Immigration Courts: From Past to Present Immigrants Detained in America: Who are They and What are Their Rights? Immigration Options for Entrepreneurs Under U.S. Immigration Laws The Impact of Recent Immigration Policy Changes on Popular Business Visas The Adoption of Foreign National Children in the Post-Hague Convention Era 67th Harvest Celebration
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THE HOUSTON
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Volume 54 – Number 3
November/December 2016
Immigration Law
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contents Volume 54 Number 3
November/December 2016
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FEATURES Courts: 10 Immigration From Past to Present By Rosemary Vega
Detained in America: 16 Immigrants Who are They and What are Their Rights?
By Janet B. Beck
Options for 20 Immigration Entrepreneurs Under U.S. Immigration Laws
By Charles C. Foster
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Impact of Recent 26 The Immigration Policy Changes on Popular Business Visas By Gary Ilagan
Adoption of Foreign National 30 The Children in the Post-Hague Convention Era
By Lauren M. Rouhana
Harvest Celebration 36 67th Raises $725,250 for Houston Bar Foundation
The Houston Lawyer
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The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ŠThe Houston Bar Association, 2016. All rights reserved.
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contents Volume 54 Number 3
November/December 2016
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departments Message 6 President’s Houston’s Diversity Presents
Challenges, Opportunities By Neil D. Kelly
the Editor 8 From Hard Questions on Immigration By Jill Yaziji Lawyers Who 38 Houston Made a Difference
The Honorable Criss Cole By The Hon. Mark Davidson
42
43
Spotlight 40 Committee Houston Lawyer Referral Service
Committee: Serving Houstonians and Houston Lawyers By Jeffrey L. Oldham
the record 42 off Houston Attorney Finds Way to
Honor Daughter and Give Back
By Raymond L. Panneton in professionalism 43 ATheProfile Hon. Debra Ibarra Mayfield Judge, 165th District Court
Trends 44 Legal Texas Supreme Court Extends
46
“Exclusive Remedies” Defense on Construction Projects By David V. Wilson II
U.S. Department of Labor Expansion of Fiduciary Investment Adviser By Nelson S. Ebaugh
Texas Supreme Court Examines Malpractice Liability for Costs of Successful Appeal By Travis Armstrong ReviewS 46 Media The Anxious Lawyer: An 8-Week
Guide to a Joyful and Satisfying Law Practice through Mindfulness and Meditation
The Houston Lawyer
Reviewed by Erma Bonadero
Unfair: The New Science of Criminal Injustice Reviewed by Jason D. Goff
48 Litigation MarketPlace 4
November/December 2016
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president’s message
By Neil D. Kelly Andrews Kurth LLP
A
Houston’s Diversity Presents Challenges, Opportunities
component of Houston’s growth in the past 40 years These comments echo a 2012 report by the Kinder Institute for has been through immigration. Immigration adds to Urban Research and the Hobby Center for the Study of Texas that our ethnic and cultural diversity but as the articles in found the Houston metropolitan area is the most ethnically and this edition illustrate, the legal chalracially diverse city in the nation. More so than lenges to immigrants are huge. It is a The immigration New York, Los Angeles, Chicago, Miami, and San complicated process with many opaque rules and Francisco, and the demographic trends indicate process is hard regulations that confound experienced immigracontinued diversity. The report notes, however, tion law practitioners. that Houston is more segregated than other areas enough for those The immigration process is hard enough for in the region. The report concludes that more rewho can afford those who can afford a lawyer, and even more search is needed to inform how Houston can lead daunting for those who cannot and go it alone. the nation to transition to an inclusive and unified a lawyer, and To address the need for low income legal services multiethnic region. even more on immigration issues, the Houston Immigration These issues and challenges have not gone unLegal Services Collaborative was formed by sevnoticed by our city’s leading institutions. For exdaunting for eral immigration legal service providers and other ample, the University of Houston proudly operates stakeholders. the Center for Diversity and Inclusion that strives those who The Houston Bar Association’s Houston Volunto foster an inclusive university community and cannot and teer Lawyers is an active participant and works to provides educational, cultural and leadership exsupport the extensive efforts of the Collaborative’s periences through intercultural understanding. go it alone. members, including Catholic Charities’ commitAnd the Greater Houston Partnership’s Early Matment to ongoing work for refugees in the absence of state governters program that targets young childhood education recognizes ment participation. The HBA and HVL have also participated in the need to incorporate Houston’s diverse communities into the legal education and training programs for non-immigration lawlarger community to build an educational foundation for future yers wanting to help low income persons. jobs and employers. By many measures, Houston is a destination for immigrants I do not practice immigration law, but I still find that immithat add to our region’s diversity, but there is more work to do, gration intersects my experiences. In this season of giving and as Mayor Turner pointed out at an Eid Celebration Luncheon I sharing, my son’s class adopted a Rohingya family originally from attended this fall at the Ismalaili Jamatkhana and Center in Sugar Myanmar and my daughter’s class adopted a family from Iraq via Land that was sponsored by the Aga Khan Counsel for the SouthSyria. The effort allows me not only to review geography, but also western United States. Mayor Turner reminded us about the ethto reinforce with my kids the importance of our nation of imminic and racial diversity of the Houston region and the vibrancy it grants continuing to be welcoming of others, even if they are of brings to our economy and culture. He also noted that while we different religions and cultures. They are excited to help kids their have made advances on diversity with more work to be done, we age who it turns out have common interests (bikes and gaming fall short on inclusion. consoles) and are not so different after all..
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The Houston Lawyer
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November/December 2016
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from the editor
By Jill Yaziji Yaziji Law Firm
Associate Editors
Polly Graham Fohn Haynes and Boone, LLP
Preston Hutson LeClairRyan
Farrah Martinez Attorney at Law
The Houston Lawyer
Taunya Painter Painter Law Firm PLLC
Hon. Jeff Work Work Law Firm
8
O
Hard Questions on Immigration
n October 11, 2016 I shared a news story on my Facebook page entitled “So far, all of America’s 2016 Nobel Laureates are immigrants.” I did not think of it as a political post, per se, but I quickly received a comment telling me, “Note: They are all LEGAL immigrants who assimilated into our society. All wanted to be American.” The commenter was not my Facebook friend, but then so what! There are no privacy settings on my Facebook, and my friends, all nearly-400 of them, plus any non-friend can read all they want there. In reply to his comment, I simply wrote: “True.” There was nothing to contest in his statement, although if I wanted to get technical I would have taken issue with the word “assimilated,” and would have argued that the word “integrated” is a better word for all those Laureates, some of whom may still favor a bottle of Bass Ale or Fuller’s ESB over a Miller Light (five of the six American Nobel Laureates this year are Brits and one is Finnish)! Not to extoll the virtues of British Ale too much, my anecdote highlights how sensitive the immigration subject is to us, Americans. According to ICE Enforcement and Removal Operations Report, ICE conducted 235,413 removals from the U.S. in 2015. Of these, 165,935 removals were at or near the border, and the remainder—69,478—were “interior removals.” Ninety-one percent, or 63,539, of “interior removals” were previously convicted of a crime—an express policy of the Obama administration of removing criminal offenders. But the immigration debate is far more complicated than whether violent offenders should be deported. In this issue of The Houston Lawyer our authors engage the economic, social and policy ramifications of our immigration laws—looking beyond the frenzied immigra-
November/December 2016
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tion debate currently raging in the news media. Charles Foster discusses the new International Immigrant Entrepreneur rule—which proposes criteria for “startup” international entrepreneurs who can demonstrate their business venture has the backing of federal grants or American investors. Gary Ilagan discusses the impact on U.S. employers (and their attorneys) of the changes to the H-1B and L-1B visas—the most frequently used non-immigrant work visas in the U.S. Janet Beck discusses the detention crisis in our federal and privately-held detention facilities, and the rights, or lack thereof, of the undocumented individual detainee. The detainees’ rights debate is currently awaiting decision by the U.S. Supreme Court, which last week heard arguments in Jennings v. Rodriguez as to whether the government can indefinitely deny certain detainees a bond hearing. Rosemary Vega discusses Immigration Courts, a highly influential, but little known, court system of adjudicating potential immigrants’ rights. And, Lauren Rouhana discusses the hurdles that American families face when they decide to adopt foreign national children. Hard questions are triggered in each of these articles: How do we fix our broken borders without undermining the potential good and dignity of those who come to the U.S. to contribute and to be free? How do we protect the American STEM graduate without alienating an innovator like Karen Lozano, the Mexican immigrant who graduated from Rice, and whose nanofiber spinning technology has been integrated throughout the industry? And, how do we adjudicate the massive numbers of asylum applicants without turning down those with meritorious claims from Syria, Libya, or Iraq whose socalled Arab Spring turned into a fall of unprecedented persecution?
In this issue our authors engage the economic, social and policy ramifications of our immigration laws.
”
BOARD OF DIRECTORS President
Secretary
Neil D. Kelly
Todd M. Frankfort
President-Elect
Treasurer
Alistair B. Dawson
Warren W. Harris
First Vice President
Past President
Benny Agosto, Jr.
Laura Gibson
Second Vice President
Bill Kroger
DIRECTORS (2015-2017)
Jennifer A. Hasley Hon. Erin Lunceford
Richard Burleson Diana Gomez
Daniella Landers Chris Popov
DIRECTORS (2016-2018) David Harrell Greg Ulmer
editorial staff Editor in Chief
Jill Yaziji Associate Editors
Polly Fohn Farrah Martinez Hon. Jeff Work
Preston Hutson Taunya Painter Editorial Board
Benny Agosto, Jr. Anna Archer Paul Bowers Heaven Chee Jonathan C. C. Day Jason D. Goff Al Harrison Jennifer R. Jenkins Hon. Scott Reiter Link Marni Otjen Hon. Josefina M. Rendon David Stockel Zach Wolfe
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By Rosemary Vega
Immigration Courts: From Past to Present T
he United States has an interesting immigration history. In 1891, Congress passed the Immigration Act of 1891, which created an Office of the Superintendent of Immigration within the Department of Treasury. This office had the authority to deport those who violated the law. Then in 1893, Congress passed the Immigration Act of 1893, which enabled the Board of Special Inquiry to exclude people seeking to enter the U.S. The Board of Special Inquiry employed inspectors who would determine whether an individual was admissible into the U.S. This was essentially our first version of what we now call “Immigration
Courts� (IC). If the person was initially determined inadmissible by an inspector, that person would be able to go before the Board of Special Inquiry and plead his or her case and try to convince two of the three inspectors that s/he was admissible into the U.S. In 1895 the Office of Immigration was renamed the Bureau of Immigration and the head of the agency, previously, Superintendent, was renamed CommissionerGeneral of Immigration. The Bureau of Immigration, along with the Special Inquiry Boards, stayed under the Department of Treasury until 1903, when they were moved to the Department of Commerce and Labor. When the government split the Department of Commerce and Labor into two separate departments, the Bureau of Immigration and Special Inquiry Boards went with the Department of Labor (DOL) in 1913. In 1933 the U.S. Government renamed the Bureau of Immigration, the Immigration and Naturalization Service (INS), which remained under the DOL. Then in 1940, the INS and the Special Inquiry Boards were moved from the DOL to the Department of Justice (DOJ). Throughout this entire period, the Special Inquiry Boards remained in existence. However, in 1952, Congress combined the Immigration and Naturalization laws into one statute, eliminated the Special Inquiry Boards, and created Special Inquiry Officers under the INS. From 1952 to 1973, the immigration processes remained stable, and in 1973 the so-called Special Inquiry Officers were renamed Immigration Judges (IJ) and allowed to wear judicial robes. In 1983 the Executive Office for Immigration Review (EOIR) was created and the IJs were placed under its authority. The EOIR and the INS both remained under the DOJ at that time. In 2002 the Department of Homeland Security (DHS) was created in response to the September 11 attacks, and the INS was reorganized into what we now know as U.S. Citizen and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement
(ICE), and U.S. Customs and Border Protections (CBP). This reorganization created a separation of services and immigration enforcement. Additionally, the reorganization created a true separation between Immigration Courts and other immigration authorities that provide services or enforce the immigration laws. Today ICs and IJs remain under the authority of the EOIR. The EOIR, itself part of the DOJ, is divided up, and the ICs and IJs are under the Office of the Chief Immigration Judge. There is one Chief Immigration Judge, and 16 Assistant Chief Immigration Judges (ACIJ) who supervise, advise, and guide the approximately 270 IJs in the nearly 55 Immigration Courts nationwide. These 55 Immigration Courts do not reflect all hearing locations. IJs sometimes travel to hear cases, and televideo is also used to conduct hearings. Moreover, some states do not have Immigration Courts and thus respondents, i.e., individuals subject to the IC jurisdiction and called to appear before them, such as those in deportation proceedings, must travel to certain ICs where the case is assigned. This may require such respondents to travel far to appear at their hearing, called “Removal Hearings.� Additionally, some ICs are located at an immigration detention facility, where removal hearings may be held. When there is no sitting IJ at the detention facility, the hearing is done via televideo. ICE has some detention facilities, and private companies sometimes contract with ICE to run detention facilities holding people under immigration custody. The Immigration Court system is comprised of Master Calendar hearings and Individual or Merits hearings. Master Calendar hearings are brief and consist of pleadings in response to the Notice to Appear, informing the IJ of what type of relief is being sought, updating addresses, getting direction on dates to file a relief application or possibly submitting a relief application, or giving the IJ the status of the case. The Individual or Merits hearing is the actual trial. At the
end of the trial, the IJ normally issues an oral decision. Houston has two Immigration Courts. One court, located at 600 Jefferson Street on the 9th floor, has seven IJs, and one ACIJ hearing cases of non-detained respondents. The second court, located at 5520 Greens Road, has jurisdiction over detained respondents, and has three IJs who hear cases of detained respondents. The ACIJ for the Houston courts is Judge Clarence M. Wagner, Jr. The Houston downtown court IJs are judges Nimmo Bhagat, Chris Brisack, Elisa Castrolugo, Gary Endelman, Monique Harris, Georgina Picos, and Clarease RankinYates. The judges deciding cases on the detained docket are Saul Greenstein, Lisa Luis and Richard Walton. Unlike, Texas District Judges, Immigration Judges are not elected. The IJs go through a stringent application and interview process before they are ultimately selected to become Immigration Judges. Judge Wagner reported that the Houston Immigration Court has the third largest docket in the nation with 41,000 cases pending. However, it is not the largest court. Immigration Courts in Los Angeles, San Francisco, and Miami have far more Immigration Judges than Houston. Judge Wagner has projected that Houston will have 12 IJs in total by the summer of 2017. Judge Wagner has set out the agenda for the non-detained Houston Immigration Court, which will consist of 20 initial master calendar cases and 15 reset master calendar cases per day, and about two individual hearings per day. This is usually for four days out of their week. Judge Wagner points out that it is difficult to set out such an agenda with the detained docket, where the cases are time-sensitive and need to move faster. The IJs also hear bond hearings along with master calendar hearings, and some master calendar hearings can turn into a longer hearing or an individual hearing. The IJs at the detention center hear cases from the detention facility where they are located, which is called the Houston
