Fifth Circuit Precedent On Preemption Can Provide Obama With Path to Victory In Texas v. United States

After a split Fifth Circuit panel declined to lift Judge Hanen’s preliminary injunction in Texas v. United States blocking President Obama’s two executive actions that could defer the deportations of an estimated 4.4 million people, the score was 2 in favor of Texas and 0 for President Obama.  One of the memorable quotes in the Rocky movie about boxing is apt here, “[I]t ain’t how hard you hit; it’s about how hard you can get hit, and keep moving forward.”

Although President Obama has been hit hard, his legal team has to keep moving forward and there is plenty to look forward to that can ultimately win the day for the 4.4 million who will benefit from deferred action.  Although there has been substantial analysis regarding the flaws in the latest decision, scant attention has been paid to a 2013 decision of the Fifth Circuit that held that a local ordinance penalizing  landlords and occupants for not being lawfully present in the United States was preempted under federal immigration law.  This decision may provide a narrow path to victory for President Obama.

In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5thCir. 2013), the Fifth Circuit struck down a Farmers Branch, TX, ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government’s ability to exercise discretion relating to removal of non-citizens is a key reason for a state or local regulation of immigration being preempted under the Supremacy Clause of the US Constitution:

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a   person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.

Texas v. United States, on first brush, is not a preemption case as it does not involve a state law regulating immigration that conflicts with federal law. Plaintiff states challenged President Obama’s executive actions, mainly on grounds that the President did not issue a rule prior to implementing deferred action for parents who have citizen or permanent resident children in the US (DAPA) or expanded deferred action for childhood arrivals (DACA). Still, the Fifth Circuit’s panel refusing to stay the preliminary injunction of  Judge Hanen  does not bode too well for federal preemption of immigration law and policy, which has been upheld not only by the Fifth Circuit in Farmers Branch, but also by the Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012),   which articulated:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their   families,  for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

When the actual merits of Judge Hanen’s injunction are considered by another panel of judges in the Fifth Circuit, they will hopefully take notice of Farmer’s Branch that was decided en banc, which upheld the federal government’s ability to exercise discretion in the removal of aliens under the preemption doctrine. Interestingly, Judges Smith and Elrod, who  decided against President Obama in the Fifth Circuit, were also among the dissenting judges in the Farmers Branch case.

The key issue in Texas v. United States is whether states should be even permitted to sue the federal government on immigration enforcement policy. If President Obama loses in the Fifth Circuit on the actual appeal, and the Supreme Court upholds it, then this would be an open invitation for any cantankerous state politician to bring a law suit against the federal government over an immigration policy that he or she dislikes. The ability of a state to harass the federal government could be endless. For instance, the federal government can invoke its authority to parole aliens into the United States under INA 212(d)(5), and could bring in a large group of people into the US for humanitarian reasons, such as victims of atrocities by ISIS in Iraq and Syria. A state opposed to the paroling of these aliens can potentially sue the federal government if it can manufacture some harm that would befall it, like Texas did, that it would be costly for the state to issue drivers licenses to them. Similarly, a state could sue the federal government for granting deferred action to victims of domestic violence or crime victims or widows and widowers of US citizens, like the federal government has done in the past. These sorts of challenges from states would undermine the long established doctrine that immigration policy is within the purview of the federal government and Congress. Another concern for upholding preemption of federal immigration law from interference by states is the concern about the relationship between immigration and foreign affairs. See Toll v. Moreno, 458 U.S. 1 (1982); Hines v. Davidowitz, 312 U.S. 52 (1941).  If a state were allowed to sue each time the federal government issued a policy and blocked it, this would upset the long acknowledged preemption doctrine relating to immigration. If there is a disagreement in how the Executive Branch implements immigration policy, it is for Congress to intervene by changing the law rather than for states like Texas to file a law suit.

