Reply Brief in NIW Appeal for Physicians

I.       Contrary To The District Court’s Finding, The Rule Established By The CIS To Administer § 5 Of The NRDAA Alters The Plain Meaning Of 8 U.S.C. § 1153(b)(2)(B)(ii)

The question presented in this case is whether or not the rule established by the U.S. Citizenship and Immigration Services (“CIS”) (65 Fed. Reg. 53889-53896) to administer § 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), Pub. L. 106-95, is authorized since the rule alters the plain meaning of the statute.

This Court does not owe deference to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrates congressional policy.  Akhtar v. Burzynski, 384 F.3d 1193, 1198 (9th Cir. 2004).

When reviewing an agency’s construction of a statute, the court must ask two questions:  (1) Has Congress directly spoken to the precise question at issue?  (2) If not, is the agency’s answer based on a permissible construction of the statute?  Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

A.      The Plain Language Employed by Congress In 8 U.S.C. § 1153(b)(2)(B)(ii) Is Clear – Any Alien Physician Who Agrees To Serve An Aggregate Of Either Three Or Five Years In An Area Or Areas Designated By The Secretary Of Health And Human Services As Having A Shortage Of Health Care Professionals Shall Be Granted A National Interest Waiver

In applying Chevron’s first step, 8 U.S.C. § 1153(b)(2)(B)(ii) is clear and unambiguous. 8 U.S.C. § 1153(b)(2)(B)(ii) is entitled “Physicians working in shortage areas or veterans facilities” and states as follows:

(I) In general. The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if –

(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals…; and

(bb) a Federal agency or a department of public health in any State has previously determined that the alien physician’s work in such an area or at such facility was in the public interest.

(II) Prohibition. No permanent resident visa may be issued to an alien physician described in subclause (I)…and the Attorney General may not adjust the status of such an alien physician from that of nonimmigrant alien to that of a permanent resident alien…until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including time served in the status of an alien described in section 1101(a)(15(J) [J-1 status] of this title), in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals…”

(IV) Effective Date. …In the case of a physician for whom an application for a waiver was filed…prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to subsection (b)(2)(B) of this section except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section 1101(a)(15)(J) of this title… [emphasis added]

Congress enacted § 5 of the NRDAA to amend 8 U.S.C. § 1153(b)(2)(B) to facilitate certain qualifying physicians to obtain permanent residency by allowing them to obtain a national interest waiver (“NIW”) and qualify for permanent resident status.  Congress unequivocally instructs the Attorney General to grant an NIW and adjust the status of any physician who agrees to practice in an underserved area for an aggregate of either three or five years.  The Appellees’ rule administering 8 U.S.C. § 1153(b)(2)(B)(ii) is contrary to the statue and ultra vires.

1.       Dr. Kasthuri’s Claim That Pursuant To 8 U.S.C. § 1153(b)(2)(B)(ii)(I) “Any” Alien Physician Is Eligible For A National Interest Waiver Is A Justiciable Controversy

Contrary to the finding of the District Court Judge, Dr. Kasthuri’s claim is ripe since this Court can make a firm predication that the Appellees will deny his NIW petition pursuant to 8 C.F.R. § 204.12(a)(2)(i). “Mootness is a question of law reviewed de novo. A case properly brought in the first instance is rendered moot when interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Chang v. United States, 327 F.3d 911, 918-19 (9th Cir. 2003). This Court can use the “firm prediction” rule to determine that the CIS will deny Dr. Kasthuri’s NIW petition:

…ordinarily under Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), a formal denial of an alien’s application on the disputed grounds is required, but if denial is certain review will not be barred based on ripeness. Id. 69-71 (O’Connor concurring). In Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996), this court expressly adopted the “firm prediction” rule from Justice O’Connor’s Catholic Social Services concurrence, which eliminates the need to await an inevitable application of a regulation to a plaintiff before determining a claim to be justiciable. Chang, 327 F.3d at 922.

On January 23, 2004, the CIS issued a notice addressed to Dr. Kasthuri requesting further evidence concerning his NIW petition. See Appellees’ Supplemental Excerpts of Record Volume III, 671-72.  The CIS’ Notice states as follows:

PLEASE NOTE: While statute language says “any physicians,” HHS currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, osteopathy and psychiatry. The submitted contracts and Part 6 of the petition indicate that the petitioner [Dr. Kasthuri] has been and will be employed as a radiologist. As indicated above, radiologists are specifically excluded from the group of authorized professionals. Given this, please provide a regulatory explanation as to how the petitioner qualifies for a national interest waiver under Public Law 106-95 [8 U.S.C. § 1153(b)(2)(B)(ii)]. [emphasis added].  Id. at 672.