Service Processing Center (HSPC), and hear cases via televideo from respondents at the Joe Corley Unit in Conroe, respondents housed in Polk County, and respondents who are serving their time at the Texas Department of Criminal Justice. While Houston IJs hear various types of cases for relief, only Judges Brisack and Rankin-Yates hear Unaccompanied Children cases (UAC). UACs are specific in that these cases involve juveniles under the age of 18 who entered illegally without a parent and are housed by the Office of Refugee Resettlement (ORR) when they are apprehended at the border. Some of these children reside at shelters that are contracted through ORR; some are released to relatives or family friends after being vetted through a home study and approved through ORR. Some of these children will qualify for relief such as Special Immigrant Juvenile Status (SIJS), which is appropriate when it is not viable for the children to be reunited with one or both of their parents due to neglect, abandonment, or abuse. However, in order to qualify for SIJS, the State District Court will need to sign an order showing that it is not viable for the child to be reunited with one or both parents due to neglect, abandonment, or abuse. Additionally, if a UAC is applying for asylum, the procedures are different than a non-minor applying for asylum in IC. If the child is unaccompanied, the child must apply for asylum through the asylum office, even if the child is in Removal Proceedings. Therefore, the IJs who deal with UACs must understand the nuances and differences in law specific to the UAC situation. An IJ also hears cases dealing with respondents who are Legal Permanent Residents (LPR), have criminal convictions, and are deportable under the Immigration and Nationality Act (INA). These individuals, depending on their criminal conviction, personal situation, and length of time as an LPR, may qualify for some form of relief. The forms of relief available for LPRs include can-
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cellation of removal for LPRs, waivers under section 212(h) of the INA, re-adjustment with a section 212(h) waiver, asylum, withholding of removal, and convention against torture. However, if the respondent’s criminal conviction is considered an aggravated felony, then he or she may not be eligible for any form of relief. An example of an aggravated felony is a theft conviction where the term of imprisonment is more than one year. Respondents seeking cancellation of removal for LPRs as relief must show seven years of physical presence in the U.S. and five years as an LPR, and their conviction cannot be an aggravated felony. The time is stopped on the seven years of physical presence either on the date of the offense or when the Notice to Appear is served, depending on the nature of the offense. If the respondent does not qualify for cancellation of removal for LPRs, then he or she may qualify for a section 212(h) waiver. However, if the respondent’s conviction is a
drug conviction, except for 30 grams or less of marijuana, then respondent may not qualify for a 212(h) waiver. As such, there are many details that can derail a respondent’s ability to qualify for relief. An IJ also hears cases dealing with people who are in the U.S. unlawfully, whether entering without inspection or overstaying a visa. These respondents may or may not have criminal convictions. They may be eligible for cancellation of removal for non-LPRs, inadmissibility waivers, asylum, withholding of removal, or the convention against torture. Additionally, if the respondent is a victim of domestic violence, then he or she may be eligible for relief under the Violence against Women Act (VAWA); similarly, if the respondent is a victim of a crime, he or she may be eligible for a U visa; and if the respondent is a victim of human trafficking, he or she may be eligible for a T visa. If respondents who are not LPRs have been in the U.S. for more than 10 years,
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have good moral character, and have a U.S. citizen or LPR spouse, parent, or child who will suffer extreme and exceptionally unusual hardship if they are removed, they may qualify for cancellation of removal for non-LPRs. These are difficult cases to win, mainly because extreme and exceptionally unusual hardship is a very high burden to meet. If the respondent is a victim of domestic violence and the perpetrator is a U.S. citizen or LPR, the victim may qualify for VAWA or possibly a U visa. In these cases, it is not the IJ who determines whether the respondent qualifies. The respondent may be in Removal Proceedings, but the application for VAWA or U visa is submitted to USCIS, which adjudicates it. If it is approved, then the respondent may qualify to adjust his or her status before the IJ. If the respondent does not qualify to adjust the status at the time he or she is before the Immigration Judge, but has a VAWA or U visa approved, and the respondent
needs to await a visa becoming available due to the perpetrator or abuser being a LPR, then the government may agree to administratively close the case. These cases may take considerable time to be adjudicated by USCIS, and while the application is pending, the IJ will normally continue the case and set it to a master calendar hearing for status checks. The respondent may also fear persecution if returned to his or her country of origin and may apply for asylum, withholding of removal, and/or the convention against torture. Normally, the respondent must show fear of persecution or a well-founded fear of persecution due to race, religion, nationality, political opinion, or membership in a particular social group. Generally, if the application is not filed within one year of entry into the U.S., then the respondent may not qualify for asylum, but will qualify for withholding or removal. The difference between these two is that asylum is discretionary, there is a lower burden,
and after one year of having asylum, the respondent can adjust status to a Legal Permanent Residency. Withholding of removal is not discretionary, has a higher burden, and there is no hope of receiving Legal Permanent Residency. So, these cases are time sensitive. The IJs at the detention facility hear these types of cases as well. However, because respondents are detained, the timeline of these cases is usually faster than the timeline in non-detained cases. One may wonder what determines who is detained. Respondents with certain types of criminal convictions are subject to mandatory detention. Generally speaking, respondents who have drug convictions, convictions for crimes involving moral turpitude, and those who are seeking admission into the U.S. are also subject to mandatory detention pursuant to section 236 of the INA. Additionally, a respondent who is arrested and subject to an ICE hold, and whose family places a criminal bond, is more
than likely to be transferred to the immigration detention facility, or if the respondent is convicted and has completed a term of imprisonment, ICE will transfer him or her to the immigration detention facility. Depending on the respondent’s conviction, the respondent may be eligible for a bond. The IJ will consider whether the respondent is a danger to society, a threat to national security, or a flight risk. IJs have wide discretion when determining bonds, and can take police reports, arrest records, and other factors into consideration. IJs may consider factors in bond hearings that cannot be considered in removal hearings such as police reports, the circumstances of any offense the person has committed, information relating to family members. Bond hearings are not recorded and are not part of the record. The IJs may have an agenda as to how many cases are on their docket for the day, but that does not influence their judicial independence to either continue
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a case for good cause or render a decision on the merits. Judge Wagner acknowledges that judicial independence is critical to the IJs’ job to make decisions within the law. With that in mind, if the Attorney General has provided an opinion or policy, the IJs must follow this opinion, as IJs are delegates of the Attorney General. Attorneys who practice in Immigration Courts should take advantage of The Immigration Court Practice Manual,1 which sets out the guidelines of motion practice. However, each judge handles his or her courtroom and docket differently. For example, Judge Castrolugo has her own set of local rules that she expects immigration practitioners to follow in her court. Even though The Immigration Court Practice Manual may state that a motion or application is to be filed 15 days before a hearing, the IJ could provide a different date to file any motions or applications. ICs are not typical court, and the rules gary 13710
of evidence are not generally followed, but they are courts that deal with people’s lives. For instance, hearsay is allowed in ICs. Many respondents could lose their family or life if they are removed from the U.S. Additionally, many do not speak English, and an interpreter is usually needed. Consequently, respondents are often scared and unsure of what is happening. All they know is that the IJ is going to determine the outcome of their case. The government does not provide representation to the respondents, so they must find and pay for an attorney or seek help from a non-profit agency. Respondents are usually people of little resources, and may end up representing themselves in ICs, which puts them at a great disadvantage given the complexity of immigration laws. The IJs do their best to elicit relevant information and provide respondents with the relevant applications and forms of relief. The IJs may assist the respondent in de-
termining the form of relief for which the respondent is eligible and provide them with relief applications; however, IJs cannot provide more guidance than that. The filling out of application forms, all in English, is the responsibility of the respondents. Hence, the ICs are an essential part of our immigration system. The Houston Immigration Courts are generally open to the public, with a few exceptions. I would invite the curious reader to observe a case or a master calendar hearing to gain more knowledge about the courts that determine so much. Rosemary Vega is an attorney and mediator with the Law Office of Rosemary Vega PLLC and is also a Clinical Supervising Attorney with the UHLC Immigration Clinic. Endnotes 1. The Immigration Court Practice Manual is available at https://www.justice.gov/eoir/office-chiefimmigration-judge-0.
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By Janet B. Beck
Immigrants Detained in America:
Who are They and What are Their Rights? O
n any given day, 30,000 undocumented immigrants are housed in U.S detention centers, jails or similar facilities.1 Hundreds of thousands of individuals have been detained in the past ten years.2 Approximately 400,000 noncitizens are detained annually. The U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) reports that they apprehended more than 406,000 non-citizens and deported and returned over 460,000 in 2015.3 Texas has detention centers in Cleburne, Conroe, Dallas, Dilley, El Paso, Haskell, Houston, Karnes City, Los Fresnos, Pearsall, and Sierra Blanca. The U.S. Department of Homeland Security Enforcement and 16
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Removal Operations (DHS-ERO) oversees detention centers in the U.S., some of which are managed by private contractors. DHS detention standards are published on their website. Immigration advocates, encouraged by the federal government’s recent decision to take control over federal prisons, are now urging the U.S. Government to put the detention centers directly under federal control and abolish contracts with private contractors such as the Corrections Corporation of America or The Geo Group, Inc.4 Who Is Detained Today? Today in the U.S., unaccompanied minors, women with children, as well as undocumented adult men and women are
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subject to detention. All border checkpoints (land, sea and air) are maintained by DHS Customs and Border Protection (CBP) officers. Immigrants entering with valid documents are not detained, although some may be temporarily placed into a Secondary Inspection area and then either released or, when a decision regarding their admissibility cannot be made, given a Deferred Inspection appointment at a local CBP office. In some cases the individual may be detained because of a criminal conviction. At the ports of entry, arriving individuals who do not have valid documents or who have valid documents but have committed fraud usually receive an Order of Expedited Removal from a CBP officer and are sent back to their home countries. The Order states that they may not return to the U.S. for five years. By contrast, individuals requesting asylum are not sent back, as discussed below. In rare cases, CBP may allow the individual to withdraw his or her application for admission such that there is no order of expedited removal. In addition, an undocumented immigrant may be detained by U.S. Immigration and Customs Enforcement (ICE) at any location within the U.S. Those who have been convicted of an offense that renders them subject to removal/deportation will, usually, be detained by ICE at the time of their release from jail or prison. Unless they were previously deported and subsequently reentered illegally, they are able to present their cases before an Immigration Judge (IJ).5 Even a lawful permanent resident may be detained if he or she committed a crime rendering him or her inadmissible, subsequently departed the U.S., and attempts reentry. 6 What Happens When Non-Citizens Are Detained? Unaccompanied minors (those under 18 years of age) from non-contiguous countries (i.e. not from Canada or Mexico) attempting entry into the U.S. are placed into the custody of the Office of Refugee Resettlement (ORR), which places them
in a shelter.7 The projection for 2016 is that there will be 60,000 unaccompanied minors entering the U.S., up from 40,000 in 2015. Shelters are run by non-profit organizations such as Catholic Charities, among others. These children are given Notices to Appear in Immigration Court. However, they may be released to a family member, relative, or friend of the family without having to pay a bond. Otherwise, they may stay in a shelter until they reach the age of 18. Minors from Canada and Mexico are sent back to their home country.8 Legal remedies for these children may include asylum and special immigrant juvenile status.9 Women with children who arrive at a port of entry and request asylum from a CBP officer will be detained at an immigration detention center. Texas has two such centers: The South Texas Family Residential Center (Dilley), run by the Corrections Corporation of America (CCA), and the Karnes County Detention Center, run by the GEO group. In a recent decision, the Ninth Circuit Court of Appeals has held that children must be detained in the “least restrictive setting that is in the best interest of the child,” whether they are unaccompanied or accompanied minors.10 An undocumented immigrant of any age may be also detained when that person has 1) committed a crime that renders him deportable or inadmissible; 2) overstayed his authorized stay in the U.S.; 3) entered the U.S illegally and has no legal status in the U.S.; or 4) attempted an illegal entry.11 Lawful permanent residents (LPRs) who are returning to the U.S. after a trip abroad but who have committed a crime rendering them inadmissible to the U.S. are either denied admission or detained subject to a removal proceeding, before an IJ, to decide their admissibility.12 Some undocumented immigrants may be eligible for bond but there is mandatory detention for others who are suspected terrorists, convicted of drug or firearm offenses or crimes relating to espionage, among others.13 Those individuals not subject to mandatory de-
tention cannot be detained for more than six months unless they threaten national security or the safety of the community or any person.14 What Standards Must Be Applied in Detention Centers? Treatment of detainees is governed by the DHS Detention Standards.15 When women and children arrive at the Texas border requesting asylum, they are put in “hieleras” (freezers)—so-called because these places are very cold and they sleep on concrete floors with only a thin piece of material to cover them. Food is minimal and medical care is practically non-existent.16 They are usually held for a day or two and then, usually, sent to the “perrera” (dog pound), so-called because the fence surrounding it reminds the detained of a kennel. They are usually held for another day or so and then transferred to a detention facility. There have been allegations of insufficient medical care and even abuse by detention facility personnel. In 2015 a detention guard at the Berks Family Detention Center in Pennsylvania was convicted of sexually assaulting one of the detained women.17 Initially, there was no school for the children and both women and children were detained for months. To protest conditions, women at Karnes18 and the Berks County Family Residential Center in Pennsylvania went on hunger strikes.19 Recently, a Texas state district court judge halted the issuance of a child care license to Dilley based on safety concerns for the children.20 What Legal Remedies are Available to Detainees? Asylum ICE must inform the CIS Asylum office when a detained individual has requested asylum. A CIS Asylum officer will interview the detainee to determine whether he or she has a “credible fear” of persecution or torture in the home country i.e. whether there is a “significant possibility” that he or she can establish eligibil-
ity for asylum withholding of removal or relief under the Convention Against Torture (CAT) before an IJ.21 In order to prevail in an asylum claim, the individual must prove that she did or will incur severe harm and that the persecution is, or will be, on account of race, religion, nationality, membership in a political social group or political opinion, or that the individual will be tortured if forced to return to her home country.22 If the individual was previously deported, that individual must prove to a CIS Asylum officer that there is a “reasonable possibility” the individual would be eligible for withholding of removal or relief under the Convention against Torture before an IJ. Although asylum is a path to lawful permanent residency, withholding of removal and relief under the Convention Against Torture only allow the individual to stay in the U.S. and work and do not create a pathway to LPR status. Individuals may be eligible for humanitarian asylum if they can prove compelling reasons for being unwilling or unable to return to their country, arising out of the severity of past persecution or that they were persecuted in the past on one of the five grounds, and there is a reasonable possibility they may suffer other serious harm (does not have to be one of the five grounds) upon removal to that country.23 If the individual establishes a credible fear of persecution, the individual will be released on a bond or with an ankle bracelet, and will be required to report in to DHS or its designee, the Intensive Supervision Appearance Program (ISAP). Some women are released without bond or an ankle bracelet (depending on the manner of attempted entry into the U.S.) i.e., on their own recognizance. ICE sets the bonds but the individual may request a redetermination of the bond before the IJ. While the statutory minimum for a bond is $ 1,500.00, bonds are frequently set by ICE at $7,500.00 or higher.24 If released, the individual will be set for an Immigration Court hearing in the place where she resides.
