory and due process right under the Fifth Amendment to a full and fair hearing and a reasonable opportunity to present evidence on his or her own behalf. Section 240(b)(4)(B) of the Immigration and Nationality Act; 8 U.S.C. § 1229(b)(4)(B); Hassan v. Gonzales, 403 F.3d 429, 435 (6th Cir. 2005); Kaur v. Ashcroft, 388 F.3d 734, 736-37 (9th Cir. 2004); Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). Expert evi-dence can be highly persuasive to help satisfy a party’s burdens of proof and persuasion. See generally Matter of V-K-, 24 I&N Dec. 500, 502 n.2 (BIA 2008).

Immigration judges have broad discretion in conduct-ing hearings, and a “due process violation occurs only when the ‘proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.’” Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009) (quoting Hassan, 403 F.3d at 436); Ladha v. INS, 215 F.3d 889, 904 (9th Cir. 2000). To prevail in a due process challenge to the exclusion of evidence, an alien must show both that he was denied a reasonable opportunity to be heard on his evidence and that there was resulting prejudice (that is, the outcome of the proceedings may well have been different had the expert testimony been considered). See, e.g., Diop v. Holder, 586 F.3d 587 (8th Cir. 2009); Rusu v. U.S. INS, 296 F.3d 316 (4th Cir. 2002); Espinoza, 45 F.3d at 311. As explained by the Seventh Circuit in Kholyavskiy v. Mukasey, 540 F.3d 555, the key consideration is whether an Immigration Judge’s evidentiary ruling prevents an alien from presenting probative evidence on his own behalf. For example, in Kyolyavaskiy, the court, in finding no error where the Immigration Judge failed to consider the witness as an expert because of the witness’s lack of an academic or research background on the topic, discussed the limited probative value and reliability of the testimony. Id. at 565-66. By contrast, in Tun v. Gonzales, 485 F.3d 1014, 1025-26 (8th Cir. 2007), the Eighth Circuit found a due process violation when the immigration judge excluded an affida-vit from a highly relevant and even critical expert witness when the affidavit was facially unobjectionable.

Guidance from Federal RulesWhile the Federal Rules of Evidence clearly are not

binding in immigration proceedings, the board and the circuit courts have found that the Federal Rules may pro-

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vide useful guidance in determining the admissibility of evidence. See, e.g., Niam v. Ashcroft, 354 F.3d 652, 658-60 (7th Cir. 2004) (holding that, while administrative agencies are not bound by the conventional rules of evidence, the Federal Rules can provide helpful guidance on whether the admission or exclusion of expert testimony is fundamen-tally fair). The Federal Rules of Evidence codified common law rules regarding “the reliability and probative worth” of certain types of evidence. Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996). The fact that specific evidence would be admissible under the Federal Rules “lends strong support to the conclusion that admission of the evidence [in immi-gration proceedings] comports with due process.” Id.; see also Matter of DeVera, 16 I&N Dec. at 270-71. For example, in Nyama, 357 F.3d at 816, the Eighth Circuit noted that the “traditional rules of evidence do not apply to immigra-tion proceedings” but also cited to Federal Rule of Civil Procedure 26(a)(1)(B) as being persuasive in upholding the Immigration Judge’s decision to permit the Government to question an applicant with documents that were not admit-ted in advance of the hearing because they were being used to impeach the applicant’s credibility. In a case regarding expert evidence, the Ninth Circuit in Malkandi v. Holder, 576 F.3d 906, 916 (9th Cir. 2009), noted that the strict rules of evidence are not binding in immigration court. However, the court found that the that the introduction of the 9/11 Commission Report into evidence without also admit-ting underlying supportive documentation was fundamen-tally fair by stating that the report was “akin to an expert report” and that under Federal Rule of Evidence 702 the facts underlying the opinion do not need to be admissible for the expert opinion to be admissible. Id. at 916. Thus, similarly, this article discusses Federal Rules that relate to experts, not as binding authority, but as useful guidance. The Federal Rules can provide a helpful framework from which to approach issues that may arise when determining whether to admit specific expert evidence, and if admitted, what probative value or weight to give that evidence.

Federal Rule of Evidence 702 provides the standards for admission of expert evidence as follows:

Testimony By Experts. If scientific, techni-cal, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowl-edge, skill, experience, training, or educa-tion, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the wit-ness has applied the principles and meth-ods reliably to the facts of the case.

Under Rule 702, an expert may testify to an “opinion or otherwise.” “An expert is permitted to base his opinion on hearsay evidence and need not have personal knowledge of

the facts underlying his opinion.” Aguilar-Ramos v. Holder, 594 F.3d 701, 706 n.7 (9th Cir. 2010). An opinion may include reasonable inferences that the expert draws from the available facts and data. See Fed. R. Evid. 703. The facts or data need not be admissible in evidence, and an expert may assume the truth of the facts or data in order to render an opinion. See Fed. R. Evid. 703, 705.1

Experts may testify about a wide variety of factual questions, such as whether an applicant’s scars are con-sistent with the persecution he claims to have suffered, or whether a document in question has been fabricated. However, witnesses generally may not opine on questions of law. See Matter of Cruzado, 14 I&N Dec. 513, 515 (BIA 1973) (holding that the opinions of a professor and others as to the proper construction of a State statute is not admis-sible). Courts have repeatedly stated that while expert testimony can be helpful in resolving factual disputes, such testimony cannot be used to “usurp” a judge’s role of inter-preting the law, applying the law to the facts, weighing the evidence, and making credibility determinations. See, e.g., United States v. Farrell, 563 F.3d 364, 377 (8th Cir. 2009); United States v. Stewart, 433 F.3d 273, 311 (2d Cir. 2006).