Judge Higginson’s dissenting opinion (who also wrote the majority opinion in Farmers Branch) in the Fifth Circuit’s decision refusing to lift the stay correctly opined that President Obama’s executive actions are non-justiciable as they are internal executive enforcement guidelines. The dissenting opinion appropriately relied on the Supreme Court decision in Heckler v. Chaney,  470 U.S. 821 (1985), which held  “that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agencies absolute discretion.”  Whether executive enforcement guidelines provide deferred action to millions rather than thousands or hundreds should not make them any more or less amenable to a legal challenge by a state. So long as the President does not grant legal status, which he cannot do under the INA (and both Judge Hanen and the majority in the Fifth Circuit confused legal status with lawful presence), it should not make a difference under Heckler v. Chaney whether deferred action is granted to thousands of spouses of military personnel or to millions of parents of citizen and permanent resident children.  Charles Kuck and othershave forcefully proposed that President Obama should publish a rule in the Federal Register, and this would weaken plaintiffs’ chief claim that the President violated the Administrative Procedure Act by not proposing a rule for public notice and comment when implementing DAPA and DACA. While this is an intriguing idea, it would also be a cop out. Every new enforcement decision would have to go through the notice and comment procedure under the APA out of fear of inviting more law suits from states, and this would again undermine the preemption doctrine relating to immigration.

Indeed, one of the concurring opinions in Farmers Branch acknowledged that the largely federal discretionary immigration enforcement system, including the grant of deferred action,  would be upset if a state regulation conflicted with it, and relied on Arizona v. USAby opining:  “The Court held that the statute stood as an impermissible obstacle to the design and purposes of the largely discretionary immigration enforcement system Congress created because it could result in “unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed” and ultimately “would allow the State to achieve its own immigration policy.” [citation omitted]. Because such state-to-state variance “is not the system Congress created,” the Court held that the Arizona statute “violates the principle that the removal process is entrusted to the discretion of the Federal Government.””

There are many arguments that may ultimately carry the day for the Obama administration and its ability to bring relief to millions who are a low enforcement priority. In Crane v. Johnson, the federal government was victorious in a law suit against the previous 2012 DACA program as the Fifth Circuit held that Mississippi lacked standing since its claim to injury was speculative.  Texas, however, has been able to manufacture a more cogent harm regarding the burdens that would be caused in the issuance of new driver licenses. Regardless of the merits of a state’s standing claim, standing would be moot if the claim is non- justiciable as Judge Higginson found, and  Farmers Branch should provide the basis for this on the ground that a state cannot upset the preemption doctrine on immigration. It is no secret that Texas v. United States is a political fight as the plaintiff states are Republican, and the judges that have ruled against Obama have been appointed by Republican Presidents.  It is also true that the majority of judges in the Fifth Circuit are Republican appointees, but Farmers Branch was also decided en banc in the Fifth Circuit, and the panel that considers the appeal will be bound by its own precedent.

Phantom Visa Statuses

While life is fortunately not always so dull and single dimensional, a rigid immigration system may force you into a straightjacket. Is there any leeway in the US visa system that might enable foreign nationals to pursue interests outside the narrow purpose of their entry without jeopardizing their visa status?

One who comes on an H-1B visa to work for a specific employer as a software engineer may not be prevented from also pursuing activities that are permissible under a tourist visa – such as participating in a community orchestra as an amateur violinist or taking rock climbing lessons in Yosemite national park. Similarly, someone visiting the United States on a tourist visa should not be prevented from also participating on a business conference call relating to one’s occupation in his home country.  I for one have furiously sent business e mails back and forth in relation to my law practice in the United States while waiting in an immigration line of another country’s airport to enter as a tourist. Even before the age of smart phones and Skype, nothing prevented a tourist in the United States from jotting notes on a yellow pad in preparation for a business meeting that would take place in his or her home country after he returned.