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If the individual does not receive a positive credible fear/reasonable fear determination, that individual will continue to be detained until an IJ reviews the finding with the individual present in the courtroom. If the IJ concurs with the CIS Asylum officer’s negative finding, the individual may file a Motion to Reopen and/ or a Motion to Reconsider with the IJ and/ or the USCIS Asylum office. Without a positive finding, the individual will be deported. A mother who receives a negative reasonable fear determination will not be released unless her child has received a positive credible fear determination.25 Cancellation of Removal and Adjustment of Status Lawful permanent residents may be eligible for Cancellation of Removal whereby an IJ allows them to retain their permanent resident status.26 Others may be eligible for Cancellation of Removal whereby the IJ may grant them LPR status.27 Adjustment of Status is another possible remedy, in situations where, for
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an example, an individual enters the U.S. legally and then marries a U.S. citizen or has had a petition filed for him before April 30, 2001.28 Waivers are available for certain grounds of deportability and inadmissibility but they must be attached to the underlying relief application.29 For example, a detained individual may try to adjust status to LPR in Immigration Court on the basis of marriage to a U.S. citizen and lawful entry into the U.S.30 If convicted of one offense of possession for his own use of 30 grams or less of marijuana, that individual is not deportable.31 However, the individual is nonetheless statutorily inadmissible and must apply for a waiver.32 What Are a Detainee’s Rights in Immigration Court? There is no right to a court-appointed attorney in immigration proceedings; however, the individual has a right to an attorney at his own expense.33 The only exception is mentally incompetent detainees within the jurisdiction of the
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Ninth Circuit, who are entitled to free legal representation.34 Outside the Ninth Circuit, a mentally incompetent individual does not have the right to appointed counsel. However, a detained mentally incompetent individual, or one who appears to be mentally incompetent, must have appropriate safeguards in place to ensure that the individual receives a fair hearing before the IJ.35 Conclusion The detention of undocumented immigrants has no foreseeable end and poses challenges and difficulties to attorneys representing often highly stressed and, sometimes, abused undocumented immigrants, including minors. Therefore, it is imperative that attorneys keep abreast of any changes to the law and its application as well as any policy or procedural changes. Janet B. Beck is Visiting Assistant Clinical Professor at the University of Houston Law Center. She wishes to acknowledge the con-
tribution of Gabriella Cole, law student at the University of Houston Law Center who assisted with research for this article. Endnotes 1. United States Immigration Detention Profile, Global Detention Project https://www.globaldetentionpro ject.org/countries/americas/united-states (last visit 09/21/2016). 2. Guillermo Cantor, Hieleras (Iceboxes) in the Rio Grande Valley Sector, American Immigration Council, December 17, 2015, https://www.americanim migrationcouncil.org/research/hieleras-iceboxesrio-grande-valley-sector; The “Hieleras”: A Report on Human & Civil Rights Abuses Committed by U.S. Customs and Border Protection, Americans for Immigrant Justice, August 7, 2013, http://www.aijustice.org/thehieleras-a-report-on-human-civil-rights-abusescommitted-by-u-s-customs-border-protection-2/. 3. https://www.ice.gov/news/releases/dhs-releasesend-fiscal-year-2015-statistics 4. Los Angeles Times, Sept. 21, 2016http://www.latimes. c o m / n a t i o n / l a - n a - i m m i g ra t i o n - d e t e n t i o n 20160906-snap-story.html 5. 8 U.S.C. § 1231(a)(5); 8 CFR §1241.8. 6. 8 U.S.C. 1101(a)(13)(c). 7. U.S. Gov’t Accountability Office, GAO-16-180, Unaccompanied Children (2016). 8. United States Immigration Detention Profile, Global Detention Project https://www.globaldetentionproject. org/countries/americas/united-states. 9. 8 U.S.C. 1158 §§ 208, 101(a)(27)(J). 10. Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016). 11. 8 U.S.C. § 1227. 12. 8 U.S.C. § 1101(a)(13).
13. 8 U.S.C § 1226A; Demore v. Kim, 538 U.S. 510 (2003). 14. INA § 1226A(a)(6); Zadvydas v. INS, 533 U.S. 678, 121 S. Ct. 2491 (2001). 15. Family Residential Standards, 2011 Operations Manual United States Immigration and Customs Enforcement https://www.ice.gov/detention-standards/ family-residential; https://www.ice.gov/detentionstandards/2011. 16. Guillermo Cantor, Hieleras (Iceboxes) in the Rio Grande Valley Sector, American Immigration Council, December 17, 2015, https://www.americanimmi grationcouncil.org/research/hieleras-iceboxes-riogrande-valley-sector. 17. Renee Feltz, Immigration Facility Guard Given Jail Time for Sexual Assault of Detainee, The Guardian, April 23, 2016, https://www.theguardian.com/us-news/ 2016/apr/23/immigration-detention-center-guardsexual-assault-prison. 18. Cristina Parker, Women in Karnes Family Detention Camp Start Work Strike and Fast for Holy Week! Demanding Freedom!, Grassroots Leadership, March 30, 2015, http://grassrootsleadership.org/blog/2015/03/ breaking-women-karnes-family-detention-campstart-work-strike-and-fast-holy-week. 19. Franco Ordonez, Mothers Launch Hunger Strike in Migrant Family Detention Center, National, August 12, 2016, http://www.mcclatchydc.com/news/nationworld/national/article95382407.html. 20. Grassroots Leadership, Inc. v. Texas Department of Family and Protective Services, No. D-1-GN-15004336, (2016). 21. 8 CFR § 208.30(e). 22. 8 CFR § 208.31(c). 23. 8 C.F.R. § 1208.13(b)(1)(iii); Matter of L-S, 22 I&N Dec. 705 (BIA 2012). 24. 8 USC § 1226(a)(2). 25. Special Considerations When Representing Detained Applicants for Asylum, Withholding of Removal and Re-
lief Under the Convention Against Torture, Heartland Alliance National Immigrant Justice Center, June 2012, http://immigrantjustice.org/sites/immigrant justice.org/files/Detention%20Supplement_Final_ June%202012.pdf. 26. 8 U.S.C. § 1229b(a). The Immigration Judge may cancel removal if the individual has been a LPR for 5 years or more, has resided in the U.S. continuously for 7 years after having been admitted in any status and has not been convicted of an aggravated felony. 27. 8 U.S.C. § 1229b(b). The immigration judge may grant an individual LPR status if the individual has been physically present in the U.S. for a continuous period of 10 years or more immediately preceding the date of the application for LPR status, has been a person of good moral character, has not been convicted of certain offenses and establishes that removal would result in exceptional and extremely unusual hardship to the alien’s USC or LPR spouse, parent or child. 28. 8 U.S.C. § 1255(a), 8 CFR § 245.10 29. Smuggling family members 8 U.S.C. 1227(a)(1)(E) (iii); certain criminal convictions 8 U.S.C. 1227(a) (7) self-defense for domestic violence, etc. 8 USC § 1182(g), (h), (i). 30. 8 USC § 1182(a)(2)(A)(i)(II). 31. 8 USC § 1227(a)(2)(B). 32. 8 USC § 1182(h). 33. 8 USC § 1229a(b)(4)(A). 34. Franco-Gonzalez v. Holder, No. CV 10-2211-DMG (DTBx), 2013 U.S. Dist. LEXIS 186499 (C.D. Cal. 2013). 35. Matter of M-A-M, 25 I&N Dec. 474 (BIA 2011); Matter of E-S-I, 26 I&N Dec. 136 (BIA 2013); Matter of J-S-S, 26 I&N Dec. 679 (BIA 2015); Matter of M-J-K, 26 I&N Dec. 773 (BIA 2016); Representing Clients With Mental Competency Issues Under Matter of MA-M, American Immigration Counsel Practice Advisory, November 30, 2011.
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By Charles C. Foster
Immigration Options for Entrepreneurs Under U.S. Immigration Laws “
Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!
”
Emma Lazarus
W
hile our nation once historically etched its welcome to the “masses yearning to be free” on the Statue of Liberty, as our immigration policy evolved from the national origin quotas imposed in 1923 to an immigration preference system of 1965, not only has it become virtually impossible for the huddled masses to immigrate legally, it has also become increasingly unlikely that even budding would-be immigrant entrepreneurs would survive the restrictive U.S. immigration system. In this environment, President Obama’s executive action for entrepreneur parole is very welcome news. Despite the myth that “good” immigrants are free to immigrate to the United States, including entrepreneurs who would bring their talents and money to develop new enterprise and create jobs, the reality is we have a highly restrictive immigration preference system based on family reunification and the needs of U.S. employers. Under the 1965 amendments to the Immigration and Nationality Act of 1952, passed under the floor leadership of U.S. Senator Edward Kennedy and signed into
law by President Lyndon Baines Johnson, individuals could immigrate from all of the Eastern Hemisphere countries on an equal basis based upon a family preference petition filed by an immediate or other close U.S. citizen or Lawful Permanent Resident (LPR) relative or by a prospective U.S. employer who could first prove through the U.S. Department of Labor that there was a shortage of qualified, willing, and able U.S. workers. For many years, I have asked the rhetorical question in my speeches: “Could Queen Elizabeth immigrate to the United States?” The question produced the expected chuckle in the audience that implied, “Of course, Queen Elizabeth could.” In fact, until relatively recently in our immigration history, the answer was “No, Queen Elizabeth could not!” as she does not have the qualifying family relation nor would an employer necessarily be able to prove that she has the skills for the particular job in the U.S. for which there are no qualified, willing, and able U.S. workers. Today Queen Elizabeth and other wealthy foreign nationals could immigrate by virtue of the fact that Congress enacted the Immigration Act of 1990 (IMMACT1990), which created the employment-based 5th preference (EB-5) for foreign investors who made a minimum investment of $1,000,000 in a new enterprise creating 10 jobs for U.S. workers with an annual quota of 10,000 for investors and their family members. However, this option has proven challenging for startup entrepreneurs as described in detail below. Permanent Residency Options for Foreign Entrepreneurs: EB-5 Investor for Lawful Permanent Residency At best, it can be a challenge for foreign entrepreneurs to obtain Lawful Permanent Residency through investment whether it is based on a $1,000,000 investment or even $500,000, if the investment in a new enterprise is located in a Targeted Economic Area (TEA). The Appropriations Act of October 6, 1992, also established a pilot program for immigrant investors that
would permit investment through designated Regional Centers that would relax job creation requirements for employment creation visas. The program was limited to 3,000 visas per year and included a sunset provision. The EB-5 Regional Center program must be reauthorized by December 9, 2016, but it will almost certainly be coupled with reform that will raise the minimum investment amounts. But even if the entrepreneur has $500,000 or more in cash, the entrepreneur’s business plan may not necessarily conform to the rigidity of the EB-5 investor program nor create the necessary 10 jobs for U.S. workers. In many cases, the entrepreneur will not have those funds readily available and may not be able to borrow such funds that would have to be fully collateralized. Also, it may not make sense for the entrepreneur to locate his or her enterprise in a TEA nor may the enterprise even require a $500,000 investment. A TEA includes both a rural area defined as one with a population of less than 20,000, or an urban area which has a high unemployment of at least 150% of the national average. Furthermore, for many new enterprises, the requirement that the investment must create full-time employment for at least 10 U.S. workers for the two-year conditional residence period may not be feasible. Independent contractors are not considered employees. Many startup businesses do not require 10 employees. The EB-5 program is also in jeopardy given the fact that approximately 85% of all investors are Chinese and with country quota caps there is a growing visa number backlog of four to seven years for Chinese investors. New Options for Entrepreneurs and Temporary Work Visa Options 1 Foreign entrepreneurs could possibly obtain temporary status or a nonimmigrant work visa based upon their investment, or a job opportunity through the entity set up through the investment. President Obama’s Executive Action for Entrepreneur Parole Given the cost and complexity of for-
eign entrepreneurs obtaining Lawful Permanent Residency through investment and lack of other viable options for entrepreneurs, President Barack Obama has proposed a limited solution. When the U.S. House of Representatives failed to enact comprehensive immigration reform, the President reacted by announcing a number of Executive Actions on November 20, 2014, most notably the proposal to extend and expand options for children who had entered without inspection or remained in undocumented status known as Deferred Action of Childhood Arrivals (DACA), and the provision for Deferred Action for Parental Accountability (DAPA) for certain undocumented immigrants who had entered the U.S. by a certain date who were parents of U.S. citizens. But far less publicized, the President also proposed new rules to provide additional options for entrepreneurs to enter and work in the U.S. in light of limited immigration and nonimmigrant viable options. While the DAPA and expanded DACA portion of the Executive Actions have been enjoined by U.S. District Judge Andrew Hanen, the President’s proposal to provide new options for entrepreneurs was not. After the Administration conducted a “listening session” with stakeholders to elicit ideas and information on June 25, 2015 and receiving a number of comments, the Department of Homeland Security announced on August 26, 2016, its proposed “International Entrepreneur Rule.” While there is no certainty, President-elect Donald Trump may focus on undocumented immigration and be more sympathetic to job-creating legal immigrants and the related regulations. The Entrepreneur Rule would give a legal basis for qualified entrepreneurs to enter (i.e. be paroled into) the U.S. along with their spouses and unmarried children under the age of 21 for an initial twoyear period with a possible “re-parole” for an additional three-year period. Under the proposed rule, employment authorization for the entrepreneur is incident to the Advance Parole and would be limited to working with the entrepreneur’s company. The
applicant who applies for re-parole before the current parole expires would receive an automatic extension of employment authorization for up to 240 days while the “re-parole” application would be pending. Spouses (but not the children) would be eligible to apply for independent employment authorization separately upon approval of Advance Parole, which is a real benefit for families that are accustomed to two working bread winners. International Entrepreneur Requirements The requirements for the initial two years for the international entrepreneur’s Advance Parole are both narrow and complex. The initial grant of two-year Advance Parole requires the following steps: 1. Creation of a new start-up entity. The start-up entity must be created within three years preceding the request for Advance Parole and there must be evidence it has been operated lawfully since its creation. Investment entities primarily engaged in the lawful purchase, sale or trade of securities would not count as qualifying entities. 2. Entrepreneur’s ownership. The entrepreneur must be able to show that he or she owns at least 15% of the enterprise and plays an “active and central role” in the company. 3. Significant 3rd Party Capital Investment or Government Funding. There must have been a capital investment of at least $345,000 within the one-year period prior to filing the application from one or more third-party U.S. investors with a history of making similar or greater investments on a regular basis over the past five years, and who can demonstrate that at least two of the entities invested in have experienced significant growth in revenues of at least $500,000 with average annualized revenue growth of 20% or job creation of at least five jobs. This in and of itself is an extremely narrow requirement effectively requiring significant third party ratification by an independent incubator or venture capital company. Quali-
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fied third party investors must be U.S. citizens or Lawful Permanent Residents or a company that is majority owned or controlled by U.S. citizens or Lawful Permanent Residents. Alternatively, the applicant may show that the startup entity has received at least $100,000 in grants from federal, state or local government agencies that typically provide such funding, such as a grant from the Small Business Administration. However, under the proposed rules, the entrepreneur cannot obtain Advance Parole based on his own or even his friends’ or family’s investment; only based upon an individual corporate investor with a very specific track record, which will likely prevent many qualified entrepreneurs from using this provision. 4. Foreign Entrepreneur’s Investment. The foreign investor, in turn, would need to have made one or more investments over three different calendar years within the last five years in exchange for equity or convertible debt of at least $1,000,000.