An exception to the rule that experts may not opine on questions of law exists for opinions involving foreign law and procedures. See Matter of Rowe, 23 I&N Dec. 962 (BIA 2006). For example, the board has relied on expert evidence in determining matters such as the validity of marriages, divorces, and adoptions concluded under for-eign law. See Matter of Kodwo, 24 I&N Dec. 479 (BIA 2008); Matter of Khatoon, 19 I&N Dec. 153 (BIA 1984); Matter of Yue, 12 I&N Dec. 747 (BIA 1968).

Relevance, Qualifications, and Reliability There are three basic requirements for admission or

exclusion of expert evidence under Federal Rule of Evidence 702: relevance of the expert testimony, qualification of the expert witness, and reliability of the expert opinion. If the evidence is admitted, concerns regarding these issues may relate to the weight that the testimony receives, which is further discussed later.

Relevance of Expert Testimony. According to Rule 702, expert testimony is relevant and proper if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” This standard of relevance is considered a “liberal one.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993). It is similar to the general relevance standard of Rule 401, which simply provides that “relevant evidence” means evidence having “any tendency to make the existence of any fact that is of consequence . . . more probable or less probable.”2 The regulations provide that Immigration Judges may consider “any oral or written statement that is material and relevant to any issue in the case.” 8 C.F.R. § 1240.7(a).

Qualification of the Expert Witness. An expert witness is broadly defined as anyone who is “qualified as an expert by knowledge, skill, experience, training, or education.”

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Fed. R. Evid. 702. The expert must have greater knowledge than a lay person on the particular subject matter and must possess the necessary expertise in his or her field. See United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). However, Rule 702 “contemplates a broad conception of expert qualifications” and thus, even in Federal court, what constitutes adequate qualifications to testify as an expert should be broadly defined. Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir. 1994).

Under Chapter 3.3(g) (Witness Lists) of the Immigration Court Practice Manual, an expert witness’ curriculum vitae or resume should be made part of the record of proceed-ings. An expert’s credentials can be ascertained from this document and through voir dire of the expert during the hearing. In most cases, reviewing courts have deferred to the agency’s determination whether a proposed expert pos-sesses the necessary expertise to testify. See, e.g., Castro-Pu v. Mukasey, 540 F.3d 864, 867, 869 (8th Cir. 2008) (affirm-ing the decision to exclude an expert witness on country conditions, where the expert did not have academic creden-tials and had last visited the country 6 years earlier); Pasha v. Gonzales, 433 F.3d 530, 532, 535 (7th Cir. 2005) (finding the Government’s witness unqualified to testify regarding the authenticity of an Albanian document when he did not have access to comparable documents or knowledge of the type of equipment the Albanian Government would have used at the time); Dailide v. U.S. Att’y Gen., 387 F.3d 1335, 1343 (11th Cir. 2004) (finding the witness properly deemed unqualified to testify when he had no relevant published works or course work during the pertinent period of European history and was the brother of the alien’s attorney). However, as noted previously, some decisions have reversed the exclusion of an expert’s testimony on due process grounds, particularly where the testimony was found probative and critical to the alien’s case. See Tun, 485 F.3d at 1027 (finding that the exclusion of a physician’s testimony was erroneous, where the physician “was clearly qualified and offered critical corroborating testimony based on a recent medical examination of the Petitioner”); Koval v. Gonzales, 418 F.3d 798 (7th Cir. 2005) (finding it erro-neous to exclude a former KGB agent’s testimony in an asylum case).

Although the qualifications of a witness to testify as an expert are rarely challenged in immigration court, there are situations as noted above where the expert may properly be excluded as not being qualified to testify.3 In general, the standard for qualifying a witness as an expert is a generous one. If an immigration judge permits an expert witness to testify but has concerns about the witness’ reliability, the judge may accord less weight to the testimony. Factors such as publication experience, education and work experience in the relevant field, and potential bias may inform the judge’s view of the weight to give the expert’s testimony. See Tun, 485 F.3d at 1027 (stating that participation in an advocacy organization is not an adequate basis to exclude

testimony but may affect the weight of the evidence); Akinfolarian v. Gonzales, 423 F.3d 39, 43 (1st Cir. 2005) (holding that indications that an expert’s affidavit was unreliable, which were permissibly used to exclude the evi-dence, could also have been used to lessen the weight the evidence was given); United States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005) (noting that the trial court properly considered an expert witness’ testimony but gave it sub-stantially less weight based on lack of expertise); Matter of M-, 5 I&N Dec. 484 (BIA 1953) (holding that the fact that an expert has appeared in many cases and has been paid a fee is a valid consideration in evaluating the evidence but does not conclusively show bias).4

Reliability of the Expert Testimony. Generally, the most significant issues that arise regarding an expert relate to the reliability of the testimony. As noted above, an expert’s tes-timony is deemed reliable under Federal Rule of Evidence 702 if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993), the seminal case regarding expert witness testimony in federal court, the Supreme Court held that it is for the trial judge to determine whether a potential expert’s testimony is reliable and relevant and therefore admissible. Id. at 597. The Court further explained that in determining whether an expert’s opinion is reliable, the trial judge must examine the reasoning or methodology underlying the expert’s opinion, not the ultimate conclu-sion the expert reached. The trial judge must determine whether the reasoning or methodology is valid and whether it was applied reliably to the facts of the case. Id. at 592-93. The Court announced a flexible four-part test for determin-ing the validity of expert evidence.