This Notice to Dr. Kasthuri allows this Court to make a “firm prediction” that the CIS will deny his NIW petition by virtue of rule 8 C.F.R. § 204.12(a)(2)(i) which prevents the government from granting NIWs to physicians who are specialists. The rule is contrary to the clear language of  8 U.S.C. § 1153(b)(2)(B)(ii) which provides that NIWs may be granted to “any physician.”   In accordance with this Court’s decision in Freedom to Travel Campaign, Dr. Kasthuri’s claim is ripe because his issue is fit for judicial decision and Dr. Kasthuri cannot obtain an NIW.  In order to obtain permanent residence for Dr. Kathuri, his employer must instead undergo the lengthy and costly labor certification process pursuant to 8 U.S.C. § 1153(b)(3)(C).

The Supreme Court has found that the word “any” has an expansive meaning. For example, under the plain language of a provision of the Anti-Drug Abuse Act of 1988 requiring public housing leases to provide that “any drug-related criminal activity shall be cause for termination of tenancy,” (1) the word “any” has an expansive meaning, that is, one or some indiscriminately of whatever kind; and (2) Congress’ decision not to impose any qualification in the statute, combined with Congress’ use of the term “any” to modify “drug-related criminal activity,” precludes any knowledge requirement. Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 130-31 (2002) (internal citations omitted).  Thus, when Congress, at 8 U.S.C. § 1153(b)(2)(B)(ii)(I), mandated that the Attorney shall grant an NIW to “any alien physician” who agrees to work full time as a physician in an area(s) designated as having a shortage of health care professionals, it is presumed to know the expansive meaning of the word “any”.  This Court should give effect to Congress’ clear intent.  See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001).

2.       8 U.S.C. § 1153(b)(2)(B)(ii)(II), (IV) Is Clear –  Except For A Physician’s Medical Service While In J-1 Status, Medical Service Provided By A Physician In A Designated Area(s) While In Other Types Of Nonimmigrant Status Shall Count Towards The Aggregate Of Either Three Or Five Years

Congress specifically mandated that the Attorney General may adjust the status of a physician after he or she has worked full time, (not including time served in J-1 status pursuant to 8 U.S.C. § 1101(a)(15)(J)), for an aggregate of 3 or 5 years.  See 8 U.S.C. § § 1153(b)(2)(B)(ii)(II), (IV).

The statute excludes from the service period only the time that a physician serves in J-1 status. It does not exclude the time a physician practices in a medically underserved area while in any other immigration category such as H-1B status pursuant to 8 U.S.C. § 1101(a)(15)(H) or O-1 status pursuant to 8 U.S.C. §  1101(a)(15)(O).

Nevertheless, the CIS rule ignores the clear statutory language and establishes a list of events not found in the statute that trigger when the five or three year period of medical service requirement commences:

1) If the physician already has authorization to accept employment (other than as a J-1 exchange alien), the beneficiary physician must complete the aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of approval of the Form I-140 [national interest waiver petition]. [emphasis added] 8 C.F.R. § 204.12(b)(1);

2) If the physician must obtain authorization to accept employment before the physician may lawfully begin working, the physician must complete the aggregate 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of [sic] the Service issues the necessary employment authorization document. [emphasis added] 8 C.F.R. § 204.12(b)(2); or

3) If the physician formerly held status as a  J-1 nonimmigrant, but obtained a waiver of the foreign residence requirement and a change of status to that of an H-1B nonimmigrant pursuant to section 214(l) of the Act [8 U.S.C. § 1184(l)]… the period begins on the date of the alien’s change from J-1 to H-1B status.” [emphasis added] 8 C.F.R. § 245.18(e)(2)

In a similar case, this Court held that the Attorney General’s promulgation of a regulation vesting authority in immigration officers is in conflict with 8 U.S.C. § 1229a, and therefore, ultra vires. Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004).  In that case, the CIS’ reinstatement regulation which vested immigration officers with the authority to determine the admissibility or deportability of aliens, was found to violate 8 U.S.C. § 1229a(a). This Court held that the regulation was ultra vires because it went beyond the authority of the statute by eliminating the express authority of immigration judges to determine whether an individual’s prior deportation order should be reinstated.

The CIS rule is an impermissible construction of the statute.  Congress could have, but did not, exclude time that a physician served in another status, e.g. H-1B or O-1. No rationale justifies the rule’s exclusion of portions of the physician’s service. The rule also offers no explanation for its arbitrary and disparate treatment of these physicians.