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As part of the parole process, applicants must maintain an income greater than 4% of Federal Poverty Guidelines depending upon their household size. Parole could be terminated if they failed to do so. Furthermore, if there are any “material changes” during the parole period, i.e., possible changes that could impact whether an entrepreneur is continuing to provide a significant public benefit to the U.S., a new Advance Parole application must be filed. Beyond the narrow and technical complexities, one of the basic problems with this new possible option for entrepreneurs is that it is completely discretionary and there is no right of appeal should the United States Citizenship and Immigration Service (USCIS) deny the Advance Parole Application (Form I-941). Nor is there any right to file a Motion to Reconsider a denial of an entrepreneur’s Advance Parole application, although the government may reopen an application on its own motion, though it is unclear how they could do so if the issues under consideration could not be brought to their attention.
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The large filing fee of $1,200 may also be an impediment for many new entrepreneurs. Also, it is not possible for more than three entrepreneurs per company to be eligible for Advance Parole. Accompanying spouses and children will file a standard application for parole on Form I-131 along with a separate filing fee for each of $360 plus $85 for biometric processing (only for applicants over the age of 14). Other Temporary Legal Options 1. Optional Practical Training/H-1B Specialty Occupation Nonimmigrant Visa Some prospective entrepreneurs graduating from U.S. universities, particularly in the STEM (science, technology, engineering and math) fields in the past would not only have 12 months of normal Options Practical Training (OPT) with work authorization, but they would have had some flexibility under U.S. immigration law for remaining in the U.S. and working in a startup company and under certain conditions could be shareholders in same. Normally, in order to
remain in the U.S., the would-be entrepreneur’s transition would be to go from a 12-month OPT period to a three-year H-1B nonimmigrant work visa status for a professional in a specialty occupation with one possible three-year extension. During that time, the entrepreneur would have the possibility of qualifying for Lawful Permanent Residency through Permanent Employment Certification (PERM), the process by which the employer would prove the unavailability of any qualified, willing and able U.S. workers through the U.S. Department of Labor. Most important, under more recent regulations, graduates in STEM fields can obtain an additional 24 months for a total of 36 months of practical training. Given the growing demand for H-1B numbers and the 65,000 annual cap (plus 20,000 for graduates of U.S. universities with an advanced degree), an entrepreneur graduating with a STEM degree would at least have three opportunities to qualify for H-1B status over the three-year period. 2. E-2 Nonimmigrant Treaty Trader Visa Another very viable nonimmigrant or temporary visa option for foreign entrepreneurs is the E-2 Nonimmigrant Treaty Trader Visa and is based on the fact that the United States has a Treaty of Navigation, Commerce and Friendship between it and the country of nationality of the foreign entrepreneurs. As such, a foreign investor from a country that has the appropriate treaty could obtain an E-2 Visa for a five-year period by making a “substantial” investment in the United States. While the term “substantial” is not defined, normally the American Consular Officer is looking for a minimum investment of $150,000 and job creation for at least two or more U.S. workers. The E-2 Nonimmigrant Treaty Trader visa option may be a very viable option for the entrepreneur, but it has limitations. We have treaties with most European countries, Japan and other major countries, but there are many noticeable thehoustonlawyer.com
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exceptions. For example we have a bilateral Treaty of Navigation, Friendship and Commerce with the Republic of China (Taiwan), but not with the People’s Republic of China and we have a treaty with Pakistan, but not India. The North American Free Trade Agreement also contains E-2 Treaty Investor provisions for Mexican and Canadian nationals as well. The E-2 Nonimmigrant Treaty Trader visa actually is quite attractive for many foreign investors if a treaty is available, but it only covers investor’s spouse and the spouse’s immediate family defined as unmarried children under the age of 21. Thus, the investor has to worry that his children will age out and will not have a status and this could be a problem, particularly if the children are approaching the age of 21. 3. L-1 Intracompany Nonimmigrant Options For the established entrepreneur who
wants to expand his/her operations into the U.S., setting up a subsidiary corporation and utilizing the L-1A Intracompany Transferee nonimmigrant visa option is a more predictable and less expensive option. A newly organized U.S. company may petition for a foreign entrepreneur and qualify that foreign national for a one-year New Office L-1A nonimmigrant visa as a manager or executive, provided it can establish that the foreign entrepreneur has been employed abroad for at least one year during the last three years with an affiliated company. The initial one year New Office L-1A visa may be extended for a period of up to an additional six years in two year increments. On the same basis, the applicant may apply for Lawful Permanent Residency along with his or her immediate family members as a multinational manager or executive utilizing the almost identical criteria for the L-1 nonimmigrant visa. However, the problem in these cases is that the entities both
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abroad and in the U.S. must be bona fide and substantial to qualify. For example, as a manager, you must manage several or more professional employees or you must manage several or more supervisors of non-professional employees. Realistically, unless the companies abroad and in the U.S. have a significant number of employees and generate significant revenue, it would be difficult to impossible to obtain the approval of the initial New Office L-1 petition and even if the initial one year New Office L-1 petition is approved, based upon a prospective business plan, it may be difficult to impossible to obtain an extension of same. Conclusion While President Obama’s proposed entrepreneur regulations will be a viable or only option for some entrepreneurs to enter and work in the U.S., for the foreign entrepreneur who is starting up a new business that is affiliated with his or her existing employer, the L-1A immigrant visa may be the best option. For some, with the same nationality of a country with which we have a treaty, using the E-2 Treaty Investor option may be an even better nonimmigrant visa option by showing that the entrepreneur has made a “substantial” investment or could qualify as an employee with “essential skills” in the E-2 business entity majority owned by one or more foreign nationals of the same nationality. For individual entrepreneurs with the available capital, a longer term option would be to qualify for Lawful Permanent Residency through the EB-5 program. For those individual entrepreneurs who have the money, and particularly if they do not come from a treaty country, another viable option would be utilizing the EB-5 program where they can set up a new enterprise, particularly if it is located in a TEA, in which they can invest $500,000 and create the necessary jobs, or simply invest in an existing EB-5 Regional Center solely for the purpose of acquiring Lawful Permanent Residency which would allow the new entrepreneur to develop their
own business without any restrictions whatsoever. While the proposed new International Entrepreneur Rule will help in appropriate cases, it will continue to be a challenge finding a viable option for the entrepreneur, which is often like putting the proverbial round peg into the square hole of our U.S. immigration system. Without further substantial comprehensive immigration reform, the U.S. will continue to not only lose the best and brightest to graduate from our own colleges for lack of viable options but will also deter bright would-be entrepreneurs from entering the U.S. These could be the next founding entrepreneurs like Russian Sergey Brin of Google; German Marcus Goldman of Goldman Sachs; Frenchman Pierre Omidyar of eBay; British brothers Theodore and Milton Deutschmann of Radio Shack; Polish Maxwell Kohl of Kohl’s; German Daniel Aaron of Comcast; and Taiwanese Jerry Yang of Yahoo, to name just a few. Charles C. Foster is chairman of Foster LLP, past president of the American Immigration Lawyers Association, and founding chair of the State Bar of Texas Section on Immigration and Nationality Law. He was Senior Immigration Policy Advisor to President George W. Bush in 2000 and 2004. Endnotes 1. This article does not discuss in detail the H-1B classification, which is another possible option for entrepreneurs. That visa is discussed elsewhere in this issue
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By Gary Ilagan
The Impact of Recent Immigration Policy Changes on Popular Business Visas
I
n 2015 the U.S. Citizenship and Immigration Services (USCIS) issued important Policy Memoranda (PM) providing guidance on procedures for two of the most common nonimmigrant business visa categories: the H-1B visa for specialty occupation professionals in jobs that require a bachelor’s degree, and the L-1B visa for specialized knowledge intracompany transferees. Since then, immigration practitioners and their clients have had to adapt to how the procedures are being implemented—oftentimes having to deal with inconsistent adjudications across USCIS Regional Service Centers and even within the same Regional Service Center. This article will focus on these game-changing Policy Memoranda.
Filing an H-1B Amendment Petition for each Worksite Change Outside the Area of Intended Employment By far the H-1B nonimmigrant visa for specialty occupation professionals is the most frequently used nonimmigrant/temporary work visa. One can find H-1B workers in just about every industry where professional jobs require at least a bachelor’s degree. H-1B workers include accountants, economists, computer programmers, database administrators, engineers of all disciplines, teachers/professors, physicians, physical therapists, medical researchers, lawyers, business/management and human resources professionals. To qualify, the employer (the H-1B petitioner) must offer full-time or part-time employment in a position that requires a bachelor’s or higher degree or its equivalent, and the potential H-1B employee must satisfy this requirement by possessing a U.S. bachelor’s or higher degree, or the foreign equivalent of such a degree based on a foreign college/university degree alone or a combination of college-level education, specialized training and/or work experience.1 Generally, H-1B nonimmigrants may remain in the U.S. for up to six years (there are exceptions to this rule if certain steps in the Permanent Residence/Green Card process are achieved on behalf of the H-1B worker), and H-1B visa petitions are usually approved for an initial three-year validity period with an optional threeyear extension available if needed. The biggest hurdle most employers have to overcome is the annual H-1B cap. The yearly limit for new H-1B visas is 65,000, of which 1,400 are set aside for Chilean nationals and 5,400 are set aside for nationals of Singapore based on special U.S. treaties with those countries.2 In addition to the regular or “bachelor’s” quota, there are an additional 20,000 H-1B visas available to beneficiaries who possess an advanced degree (i.e., a master’s degree or higher) from a U.S. academic institution.3 If the number of H-1B petitions received during the first five business days of April of any given year exceeds the an-
nual quota for the succeeding Fiscal Year (FY), USCIS conducts a computer-generated random selection/lottery process to determine which petitions are selected for adjudication and which ones are rejected and returned to sender. The first lottery is limited to those H-1B petitions for beneficiaries who hold an advanced degree from a U.S. academic institution. If an advanced degree H-1B petition is not selected in the advanced degree lottery, it will be included in the lottery for the regular quota. For FY2017 (which officially began on October 1, 2016), more than 236,000 H-1B visa petitions, including petitions filed for the advanced degree exemption, were submitted during the filing period in early April 2016. Subtracting the 6,800 visas allotted to nationals of Chile and Singapore, there was roughly just a 25% chance of being randomly selected under the FY2017 H-1B cap. Also consider the fact that the H-1B cap was reached during the five-day filing window in April for FY2016 (233,000 petitions filed), FY2015 (172,500 petitions filed) and FY2014 (124,000 petitions filed). Clearly, the strong demand for H-1B visas for specialty occupation professionals has far exceeded the limited supply. If the upward trend of filings continues, employers’ chances of having their H-1B petitions randomly selected under the lottery system will get worse. Immigration lawyers must always advise clients about H-1B filing trends, discuss all possible outcomes, and evaluate options for bypassing the annual H-1B cap. Exemptions from the H-1B cap are available to institutions of higher education,4 certain nonprofit entities related to or affiliated with an institution of higher education, nonprofit research organizations or governmental research organizations,5 and other types of entities and under specific H-1B processing scenarios. On July 21, 2015 in response to the USCIS Administrative Appeals Office’s April 9, 2015 precedent decision, Matter of Simeio Solutions, LLC (Simeio),6 USCIS issued a Policy Memorandum providing guidance on when an H-1B employer must file an amended or new H-1B petition due to a change in the H-1B worker’s place of
employment. The guidance went into effect immediately, following the two core findings of the Simeio decision: (1) a beneficiary’s change in the place of employment to a geographical area requiring a corresponding Labor Condition Application (LCA)7 be certified to the U.S. Department of Homeland Security [USCIS] with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change in the terms and conditions of H-1B employment;8 and (2) when there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA. This was a major shift because prior to the Simeio decision, when an H-1B employer needed to change an H-1B worker’s place of employment outside the area of intended employment,9 all the employer had to do was file a new LCA (on ETA Form 9035) with the U.S. Department of Labor (DOL) and post the notice of filing of the new LCA at the new worksite without having to file an H-1B amendment petition with USCIS. This was standard practice for many years. The H-1B worker was able to transfer to the new worksite after the DOL certified the LCA, which took around seven calendar days for electronically-submitted LCAs. A week was not a long period of time for employers to wait before executing such a worksite transfer. However, post-Simeio, H-1B employers must take the extra step of filing a full H-1B amendment petition with USCIS each time they need to transfer an employee to a worksite that requires the filing of a new LCA. Employers do not have to wait for a final decision on the amended or new H-1B petition to transfer the H-1B employee to the new worksite outside the area of intended employment. However, for some employers, especially those that are unable to predict with great certainty where the next project will be located, having to file a new LCA as well as an H-1B amendment petition prior to the transfer of the H-1B employee can be a logistical nightmare if multiple H-1B employees need to be transferred. The problems caused