The Daubert test, which was developed with scientific evidence in mind (specifically whether the drug Bendectin was the cause of the plaintiffs’ birth defects), consists of four questions that trial judges may ask in performing their gate-keeping function to ensure that the evidence is valid and reliable. The questions are: (1) Has the methodol-ogy been tested or is it testable? (2) Has the methodology been subjected to peer-review publication? (3) Is there a known or knowable error rate for the methodology? (4) Is the methodology generally accepted in the relevant field? Daubert, 509 U.S. at 592-94. In a subsequent case, the Supreme Court clarified that all expert knowledge, both scientific and nonscientific, is subject to the Daubert reli-ability analysis. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151-54 (1999) (holding that the Daubert principles applied in a products liability case where an engineer’s opinion of why a tire blew out was based on a visual and tactile inspection involving skill- and experienced-based observation, rather than the application of scientific prin-ciples ). In Kumho Tire, the Court emphasized that outside

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of the scientific context, the test is generally more flexible in nature. Not all four Daubert factors will apply to every expert in every case; only those factors that are relevant to the particular discipline may be applied. Id. at 151-53. The Court concluded that “the trial judge must have consider-able leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. Id. at 152.

The specific Daubert methodology analysis regarding the admissibility of scientific and technical expert evidence at a jury trial has limited practical applicability in immigra-tion proceedings, in part because the underlying methodol-ogy that the expert uses to reach his or her conclusions is rarely a disputed issue in an immigration case. Cf. Thomas v. Newton Int’l Enterprises, 42 F.3d at 1270 n.3 (holding that, under Daubert, although scientific conclusions “must be linked in some fashion to the scientific method, . . . non-scientific testimony need only be linked to some body of specialized knowledge or skills”).5

There is limited case law specifically addressing wheth-er Daubert applies with respect to immigration proceed-ings. The board has not discussed Daubert in the context of experts in immigration proceedings. The only circuit court to have done so, the Seventh Circuit, has stated that “the spirit of Daubert . . . does apply to administrative proceedings” and that “‘[j]unk science’ has no more place in administrative proceedings than in judicial ones.” Niam, 354 F.3d at 660. That court has invoked Daubert both in ruling that expert testimony should have been permitted and in finding an expert witness unreliable. See id. (revers-ing the determination to exclude certain expert evidence); see also Pasha, 433 F.3d at 535 (citing to Niam in finding the testimony of the Government’s document expert to be unreliable.)

The fact that aliens have a statutory and due process right to an opportunity to present probative evidence may counsel, in certain cases, against a strict approach to the admissibility of evidence. There are situations where evi-dence is not reliable and is of no benefit to the trier of fact, and it is properly excluded. However, there may be some concerns regarding the extent of the reliability of evidence, and in those cases, it may be advisable to admit the evi-dence and permit the issues that may otherwise affect its admissibility to, instead, affect the weight that it receives in immigration court. See Akinfolarian, 423 F.3d at 43 (hold-ing that indications that an expert’s affidavit was unreli-able, which were permissibly used to exclude the evidence, could also have been used to lessen the weight the evidence was given); see also, e.g., Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998) (holding that an expert’s testimony was properly admitted and questions about the extent of his qualifications and expertise were properly considered by the trier of fact as going to the weight and credibility of the testimony, particularly given that the opponent was able to cross-examine the expert and expose the weaknesses in his qualifications and expertise).

With respect to applying the Daubert principles in Immigration Court, it is relevant that Daubert is premised

on the “gatekeeping” function to prevent the jury from being unduly influenced by unreliable expert evidence. See Kumho Tire, 526 U.S. at 149-50. However, immigration proceedings are, of course, bench trials where the judge is also the trier of fact, so keeping less reliable or trustworthy evidence completely out may be less important. In other words, “There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for him-self.” Brown, 415 F.3d at 1269. The judge is in the position to admit testimony but give it less weight based on issues related to its reliability. Id. at 1270.

Thus, in immigration proceedings, the “spirit of Daubert” may best be viewed as a focus on the reliability of the evidence. Knowing the underlying basis for the expert’s opinion and the sources relied upon to reach it can be important to understanding its value. An opinion is only as reliable as the assumptions it is based upon. For example, a professor testifying on country conditions can be expected to rely on sources typically relied upon by other academ-ics in the field. See Fed. R. Evid. 703 (sources relied upon should be “of a type reasonably relied upon by experts in the particular field”); cf. 8 C.F.R. § 1208.12(a) (stating that asylum officers may consider the U.S. Department of State materials and other “credible sources,” in forming their opinions, and that such sources can include “international organizations, private voluntary agencies, news organi-zations, or academic institutions”). On the other hand, opinion testimony based on internet sources that have not been shown to be authentic and reliable may itself not be reliable. Cf. Badasa v. Mukasey, 540 F.3d 909, 910 (8th Cir. 2008) (holding that an article from the online encyclopedia Wikipedia is not a reliable source for evidence in immigra-tion proceedings).