There is nothing in the Immigration and Nationality Act that prevents one from engaging in activities in what I call a “phantom” status, provided they do not constitute unauthorized unemployment.  This is recognized in the State Department’s Foreign Affairs Manual (FAM) at 9 FAM 41.11 N3.1, which states that “[a]n alien desiring to come to the United States for one principal, and one or more incidental, purposes should be classified in accordance with the principal purpose.” The FAM note provides the example of a student who prior to entering an approved school wishes to first make a tourist trip of not more than 30 days. The FAM instructs that the person should receive the F-1 or M-1 student visa rather than a B-2 tourist visa.

The H-1B employee in the above example while working for her employer as a software engineer may decide to invest in a startup company. Preparatory activities such as meeting with corporate lawyers to incorporate the company and to market the business idea to venture capitalists would arguably be permissible under the B-1 business visa. Since one cannot hold H-1B and B-1 status at the same time, she can potentially engage in permissible business activities through this phantom B-1 status even while actually being in H-1B status. One must be careful, though, not to cross the line.  Once the startup is established and the H-1B worker manages its day to day affairs, she may engage in activities that would not be permissible under the B-1 visa and this would constitute unauthorized employment.

There is a clear prohibition against unauthorized unemployment. 8 CFR 214.1(e) provides:

Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.

The question is when does one cross that line so that it constitutes unauthorized employment? This is hard to tell, but the best way to gauge this is whether the activity would be permissible under the B-1 visa for businessor the B-2 visa for pleasure. Thus, our H-1B employee may regularly participate as a violinist in an amateur orchestra as such an activity would be permissible under the B-2 tourist visa. If the H-1B worker was also a professional violinist, and was paid to play in a professional philharmonic orchestra in the United States while on an H-1B visa, that would be an impermissible activity as it would constitute unauthorized employment. The most appropriate visa for a performer would be an O-1 visa (an H-1B visa claim for a violinist was turned down a few years ago, see Louisiana Philharmonic Orchestra v. INS). When there are two competing work activities that can only be done under different visa statuses, the person must choose to either be in the United States on an H-1B visa or an O-1 visa. It is unfortunate that our visa policy cannot accommodate a renaissance woman like our H-1B employee and violinist. On the other hand, if the work activities can be done under the same visa, the H-1B worker who is employed as a software engineer can also potentially be employed concurrently in H-1B status through her startup entity.

The ability to engage in activities under a phantom status is especially crucial in light of the USCIS policy to attract entrepreneurs to the United States under the existing visa system, and in the absence of a specific startup visa. One encounters many students who desire to establish startups while still in F-1 student status, or H-1B workers too who have dreams of leaving their existing jobs for the companies they have founded So long as their activities are preparatory in nature and otherwise permissible under the B-1 visa, they have arguably not violated their F-1 status. The USCIS Entrepreneur Pathway Portal provides a good explanation of activities permissible under the B-1 visa that could arguably be undertaken even while in another nonimmigrant status such as an F-1 or H-1B:

The B-1 visa is intended only for business activities that are a “necessary incident” to your business abroad. This covers a wide range of activities such as attending meetings, consulting with associates, engaging in negotiations, taking orders for goods produced and located outside the United States, attending conferences, and researching options for opening a business in the United States (such as locating or entering into a lease for office space). Generally speaking, you cannot engage in any activity or perform a service that would constitute local employment for hire within the United States. What constitutes local employment for hire will depend on the circumstances of each case, but generally speaking, any activity you perform in the United States must be directly connected with and part of your work abroad. 

If you are coming to secure funding for a new business, you cannot remain in the United States after securing the funding to start actual operations or to manage the business, unless you change status to another classification that authorizes employment in the United States.

In Garavito v. INS, the First Circuit shed further light on activities that might not constitute unauthorized employment in the context of one who had established a gas station in contemplation of later applying for an E-2 visa:

The INS nowhere explains, however, what law would prevent a business visitor from making phone calls, giving employees instructions, or taking clients to their cars. Indeed, were the INS regulations to make such activity unlawful, it is difficult to see how foreign businessmen could conduct business within the United States, and it is equally difficult to see how any such regulation could fall within the lawful scope of the relevant statute.