by delay and unpredictability are compounded by the additional legal fees and USCIS filing fees required for each amendment petition. Such expenses can be costprohibitive for some employers, and it is therefore incumbent upon the practitioner to advise the client of the additional costs before decisions are made to transfer H-1B employees to new work locations outside the area of intended employment. Further, if possible, employers should consider securing certified LCAs covering multiple potential worksites at the beginning of the H-1B petition process in order to minimize costs by eliminating the need to file H-1B amendment petitions in the future. So in light of this policy change, when is it not necessary to file an H-1B amendment petition due to a change in work location? There are three contexts in which filing an amendment petition is not required. First, if the H-1B employee is merely moving to a new job location within the same area of intended employment and there are no changes in the terms and conditions of the H-1B employment, a new LCA is generally not required, and, thereby, an H-1B amendment petition is not required. However, the employer must still satisfy the notice requirement by posting a copy of the original notice of filing of the LCA at the new work location within the same area of intended employment.10 Second, an H-1B amendment petition is not required under certain “short-term placement” scenarios where an employer may place an H-1B employee at a new worksite outside the area of intended employment for up to 30 days in a one-year period, and in some cases no more than 60 days in a one-year period if the H-1B worker still maintains an office or work station at the permanent (“home”) worksite.11 Third, an H-1B amendment petition is not required when an H-1B employee is only going to work at a non-worksite location and there are no material changes in the terms and conditions of the H-1B employment. A location is considered to be a “non-worksite” if: (a) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference
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or a staff seminar; or (b) the H-1B employee spends little time at any one location because of the nature and duration of the job functions (i.e., the job is peripatetic in nature requiring frequent travel from location to location or the H-1B worker must spend most work time at one location but occasionally travel for short periods to work at other locations).12 The Simeio decision added another rung to the ladder that H-1B employers must climb in order to remain in compliance under the H-1B visa program. What used to be an efficient means of transferring H-1B employees to worksites outside the area of intended employment has turned into a time-consuming, expensive process. Employers may have to decide whether or not to move forward at all with the transfer of an H-1B employee, or perhaps wait until the time comes to extend his or her H-1B status. Simultaneously requesting an amendment of the H-1B petition for the new worksite outside the area of intended employment with an extension of H-1B status would kill two birds with one stone. The New “Specialized Knowledge” Definition for L-1B Intracompany Transferees For many years the L-1B nonimmigrant visa has been a valuable option for multinational companies, particularly in the oil & gas industry, but it is also arguably the most scrutinized nonimmigrant visa available. Under the L-1B visa category, U.S. companies may transfer foreign workers who have been employed continuously for a related company abroad (parent, branch, affiliate or subsidiary) for at least one year within the last three years to work for the U.S. company in a “specialized knowledge” capacity.13 There is no cap on the number of L-1B visas issued each year, which is an obvious advantage over the H-1B visa. L-1B nonimmigrants may remain in the U.S. for up to five years. On August 17, 2015, USCIS issued an L-1B Adjudications Policy Memorandum that consolidated decades of varying interpretations of the definition of “specialized knowledge” for employees 28
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transferred by multinational companies to operations in the United States. The Policy Memorandum provides authoritative guidance on the L-1B program while simultaneously superseding certain prior L-1B memoranda. The memorandum is important because USCIS officers are now using it as a reference when adjudicating L-1B visa petitions filed by employers seeking to transfer “specialized knowledge” personnel to the United States. By issuing this memorandum, USCIS strived to streamline the adjudications analysis with the goal of providing more consistent decisions on L-1B petitions. To obtain approval of an L-1B petition, the employer must show: (1) that the foreign national possesses “specialized knowledge;” (2) that the position offered involves the “specialized knowledge” held by the foreign national; and (3) that the foreign national has at least one continuous year of employment abroad in an executive, managerial or specialized knowledge capacity with a qualifying organization (i.e., parent, subsidiary, affiliate, branch) within the preceding three years. The U.S. petitioning employer can demonstrate “specialized knowledge” by establishing that the intracompany transferee possesses one of two criteria: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company.14 The coinciding regulation similarly defines specialized knowledge by using the terms “special” or “advanced” knowledge: “[s]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”15 USCIS looked to common definitions of the words “special” and “advanced” as these terms are not defined in the statute
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and federal regulations. USCIS then applied the common definitions to the statutory and regulatory text to produce the following threshold that L-1B beneficiaries must meet: “[s]pecial knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry; or advanced knowledge, which is knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.”16 Determining whether a beneficiary has “special knowledge” requires analysis of the beneficiary’s knowledge of how the petitioning organization manufactures, produces, or develops its products, services, research, equipment, techniques, management or other interests; whereas, “advanced knowledge” determinations require review of the beneficiary’s knowledge of the specific petitioning organization’s processes and procedures. The memorandum goes on to provide a nonexhaustive list of factors that USCIS may consider when making specialized knowledge determinations as well as a non-exhaustive list of evidence that a petitioner may submit to prove that a foreign national’s knowledge is special or advanced. Immigration practitioners should review these lists when evaluating L-1B visa eligibility for employers that wish to transfer specialized knowledge employees to the United States. According to data issued by USCIS, the denial rate for L-1B petitions rose to an alltime high of 35% in FY2014.17 When USCIS issued the L-1B Adjudications Policy Memorandum, it attempted to make the adjudications process more streamlined and consistent in an effort to provide more
predictability in the L-1B process. Time will tell if the 2015 policy memorandum has the desired effect. Denials and Requests for Evidence (RFEs) in L-1B petitions negatively impact U.S. companies by making it more difficult to innovate and create jobs, increase production, and sell goods and services in the United States. Denials and delayed L-1B adjudications caused by RFEs also affect companies’ ability to compete on a global scale.
Gary Ilagan is a shareholder in the Houston office of Munsch Hardt Kopf & Harr, P.C. He focuses his practice on employmentbased immigration matters with clients in the oil & gas, healthcare, biomedical research, media & entertainment, telecommunications, information technology, industrial services and other industries. He has been Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization since 2000.
Conclusion At times, the practice of business immigration law feels like a field goal kicker having to adjust to moving goalposts. From new case law to changing policy guidance to proposed rules that affect how companies and entrepreneurs do business in and bring business and foreign capital investment to the United States, immigration practitioners must stay on their toes in order to adapt to the constantly changing employment-based immigration environment.
Endnotes 1. See 8 CFR 214.2(h)(4)(iii). 2. Immigration & Nationality Act (INA) §214(g)(1) (A) and (g)(8). 3. INA §214(g)(5)(C). 4. INA §214(g)(5)(A). As defined in section 101(a) of the Higher Education Act of 1965; see 20 U.S.C. 1001(a). 5. INA §214(g)(5)(B). 6. 26 I&N Dec. 542 (AAO 2015). 7. The Labor Condition Application (LCA) is typically submitted electronically with the U.S. Department of Labor on ETA Form 9035E. On the LCA, the employer must attest to four statements concerning: (1) Wages: pay nonimmigrants at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for nonproductive time; and offer nonimmigrant benefits
on the same basis as offered to U.S. workers; (2) Working Conditions: provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly situated; (3) Strike, Lockout, or Work Stoppage: there is no strike, lockout, or work stoppage in the named occupation at the place of employment; or (4) Notice: notice to union or to workers has been or will be provided in the named occupation at the place of employment, and a copy of the LCA will be provided to each nonimmigrant worker employed pursuant to the application. 8. See 8 CFR §§ 214.2(h)(2)(i)(E) and (11)(i)(A). 9. See Immigration and Nationality Act (INA) § 212(n)(4)(A) – The term “area of intended employment” is defined as the area within normal commuting distance of the worksite or physical location where the work of the H-1B nonimmigrant is or will be performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment. 10. See 20 CFR § 655.734. 11. See id. at § 655.735. 12. See id. at § 655.715. 13. INA § 101(a)(15)(L). 14. See INA § 214(c)(2)(B). 15. See 8 CFR § 214.2(l)(1)(ii)(D) (emphasis added). 16. See USCIS L-1B Adjudications Policy Memorandum, pages 6-7, PM-602-0111 (August 17, 2015); USCIS Adjudicator’s Field Manual Chapter 32.6(e). 17. See Policy Brief, “L-1 Denial Rates Increase Again for High Skill Foreign Nationals,” National Foundation for American Policy (March 2015).
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By Lauren M. Rouhana
The Adoption of Foreign National Children in the Post-Hague Convention Era
F
ive-year-old Isabella came to the U.S. from Mexico with her mother who wanted to get as far away from her abusive husband as possible. Though they initially entered the U.S. as visitors, Isabella’s mother decided to stay and work as a housekeeper for the Ramirez family. Mrs. Ramirez watched Isabella while her mother worked. This routine continued over the next six years or so. Then, Isabella’s mother was suddenly diagnosed with a brain tumor and needed extensive medical care. The Ramirez family, having already established a close relationship with Isabella and her mother, invited them to live in their home so that Isabella could be cared for while her mother was undergo-
ing treatment. To everyone’s dismay, Isabella’s mother took off in the middle of the night, leaving nothing but a note. Isabella found herself an orphan, abandoned by her sick mother and with no knowledge of her abusive father’s whereabouts. Over the next few years, Mr. and Mrs. Ramirez grew attached to Isabella and considered her part of their family. The Ramirezes generously decided to adopt Isabella and continue providing her with the love and care that any parents would give their child; they even gave her their last name. However, the Ramirezes did not realize that one of the most difficult obstacles they would face would be to obtain lawful immigration status for their daughter, so that she could have a social security number, attend medical school, obtain a driver’s license, travel, and so forth. Eight years after her adoption, Isabella was finally able to become a permanent resident of the U.S., and her struggle is one that so many other adopted children face. Each year, thousands of U.S. citizens and lawful permanent residents adopt foreign national children, both domestically and abroad. Adopting parents must determine exactly which adoption process to pursue under U.S. immigration law in order to bring their adopted child to the U.S., or to obtain U.S. permanent resident status if the child is already in the U.S. However, each process possesses its own set of challenges and difficulties. Under the Immigration and Nationality Act (INA), there are three processes for which an adopted child may qualify as a child for immigration purposes: a child adopted while under the age of sixteen whose adopting parent has two years of legal and physical custody (non-orphan)1; a child who qualifies as an orphan and is from a country that has not ratified the Hague Convention2; and a child who is a citizen or habitual resident of a country who is a party to the Hague Convention prior to entering the U.S.3 The Hague Adoption Convention is an international agreement that took place on May 29, 1993 in The Hague, The Netherlands that established international
standards and precautions for intercountry adoptions to ensure that each adoption is in the best interest of the child.4 The U.S. signed the Convention in 1994 and it went into full force in the U.S. on April 1, 2008. Additionally, the Hague Convention aspires to prevent the abduction and trafficking of children and requires countries that are a party to the Convention to establish a “Central Authority” as the authoritative source of information and point of contact in that country.5 It also enables intercountry adoptions to occur when the child has been considered eligible for adoption by the child’s country of birth and when proper effort has been given to the adoption of the child in his or her birth country.6 Finally, the Convention provides for formal international and intergovernmental recognition of intercountry adoptions, aiming to ensure that adoptions under this convention will generally be recognized and given effect in other Hague member countries.7 “At the outset now of every adoption, both domestic and intercountry, an analysis must be made as to whether the case at hand falls under the scope of the Hague Adoption Convention. This analysis is necessary even when the child to be adopted is present in the U.S. and is being adopted by prospective parents also present in the U.S.”8 As of May 1, 2016, 95 countries have ratified the Hague Convention. However, the U.S. does not recognize adoptions from the following countries: Cambodia, Fiji, Guatemala, Lithuania, Moldova, or Zambia.9 Congress has authorized the Department of State to be the “Central Authority” for the United States. Nevertheless, the cases that do fall within the parameters of the Hague Convention often face difficulties in addition to the normal challenges of the immigration/ adoption process. In a non-orphan, non-Hague Convention case, the requirements for obtaining permanent residency for the adopted child are straightforward–two years of legal custody and two years of residency with the child (physical custody).10 The adoptive parents can fulfill the residency
requirement either before or after the legal custody or adoption, and the custody and residency requirements can also be fulfilled simultaneously.11 The most common issues in child adoption cases are centered on the two-year physical residence requirement. Adoptive parents not only have to be financially and legally responsible for the child in the foreign country, but they must also cohabitate. This is usually a problem because they cannot bring the child to the U.S. and oftentimes they have difficulty uprooting their lives and moving to a foreign country for two years. Occasionally, issues in exerting primary parental control occur where the child has resided with the birth parents for all or part of the requisite “joint residency period” or when the physical residency is accrued over a long period of time, making it questionable whether or not the parent was merely visiting the child or actually exercising parental control.12 For an orphan from a non-Hague Convention country, the two-year legal custody and residence requirement does not apply. A child becomes an orphan as a result of either the death, disappearance, abandonment, desertion, separation, or loss from both parents; or due to the fact that the sole or surviving parent is incapable of providing proper care for the child and has irrevocably released parental rights to the child in emigration and adoption in writing.13 Orphan cases generally must establish the adoption abroad, although in some cases, the child may come to the U.S. to be adopted.14 The U.S. Department of State has established procedures to oversee and accredit adoption agencies and individuals involved in the adoption process.15 Issues in orphan cases revolve around the determination of whether the child meets the definition of orphan. If a child is already in the U.S., the child cannot be classified as an orphan and must be considered an adopted child.16 The most common issues occur in cases where one, or both, of the biological parents are living. Simply releasing the child into the care of
