Can we trust approval notice and 551 stamp?

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The Notice of Approval : When It Can't Be Trusted
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By Stanley Mailman and Stephen Yale-Loehr**

Two recent federal district court decisions – one in California, the other in Florida (just affirmed by the Eleventh Circuit) – address the question of what constitutes a decision granting lawful permanent residence. Both arose in the context of adjustment of status, the process by which noncitizens in a temporary or irregular status can convert to lawful residence, sometimes referred to as “green card” status. (In the Florida case, one of the authors of this column, Stanley Mailman, testified on this process as an expert witness for the plaintiff.) As a result of these decisions, immigration lawyers now have to wonder, despite an official INS stamp (called “Temporary Evidence of . . . Lawful Permanent Residence”) whether the Service has actually granted their client’s application for permanent residence, or will do so. And in other ways the decisions leave a wide swath of uncertainty.

In Bassey v. INS, 2002 WL 31298854, 2002 U.S. Dist. LEXIS 19726 (N.D. Cal. Oct. 10, 2002), the plaintiff filed his application for adjustment of status to permanent residence (Form I-485) with the Immigration and Naturalization Service (INS or Service) on September 15, 1998. The application accompanied the petition of Bassey’s U.S. citizen wife (Form I-130), seeking to classify him as an immediate relative and therefore exempt from the need for a visa number. According to the Service, it mailed Bassey a notice on September 23, 1999, advising that he had received permanent resident status. In any event, it informed him on June 14, 2000 that his application was approved and the next day placed a stamp in his passport indicating that he was now a lawful permanent resident of the United States. (As discussed below, that stamp, known as the temporary I-551, is used for all purposes in lieu of the green card, e.g., to evidence work authorization, and to travel outside the United States and reenter as a lawful resident. The INS stamps the endorsement because it takes several months to process the permanent Form I-551, the actual green card (now pink), which it backdates to the grant of residence.)

Later, however, the INS initiated a series of actions that triggered Bassey’s lawsuit. After first notifying Mrs. Bassey and giving her an opportunity for rebuttal, the Service denied her I-130 petition on the ground that an earlier marriage fraud by her husband barred the petition. It then denied Mr. Bassey’s application for adjustment for lack of a supporting I-130 approval and physically canceled the stamp in his passport, indicating that it had placed it there in error. When the Service instituted proceedings to remove him from the United States, Bassey sued to invalidate the cancellation and to compel the Service to issue new evidence of his residence status.

Resolving certain jurisdictional issues in Bassey’s favor, the district court posed the central question as follows: Had the INS by its actions granted Mr. Bassey permanent residence? Or, as the INS claimed, had it simply misadvised him that it had done so, having never stamped “approved” on the forms I-130, I-485, and I-181 (an internal record of adjustment approval)? The district court found those stamps essential to approval of the adjustment application, citing Nelson v. Reno, 204 F. Supp. 2d 1355 (S.D. Fla. Apr. 29, 2002), aff’d without opinion, (11th Cir. Jan. 28, 2003), and quoting it as follows:

The I-551 stamp placed in the applicant’s passport then serves as the applicant’s proof to employers and even the INS, in some cases, that he or she is a lawful permanent resident of the United States. While the stamp typically serves as a record – in fact, the applicant’s only record – of an approval, it is not an approval. Id. at 1359-60.

Bassey, slip op. at 4. The Nelson opinion continues: “Thus, it follows that an erroneously placed I-551 stamp does not create an approval where no such approval was actually granted.”

 

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Nelson’s situation was indeed similar to Bassey’s. Interviewed with his wife, Nelson was told by the examiner that everything was okay and that they didn’t need to return for a further interview. But because of a problem in processing Nelson’s fingerprints there was a delay in stamping his passport. When the fingerprints later cleared, the examiner did place the I-551 stamp in Nelson’s passport and told him that he was a permanent resident of the United States with the right to work and travel. However, as it turned out, the examiner failed to stamp or otherwise note the “action” blocks in the I-130 and I-485. Nor did the Form I-181 in Nelson’s file bear any mark signifying approval.

The Nelson opinion considered each of these omissions fatal to a finding that the application for residence was approved. Accordingly, in that court’s view, when Nelson’s wife later decided to withdraw her I-130 petition, the INS was free to deny his application for adjustment. The INS examiner invited Nelson and his lawyer to an interview and then wrote “VOID” over the I-551 passport stamp. Eschewing the procedure under INA § 246, 8 U.S.C. § 1256, for rescinding an adjustment of status, the Service then simply sent Nelson a formal notice of denial.

The reasoning in Bassey and Nelson seems to sidestep the central question – whether an authorized examiner made a deliberate decision to approve the adjustment application and thereby grant the applicant permanent residence. If he did, it shouldn’t matter, in the posture of these cases, whether he failed to complete certain paperwork. Nor should it matter if the examiner failed to approve the visa petition first. In cases like Bassey and Nelson, where the applicant is interviewed with his or her spouse, the decision to approve the visa petition is made in considering the adjustment application. An examiner may commit error in granting adjustment, either procedurally or because the applicant is ineligible for lack of a visa number or inadmissible, say, for conviction of a drug offense. But should his decision be treated as a nullity any more than a judge’s misguided decision that is subject to appeal or formal rescission? Rescission is precisely the remedy under the immigration statute where the applicant was ineligible for adjustment when it was granted. See INA § 246, 8 U.S.C. § 1256.

