The Legal Argument for the Return of Saad Nabeel

The following letter from New York immigration attorney Ted Cox sets forth the legal case for granting a student visa to Saad Nabeel so that he can enroll at SMU.

Nabeel graduated from high school in Texas and was enrolled at the University of Texas at Arlington in the Fall of 2009 when immigration authorities in Dallas detained his father for deportation to Bangladesh. The younger Nabeel then accompanied his mother to the Canada border where they applied for admission to Canada. When their application to Canada was denied, Nabeel and his mother were detained for 42 days and deported to Bangladesh.

See more about Saad Nabeel and the effort to win his return to the USA at Facebook.–gm

Theodore N. Cox, Esq.
Attorney-at-Law
New York, New York

July 7, 2010

Embassy of the United States
Bangladesh

Attn: Non-Immigrant Visa Unit

Re: Non-Immigrant Visa Re-application

NABEEL, Saad Mohammad (F-1 Visa Applicant)

Dear Consul:

I am writing you as the attorney for Saad Mohammad Nabeel (“Mr. Nabeel” or “Applicant”). A copy of our G-28 was submitted by Mr. Nabeel at his initial visa interview on June 21, 2010. Another is attached with this letter. Mr. Nabeel is a nineteen year old young man seeking an F-1 visa in order to study environmental engineering at Southern Methodist University (“SMU”), in Dallas, Texas beginning in the Fall semester of 2010. However, at the end of the interview on June 21, 2010, Mr. Nabeel was found ineligible for a nonimmigrant visa based upon INA § 214(b) and INA § 212(a)(9)(B)(ii)

Mr. Nabeel has retained me to ensure that he fulfills all the requirements for a successful visa re-application in Summer 2010. In the following letter memorandum, I will outline the bases for concluding that this Applicant fulfills all the requirements for both an F-1 visa, entitling him to non-immigrant status pursuant to Section 214(b), as well as the requirements for a waiver of the three year unlawful presence bar pursuant to Sections 212(a)(9)(B)(iii) (exception for Minors), and 212(a)(9)(B)(i)(I), and Section 212(d)(3).

I) Mr. Nabeel can Demonstrate that He is a Bona Fide Student With Financial Resources and Without Immigrant Intentions

A. Mr. Nabeel Will Be a Bona Fide Student in the USA

The young applicant, Mr. Nabeel, has a letter of acceptance from Southern Methodist University’s program in Environmental Engineering. Please see attached hereto as Exhibit A Applicant’s SMU acceptance letter to the SMU Lyle School of Engineering, as well as a copy of his I-20, and proof of SEVIS registration. Mr. Nabeel is prepared to explain fully how he came to choose this university as his place of study. He will bring with him many documents attesting to his long history of being a very good student, transcripts, SAT scores, letters of recommendations from his high school teachers. He will explain in detail his interest in environmental engineering, a highly specialized and also very recent and still developing area of engineering studies. SMU is one of a very few universities, not merely in the U.S., but anywhere globally, offering a program in environmental engineering, and Mr. Nabeel was extremely honored to have obtained a place in this ever more competitive program. See attached as Exhibit B a brief statement from Mr. Nabeel regarding his desire to attend SMU and their outstanding environmental engineering program.

The SMU Lyle School of Engineering has a Strategic Plan outlining goals for training engineers “who will be global citizens, leaders, and entrepreneurs, to help peoples all over the world,” according to Professor Jeffery Talley, Ph.D., P.E., Chairman of the SMU Department of Environmental and Civil Engineering. As he notes in his letter in support of Mr. Nabeel’s application for a student visa, attached as Exhibit C, “Bangladesh, with its monsoon caused floods that annually destroy much of what little infrastructure they have” is precisely the sort of developing country the Lyle School of Engineering seeks to have an impact on with its environmental engineering program. In his letter Professor Talley promises to show Mr. Nabeel “how to help his countrymen to have clean water, healthy sanitation, clean air, and more reliable electric power.”

Another SMU engineering professor, H.Charles Baker, also provides a letter in support of Mr. Nabeel’s student visa to study at SMU, further emphasizing the developmental and humanitarian concerns of the Lyle School of Engineering. He also explains that his colleague, Dr. Talley, is the founder of the Hunt Institute for Engineering and Humanity, endowed by the family of the late Hunt oil billionaire, and focusing its efforts on the infrastructure needs of impoverished countries like Bangladesh. Dr. Talley and the Hunt Institute have both the desire and the resources to set up a relationship with the Bangladesh government, as well as private companies in Bangladesh with whom Mr. Nabeel can work to implement plans for modernizing the infrastructure to bring clean water and sanitation, clean air, and more reliable electric power to Bangladesh. See Professor Baker’s letter attached as Exhibit D.