Even if the sources relied upon are trustworthy and reliable, there also needs to be “a link between the facts or data the expert has worked with and the conclusion the expert’s testimony is intended to support.” United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). “When the factual underpinning of an expert’s opinion is weak, it is a matter affecting the weight and credibility of the testimony . . . .” Int’l Adhesive Coating Co., Inc. v. Bolton Emerson Int’l , Inc., 851 F.2d 540, 545 (1st Cir. 1988). While testi-mony based on pure speculation is inadmissible, arguments about the speculative nature of testimony or whether cer-tain assumptions are unfounded properly go the weight of the testimony, Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996), and these issues may be addressed in cross-examination. Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005). Thus, for example, in Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1340 (11th Cir. 2001), an expert witnesses’ testimony that the asylum applicant would face “serious trouble when he returns” was reasonably found inadequate to establish eligibility for relief, where the applicant had not suffered past persecution in his home country but had only lost his employment, and there was no other evidence in the record to support the expert’s

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theory. Also, in Hysi v. Gonzales, 411 F.3d 847, 853 (7th Cir. 2005), the Seventh Circuit stated that the immigration judge properly gave minimal weight to expert’s testimony, in part because it relied on the applicant’s false representation that he authored news articles and that he was known as the author of news articles in Albania to bolster his asylum claim.

A related issue regarding the reliability of testimony, including expert testimony, may be the hearsay nature of it. Hearsay is clearly admissible in immigration proceedings if it is reliable. See, e.g., Kim v. Holder, 560 F.3d 833, 836 (8th Cir. 2009); Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988). However, hearsay evidence may be accorded less weight. Kiareldeen v. Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001) (stating that the hearsay nature of evidence affects the weight it is accorded); Matter of Kwan, 14 I&N Dec. 175 (same); Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006) (finding an out-of-court hearsay statement of applicant’s friend less persuasive than a first-hand account); see also Silva v. Gonzales, 463 F.3d 68, 72-73 (1st Cir. 2006) (hold-ing that testimony based on “triple hearsay” may be found not to be probative or reliable). Thus, in Kholyavskiy, 540 F.3d at 566, the Seventh Circuit explained that a proposed expert’s affidavit that was based on second- and third-hand information on the treatment of the mentally ill in Russia, instead of academic studies or research, was of minimal reliability and probative value.

Form of Expert EvidenceExpert evidence in immigration proceedings may be

in the form of live testimony, telephonic testimony, or affidavits, unlike under the federal rules, which generally require that the testimony be presented at trial or deposi-tion. See Djedovic v. Gonzales, 441 F.3d 547, 551 (7th Cir. 2006) (citing approvingly to Richardson v. Perales, 402 U.S. 389 (1971), where the Court held that, in administrative adjudications, agencies can accept expert evidence in writ-ing as well as through oral testimony); see also Hamid v. Gonzales, 417 F.3d 642, 645-46 (7th Cir. 2005) (holding that telephonic testimony is an acceptable alternative to live testimony because observable factors like demeanor are less important for expert testimony than other testimony).6

Live and Telephonic Expert TestimonyThere are procedural requirements that a party must

follow in immigration court to submit live or telephonic testimony. These requirements include complying with the time limits to file a witness list and providing the expert witness’ curriculum vitae or resume. See Chapters 3.3(g) (Witness lists), 4.16(b) (Filings) of the Immigration Court Practice Manual. Also, for telephonic testimony, the requesting party must explain in a written motion (or an oral motion at a master calendar hearing) why the witness cannot appear in person, and the party must provide the witness’ telephone number and the location from which

he will testify. See Chapter 4.15(o)(iii) of the Immigration Court Practice Manual.

Whether to permit telephonic testimony is within the discretion of the immigration judge. See id.; see also Akinwande v. Ashcroft, 380 F.3d 517, 522 (1st Cir. 2004) (upholding the telephonic testimony of a government wit-ness, as the alien’s right to cross-examine the witness was not infringed upon). Courts view a judge’s decision to exclude testimony for failure to comply with procedural requirements under an abuse of discretion standard. See Diop, 586 F.3d at 592 (finding no error in the immigration judge’s discretionary determination to exclude the testi-mony of a therapist witness who was not on the pretrial witness list, when the opposing party had no opportunity to review anything in writing from the witness in advance of the hearing); Djedovic, 441 F.3d at 550-51 (finding no error to exclude telephonic testimony from an expert wit-ness when the request was not included on the pretrial wit-ness list but instead was made 2 days prior to the hearing); Singh v. Ashcroft, 398 F.3d 396, 407 (6th Cir. 2005) (finding no error to exclude expert testimony when applicant’s attor-ney failed to seek permission in advance of the hearing). The question is whether the respondent had a “reasonable opportunity” to have the evidence considered. See Sankoh v. Mukasey, 539 F.3d 456, 465-66 (7th Cir. 2008) (finding no error for the Immigration Judge to deny a motion to reopen to submit additional evidence after the hearing was com-plete, as the alien was afforded the opportunity to submit the evidence during proceedings).