a person to adopt the child does not satisfy the definition of abandonment.17 In cases where there is a sole or surviving parent, the petitioner must show that the parent is incapable of providing proper care for the child and must irrevocably release the child in writing.18 The Hague Convention applies in both orphan and non-orphan adoptions, if the adopted child is a habitual resident of a Hague Convention country. Hague Convention procedures apply to adoptions that occur after April 1, 2008. For children in Hague countries, i.e. when the adopting parents habitually reside in the U.S. and the child is a habitual resident of the convention country, the adoption must occur abroad or full custody must be given to the adopting parents.19 However, if the child’s actual residence is outside his country of citizenship, the child will be deemed habitually resident in that other country rather than the country of citizenship if the Central Authority of that country has determined that the child’s status in that country is sufficiently stable to properly exercise jurisdiction over the child’s adoption or custody. The child will not be considered a habitual resident in any country to which “the child travels temporarily, or to which the child travels either as a prelude to, or in conjunction with his or her adoption and/ or immigration to the United States.20 This creates a common issue for a large number of adopted children who are present in the U.S. as nonimmigrants, parolees, or have entered without inspection (EWI) because they are treated as a habitual resident of the Convention country and an adoption can only proceed under the Convention, i.e., in that child’s country of origin or with the permission of the Central Authority of that country. The problem with proceeding with the adoption in the child’s country of origin is that the adopting parents must be considered habitual residents of that country in order to proceed with the adoption abroad. This means that the adopting parents (or at least one of them) must reside with the child in the child’s country of origin for
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at least two years in order to qualify to complete the adoption in that country. In most instances, this is almost impossible for the U.S. citizen or permanent resident parents to pack up their entire lives and move to another country for the purpose of obtaining an adoption decree. For this reason, it is much more efficient for the adopting parents to have the child deemed a habitual resident of the U.S. A written statement must be obtained from the Central Authority of the adopted child that the child is a habitual resident of the U.S. and no longer habitually resides in that country. This can sometimes be an impossible feat to obtain from some countries. For example, it is well known that the Central Authority in Mexico will not issue such statements on a child’s habitual residence. This fact has even been acknowledged by the USCIS International Operations Division. To overcome this, USCIS issued a policy memorandum in December 2013 stating that, “in cases where the Country of Origin has a policy of not issuing statements,
or where the petitioners show they have attempted to obtain the statement of habitual residence from the Country of Origin for at least 6 months with no response, and the child was not paroled into the United States, USCIS will determine that 8 CFR §204.2(d)(2)(vii)F) does not preclude approval of an [immediate relative petition] if the child entered the U.S. for purposes other than adoption and the child actually resided in the U.S. for a substantial period of time prior to the domestic adoption, establishing compelling ties in the U.S.”21 With additional requirements for children from Convention countries who are residing in the U.S., there is truly an undue burden placed on the adopting parents and adopted children to show that they qualify as “habitual residents” of the United States. Under the Intercountry Adoption Act, an adoption decree issued after February 3, 2014 must confirm that the central authority of the country of origin was notified of the adoption proceedings in a satisfactory manner and it did not object
to the proceedings with the court within 120 days after receiving notice.22 However, for adoptions that were completed prior to February 3, 2014 when contacting the central authority of the country of origin was not yet required, the burden is on the adopting parents to contact the central authority regarding the habitual residence of the child for purposes of obtaining permanent resident status for the child in the United States. Additionally, there are many adoption attorneys who are unaware of the habitual resident requirement and notification of the Central Authority of the Hague Convention country. Accordingly, the Board of Immigration Appeals (BIA) confirmed that a nunc pro tunc adoption order will be accepted for purposes of an immigration based adoption petition in order to have the error of improper notification of the country of origin corrected.23 In these instances, the adoption attorney should ensure that the supplemental order specifically states that the original date of the adoption is not being changed. The reason for this is that immigration ben-
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efits based on an adoption are only considered by USCIS if the adoption was completed before the child turns 16 years old, or if there is the case of siblings, before the youngest adopted child turns 16 years old and the oldest turns 18 years old. Therefore, timing is extremely critical. For the last two years, USCIS has stated that it is working with the Department of State to create a list of those countries that have policies of not issuing habitual residency determinations and that once this
list is completed, families will no longer be required to request or obtain habitual residency determinations from the Central Authority of the childโ s country of origin. However, this list has not been completed nor released and until then, adoptive parents must continue to comply with the requirements of the policy memorandum (PM 602-0095). The Hague Convention was intended to prevent trafficking and abduction of children, but has created many challenges for
parents who are trying to do something good for a child in need. In many instances, prospective adoptive parents are precluded from adopting a child due to these difficulties, which cannot serve the best interest of the adopted children. Lauren M. Rouhana is an attorney at Quan Law Group in Houston, where she represents clients in comprehensive immigration matters. A graduate from the Houston College of Law, she has specialized knowledge in international adoption cases and received the CALI Excellence Award in Immigration and Naturalization in 2013 from the Houston College of Law as a result of her extensive research on the immigration of adopted children. Endnotes 1. INA ยง 101(b)(1)(E) 2. INA ยง 101(b)(1)(F); The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption 3. INA ยง 101(b)(1)(G) 4. See U.S. DEPARTMENT OF STATE BUREAU OF CONSULAR AFFAIRS, INTERCOUNTRY ADOPTION, HAGUE ADOPTION, http://adoption.state. gov/hague_convention.php. 5. See U.S. DEPARTMENT OF STATE BUREAU OF CONSULAR AFFAIRS, UNDERSTANDING THE HAGUE CONVENTION, http://adoption.state. gov/hague_convention/overview.php. 6. See U.S. DEPARTMENT OF STATE BUREAU OF CONSULAR AFFAIRS, UNDERSTANDING THE HAGUE CONVENTION, http://adoption.state. gov/hague_convention/overview.php. 7. Id. 8. 8 C.F.R. ยง204.2 (d)(2)(vii)(D) and (F). 9. http://adoption.state.gov 10. INA ยง101(b)(1)(E); Matter of Repyan, 19 I&N Dec. 119 (BIA 1984); INA ยง101(b)(1)(G) 11. 8 CFR ยง204.2(d)(2)(vii)(C); Matter of Lee, 11 I&N Dec. 911 (BIA 1966); Matter of M, 8 I&N Dec. 118 (BIA 1958) 12. Matter of Cuello; Matter of Yuen, 14 I&N Dec. 71 (BIA 1972); Matter of Tang, 14 I&N Dec. 180 (BIA 1971); Matter of Repuyan, 19 I&N Dec. 119 (BIA 1984). 13. INA ยง101(b)(1)(F). 14. 8 C.F.R. ยง204.3(k)(2). 15. 22 C.F.R. ยง96; 68 FR 54064 (Sept. 15, 2003). 71 FR 8161-64 (Feb. 16, 2006). 16. Matter of Handley, 17 I&N Dec. 269 (BIA 1978). 17. Rogan v. Reno, at 63. 18. 8 C.F.R. ยง204.3(d)(1)(iii)(C). 19. USCIS, PM 602-0095, Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries, (Dec. 23, 2013) 20. 8 CFR ยง204.303(b) 21. USCIS, PM 602-0095, Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries, (Dec. 23, 2013) 22. AFM 21.4(d)(5)(G) 23. Matter of Huang, 26 I&N Dec. 627, Int. Dec. 3844 (BIA July 8, 2015).
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Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys
Hunton & Williams LLP
Smyser Kaplan & Veselka LLP
Cokinos, Bosien & Young
Abraham, Watkins, Nichols, Sorrels,
Irelan McDaniel, PLLC
Sprott Newsom Quattlebaum Messenger
Gardere Wynne Sewell LLP
Agosto and Aziz
Jackson Gilmour & Dobbs PC
Strong Pipkin Bissell & Ledyard LLP
Greenberg Traurig, LLP
Adair & Myers PLLC
Jackson Lewis P.C.
Stuart PC
Haynes and Boone LLP
Ajamie LLP
Jenkins & Kamin, LLP
Sutton McAughan Deaver, PLLC
Jackson Walker LLP
Bair Hilty, P.C.
Johnson DeLuca Kurisky & Gould, P.C.
Taunton, Snyder & Slade, P.C.
Martin Disiere Jefferson & Wisdom LLP
Baker Williams Matthiesen LLP
Johnson Trent West & Taylor LLP
Tekell, Book, Allen, and Morris, L.L.P.
Morgan Lewis & Bockius LLP
Baker • Wotring LLP
Jones Walker LLP
Tindall England PC
Thompson & Knight LLP
The Bale Law Firm, PLLC
Kane Russell Coleman & Logan PC
The Ward Law Firm
Winstead PC
Barrett Daffin Frappier Turner & Engel, LLP
Kelly, Sutter & Kendrick, P.C.
Ware, Jackson, Lee, O’Neill, Smith
Berg & Androphy
KoonsFuller, P.C.
& Barrow, LLP
Firms of 100+ Attorneys
Bingham, Mann & House
Kroger I Burrus
Watt Thompson & Henneman LLP
Andrews Kurth Kenyon LLP
Buck Keenan LLP
Law Feehan Adams LLP
Weinstein Tippetts & Little LLP
Baker Botts L.L.P.
Bush & Ramirez, PLLC
LeClairRyan
Weycer Kaplan Pulaski & Zuber PC
Bracewell LLP
Cage Hill & Niehaus LLP
Legge Farrow Kimmitt McGrath
Williams Birnberg & Andersen LLP
Locke Lord LLP
Campbell & Riggs, P.C.
& Brown, L.L.P.
Willingham, Fultz & Cougill, LLP
Norton Rose Fulbright US LLP
Chernosky Smith Ressling & Smith PLLC
Linebarger Goggan Blair & Sampson LLP
Wilson Cribbs & Goren PC
Porter Hedges LLP
Christian Smith & Jewell LLP
Lorance & Thompson PC
Wilson Elser Moskowitz Edelman
Vinson & Elkins LLP
Cogan & Partners LLP
MacIntyre, McCulloch, Stanfield
& Dicker LLP
Cooper Jackson & Boanerges, PC
& Young, LLP
Wright Abshire, Attorneys, PC
Corporate Legal Departments
Cozen O’Connor
McGinnis Lochridge
Ytterberg Deery Knull LLP
Anadarko Petroleum Corporation
Crady, Jewett & McCulley, LLP
McGuireWoods LLP
Zeidman Spencer Beverly & Holt, LLP
AT&T Texas
De Lange Hudspeth McConnell & Tibbets LLP
MehaffyWeber PC
Zimmerman Axelrad Meyer Stern & Wise PC
BP
Dentons US LLP
Morris Lendais Hollrah & Snowden
Zukowski Bresenhan & Piazza L.L.P.
CenterPoint Energy
Dobrowski, Larkin & Johnson LLP
Nathan Sommers Jacobs
Dow Golub Remels & Gilbreath PLLC
Ogden Broocks & Hall, LLP
Firms of 25-49 Attorneys
Kellogg Brown & Root, Inc.
Doyle Restrepo Harvin & Robbins LLP
Ogletree Deakins Nash Smoak
Adams and Reese LLP
LyondellBasell Industries
Ewing & Jones, PLLC
& Stewart, P.C.
Ahmad, Zavitsanos, Anaipakos,
MAXXAM, Inc.
Fernelius Simon PLLC
Pagel Davis & Hill PC
Alavi & Mensing P.C.
Newfield Exploration Company
Fisher, Boyd, Johnson & Huguenard, LLP
Parrott Sims & McInnis, PLLC
Andrews Myers, P.C.
Plains All American Pipeline L.P.
Fisher & Phillips LLP
Perdue Brandon Fielder Collins & Mott
Beck Redden LLP
Rice University
Fizer Beck Webster Bentley & Scroggins PC
Perdue & Kidd
Blank Rome LLP
S & B Engineers and Constructors, Ltd.
Fleming | Nolen | Jez, L.L.P.
Phelps Dunbar LLP
BoyarMiller
Sysco Corporation
Frank, Elmore, Lievens, Chesney
Ramey, Chandler, Quinn & Zito, P.C.
Edison, McDowell & Hetherington LLP
Texas Children’s Hospital
& Turet, L.L.P.
Reynolds Frizzell LLP
Gibbs & Bruns LLP
Total E&P USA, Inc.
Fullenweider Wilhite
Roach & Newton, L.L.P.
Greer, Herz & Adams, L.L.P.
University of Houston System
Funderburk Funderburk Courtois, LLP
Ross Banks May Cron & Cavin PC
Liskow & Lewis
Galloway Johnson Tompkins Burr
Royston, Rayzor, Vickery
Littler Mendelson PC
Law School Faculty
& Smith, A PLC
& Williams, L.L.P.
Roberts Markel Weinberg Butler Hailey PC
South Texas College of Law Houston
Germer PLLC
Rusty Hardin & Associates, LLP
Thompson & Horton LLP
Thurgood Marshall School of Law
Givens & Johnston PLLC
Rymer Moore Jackson & Echols, P.C.
Thompson Coe Cousins & Irons LLP
University of Houston Law Center
Gordon & Rees LLP
Schiffer Odom Hicks & Johnson PLLC
Williams Kherkher Hart Boundas, LLP
Hagans Burdine Montgomery & Rustay PC
Schirrmeister Diaz-Arrastia Brem LLP
Wright & Close LLP
Government Agencies
Hartline Dacus Barger Dreyer LLP
Schwartz Page & Harding LLP
Yetter Coleman LLP
City of Houston Legal Department
Hawash Meade Gaston Neese
Scott, Clawater & Houston, L.L.P.
& Cicack LLP
Shannon, Martin, Finkelstein,
Firms of 50-100 Attorneys
Harris County District Attorney’s Office
Henke & Williams, LLP
Alvarado & Dunne, P.C.
Akin Gump Strauss Hauer & Feld LLP
Harris County Domestic Relations Office
Hicks Thomas LLP
Shipley Snell Montgomery LLP
BakerHostetler
Metropolitan Transit Authority of
Hirsch & Westheimer PC
Short Carter Morris, LLP
Chamberlain Hrdlicka White Williams
Harris County Texas
Horne Rota Moos LLP
Singleton Cooksey PLLC
& Aughtry
Port of Houston Authority of
Holm I Bambace LLP
Smith Murdaugh Little & Bonham LLP
Coats | Rose
Harris County, Texas
El Paso Corporation
Harris County Attorney’s Office
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67th Harvest Celebration Raises $725,250 for Houston Bar Foundation
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he 67th Harvest Celebration raised $725,250 in underwriting to support pro bono legal services in Harris County. The largest annual fundraising event of the Houston legal community is sponsored by the Houston Bar Association, Houston Bar Foundation and Houston Bar Association Auxiliary. Denise Scofield, Houston Bar Foundation Chair, and Warren Harris, Houston Bar Association Treasurer, cochaired the event. Nearly 900 HBA members and guests filled River Oaks Country Club on November 14 to celebrate the spirit of From left, Tom Ganucheau, Lisa Ganucheau, president, HBA Auxiliary; Dana Levy Kelly; Neil Kelly, giving, embodied by mempresident, Houston Bar Association; Denise Scofield, chair, Houston Bar Foundation; and John bers’ contributions not only Scofield. financially, but also through time and legal services that provide equal access. The Harvest Celebration supports Houston Volunteer Lawyers, providing thousands of hours of pro bono legal representation to HBA Ambassadors are a group of 20 young attorneys who speak to groups inside and outside the low-income Harris County bar about the HBA and the services it offers members and the community. Those attending the Harvest Celebration included, from left, Neal Sarkar, Chris Porter, Margot Trevino, Rick Anderson, residents each year. Hillary Holmes, Precious Owodunni, Farrah Martinez, Jesus Castillon, Jenny Nguyen, Chris
Photos by Temple Webber Photography
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November/December 2016
Domingo, Bradford Crockard, and Robert Ford. thehoustonlawyer.com
Hershel Chenevert and Delilah Banks
Andrew Elkhoury, Lauren Brogdon, Miriam Anderson and Andrew Yeh.