The CIS cannot justify giving the same statutory text a different meaning depending on the characteristics of the aliens involved. See Clark v. Martinez, 125 S.Ct. 716 (2005). The Clark case involved a statute which stated that an inadmissible alien may be detained beyond the 90-day removal period, but only for so long as is reasonably necessary to achieve removal. The Supreme Court stated as follows:

…the operative language, “may be detained beyond the removal period,” applies equally to all aliens that are its subject, whether or not those aliens have been admitted to the country. In Zadvydas v. Davis, 533 U.S. 678…this Court interpreted § 1231(a)(6) to authorize the detention of aliens who have been admitted to the country only as long as “reasonably necessary” to effectuate their removal…This interpretation must apply to inadmissible aliens as well. Even if the statutory purpose and constitutional concerns influencing the Zadvydas construction are not present for inadmissible aliens, that cannot justify giving the same statutory text a different meaning depending on the characteristics of the aliens involved. [emphasis added].  Id.

In this case the CIS gives the same statutory text different meanings depending on the nonimmigrant status of the physician. See 8 C.F.R. § § 204.12(b)(1), (2); and 245.18(e)(2).  The disparity between physicians is arbitrary.

The District Court Judge erred in finding that 8 C.F.R. § 245.2 moots the Appellants’ argument that the lengthy delays in CIS adjudication times impose a significantly longer period of employment obligation for the Appellants. The issue before this Court is whether the regulation may establish different “start dates” for counting work in underserved areas for physicians in different types of nonimmigrant status.  The Appellees confuse the issue of whether a physician’s employment is authorized with whether he is in possession of an Employment Authorization Document. Appellees’ Answering Brief, 20.  Persons such as Drs. Tandar, Schneider, Kasthuri, and Mamuya were certainly authorized by the CIS to work in the United States for a specific employer in their respective status’.  Despite having authorization to work in the U.S. , not every physician receives an Employment Authorization Document (EAD). <!–[if !supportFootnotes]–> [8] <!–[endif]–> For example, a person in H-1B and O-1 status does not receive an EAD. The law does not require such persons to be issued an EAD because they can only work for the employer who sponsored them for either their H-1B or O-1 status, whereas an EAD permits the holder to work for any employer in the United States.  Thus, the Appellees misstate the argument. <!–[if !supportFootnotes]–> [9] <!–[endif]–> The Appellees offer no explanation for treating physicians authorized by the CIS to work in underserved areas differently or for departing from the clear statutory language in their regulation.

8 C.F.R. § 245.2 in no way moots the Appellants argument that counting the time for the aggregate of three or five years should not be affected by the nonimmigrant status of the physician in question.  Despite 8 C.F.R. § 245.2, physicians who held J-1 status still accrue time as soon as they change status from J-1 to H-1B, while physicians who have never been in J-1 status do not accrue time until months (or even years) after they have initiated the NIW process.

The CIS rule is contrary to the plain meaning of the statute. The statute’s exclusion of work performed in J-1 status demonstrates that Congress knows how to exclude work performed in certain categories of immigration status if it so intends.

3. 8 U.S.C. § 1153(b)(2)(B)(ii)(IV) Clearly States that Physicians who Filed NIWs Before November 1, 1998 Qualify For National Interest Waivers And Adjustment Of Status Under the Three-Year Medical Service Obligation

The statute states that a physician who had an NIW petition filed on his behalf prior to November 1, 1998, is required to work full time in an underserved area for three years.  Yet, 8 C.F.R. §§ 204.12(d)(3), (4), and (6) unlawfully limit the statute’s applicability by creating conditions subsequent not authorized by the statute :

– The Service Center or the Associate Commissioner for Examinations shall reopen any petition affected by the provision of section 203(b)(2)(B)(ii) of the Act that the Service denied on or after November 12, 1999, but prior to the effective date of this rule. 8 C.F.R. § 204.12(d)(3).

– For petitions filed prior to November 1, 1998, and still pending as of November 12, 1999, the Service will approve a national interest waiver provided the beneficiary fulfills the evidence requirements of paragraph (c) of this section.  8 C.F.R. § 204.12(d)(4).

– If a prior Service decision denying a national interest waiver under section 203(b)(2)(B) of the Act became administratively final before November 12, 1999, an alien physician who believes that he or she is eligible for the waiver under the provisions of section 203(b)(2)(B)(ii) of the Act may file a new Form I-140 petition accompanied by the evidence required in paragraph (c) of this section.   The Service must deny any motion to reopen or reconsider a decision denying an immigrant visa petition if the decision became final before November 12, 1999, without prejudice to the filing of a new visa petition with a national interest waiver request that comports with section 203(b)(2)(B)(ii) of the Act. 8 C.F.R. § 204.12(d)(6).