The question whether to continue a hearing to permit a late-identified witness to testify is also a matter within the discretion of the immigration judge. See Gebresadik v. Gonzales, 491 F.3d 846, 851 n.5 (8th Cir. 2007); Djedovic, 441 F.3d at 550-51; see also Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983) (holding that, to obtain a continuance, the “alien at least must make a reasonable showing that the lack of preparation occurred despite a good faith effort to be ready to proceed and that any additional evidence he seeks to present is probative, noncumulative, and significantly favorable”); 8 C.F.R. § 1240.6 (stating that an Immigration Judge may grant a continuance “for good cause shown”).

Expert Affidavits

As noted previously, it may be a due process viola-tion to entirely exclude probative expert evidence if the alien complies with procedural requirements and can show prejudice. See Tun, 485 F.3d at 1028-29 (finding error in the exclusion of a facially unobjectionable affidavit from a criti-cal witness, where the affidavit was excluded solely because the expert was not available for cross-examination); Niam, 354 F.3d at 658-60 (finding that the exclusion of both an expert’s live testimony and her affidavit was prejudicial because it would have provided facts contrary to the State Department reports); see also Biggs v. INS, 55 F.3d 1398, 1402 (9th Cir. 1995) (finding it erroneous to ignore a let-

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ter from an alien’s doctor regarding her medical condition and also exclude the doctor from testifying by telephone). In that regard, as a general rule, it is much more difficult to show prejudice from the exclusion of expert testimony if the expert’s written affidavit is admitted and considered. See Diop, 586 F.3d at 592 (holding that, even assuming the immigration judge erred in excluding the expert from tes-tifying, the applicant failed to show that the expert could have provided relevant information beyond her affidavit, which the judge admitted into evidence); Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 192 (3d Cir. 2007) (finding no error in the denial of a continuance for an expert to testify live, because the respondent did not show that the testimony would be materially different from the expert’s written submission); Hamid, 417 F.3d at 645-46 (finding no error in the exclusion of live testimony because the expert’s written statement was considered); Akinwande, 380 F.3d at 522 (finding no error in permitting the expert witness to testify by telephone and not requiring in court testimony). However, there may be circumstances where it would be error for an immigration judge not to hear and consider testimony from an expert even if written materials are admitted. See Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1057-59 (9th Cir. 2005) (finding it erroneous to exclude live testimony even when written materials were submitted in part because the proferred testimony was not covered in the written materials).

The admissible nature of hearsay testimony (both expert and otherwise) does not negate the rule that both parties are entitled to a “reasonable opportunity” to cross-examine witnesses in immigration court, consistent with the adversarial nature of the proceedings. See 8 C.F.R. §§ 1240.2(a), 1240.10(a)(4). However, there are “practical limitations on this right.” Matter of DeVera, 16 I&N Dec. at 269. In particular, while the primary purpose of cross-exam-ination is to insure the reliability and credibility of witness testimony, these interests can also be met with respect to an out of court statement if the statement falls within an express exception to the rule against hearsay. Id. at 270-71 (“[A]n affidavit made by an unavailable declarant which is of sufficient reliability that it would be admissible in a fed-eral judicial proceeding as a declaration against penal inter-est is entitled to full weight in an administrative deportation proceeding.”); see also Duad v. United States, 556 F.3d 592, 596 (7th Cir. 2009) (finding that hearsay documents are admissible if they are reliable and noting that any contrary rule would be very harmful to asylum seekers); Ruckbi v. INS, 285 F.3d 120, 124 n.7 (1st Cir. 2002) (holding that the author of a forensics report is not required to be available to testify for the report to be admissible); Espinoza, 45 F.3d at 310-11 (holding that a Form I-213 (Record of Deportable Alien) was admissible even though its authors were not available for cross-examination).

Thus, while the affidavit of an expert is generally admis-sible without the expert being made available to testify, the statement may be given less weight because the author is not produced for cross-examination. See De Brown v. Dep’t of Justice, 18 F.3d 774, 778 (9th Cir. 1994) (discounting

a witness’ affidavit, in part because the witness was not available for cross-examination and no showing was made that the witness was unavailable); Chen v. Gonzales, 434 F.3d 212, 218 (3d Cir. 2005) (finding an affidavit less proba-tive, in part because it was based on hearsay and the affiant was not subject to cross-examination). The opposing party or the immigration judge may have questions about “logical or empirical shortcomings in the expert’s analysis” that are not answered by the written document. See Djedovic, 441 F.3d at 551. If the judge has such concerns and they affect the weight of the affidavit, the judge should explain them in his or her decision.

Similarly, another relevant issue is whether an affidavit is conclusory in nature. Expert evidence that offers nothing more than a legal conclusion is excludable in federal court. See Woods v. Lecureux, 110 F.3d 1215, 1220 (6th Cir. 1997). In the federal court context, an affidavit that is highly con-clusory in the opinion it offers and does not contain facts and rationale for the opinion is not persuasive. See, e.g., Mid-State Fertilizer Co. v. Exch. Nat’l Bank of Chicago, 877 F.2d 1333, 1339-40 (7th 1989).

An additional consideration may be whether the affida-vit is general in nature and not prepared specifically for the applicant’s situation. The relevance and weight of an expert affidavit may be limited if it is “not prepared specifically for the petitioner and is not particularized as to his circum-stances.” See Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006). Generally, if the expert is not available to explain issues that are not fully covered in the written submission, such as the factual basis for the opinion or sources used to develop the opinion, or how the opinion relates to the applicant’s particular circumstances, these concerns can limit the per-suasive value of the affidavit. Cf. Matter of E-M-, 20 I&N Dec. 77, 81 (BIA 1989) (“[I]n determining the weight of an affidavit, it should be examined first to determine upon what basis the affiant is making the statement and whether the statement is internally consistent, plausible, or even credible. Most important is whether the statement of the affiant is consistent with other evidence of record.”).