Warren Harris, Harvest Celebration co-chair; and Lauren Beck Harris
Alistair and Wendy Dawson
Megan Callier and her father, Joseph Callier
Sarah Cabello and Todd Frankfort
Richard and Cecily Burleson
Annsley and Chris Popov
Sameera and Ashish Mahendru
Collin and Jacquelyn Cox
Sheridan and John Eddie Williams thehoustonlawyer.com
November/December 2016
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Houston L aw yers Who Made a Dif ference
The Honorable Criss Cole
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By The Hon. Mark Davidson aking our community and state a better, safer and more just place to live is something that all lawyers aspire to do. Few accomplished as much in the face of hardship and disability as Criss Cole. His life is a monument to how much a person can accomplish through determination and effort. Cole was one of ten children born to a sharecropper farmer in rural Oklahoma. Like many who came of age during the Great Depression, he went to work for the Civilian Conservation Corps, sending money home to enable them to survive life in the Dust Bowl. When World War II came, he enlisted in the Marine Corps. He was part of the first wave ashore at the Battle of Tarawa, and was blinded by a Japanese grenade. Returning to Houston after the war, he attended a business school, got a degree from the University of Saint Thomas and earned a law degree from the University of Houston, using readers, and, later, his wife Joanne, to enable him to master his textbooks. He used a service dog to help him navigate his way to his classrooms. During his last semester of law school, he filed for a contested seat
for the Texas House of Representatives and was elected. He eventually became the State Senator from Harris County at a time when Harris County only had one Senator in Austin. His accomplishments in the Legislature were numerous and diverse. He authored Legislation creating the South Padre Island Seashore and the Institute of Texas Cultures in San Antonio. He Judge Criss Cole passed the first bill creating pensions for City of Houston employees. He worked tirelessly to provide state assistance for the disabled. He created a school for the blind, which today is named after him. The pride of his legislative accomplishments was his work to improve the juvenile justice system. From mandating decent correctional facilities as well as meaningful rehabilitation for juvenile offenders, he greatly improved the lives of thousands of children. In 1969, he was elected President Pro Tem of the Texas Senate, and on January
Save the Date! HBA John J. Eikenburg
March 11, 2017 sam houston park
www.lawweekfunrun.com
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November/December 2016
Benefiting the Center thehoustonlawyer.com
10, 1970, Cole served as Governor during the absence of the Governor and Lieutenant Governor from the state. In 1971, recognizing his work in the juvenile justice system, he was named the first judge of the 315th District Court. In that role, he took his work for children from a policy level to work on individuals. Although he could not see the parties, he had a keen insight to their potential from having heard their records read to him and listening carefully to each person before him. Many thought that his blindness sharpened his sense of hearing, and enabled him to better read character into the testimony of witnesses. Judge Criss Cole is a hero to every person who ever met him. He was a lawyer, a legislative giant, and a legendary judge. He did this in the face of a youth of poverty and being blinded at the age of twenty-two. He persevered and made a difference for thousands of people.
The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.
Large Firm Champions
Andrews Kurth Kenyon LLP Baker Botts L.L.P. Bracewell LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions
Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips, Inc. Exxon Mobil Corporation Halliburton LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions
Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain, Hrdlicka, White, Williams & Aughtry Gardere Wynne Sewell LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP Sidley Austin LLP
Strasburger & Price, L.L.P. Susman Godfrey LLP Sutherland Asbill & Brennan LLP Winstead PC Winston & Strawn LLP
Boutique Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McGuireWoods LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. ReedSmith LLP Sutton McAughan Deaver LLP Vorys, Sater, Seymour and Pease LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions
Coane & Associates Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Givens & Johnston Hunton & Williams LLP Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KimLy Law Firm PLLC
KoonsFuller, P.C. Kroger | Burrus MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP The Law Office of Scardino & Fazel Shortt & Nguyen, P.C. Trahan Dinn Kornegay Payne, LLP
Individual Champions
Law Office of J. Thomas Black, P.C. Law Office of Peter J. Bennett Burford Perry, LLP Helene Dang The Dieye Firm The Ericksen Law Firm Law Office of Todd Frankfort Hasley Scarano L.L.P. David Hsu The Jurek Law Group, PLLC The LaFitte Law Group, PLLC C.Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Law Office of Maria S. Lowry Martin R.G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Law Office of Bertrand C. Moser Rita Pattni, Attorney at Law Pilgrim Law Office Robert E. Price Reece Law Firm, PLLC Law Office of Cindi L. Robison Law Office of Jeff Skarda Angela Solice Diane C. Treich The Law Office of Norma Levine Trusch
COMMITTEE SPOTLIGHT
Houston Lawyer Referral Service Committee:
Serving Houstonians and Houston Lawyers By Jeffrey L. Oldham
The Houston Lawyer
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early 60 years old, the with a referred attorney, the attorHouston Lawyer Reney charges a reduced fee of $20 ferral Service (HLRS) for the first 30 minutes, after which serves the metropolitan the attorney’s standard rates apHouston area by matchply. Where an HLRS referral turns ing qualified lawyers with those into a case, the referred attorney in need of attorneys at reasonable provides the HLRS with 15% of the rates. These twin goals—helping fees earned. In 2015-2016, referred lawyers and those in need of lawattorneys earned nearly $3 million yers—mean that all Houston lawfrom HLRS-referred cases, of which yers should know, and take advanthe HLRS received $434,170. tage of, what the HLRS has to offer. HLRS held its inaugural member appreciation luncheon in October This makes the HLRS a clasThe HLRS, established in 1958 at Brennan’s. Four panel members were honored for outstand- sic win-win, for Houston lawyers as a non-profit organization, is gov- ing service: Matthew Chappell, Most Outstanding New Member; and those in need of help. As curThomas Thurlow, Outstanding Revenue Producer; Ernestine Danerned by a board of directors made sby, Longevity of Outstanding Service; and Ira Weizel, Most Out- rent HLRS Committee President up of HBA members appointed to standing Sustaining Member. Bill Kroger remarked, “The system the HLRS Committee, as well as works—clients get their problems only area referral service that representatives of local bar associations solved by skilled lawyers who meets American Bar Assothat co-sponsor the HLRS. The HLRS’s charge reasonable prices. HLRS ciation guidelines. Houston day-to-day operations are overseen by Exand its member lawyers are of vital lawyers can therefore refer to ecutive Director Karen Ramsey, who says importance to our system of justice the HLRS with confidence— the HLRS’s goals are “to serve the public in in Houston because they help ordinary whether it is a friend, a family member, or finding quality legal representation, while people find good legal counsel on cases of a client in need of an attorney in a specialsimultaneously assisting attorneys build importance to them and their families.” ized area. their practices.” Individuals can use the HLRS at no At the same time, the HLRS helps HousFor people needing legal help, the HLRS charge by calling 713-237-9429 or 800-289ton attorneys build their practices through stands ready with private practice attor4577 from 8:30 a.m. to 4:30 p.m. If you are referrals. More than 100,000 individuals neys who have been prescreened to ensure interested in becoming a member attorney, each year have access to legal representathat quality legal representation is being please complete the application at www. tion through the HLRS, and many of them offered. The HLRS provides referrals to hlrs.org or contact Karen Ramsey at 713have resources to pay reasonable legal roughly 200 attorneys, who—in 23 of the 650-0470 or KRamsey@hlrs.org. fees. In its 2015-2016 fiscal year, the HLRS 38 legal areas to which the HLRS refers— made over 19,000 referrals to attorneys. are required to have substantial experiJeffrey L. Oldham is an appellate partner With an annual membership fee of only ence. The HLRS’s bilingual staff is trained at Bracewell LLP. He is a member of The $205, the HLRS is an economical, trusted to refer calls to attorneys in the right pracHouston Lawyer editorial board and a source for referrals. tice area and can provide referrals to most member of the Houston Lawyer Referral There is no fee for an individual to call every area in Houston. The HLRS is the Service Committee. the HLRS, but when a consultation is set
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November/December 2016
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OFF THE RECORD
Houston Attorney Finds Way to Honor Daughter and Give Back
By Raymond L. Panneton
The Houston Lawyer
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any parents have said that they would run to the ends of the world for their children; however, most never have to. Houston attorney Kendall Burr has not quite run that far, but he is indeed running for his child. Burr, a partner with Edison, McDowell & Hetherington, LLP, has found a way to meld two key points in his life to honor his daughter and give back to an organization that has given so much to him. In 2009, Burr and his wife were eagerly anticipating the birth of their child. At just 24 weeks gestation, Burr’s daughter, Kaitlyn, who had been diagnosed with spina bifida, underwent groundbreaking prenatal surgery and was placed back into her mother’s womb. Just 10 weeks later, Kaitlyn was Kendall Burr born (again!). During these trying times, Burr and his family found respite at Family House. Family House is a non-profit organization that provides temporary housing to families of seriously ill children receiving medical and surgical treatment. Family House is also where Burr and his family stayed for four months as his wife and daughter underwent surgical procedures. Knowing he wanted to give back and show his appreciation for Family House, Burr took a personal inventory as to how he could best raise awareness for Family House and support the organization. Burr found his opportunity to give back by melding his desire to help with his long-time hobby of running. In 2014, Burr came across The Woodlands Marathon Charity Challenge as a way to do just that. 42
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The Woodlands Marathon, as a part of their race day activities, hosts The Woodlands Charity Challenge. Teams in the Charity Challenge raise money and race for a Charity Challenge Prize Purse, which in 2015 totaled $15,000.00. The Charity Challenge inspired Burr to channel his hobby to benefit charitable causes and honor his daughter by establishing Team Run With Kaitlyn. Over the past three years, Burr has received great response from his family and friends. The Charity Challenge is an easy way for Burr to raise awareness about Kaitlyn’s illness, but it is also a great way to create fundraising opportunities. Burr’s current focus is on raising funds for Family House, which provided so much to him and his family during a Kaitlyn Burr very difficult time. Team Run With Kaitlyn found great success at the Charity Challenge, coming in second place in 2014 and third place in 2015. While foregoing the 2016 race, Burr and the team are looking forward to continued success in 2017. What’s more, Kaitlyn, who doctors initially did not think would be able to walk, will be running the 2K this time with her family and friends. For more information and ways to get involved in We Run With Kaitlyn, visit www.werunwithkaitlyn.com. Raymond L. Panneton is a member of The Houston Lawyer editorial board and practices with Hendershot, Cannon, Martin & Hisey, PC in Houston. He can be reached at rpanneton@ hcmhlaw.com.
A Profile
in pro f e s s i o n ali s m
The Hon. Debra Ibarra Mayfield Judge, 165th District Court
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ver the past five years, I have had the distinct honor of administering the Texas lawyer’s oath to newly licensed attorneys, most of whom I had the pleasure of getting to know during their educational careers. During these meaningful moments, I reflected on the significance of each word as it was uttered, and most recently, I contemplated the new affirmation that each pledging attorney will “...conduct [oneself] with integrity and civility in dealing and communicating with the court and all parties...” As I think about these memorable occasions and my past several years on the bench, I am ensured of the importance of our commitment to the highest principles of professionalism in the practice of law. Indeed, having the opportunity to serve the public through the administration of justice has given me many unique perspectives. For example, I have had the opportunity to witness the talent of many fine lawyers
and jurists. I have also had the opportunity to thank ordinary citizens who take time from their lives to serve as jurors to protect one of our most fundamental rights. And lastly, I have had the opportunity to observe firsthand how our system promotes justice and fairness in a forum where integrity, decorum and respect are not just empty formalities. Each time I had the chance to give encouraging remarks to a new lawyer after administering the oath, I never searched for the words to say. That is, because I was excited to share in their lifelong pursuit of their dream—to enter a profession that allows them an opportunity to make a difference and serve others through a pursuit of justice. Our careers may take turns we do not anticipate, but this pursuit will never change. And, for this reason, I will always share in the joy of our call to a life-long commitment to the highest standards of professionalism.
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LEGAL TRENDS
Texas Supreme Court Extends ‘Exclusive Remedies’ Defense on Construction Projects By David V. Wilson II
The Houston Lawyer
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n a recent opinion, TIC Energy & Chem., Inc. v. Martin, No. 15-0143 (June 3, 2016), the Texas Supreme Court addressed the applicability of the workers’ compensation exclusive remedies provision in the case of “owner-controlled insurance programs” (OCIP) or “contractor controlled insurance programs (CCIP). In the case below, TIC Energy and Chemical, Inc. v. Kevin Bradford Martin, 2015 WL 127777 (Tex. App.-Corpus Christi 2015, pet. granted), the plaintiff Martin was an employee of Union Carbide Corporation, and suffered injuries while attempting to service heavy equipment at Union Carbide’s Seadrift facility. The injuries necessitated the amputation of Martin’s leg. Martin made a claim for, and received, benefits under Union Carbide’s workers’ compensation insurance policy, an OCIP. Subsequently, he sued TIC, a subcontractor for the Seadrift facility enrolled in the OCIP for negligence and damages related to his injuries. TIC filed a motion for summary judgment asserting the “exclusive remedies” defense of the Texas Workers’ Compensation Act. See Texas Labor Code Ann. §408.001. While the trial court denied the motion, the trial court did grant TIC permission to appeal the ruling on an interlocutory basis. Section 406.123 of the Texas Labor Code allows a general contractor and subcontractor to agree to a comprehensive insurance program whereby both entities’ employees are covered by the same workers’ compensation insurance policy. Under those circum44
November/December 2016
stances, the general contractor becomes the employer of the subcontractor and the subcontractor’s employees only for purposes of the workers’ compensation laws of Texas. Section 406.122 of the Texas Labor Code provides that a subcontractor and the subcontractor’s employees are not employees of the general contractor for purposes of the workers’ compensation act if the subcontractor is operating as an independent contractor. The plaintiff/appellee argued the applicability of §406.122, while TIC argued that §406.123 applied and contemplates a comprehensive insurance program. The Corpus Christi Court of Appeals determined that the two sections “irreconcilably conflict.” Procedurally, the Court noted that TIC did not present the alleged irreconcilable conflict to the trial court in its motion for summary judgment. Likewise, it noted that TIC’s motion did not mention §406.122 at all. Therefore, the Court of Appeals refused to resolve the conflict between the statutes, because it determined that issue was not before the trial court. The Court held that TIC did not meet its summary judgment burden and affirmed the denial of the motion for summary judgment. The Texas Supreme Court granted TIC’s Petition for Review, and reversed. In reversing the Corpus Christi Court, the Texas Supreme Court found no irreconcilable conflict in the Texas Labor Code. The Supreme Court noted that TIC produced evidence of a written agreement that extended workers’ compensation insurance coverage under the OCIP to TIC and its employees. TIC alleged that 406.123(a) of the Labor Code provides a permissive exception to 406.122 of the Labor Code, and results in “comprehensive coverage of workers at a single site in pursuit of a common objective, and therefore extends the Workers’ Compensation Act’s benefits and protections both vertically and horizontally among multiple tiers of contractors that may be working side-by-side at a job site.” The Texas Supreme Court analyzed the applicability of Sections 406.122 and 406.123 of the Labor Code, and stated that “406.123 in turn
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provides for an election by which a general contractor may become a statutory employer by agreeing, in writing, to provide workers’ compensation insurance to the subcontractor.” The Texas Supreme Court ultimately agreed with TIC and held that “TIC is entitled to rely on the Workers’ Compensation Act’s exclusive-remedy defense as Martin’s co-employee,” and reversed and rendered in favor of TIC on its affirmative defense under section 408.001 of the Workers’ Compensation Act. David V. Wilson II is a shareholder in the Houston office of LeClairRyan. He practices business and construction litigation in Texas and Nevada. He is a former Editor-in-Chief of The Houston Lawyer.