B. Mr. Nabeel Can Demonstrate Financial Resources to Support His Period of Study in the USA

The SMU Lyle School of Engineering has a long history of cooperative education, whereby students begin alternating semesters of school and work during their sophomore year. Beginning in August 2011, Mr. Nabeel will begin working with organizations that will provide him with direct experience in his field of infrastructure modernization, even as he earns money to pay for his education. He will earn his engineering degree in five years in this program and will graduate with the training and the organizational contacts necessary to begin contributing within his field of Environmental Engineering immediately.

Mr. Nabeel will be supported by the Hunt Institute for Engineering and Humanity, and his four years of co-op with the Hunt Institute will be spent developing plans for infrastructure improvements in Bangladesh. See the letters from Engineering Professor Charles Baker, and from Dr. Jeffery Talley, Professor and Chair of the SMU Department of Environmental Engineering, and founding Director of the Hunt Institute for Engineering and Humanity, Exhibits C and D.

In addition, Mr. Ralph Isenberg, a prominent businessman from Dallas, Texas, has offered to provide all financial support required by Mr. Nabeel during his first year of school, as well as whatever additional support is required for the succeeding years. See attached as Exhibit E a recent letter from Mr. Isenberg.

C. Mr. Nabeel Can Demonstrate His Intent to Return to Bangladesh After Completing His Program of Study

Mr. Nabeel’s career goal of becoming an environmental engineer has been inspired by his recognition of the great needs of Bangladesh for basic infrastructure. As he explains in his statement, he was shocked when he returned to Bangladesh in January 2010 with his parents, after many years living in the United States, to witness the levels of poverty and disease in his own country, and to experience the lack of clean water and clean air that diminished the daily life of everyone in the country. While he had previously wanted to become an electrical engineer, pursuing technical innovations in robotics and computers, when he returned to Bangladesh he had a dramatic social awakening. He now feels an intense moral obligation towards his own country of origin, Bangladesh, feeling that he has been given a new sense of purpose that was never before part of his life. He believes that he can make a difference in Bangladesh, helping millions of people achieve the very basic, very necessary goal of accessible clean water, helping to end the horrific patterns of disease that destroy the lives of so many of his fellow Bangladesh citizens due to unclean water. Because of this new sense of moral imperative, Mr. Nabeel has a very strong commitment to returning to Bangladesh to engage in this life’s work as soon as he has completed his schooling at SMU.

In addition, his sponsors at SMU, Dr. Talley and the Hunt Institute, are committed to his return to Bangladesh, as well. Their whole focus is to train individuals like Mr. Nabeel, and to aid him in his future life’s work in Bangladesh by creating connections between the Hunt Institute and the Bangladesh government, as well as private contractors, as well as Eastern University in Dhaka, enabling Mr. Nabeel to return to Bangladesh and carry on his humanitarian engineering goals. Please see attached as Exhibit F, a letter from Dr. Chowdhury, Vice Chairman of Eastern University, offering Mr. Nabeel a teaching and research position in a new Department of Environmental Engineering that Eastern University plans to create in the next few years, based on input and advice from SMU’s Hunt Institute. See attached as Exhibit G, a letter from a private engineering firm, Rahimafrooz, Limited, discussing Mr. Nabeel’s plans for education at SMU, and his planned return to doing teaching and research at Eastern University in Dhaka, and offering Mr. Nabeel a consulting position with the Rahimafrooz firm that would enable him to pursue various environmental engineering projects in Bangladesh.

In sum, Mr. Nabeel’s plans for obtaining an Environmental Engineering degree at SMU are closely bound up with his plans for returning to Bangladesh to pursue his life’s work in developing basic aspects of the infrastructure in Bangladesh. Everyone involved in encouraging and supporting his education at SMU is equally committed to Mr. Nabeel’s return to Bangladesh to apply the knowledge he will gain at SMU to allaying the desperate needs of his country people in Bangladesh.