Evaluation of Expert EvidenceAfter evidence is admitted, it is critical for the immigra-

tion judge to consider it and address its probative value as part of the record. See generally Aguilar-Ramos, 594 F.3d at 706 n.7 (noting that the immigration judge stated reasons in the record why the expert testimony was insufficient to establish eligibility for relief); Dukuly v. Filip, 553 F.3d 1147, 1149 (8th Cir. 2009) (finding that the immigration judge properly considered expert testimony and did not ignore it but, instead, found it unpersuasive when weighed against other evidence). This is consistent with the general requirement that evidence should be considered and evalu-ated based on the totality of the record. See, e.g., Zheng v. Mukasey, 552 F.3d 277, 286 (2d Cir. 2009) (stating that the Immigration Judge is required to give consideration to “an undeniably probative piece of evidence”); Tan v. U.S. Att’y

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Gen., 446 F.3d 1369, 1376 (11th Cir. 2006) (“[T]he immigra-tion judge is required to consider all evidence submitted by the applicant.”). See generally Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997) (holding that testimony should be examined and weighed in the context of the totality of the evidence of record); section 240(c)(4)(C) of the Act (stating that the immigration judge should “[c]onsider[] the totality of the circumstances, and all relevant factors” in making a credibility determination). Immigration judges should spe-cifically and fully explain the reasons why they do or do not find expert testimony reliable and persuasive.

Courts will often remand cases when no reason was given for why specific testimony from a undisputed expert was excluded or was admitted but not considered. See, e.g., Morgan v. Mukasey, 529 F.3d 1202, 1211 (9th Cir. 2008) (remanding in part because the board did not adequately consider psychological reports, their contents, or their bearing on a central issue of the applicant’s claim); Leia v. Ashcroft, 393 F.3d 427, 434-35 (3d Cir. 2005) (remanding in part because the board approved without explanation the immigration judge’s rejection of the testimony of a witness who the parties agreed was an expert regarding country conditions); Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998) (holding that the testimony of an acknowledged expert wit-ness must be considered against state department reports); Castaneda-Hernandez v. INS, 826 F.2d 1526, 1530-31 (6th Cir. 1987) (remanding because the board failed to directly address and consider affidavits of experts in reaching the conclusion that the respondent did not have a well-founded fear of persecution).

ConclusionExpert evidence that is relevant and reliable can be

very useful in assisting the trier of fact in understanding the evidence or determining a fact in issue. The admissi-bility of evidence, including expert testimony, depends on whether the evidence is probative and its admission would be fundamentally fair. Although not binding in immigration proceedings, the Federal Rules of Evidence can provide use-ful guidance regarding the admissibility of evidence and, if admitted, the weight and probative value the evidence receives. There may be times when expert evidence is prop-erly excluded because of a lack of expertise or because the expert’s opinion is entirely unreliable. However, in other instances, concerns regarding evidence that would impact admissibility in Federal court may, instead, impact the weight and persuasive value of the evidence in immigration court. This is consistent with the more relaxed approach to the admissibility of evidence in immigration proceed-ings and aliens’ statutory and due process right to have the opportunity to present probative evidence on their own behalf. After expert evidence is admitted, it is very impor-tant for the immigration judge to consider it and explain whether and to what extent the evidence is found to be reliable and persuasive.

Garry Malphrus is a member of the Board of Immigration Appeals. The author appreciates the assistance of Immigration Judges Quynh Bain, Dorothy Harbeck, and Annie S. Garcy in the preparation of this article. This article was reprinted from the Immigration Law Advisor, vol. 4 no. 5.

The Immigration Law Advisor is a professional newslet-ter of the Executive Office for Immigration Review (EOIR) that is intended solely as an educational resource to dis-seminate information on developments in immigration law pertinent to the immigration courts and the Board of Immigration Appeals. Any views expressed are those of the author and do not represent the positions of EOIR, the Department of Justice, the attorney general, or the U.S. gov-ernment. This publication contains no legal advice and may not be construed to create or limit any rights enforceable by law. EOIR will not answer questions concerning the publica-tion’s content or how it may pertain to any individual case. Guidance concerning proceedings before EOIR may be found in the Immigration Court Practice Manual and/or the Board of Immigration Appeals Practice Manual. u

Endnotes1This article principally focuses on Rule 702’s admis-

sibility standards for expert evidence. The other Federal Rules of Evidence speak to opinion testimony by lay wit-nesses (Rule701), the bases of opinion testimony by experts (Rule 703), expert opinion on the ultimate issue in a case (Rule 704), and disclosure of facts or data underlying expert opinion (Rule 705).

2The evidence must be “of consequence” to be rel-evant. For example, expert testimony about hardship to an applicant for nonpermanent resident cancellation of removal (as opposed to hardship to a qualifying relative) is not relevant to the application. See, e.g., Matter of Monreal, 23 I&N Dec. 56, 58 (BIA 2001).