U.S. Department of Labor Expansion of Fiduciary Investment Adviser By Nelson S. Ebaugh
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n April 8, 2016, the U.S. Department of Labor (DOL) announced its new definition of a “fiduciary,” significantly expanding the meaning of the term to include anyone giving investment advice to a retirement plan or account. In doing so, the DOL dramatically changed the landscape of the financial services industry. Prior to the DOL’s amendment of 29 C.F.R. § 2510.3–21, the DOL’s definition of a fiduciary was narrowly tailored to include only those that gave individualized recommendations on a regular basis to an ERISA plan pursuant to a mutual understanding that the recommendation would serve as the primary basis for investment decisions. As noted by the DOL, this definition was outdated because it had remained mostly unchanged
LEGAL TRENDS
since the 1970s. According to the DOL, “individuals, rather than large employers and professional money managers, have become increasingly responsible for managing retirement assets as IRAs and participant-directed plans, such as 401(k) plans, have supplanted defined benefit pensions.” 81 Fed. Reg. 68 at 20954 (April 8, 2016). The DOL amended section 2510.3–21 to modernize its definition of a fiduciary. The amended version of section 2510.3–21 broadly defines a fiduciary as any anyone giving investment advice to a retirement plan or account. Significantly, this definition applies to advice given to either ERISA plans or IRAs. As a result of this new definition of fiduciary, brokerage firms, investment advisers, and insurance companies are considered fiduciaries whenever they give investment advice to a retirement plan or account. As fiduciaries, they are subject to the prohibited transaction rules under ERISA or the Internal Revenue Code (“Code”) as the case may be. The prohibited transaction rules under ERISA and the Code forbid a fiduciary’s receipt of variable compensation, such as commissions. Consequently, the only way that a brokerage firm or insurance company may continue to receive commissions when giving advice to a retirement plan or account is to satisfy an exemption from the prohibited transaction rules. In addition, the prohibited transaction rules bar an investment adviser from recommending a rollover from an ERISA plan to an IRA, a rollover from another IRA, or a switch from a commission-based account to a feebased account. Thus, an investment adviser must get an exemption from the prohibited transaction rules in order to engage in such activities. Recognizing that commissions and rollover recommendations are appropriate under certain circumstances, the DOL issued the Best Interest Contract Exemption (“BICE”), 81 Fed. Reg. 68 at 21002 (April 8, 2016), to allow brokerage firms, investment advisers and insurance companies to continue operating as usual if certain conditions are met.
Significantly, brokerage firms and insurance companies must enter into a contract with IRAs that they advise, agreeing that they may be sued for breach of contract if they do not honor their fiduciary obligations. These new regulations take effect on April 10, 2017. The BICE provides for a transition period until January 1, 2018, where only limited conditions must be met to receive its protection. Nelson S. Ebaugh holds an L.LM in Securities and Financial Regulation from Georgetown University Law Center, and dedicates a significant portion of his practice to representing clients in securities litigation, arbitrations and regulatory proceedings.
Texas Supreme Court Examines Malpractice Liability for Costs of Successful Appeal By Travis Armstrong
I
n the recent legal malpractice case Stanfield v. Neubaum, the Texas Supreme Court addressed the novel issue of “[w]hat happens... when [a] lawyer pursues a winning strategy (perhaps with some strategic missteps), but the trial judge errs, and the error requires a costly appeal to correct?” 15-0387, 2016 WL 3536865 (Tex. June 24, 2016). Under the circumstances of the case, the Court concluded the judge’s error was a superseding cause of plaintiffs’ damages, for which counsel could not be liable. While, at first blush, this case appears to limit attorneys’ malpractice exposure, dicta within the decision leaves a potential chink in the armor of deference courts usually exercise towards attorneys in matters of trial strategy.
In Stanfield, Buck Glove Company (“Buck”) sued Jon and Barbara Neubaum (the “Neubaums”) for usurious lending. Buck’s claims were predicated on the theory that the individual who negotiated the loans—Marvin March (“March”)—was acting as the Neubaums’ agent. The Neubaums’ attorneys pleaded several affirmative defenses but, at trial, focused principally on attacking the agency relationship between March and the Neubaums. The attorneys objected to the agency question in the jury charge, arguing no evidence could support such a finding. The court overruled the objection, and the jury returned a verdict in favor of Buck based on the perceived agency relationship. The judgment was reversed on appeal based on “legally insufficient evidence that March made loans to Buck... as the Neubaums’ agent, an essential element of the usury claim.” In the process of pursuing the successful appeal, the Neubaums incurred approximately $140,000.00 in attorneys’ fees. The Neubaums subsequently sued their trial attorneys for legal malpractice. The Neubaums claimed the attorneys failed to present evidence concerning their affirmative defenses at trial, which resulted in an erroneous judgment in favor of Buck. This, in turn, necessitated an expensive appeal which could have been avoided if the Neubaums had prevailed on their defenses. The attorneys sought summary judgment on the grounds that the judge’s erroneous decision to include the agency question in the jury charge acted as a superseding cause of Plaintiff’s injury and, therefore, relieved the attorneys of liability. The trial court granted summary judgment, which was appealed and reversed. The attorneys filed a petition for review, which the Texas Supreme Court subsequently granted. The Court acknowledged that a “superseding... cause may intervene between the original wrong and the final injury such that the injury is attributed to the new cause rather than the first and more remote cause[.]” According to the Court, the critical inquiry when determining superseding cau-
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continue LEGAL TRENDS sation is “was there an unbroken connection” between the alleged negligent act and injury. Based on these general principles, the Court held that, in a legal malpractice case, judicial error may be a superseding cause that relieves the attorney of liability when the error is not reasonably foreseeable. Noting that “theoretically, it is always foreseeable that a judge might err in some manner,” the Court nevertheless reasoned that “[t]he question... is not whether judicial error is generally foreseeable, but whether the trial court’s error is a reasonably foreseeable result of the attorney’s negligence in light of all existing circumstances.” In other words, for the judicial error to be foreseeable, the attorney’s conduct must “directly contribute[] to and cooperate[] with the judicial error[.]” Under the facts of Stanfield, the court found no such complicity between the alleged negligent conduct—namely, failing to pursue certain affirmative defenses—and the judge’s error concerning the jury charge. Instead, the available evidence showed, at most, that the attorneys’ conduct “creat[ed] the condition that ma[de] the harm [i.e., the expensive appeals process] possible,” which, according to the Court, was not sufficient to satisfy the causation element of the Neubaums’ legal malpractice claim. Accordingly, the Supreme Court reversed and rendered judgment in favor of the attorneys. Despite this favorable result, the Court acknowledged in dicta the Neubaums’ assertion “that an attorney has the duty to present all potentially successful arguments in the trial court.” Id. at *4 n.3. Because the attorneys did not challenge the legality of this assertion, but pursued (and won) their appeal on causation grounds, the court reserved ruling on this issue. However, the fact that the Court repeatedly references the attorneys’ “unrelated negligence” suggests the possibility that the Court could find that such a duty exists—even when the attorneys ultimately succeed at the appellate level. In such case, it will be imperative for attorneys to consider the appellate impact of their trial strategy, including overall costs as well as outcome.
Travis Armstrong is an attorney at Sheehy, Ware & Pappas, P.C., in Houston, Texas. His practice focuses on appellate, insurance, and commercial matters. 46
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Media Reviews
The Anxious Lawyer: An 8-Week Guide to a Joyful and Satisfying Law Practice through Mindfulness and Meditation By Jeena Cho and Karen Gifford Ankerwycke, the trade imprint of the American Bar Association Reviewed by Erma Bonadero
W
ords such as “mindfulness,” “joy,” and “heartfulness” are not terms that immediately come to mind when describing the mindsets of lawyers. It’s more likely that attorneys themselves would use terms like “stressed-out,” “depressed,” and “frazzled.” We lawyers often get so caught up in our dayto-day tasks–many highly adversarial in nature–that we find ourselves anxious, exhausted, unfulfilled, and wondering why we ever wanted to become lawyers in the first place. The Anxious Lawyer: An 8-Week Guide to a Joyful and Satisfying Law Practice Through Mindfulness and Meditation, is a new book published by the American Bar Association earlier this year. Its authors are Jeena Cho and Karen Gifford, two attorneys who reached a point in their
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careers where they realized that a substantial lifestyle change was in order to help reduce their anxiety levels and get back to being the best persons they could be–for their families, friends, clients, and for themselves. Cho and Gifford realized that, for them, the key to a permanent lifestyle change was found through the practices of mindfulness and mediation. They explain how they each were introduced to these practices and why they believe that “spending time on the [meditation] cushion” can be a major help to other stressed-out lawyers as well. As its title indicates, the book’s main content is broken down into chapters which walk the reader through an easyto-follow guided eight-week tour of the processes of mindfulness and meditation. In the first chapter, “Beginning to Meditate,” the authors encourage the reader to start with baby steps by aiming to mediate every day, if only for a few minutes, and not to concern oneself with “doing things wrong”; rather, to simply get started doing something. In the following chapters, the authors describe the principles and importance of practicing mindfulness, self-compassion, heartfulness, gratitude, and more. Each chapter ends with a brief “homework” assignment for the upcoming week, which includes keeping a “mediation log” for each day. In the final chapter, Cho and Gifford detail how the reader can take his or her practice forward and continue to pursue and deepen his or her practice. The authors acknowledge that many practicing lawyers are likely to dismiss the idea of starting a mindfulness/meditation practice out of hand as being an unworthy time investment; however, it is their hope that those who take the time to read this book do so because they feel
Media Reviews
the need to make a lifestyle change. If you fall into this camp, reading The Anxious Lawyer is a great way to begin your journey towards a better quality of life. Erma Bonadero is an attorney in Houston who has worked for Harris County, at private law firms, and in legal education. She is also a Realtor Associate with Heritage Texas Properties’ Post Oak Park office.
Unfair: The New Science of Criminal Injustice By Adam Benforado Crown Publishing Reviewed by Jason D. Goff
O
ne of the unforgettable and truly comical scenes in Monty Python’s The Holy Grail is the witch trial. A hoard of unruly peasants presents a woman to their local knight, Sir Bedevere, clamoring to have her burned because she is a witch. In a hilarious attempt to reason with the peasants, Sir Bedevere offers a definitive method for finding whether the woman is, in fact, a witch. With the knight leading the peasants through a series of inquiries – along with some help from King Arthur – the crowd concludes that if the woman weighs as much as a duck, she must be made of wood, and therefore, she must be a witch. Not only is it movie magic, the scene offers a satirical critique of inherent injustices contained within the criminal system.
Unfortunately, Monty Python’s satirical critique remains as relevant today as it did in 1975, as demonstrated by the recently published, Unfair: The New Science of Criminal Injustice, written by Adam Benforado. Indeed, within the first of many case studies included within the book, Benforado evokes a striking similarity between the satirical trial depicted above and legal reality of 12th century France. Benforado details the 1144 heresy trial of two brothers, Clement and Everard. The brothers were to be tried by water, which is to say that they were to be plunged into a large vat of baptismal water and allowed to sink or float. The idea was that a lie could not sink in the blessed water because the water would reject evil. In the year 1144, this was the only way to get the truth because anyone could lie, including the witnesses for or against the charged. These practices might seem comparatively barbaric in our current system of evidence and due process but has our criminal system really evolved on account of our technological developments? Benforado is a professor of law at Drexel University and was a graduate of Yale College and Harvard Law School. Unfair, as stated by Benforado, was written not to demonize the justice system but rather to point out the inherent flaws and weaknesses which lead to certain predictable and unfortunate results. The book delves into the scientific and psychological explanations for why true justice is often averted. Benforado’s case studies offer numerous true-life examples, highlighting specific deficiencies in the justice system. At the heart of Benforado’s study of the criminal justice system is the science of bias. For example, why is the method of delivering the message so determinative of the reaction of the audience? In one cited study, two sets of experienced clinicians
were asked to determine whether a mental patient with a violent history should be released. Both groups were provided with the same detailed psychological assessment of the patient with one small difference, the one in which the risk assessment was presented. For one group, the assessment expressed the evaluated risk that the mental patient posed to the public in the form of a percentage – i.e., 20 percent of those patients similar to the subject in question are likely to commit an act of violence. For the other group, the psychologist expressed the risk as a relative frequency – i.e., out of 100 patients similar to the subject in question, 20 will likely commit an act of violence. The two expressions are equal in substance, and yet the audience response was very different. The members of the group who were provided the risk assessment in terms of frequency (20 out of 100) were twice as likely to vote to keep the mental patient incarcerated as the group who received the percentage-style evaluation. Upon further inquiry, the group who read the frequency-styled assessment reported that a mental image had formed of the patient going crazy and killing someone which, in turn, caused them to want to keep the patient incarcerated. Benforado presents an interesting dilemma in our current criminal justice system, for if we are ever to achieve anything resembling justice, then it is imperative that we acknowledge our biases, especially the latent ones. Benforado believes that the study of bias reveals obvious deficiencies within the system and provides a roadmap for improving that system. In any event, whether you believe the system is currently adequate or not, the arguments and analyses contained in Unfair will be of interest. Jason D. Goff is an attorney with Sheehy, Ware and Pappas. Mr. Goff’s practice is dedicated to trial work where he defends clients in civil litigation claims.
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Immigration Clinic 2017 Arrival Awards Recognizing Immigrant Achievement 6:30 p.m. Reception 7:00 p.m. Dinner & Program Wednesday, January 25, 2017 River Oaks Country Club 1600 River Oaks Boulevard Houston, Texas
To sponsor or attend, email lawalumni@uh.edu The Arrival Awards recognize the contributions of immigrants to our local community and the nation. Proceeds of the Arrival Awards Dinner benefit the Immigration Clinic at the University of Houston Law Center.
Arrival Award Honorees Roberto Contreras, President and CEO of St. Christopher Holding, Ltd. A businessman with strong ties in the United States, Mexico and Europe, Mr. Contreras has made a name for himself as a respected entrepreneur. Mr. Contreras has started and owned several highly successful companies including a surfacing company that is renowned world-wide, Cosentino North America.
Pershant Mehta, President and CEO of Je Matadi Inc. Mr. Mehta is the founder and owner of Luminess Direct LLC., the fastest growing direct cosmetics & skincare beauty company in North America. Located in Stafford, Texas, Luminess is positioned to become an annual billion dollar sales company by 2020 as it expands its footprint into retail.
Manolo Sรกnchez, Chairman and CEO of BBVA Compass Manolo Sรกnchez is chairman and CEO of BBVA Compass, and was named U.S. country manager for BBVA Group in 2010. Under his leadership, BBVA Compass has established itself as a bank driven by people, principles and innovation and a model of community involvement from Florida to California.
For more information visit law.uh.edu/arrivalawards/ The University of Houston is a Carnegie-designated Tier One institution and an EEO/AA institution.