Mr. Nabeel also has extensive family ties, on both his mother’s and his father’s sides of the family in Bangladesh. On his father’s side, he has uncles and aunts who are medical doctors, school teachers, businessmen and women, as well as a retired army general. On his mother’s side, he has uncles and aunts who are lawyers, teachers, politicians, high level government workers, and so on. He also has several cousins of approximately his own age attending university in Bangladesh. While it was a huge shock to return to Bangladesh after being away for so long, Mr. Nabeel has much stronger familial ties in Bangladesh than he had in the U.S., and he is now reconnecting with many of these relatives. His extensive family ties provide a highly valuable and significant foundation for the professional career he plans to develop in Bangladesh when he returns home again after advanced training as an engineer in the U.S. See attached as Exhibit H a partial list of Mr. Nabeel’s family ties in Bangladesh.

Based upon these strong Bangladesh family ties, as well as career plans that are fundamentally grounded in Mr. Nabeel’s aspirations for returning to Bangladesh to contribute to infrastructural development in Bangladesh, the Applicant is entitled to non-immigrant status pursuant to Section 214(b).

II) Mr. Nabeel Can Demonstrate Eligibility for a 212(d)(3) Waiver Pursuant to Matter of Hranka

Mr. Nabeel was born on January 21, 1991, in Dhaka, Bangladesh. However, at the age of three, on May 9, 1994, he was brought to the U.S. on a B-2 visitor’s visa, accompanying his parents, Mohammad Musa Tarique, and Laila Nazmin. He lived in the U.S. with his parents, for the next 15 years, graduating from high school with very high grades, and attending the University of Texas with several scholarships. His uncle, Haider Nabi, a U.S. citizen, submitted an I-130 on behalf of Mr. Nabeel, along with his father and mother on January 15, 1999, and it was approved on January 15, 2008, and the priority date became current in January 2009. As beneficiaries of INA 245i, Mr. Nabeel and his parents would have been eligible to adjust status, despite his father’s removal order, final on April 4, 2001 when their petition for review was denied by the 9th Circuit Court of Appeals. However, a prior attorney, Lea Greenberger, failed to properly and promptly apply for a joint motion to reopen Mr. Nabeel’s father’s case based on their approved I-130 and their eligibility to adjust status in January 2009. Unfortunately, Mr. Nabeel was deported on January 4, 2010 along with his two parents, due to this dramatically significant oversight of his prior attorney. See attached as Exhibit I the I-130 approval notice, as well as removal documents.

On January 4, 2010, the date of he and his parents’ deportation to Dhaka, Bangladesh, Mr. Nabeel was eighteen years and eleven months old; his nineteenth birthday would be occurring on January 21, 2010. Because there is an exception to the unlawful presence bar for all those who are minors, who remain under the age of eighteen, Mr. Nabeel did not begin to accumulate unlawful presence until his eighteenth birthday, on January 21, 2009. See INA § 212(a)(9)(B)(iii), 8 U.S.C. § 1182(a)(9)(B)(iii). On January 4, 2010, the day he and his parents returned to Dhaka, Mr. Nabeel had thus been unlawfully present according to the statute, for between six and twelve months, and incurred the three year unlawful presence bar pursuant to INA § 212(a)(9)(B)(i)(1), 8 U.S.C. § 1182(a)(9)(B)(i)(1).

Mr. Nabeel is eligible for a waiver of the three year unlawful presence bar, however, based on Matter of Hranka, 16 I&N. Dec. 491 (BIA 1978). According to the BIA in Matter of Hranka, there are three relevant factors in evaluating eligibility for a waiver, and in each case, a balancing test must be done, weighing the positive equities against any possible negative factors. According to Matter of Hranka, an application under section 212(d)(3), requires a weighing of: 1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s immigration law, or criminal law violation; 3) the nature of the applicant’s reasons for wishing to enter the U.S.

Mr. Nabeel has no criminal record, and he can document an exemplary record as a good student, through high school, and then during his first year in college at the University of Texas. See attached as Exhibit J letters from teachers, as well as transcripts and other documents attesting to his strong history as a student. There is no reason to think that he poses any risk of harm to society if admitted to the U.S., and so the first Hranka factor has no negative weight in his case.