3If a witness is not qualified to testify as an expert, he or she may be permitted to testify as a lay witness if his knowledge is based on his own experience and perceptions. See Kholyavskiy, 540 F.3d at 566. However, a lay witness cannot, for example, render opinions based on specialized knowledge. Fed. R. Evid. 701.

4The fact that a witness has testified in other courts does not alone conclusively establish that the witness is a qualified, reliable expert in the case at hand. See Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989).

5The Daubert analysis has been applied in other kinds of administrative agency proceedings. See, e.g., Terran v. Sec’y of Dept. of Health & Human Servs., 41 Fed. Cl. 330, 336 (1998), aff’d, 195 F.3d 1302, 1316 (Fed. Cir. 1999) (stat-ing that, although the Federal Rules of Evidence do not apply in cases under the National Childhood Vaccine Injury Act, “Daubert is useful in providing a framework for evalu-

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Article

Today’s post is by guest columnist, John Klow. He is one of the most knowledgeable private citizens who understands the inner workings of U.S. Customs and Border Protection. In the post below, John elucidates the often opaque, behind-the-scenes process whereby an individual who is found inadmissible to the U.S. may apply for a temporary waiver, and, if the governmental stars are aligned, nonetheless be granted entry.

Spoiler alert: The government holds all the cards—another reason why Congress should inject a dose of due process as it struggles to reform our immigration laws. [Reprint from Angelo Paparelli’s immigration blog]

Back in the days of the Immigration and Naturalization Service (INS), the immigration benefits and enforcement agency operated within the Department of Justice, process-ing of consular nonimmigrant waivers seemed to be pretty straight forward.

Applicants submitted their nonimmigrant visa applica-tions at American consulates, and if an individual were found inadmissible to the U.S., consular officers, if so inclined, forwarded recommendations that a waiver of inadmissibility be granted to the overseas INS offices with jurisdiction to approve a waiver. The process was transpar-ent, but decisions could take frustratingly long times—often months, sometimes stretching to a year or more. Lengthy delays were attributable to the competing priorities assigned to the particular INS office overseas. Also, with this sort of decentralized decision-making, there was at least a percep-tion of inconsistency of adjudications.

With the creation of the Department of Homeland Security on March 1, 2003, changes came. U.S. Customs and Border Protection (CBP) decided to keep the nonim-migrant waiver decision-making process within the inspec-tions program as it had rested in the INS days. The reason-ing was that the decision of whom to admit at ports of entry was CBP’s, and CBP should not have to go to another agency for that determination. Since the immigration inspection program transferred to CBP, so also did nonim-migrant waiver decision-making authority.

CBP established a single office to decide all nonim-migrant waiver cases, the Admissibility Review Office, now located in Hearnden, VA. Centralization provided a dedicated, experienced resource that could be focused on a single (or at least primary) priority to provide consistent decision-making.

For consular nonimmigrant waivers, cases are forwarded electronically from the consular officer to the ARO through

the State Department’s Consular Consolidated Database (CCD) by means of the Admissibility Review Information Service (ARIS). ARIS is entirely electronic (no paper), and works through secure Internet communication via the CCD. For security reasons, there is no provision for outside parties to be part of the ARIS communication process.

The inability for attorneys or accredited representatives to be part of the ARIS communication between the consular officer and the ARO has led to some frustrations.

what gets referred to the ARO?Only a favorable recommendation from the consular

officer gets consideration by the ARO Director. Under the Immigration and Nationality Act (INA), the Attorney General (now the Secretary of Homeland Security) may approve a recommendation from the Secretary of State or the consular officer that an alien be admitted temporarily despite inadmissibility. In reality, this means that only a favorable recommendation gets consideration for approval. Without a consular recommendation for admission, the ARO Director will return the consular officer’s referral through the U.S. Department of State Visa Office, asking the Visa Office to remind the consular officer to not forward cases without a positive recommendation for approval. (See, 9 FAM 40.301 N6.1 (b))

what gets forwarded with a favorable consular recom-mendation?

One of the frustrations expressed by immigration law-yers is that carefully prepared briefs are ignored by the consular officer and never forwarded for ARO consideration. This is not an imaginary problem. Briefs, and other docu-mentation, must be scanned by the consular post into the CCD. Scanning is labor-intensive, and utilizes valuable con-sular resource. 9 FAM 40.301 N2 a (3) clearly instructs that all supporting documents are to be scanned into the CCD; however, that does not always happen. ARO staff may return the referral to post, requesting additional documentation, but are more likely to request records of conviction than attorney briefs. Practitioners should use their best persuasive skills to urge the consular officers to scan important documentation into the CCD for ARO consideration.

will the ARO approval be a blanket authorization for travel?

The INA requires that conditions be attached to each

Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers

by JoHn b. Klow

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approval: “The Attorney General shall prescribe condi-tions … to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.” (INA 212(d)(3)(A).) The prescribed conditions are clearly evident on the nonimmigrant visa, as they typically are expressed as the NI category authorized, number of admissions, and validity of the visa.

when is the consular recommendation forwarded?Each post will have its own review process, before the

case is finalized and forwarded to the ARO. A busy post such as London (contributing roughly 20% of the world-wide total) may have several layers of review before the Chief of Consular Services will push the final send button to forward the case to the ARO. Each layer of review takes some necessary time; occasionally a practitioner will find that a case that presumably was pending with the ARO has not yet left post. Remember that the ARO Director has nothing to consider until he receives the referral through ARIS in the CCD.