This analysis assumes of course that the approval stamp is not a counterfeit or affixed by simple oversight. But there is no suggestion in these cases that the I-551 stamp was secured by fraud or through INS inadvertence. In Bassey, the Service explicitly notified the applicant twice that his application was approved, even before placing the stamp in his passport. In Nelson, the INS examiner acted with equal deliberation: he was only awaiting clearance of the fingerprints to approve the application and told the applicant when he stamped his passport that he was now a lawful permanent resident.

The harder question is, What is an effective decision? The INS regulations at 8 C.F.R. § 245.2(a)(5) state that “[t]he applicant shall be notified of the decision,” but they do not prescribe the form of the decision or the procedure to follow in making the decision. Nowhere, for example, do the regulations, or even INS internal manuals, require the endorsement of any forms before the decision can be effective.

It would seem therefore that any formal action reflecting that an authorized INS examiner has considered and deliberately approved an application should amount to an official approval. For example, an INS inspector reflects her decision to admit a new immigrant as a lawful resident by stamping the temporary I-551 in his or her passport at the airport before any other records are created. See INS Field Inspectors Manual § 14.4(a)(3). And the Form I-181, entitled “Memorandum of Creation of Record of Lawful Permanent Residence,” has been held prima facie evidence that the INS granted the applicant residence even though he wasn’t given notice of the approval. See Berahmand v. INS, 549 F.2d 1343 (9th Cir. 1977).

INS regulations also specify that the I-551, as well as “passports . . . endorsed by the Service to show admission for permanent residence,” are deemed “official records” for purposes of verifying lawful admission to permanent residence. Moreover, “in the absence of countervailing evidence, such official records shall be regarded as establishing lawful admission for permanent residence.” 8 C.F.R. § 103.2(b)(17).

An indication of fraud or simple inadvertence might be strong countervailing evidence. But while ineligibility could be relevant to whether the examiner made a conscious decision, it shouldn’t be conclusive. Examiners, like judges, sometimes err after the most careful consideration. And in Bassey and Nelson it is clear from the manner in which the decisions were conveyed that they were reached deliberately.

Stamping the passport with the I-551 legend as an official record of lawful residence is an INS practice that goes back at least to the 1970s and is reflected in INS regulations. See, e.g., Reid v. INS, 1994 U.S. Dist. LEXIS 4479 (S.D.N.Y. Apr. 7, 1994) (discussing inter alia INS testimony on early government memoranda); 8 C.F.R. §§ 274a.2(b)(1)(v)(A) (listing as an acceptable document for work authorization an “unexpired foreign passport that contains a temporary I-551 stamp), 320.3 (listing as evidence in support of an application for certificate of citizenship an “I-551 stamp in a valid foreign passport”).

Both Bassey and Nelson concede that both adjustment applicants and the Service rely on the I-551 stamp as evidence of lawful residence. See Bassey, supra at 4, quoting Nelson, at 1359-60, with approval. At least until these decisions, those who had that stamp could travel abroad knowing that the INS would admit them as lawful permanent residents. Moreover, other agencies give the stamp similar recognition. With it, noncitizens can obtain a social security card and therefore a driver’s license, and qualify for various state and federal benefits. See 20 C.F.R. § 422.107 (social security card); N.Y.S. DMV website at www.nysdmv.com/idlicense.htm (honoring social security card and “foreign passport with a valid I-551 stamp”). See also, e.g., 20 C.F.R. §§ 416.200, 416.1600, 416.1615 (Federal SSI benefits).Bassey concedes that the temporary I-551 is the applicant’s only record of approval. Dishonoring it causes enormous personal prejudice and general confusion. Though advised of approval on the face of their passport, applicants would now never be sure that they are lawful residents until they receive the permanent green card. Unsuspecting individuals would risk being barred when they seek admission on return from a trip outside the United States, even for as much as ten years. See INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II) (barring those who have departed after a period of unlawful presence). And their right to contest a denial of the adjustment application might be forfeit. The decisions also throw into question any family visa petitions they may have filed. See 8 C.F.R. § 204.1(g)(1) (prescribing as evidence of residence status “the petitioner’s Form I-551 . . . or other proof given by the Service as evidence of lawful permanent residence”).

As counsel for Nelson argued in his brief to the Court of Appeals, the uncertainty could extend for years if the Service delays in processing the permanent I-551, as it sometimes does, and decides later to deny the application, as it did in Nelson and Bassey. The decisions therefore call for clarification, either through further litigation or by congressional or administrative attention.
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http://www.twmlaw.com/new/insapproval.html

Looking this link as well.
http://boards.immigrationportal.com/showthread.php?t=132787