Regarding the second Hranka factor, the seriousness of the applicant’s immigration law violation, Mr. Nabeel has a relatively clean slate, as well. Mr. Nabeel was brought, as a three year old infant to the U.S. by his parents, having no choice in the matter. And he remained in the U.S., as the only child of loving parents who sought to obtain legal status in the U.S. As a minor, he could hardly have chosen to leave the U.S. while his parents, who had fallen out of status, continued to reside there. Surely, this is why Congress chose, in Section 212(a)(9)(B) to except minors from the unlawful presence bar until the age of eighteen. Unfortunately, despite their eligibility to adjust status based upon their 245i eligibility and their approved I-130 family petition that became current in January 2009, Mr. Nabeel and his parents had an attorney who failed to promptly apply for the necessary Joint Motion to Reopen their case in January 2009. Accordingly, Mr. Nabeel was deported with his parents on January 4, 2010, when he was a few weeks short of nineteen years of age, and so subject to the three year unlawful presence bar under Section 212(a)(9)(B).

The negative factors in his case are minimal due to Mr. Nabeel’s status as a minor during most of his time in the U.S., and as merely a derivative child on his parents’ applications for status, as well as on their removal orders. However, the strength of Mr. Nabeel’s claim for a 212(d)(3) waiver lies in the positive weight of his reasons for seeking a nonimmigrant visa, the third Hranka factor. While the Hranka Board held that “there is no requirement that the applicant’s reasons for wishing to enter the U.S. be ‘compelling,” Mr. Nabeel’s reasons are indeed compelling, and should make the balancing test readily come out in his favor.

As explained above in Parts I (A) and I (C), as well as in his personal statement, Mr. Nabeel experienced an intense social awakening when he arrived back in Bangladesh after living for so long abroad in the U.S. Growing up in the U.S., he had unthinkingly taken for granted the availability of clean water, and plenty of electricity, if not always clean air. Arriving in Bangladesh, Mr. Nabeel was suddenly made aware of the fact that in much of the world, such important aspects of daily life remain out of reach for many people due to a lack of infrastructure. Always very good at math and science, Mr. Nabeel had long planned on becoming an engineer. As a student in the U.S., he had been intellectually interested in robotics and other aspects of advanced technology, his career goals merely a matter of personal choice, with no larger vision in mind. However, upon returning to Bangladesh, Mr. Nabeel was immediately struck with the desperate need for particular sorts of development, and for the sorts of engineering projects that would make such development possible. His own sense of priorities began to shift as he realized that his abilities in math and science could have a larger purpose than he had imagined while a privileged student back in the USA. He could aspire to making a difference in Bangladesh, he could aspire to playing a significant role in helping his country attain basic goods such as clean water, clean air, electricity, as well as flood control in a time of global warming and the environmental chaos it was already bringing to his country of origin. See Exhibit B, Applicant’s personal statement.

It was at that point that he began researching new sorts of engineering programs, programs that would properly equip him to contribute to the infrastructural development of his own country. Finally, he discovered the Lyle School of Engineering at Southern Methodist University, with its Environmental Engineering Program, and its very specific focus on developmental and humanitarian engineering projects. He began corresponding with Dr. Jeffery Talley, as well as Professor Charles Baker. And his plans for attending SMU were born. As both Dr. Talley and Professor Baker emphasize in their letters of support, Mr. Nabeel’s training as an environmental engineer within SMU’s dynamic and cutting edge program will be a “three way win.” Exhibits C and D. SMU’s Environmental Engineering program is devoted to preparing highly motivated individuals like Mr. Nabeel for lives of service within their own country. By participating in the Lyle School of Engineering’s Hunt Institute for Engineering and Humanity, Mr. Nabeel will gain the knowledge, expertise and experience, and connections within his own country to return to Bangladesh at the conclusion of his five year program, capable of making a serious contribution to developmental goals. He already has commitments from Eastern University, in Dhaka, where he will teach and do research and help develop a new Environmental Engineering program based upon his experiences in Texas at SMU. Mr. Nabeel will benefit as an individual from his student visa and his years as a student at SMU, but his country, Bangladesh, will benefit greatly as well. And the interests of the U.S., in promoting infrastructural development, along with stability and self sufficiency in Bangladesh will be promoted as well.

Conclusion

We hope and expect that the U.S. Consulate in Dhaka will take this opportunity to consider again Mr. Nabeel’s eligibility for a student visa, and now promptly issue Mr. Nabeel his non-immigrant student visa.

Thank you for your consideration of this request.

Respectfully Submitted,

Theodore N. Cox
Attorney for Petitioner

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