Are there other delays?9 FAM 40.301 N 6.2 describes other situations when

a consular post may (or must) refer the case to the Visa Office for review. Remember that any case referred to the VO must go through that clearance process before final referral to the ARO.

How can a visa applicant receive expedited action from the ARO?

The FAM advises that ARO decisions may take as long as 120 days. The experienced practitioner probably recognizes that 120 days is a goal that may not always be realized, and should be prepared for longer processing times. The FAM also advises that Expedited Action may be requested in truly meritorious cases. (9 FAM 40.301 N7 a.)

Can an immigration lawyer communicate directly with the ARO?

Another expressed frustration is the lack of a direct com-munication channel with the ARO. This is best explained by recognizing that the traveler’s sole application is the request for the nonimmigrant visa, pending before the con-sular officer. It is the consular officer’s recommendation for a nonimmigrant waiver that is forwarded to the ARO direc-tor, and the only communication about that recommenda-tion is between the ARO staff and the consular officer. Any attempt to communicate directly with the ARO director is seen as an attempt to circumvent the direct communication between the consular post and the ARO through the secure process existing in ARIS and the CCD. Any inquiries about processing should be directed to the consular post where the nonimmigrant visa application is pending.

who makes the final decision?

Although the ARO director makes the decision on the consular officer’s recommendation, the consular officer has the final decision on whether to issue the visa. The ARO director may authorize visa issuance, but the final decision rests with the consular officer and the secretary of state.

Can visa applicants or their counsel find out why the ARO Director has denied a consular officer’s favorable recommendation?

Although the ARO historically has approved more than 90% of consular officers’ recommendations, some requests are denied. Both the state department and CBP are reluctant to disclose the ARO director’s exact reasoning, even though FOIA requests. The simple truth is that the ARO director’s negative response, through ARIS in the CCD, will be terse, indicating “Denied”, and often advising only that “Risk of harm is too great if alien is admitted.

May a consular officer’s decision to not make a favorable recommendation be appealed?

Although there is no formal appeal process, a visa applicant or her attorney may insist that the consular offi-cer refer the case to the visa office for an advisory opinion if a consular officer declines or refuses to make a favor-able recommendation to the ARO. (9 FAM 40.301 N6.2 a.) After review, the visa office may concur with the consular officer’s decision and likewise decline to offer a favorable recommendation; in that instance, the nonimmigrant visa application is denied. The applicant’s only recourse is to apply again, hopefully when circumstances are more in favor of approval. Alternatively, the visa office may decide to make a direct recommendation for approval to the ARO director.

what about an appeal of the ARO Director’s decision?No appeal by the alien shall lie from an adverse deci-

sion made by a service officer on the recommendation of a consular officer or other state department official.” 8 CFR 212.4(a)(1), final sentence. The question is—by what means could the NIV applicant appeal the denial of a con-sular officer’s recommendation to the ARO director? There has been no direct application submitted by the applicant to the ARO director. The only issue considered by the ARO director is the consular officer’s recommendation. The con-sular officer’s denial of the nonimmigrant visa application is subject to the doctrine of consular nonreviewability.

As can be seen, much about the mechanics of a non-immigrant visa waiver is shrouded from the visa applicant and legal counsel. Hopefully, this article has added some transparency to a process seemingly cloaked in mystery. u

John B. Klow retired from 35 years of U.S. government ser-vice in 2009, having served with U.S. Customs and Border Protection (CBP) as a program manager at CBP Headquarters, Interim Director of CBP’s Pilot Admissibility Review Office,

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and Interim Port Director for CBP at Minneapolis, MN fol-lowing the Department of Homeland Security restructuring in 2003. He also held various supervisory and managerial positions within the Immigration and Naturalization Service (INS). John Klow was national coordinator of INS’ NSEERS program from September 2002 to January 2003. He was one of INS’ main authors of the Title IIIA regulations following passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and was CBP’s principal author of the October 2008 regulation authorizing admission of certain nonimmigrants with HIV infection.

John Klow has regularly appeared as a guest lecturer

at the University of Minnesota Law School and William Mitchell College of Law. He has also been a frequent speaker at national, regional, and local conferences of the Federal Bar Association and the American Immigration Lawyers Association. Since retirement from government service, John Klow has worked exclusively with the private bar, helping with complex immigration cases. He may be reached at

Johnbklow@frontiernet.net and by phone at (651) 462-8227.

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ating the reliability of scientific evidence”); see also Elliott v. Commodity Futures Trading Comm’n, 202 F.3d 926, 933 (7th Cir. 2000) (applying a Daubert analysis in Commodity Futures Trading Commission proceedings).

6In Federal court, expert reports are considered inad-missible hearsay, and the testifying expert must present his opinions by oral testimony under oath at a deposition or at trial unless the court provides otherwise. See Fed. R. Civ. P. 26(a)(2)(B). Also, the expert generally must submit a signed written report that contains a complete statement of the facts and data the expert relied upon and the expert’s

statement of opinions and reasons for them, as well as the expert’s qualifications, publications within the past 10 years, other testimony in the past 4 years, and amount of compensation. Id.; see also Fed. R. Evid. 703, 704. These procedural differences between Federal court and immigra-tion proceedings is consistent with the more relaxed stan-dard regarding the admissibility of evidence in Immigration Court compared to the Federal rules. u