Dr. Tandar was the beneficiary of an immigrant petition with a request for an NIW filed on June 1, 1998. Appellants’ Record 42.  His petition was filed before August 7, 1998, the date on which the CIS designated Matter of New York State Department of Transportation (“NYSDOT”), 22 I&N Dec. 215 (Comm’r 1998) as a precedent decision.  Dr. Tandar’s NIW petition was denied on June 21, 1999 .  Appellants’ Record 42.

Before NYSDOT, the CIS had consistently approved NIW petitions for physicians practicing in medically underserved areas. [Appellants’ Record 110]. NIW petitions pending on behalf of physicians, including Dr. Tandar, after the NYSDOT decision were dismissed by the CIS under NYSDOT’s third prong. [Appellants’ Record 43, 59-62].  To rectify the problem, in 1999 Congress enacted section 5 of the NRDAA which contains affirmative instructions to the Attorney General to approve immigrant visa petitions filed under the NIW provision for alien physicians.  “[T]he general rule of construction is that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion.” Akhtar, 384 F.3d at 1200, quoting Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003).

The CIS rule is ultra vires. Had Congress intended the three-year medical service requirement to apply only if an NIW petition was pending on November 12, 1999, it would have said so.

This Court does not owe deference to agency regulations if they construe a statute in a way that is contrary to congressional intent or that frustrate congressional policy. Akhtar, supra, 384 F.3d at 1202 (finding the provisions of 8 C.F.R. § 214.15(g), as interpreted by the CIS, contradict congressional intent and frustrate congressional policy).

This Court Should Uphold the District Court Judge’s Finding That Administrative Appeal Is A Futile Gesture For the Appellants

The District Court Judge below correctly found that judicial review in this case is appropriate. See Appellees’ Supplemental Excerpts of Record, Vol. III of III, Order Denying Plaintiffs’ Motion for Summary Judgment and Dismissing the Action, 701. Contrary to the Appellees’ argument, the exhaustion of administrative remedies is not required in this case because the Appellants are challenging a rule which is in conflict with a statute.  Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273-74 (9th Cir. 1996). More importantly, there is no administrative procedure by which to appeal the CIS’ application of its own rule. The District Court Judge in this case correctly stated as follows:

Plaintiffs’ appeal to a “superior agency authority” is not a prerequisite to judicial review because the INA does not foreclose immediate judicial review for the specific question at issue here as to whether the Rule impermissibly conflicts with the statute. See Chang v. U.S., 327 F.3d 911, 922 (9th Cir. 2003) (citations omitted). Moreover, the agency cannot hear the type of claim at issue here, including questions of APA compliance, and therefore administrative review would be inadequate. Id. at 924. See Appellees’ Supplemental Excerpts of Record, Vol. III of III, Order Denying Plaintiffs’ Motion for Summary Judgment and Dismissing the Action, 701.

As seen in the CIS notices issued to the Appellants in this case, “[w]here the agency’s position on the issue appears already set and it is very likely what the result of recourse to administrative remedies would be, such recourse would be futile and is not required.” El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 747-48 (9th Cir. 1991) (internal citations omitted).

The exhaustion doctrine does not bar review of a question concerning the validity of a CIS regulation in conflict with a statute. Espinoza-Gutierrez, 94 F.3d at 1273-74. The CIS must follow its own regulations. Id. citing to Bui v. INS, 76 F.3d 268, 269 (9th Cir. 1996).

Similar to the alien in Espinoza-Gutierrez, had the physician Appellants argued to the CIS that its rule implementing 8 U.S.C. § 1153(b)(2)(B)(ii) conflicts with the statute, their argument would necessarily have fallen on deaf ears. The CIS simply has no authority to invalidate a regulation that it is bound to follow. As the Appellants cannot receive a review of this issue from the CIS, they have not failed to avail themselves of any alleged administrative remedy.

CONCLUSION

The Appellants have shown that the CIS regulations contradict both the plain language and intent of 8 U.S.C. § 1153(b)(2)(B)(ii). Therefore, this Court should declare portions of the rule invalid and order that the Appellants’ petitions and applications be adjudicated in compliance with the statute.

Dated:  March 3, 2005                                   Respectfully submitted,

­­­­­­______________________    ­

Carl Shusterman

Attorney for Plaintiffs-Appellants

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