HomeUS Visa & ImmigrationNo Fault/Technical Causes: A Chronicle of Misfeasance Uncovered

No Fault/Technical Causes: A Chronicle of Misfeasance Uncovered


As a part of our efforts to amplify the AILA Legislation Journal, writer Martin Robles-Avila provides us a sneak peek into his article within the newly launched Fall 2023 version of the AILA Legislation Journal entitled “No Fault/Technical Causes: A Postmortem on Flawed Rulemaking and Its Impact on Nonimmigrant Standing Breaches” by which he discusses a quandary enterprise immigration practitioners usually discover themselves in figuring out whether or not a shopper is eligible for adjustment of standing. AILA members, learn Editor Cyrus Mehta’s preview right here after which entry your free digital copy of the Legislation Journal to learn extra!

A preponderance of the proof suggests most readers of this communique is not going to additionally learn my AILA Legislation Journal article, No Fault/Technical Causes: so, I’ll entice you with an abridged model. Let’s begin with a traditional quandary that each enterprise immigration practitioner inevitably confronts: your shopper has a pending asylum software, employment authorization doc (EAD), and an authorised I-140—are they adjustment of standing eligible? They (possible) haven’t maintained nonimmigrant standing and asylum purposes pend forevermore; however is that their fault, or for a technical motive? If you’re an AILA member, you will have even posed your query on one of many listservs and in response, acquired a babbling refrain of delphic responses, together with a number of vexing “following[s]”, all confirming your confusion and concern.

A little bit of background for the uninitiated or the befuddled. Establishing eligibility for adjustment just isn’t so simple as proving somebody has been “inspected and admitted or paroled” with a visa “instantly obtainable.” INA § 245(a). Partially, that’s as a result of a separate subsection, § 245(c), identifies eight classes of noncitizens who–however 245(a)’s permissiveness–are barred from adjusting. For our functions, (c)(2) covers the overwhelming majority of employment-based sins—unauthorized employment; being in “illegal immigration standing” on the time of submitting; and failures to keep up “repeatedly a lawful standing since” getting into the U.S.–and this prepositional phrase is the protagonist of our plot– “(aside from by way of no fault of his personal or for technical causes)”. And that’s exactly the way it’s acknowledged within the textual content, as a “parenthetical exculpatory clause” (Attias v. Crandall, 968 F.3d 931, 937 (ninth Cir. 2020).)

However what precisely does it imply? “[N]o fault of [their] personal” sounds fairly expansive, proper? And “technical causes” may embody all types of nonsubstantive violations, too inconsequential to bar a noncitizen from adjustment. Like, for instance, submitting an asylum software whereas in legitimate nonimmigrant standing however shedding that standing as a result of USCIS processing occasions are interminable. Because it occurs, rules outline the exculpatory clause, limiting it to 4 specified situations, one in all which is so particular that it’s typically unavailable:  8 C.F.R. §245.1(d)(2)(iv) refers to “technical violations ensuing from the Service’s software of the utmost 5/six 12 months interval of keep for sure H-1 nurses provided that the applicant was subsequently reinstated to H-1 standing in accordance with the phrases of Public Legislation 101-656 (Immigration Amendments of 1988).”  This leaves a scant three situations ostensibly comprising all the universe of what’s meant by “no fault of the applicant or for technical causes.” I dig into these 3 causes in depth in my regulation journal article.

Having again and again gone by way of the train of consulting (and reconsulting) each the exculpatory clause and its implementing rules, I used to be struck by a way of disconnect. This text exposes the statutory and regulatory historical past, displaying that not solely are the rules drawn too narrowly given the capacious statutory textual content; however maybe extra importantly, they’re the illegitimate baby of a faulty rulemaking course of.

Studying by way of sepia-toned congressional data, I discovered a number of intriguing issues: first, when the exculpatory clause first got here into being within the Immigration Reform and Management Act of 1986 (IRCA), its unique textual content learn “(aside from by way of no fault of his personal for technical causes)”. Discover the lacking little phrase? It wasn’t till two years later within the Immigration Technical Corrections Act of 1988 that Congress added the conjunction “or” to the phrase, upgrading it to its present iteration. However previous to this modification, on March 3, 1987, legacy INS had already initiated rulemaking as to the predecessor model of the statute– issuing an interim rule to outline the phrase, “aside from by way of no fault of his personal for technical causes”, with out the intervening conjunction.

If you happen to suppose the addition of the conjunction “or” between “aside from by way of no fault of his personal” and “technical causes” just isn’t vital, we’ll simply should half firm. As Justice Gorsuch not too long ago noticed, “[a]t one stage, in the present day’s dispute could seem semantic, targeted on a single phrase, a small one at that. However phrases are how the regulation constrains energy” (Niz-Chavez v. Garland, 141 S.Ct. 1474, 1486 (2021).)  Or as Scalia and Garner wrote of conjunctions, “[s]ometimes big quantities of cash can rely on these little phrases” (Antonin Scalia & Bryan A. Garner, Studying Legislation: The Interpretation of Authorized Texts, at 117 (2012)).

This lapse is all of the extra egregious when contemplating that regardless of initiating rulemaking in March 1987–and the very statutory textual content being carried out present process a significant modification in 1988–INS by no means issued a correction. Whereas it did subject a correction to the interim rule on April 27, 1987, it did so solely to appropriate a statutory quotation (from “243(h)” to “243(h) (2”). Why would INS subject a correction to make this anodyne alteration, however not as to one thing as vital as an modification to the very statutory textual content being carried out? And it wasn’t till July 12, 1989, that INS issued the ultimate rule, loads of time to subject a correction. I used to be additionally surprised to study that the interim rule generated solely 5 feedback—discuss a bygone period.

So, the subsequent time you encounter a riddle involving whether or not a failure to keep up standing is “by way of no fault” of the applicant, or for a “technical motive” and the rules depart you disheartened, bear this historical past in thoughts when crafting your authorized arguments. And if this doesn’t sway you to learn the unabridged model, we’ll simply should faux to be associates on the subsequent convention.

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