We often hear about the vast workloads and long delays in the various immigration court systems, but I have never heard a word about the large numbers of pointless, useless cases brought by the immigration bar that aggravate that problem.
Let me provide one stunning example — a Board of Immigration Appeals (BIA) decision — published earlier this year.
The Filipina involved was married to a U.S. citizen. She could easily have secured a green card for that reason. Instead, for reasons that are not self-evident, she chose to seek a green card in a different way. She claimed that as a daughter of another Filipina, who had married another U.S. citizen, she could adjust status from that of K-4 nonimmigrant to that of a permanent resident alien (i.e., a green card holder).
From an outsider's perspective, it is an interesting variation on chain migration, a nonimmigrant-daughter-like-a-nonimmigrant-mother situation.
K-4s are children of K-3s, aliens who are fiancés of U.S. citizens; it is yet another obscure nonimmigrant visa category, designed to facilitate marriages between residents of the United States and non-residents, with Uncle Sam playing cupid. K-4s can adjust to green card status if the K-3 in the case adjusts and if the K-4 remains unmarried and adjusts prior to his or her 21st birthday. The young woman in this case did not file in a timely manner.
This now gets tricky: While she could have secured full green card status as a child of a K-3 had she applied in time, the law does not permit her to adjust from K-4 to a green card because of her (the daughter's) marriage to a U.S. citizen. I am not sure why that should be the case, but it is and that is what she tried to do. The BIA said no.
But that BIA decision was just the latest of a long series of her run-ins with immigration and court authorities; she had been in illegal status since the end of 2005, had filed petitions with USCIS at least twice, and had been in and out of the immigration courts. (One of her petitions was denied because she failed to show up for an interview with USCIS, a dumb error on her part.)
She now has to leave the country, but can easily seek to return as the spouse of a U.S. citizen, as she could have done in years past. Why she pursued the odd K-4 adjustment route is a total mystery.
Did she not have good legal advice? Did she have it, but ignore it? Did her lawyer know — as he should have — that the K-4 route was a sure loser? Why use a questionable route when a totally easy one (as a spouse of a U.S. citizen) was available? We will never know.
What we do know is that she and her lawyer cluttered up the immigration courts and the Board of Immigration Appeals with totally needless procedures.
Meanwhile, as I have been looking at some of the immigration decisions over the past couple of years I have seen many similar instances, totally hopeless cases carried up to the point of a published opinion in which the alien ultimately loses, but only after straining the courts for years with useless pleas. I have reported in the past on:
- The Iranian with suspect money in his pocket who tried to get an EB-5 (immigrant investor) visa from a highly suspect real estate deal involving the old Watergate Hotel in Washington, a multiple-loser carried into the Administrative Appeals Office (AAO) of DHS.
- The alien owner of a bankrupt dairy farm in South Dakota who sought another EB-5 visa from the AAO even though all but one of the jobs created by the dairy went to illegal aliens.
- The owner of a not very successful liquor store in Minnesota who wanted to use the H-1B program to bring in a part-time, low-paid alien worker in a system that usually involves higher-paid, full-time professionals. This case got all the way to a Federal District court, meaning that it was turned down at the USCIS staff level and at the AAO level before being rejected by a federal judge.
In each of these instances the alien or the alien's employer lost a battle that any reasonably alert immigration lawyer would have known was a sure loser; but all of these cases cluttered up the appeals systems, and all presumably generated fees for those lawyers.
In addition to the anecdotal evidence noted above there have been several sizeable clusters of cases known to me (and there must be many others I have not noticed) in which immigration lawyers have taken bunches of cases into the appeals systems, despite the fact that 100 percent, or near 100 percent, of the cases on record with the same set of facts have been denied at the appeals level.
Let me repeat: In two of the three sets of cases, absolutely every appeal — all to the AAO — were denied or withdrawn; none were sustained, yet the appeals kept being filed.
These were not cases in which the lawyer could say, "Well, maybe we have a chance, let's try for it." In two of the three groups discussed below, there were no indications of an alien ever winning, and in the third, alien victories were very rare.
Three groups of consistent losers stand out:
- Every EB-5 decision published by AAO in the years 2010, 2011, and 2012 has been rejected (or, in a few cases, withdrawn) — all 45 of them. Most of these were represented by immigration lawyers; there is more on some of these cases below.
- Similarly, there were 188 cases at the AAO level involving embassy workers in the United States seeking to adjust status to that of green cards on the grounds that the situation in their home countries was such that they could, under a little-used part of the law, seek permanent resident alien status. I found no instances in which AAO supported an alien's position in a period of three years (2009-2011), yet the appeals kept being filed and virtually all of the cases involved attorneys.
- Somewhat similarly, aliens won in only two AAO cases, in a sample of 43, in FY 2010. These EB-3 (low-skill or no-skill) employment-based green card cases were all in a grouping that had, in earlier years, been given a labor market blessing by a different agency and were now found wanting at another stage in the decision-making process. Again, most of these slim-hope cases were represented by attorneys, and many of the legal presentations were quite inadequate. The 43 cases represented a 6 percent sample of a universe of 724 appeals, all by definition rejected earlier by USCIS staff.
A set of 28 of the 45 EB-5 cases noted earlier were described in a CIS Backgrounder on the Immigrant Investor program, in which 26 cases were denied and two were withdrawn. Subsequently, 17 more AAO decisions on such cases were published, all denied or withdrawn. The full texts of the 2001 and 2012 decisions can be seen at the USCIS website.
As to the embassy worker cases, a detailed description of their outcomes can be found in an earlier blog of mine; some of these188 cases were reviewed on a comprehensive basis, and some in a sample study.
The EB-3 cases are described in more detail in an earlier CIS publication.
I am more disturbed by the immigration bar's handling of the embassy worker cases — generally involving clerks and other low-level employees — than I am by that of the attorneys' work with the failing EB-5 cases. In the latter instance the lawyers were dealing with reasonably alert, reasonably prosperous aliens who had half a million dollars each that they were willing to invest to get green cards for their whole families.
But the basic idea of taking money from a hopeful and not-well-informed alien, in the case of the embassy workers, when the professional must know that the chances of victory are between zero and minus one, appalls.
Perhaps one of the reasons why these no-hope cases keep being filed with AAO is that the names of the lawyers are carefully scrubbed out of the record by that privacy-obsessed organization, as are the names of the aliens and the adjudicators. Maybe if clients could see how unlikely it was for their lawyers to win these cases, they might not pay the lawyers to file them in the first place.
The Executive Office of Immigration Review, incidentally, which supervises the work of the immigration judges and the Board of Immigration Appeals, does print the names of the lawyers involved in its cases, a precedent that AAO seems to ignore.
To summarize, one of the reasons why the immigration court systems are backlogged is because of excessive use of the system by attorneys filing hopeless cases; this is clearly not the main reason for the volume in these courts, but it is one that I have never seen discussed before.