Once the line is crossed from starting to managing the business, the individual in F-1 status must change to H-1B visa status through the startup, or if already in an H-1B status must file a concurrent H-1B visa through the startup. There are other reasons why it is good policy to permit activities under a phantom status. A person admitted on a B-1 visa to participate in business meetings should also be permitted to engage in tourism. Likewise, someone who primarily enters the United States to visit family members should be permitted to participate in an incidental one hour business meeting without having to switch status from B-2 to B-1. In the same vein, it would be preposterous to penalize a tourist who engages in communications through her iPhone relating to professional activities outside the United States while rock climbing in Yosemite!


In my October 2014 post The Walking Dead: Why Courts of Appeals Should Not Defer to BIA or Attorney General Precedent Decisions that Have Already Been Vacated by Another Court of Appeals, I discussed why such vacated “zombie precedents” should not be given deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), by Courts of Appeals that address subsequent unpublished BIA decisions purporting to rely on them.  Recent decisions of the Court of Appeals for the Second Circuit and of the Board of Immigration Appeals (“BIA”) provide additional support for that suggestion.

On April 9, 2015, the Court of Appeals for the Second Circuit issued its opinion in Lugo v. Holder.  In that case, Ms. Lugo disputed whether her 2005 conviction for misprision of a felony under 18 U.S.C. §4 constituted a crime involving moral turpitude (“CIMT”).  She had been found barred from cancellation of removal based on the Immigration Judge’s ruling that misprision was indeed a CIMT, as the BIA had held in Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006).  The BIA had affirmed the Immigration Judge’s ruling in an unpublished decision.

As the Second Circuit discussed in Lugo, the BIA had originally held in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966) that misprision of felony was not a CIMT.  In Matter of Robles-Urrea, however, the BIA agreed with the decision of the Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), to the effect that misprision of felony under 18 U.S.C. §4 was in fact a CIMT, and overruled Matter of Sloan in relevant part.  Subsequently, the Court of Appeals for the Ninth Circuit vacated Matter of Robles-Urrea in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), and held that misprision of felony was not categorically a CIMT.  (The complicated history of the case law regarding whether misprision of felony is a CIMT was also discussed in Cyrus D. Mehta’s March 2014 post on this blog, Was the Attorney Really Ineffective in Kovacs v. United States?.)

The Second Circuit therefore held in Lugo that it was “left to wonder whether, going forward, the Board wishes to adopt the Ninth Circuit’s rule or the Eleventh Circuit’s.” Lugo, slip op. at 3-4.  It concluded that “it is desirable for the Board to clarify this matter in a published opinion.”  Lugo, slip op. at 4.  The Second Circuit remanded to the BIA to enable to answer both this question and a related question regarding retroactivity: that is, whether Matter of Robles-Urrea could appropriately be applied to Ms. Lugo even if the BIA otherwise wished to follow it, given that Ms. Lugo had pled guilty prior to the issuance of that published opinion.

One way to look at what the Second Circuit did in the first portion of its remand in Lugo is as an admirable refusal to defer to a zombie precedent.  Having been vacated by the Ninth Circuit in Robles-Urrea v. Holder, the BIA decision in Matter of Robles-Urrea fits the description of a zombie precedent as discussed in my post The Walking Dead.  It had been cancelled, rescinded, by a competent court, and thus, since “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013), it was properly seen as “not precedent.”  Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012).  The non-precedent decision in Lugo’s own case, meanwhile, was not entitled to deference because, as the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference.”  The Second Circuit therefore properly vacated the nonprecedential decision in Lugo’s case and remanded to the BIA for the issuance of a precedential decision.  That is, the Second Circuit did in Lugo essentially what I had suggested in The Walking Dead, and earlier in Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, that it should have done in Luna Torres v. Holder, No. 13-2498 (August 20, 2014).  Hopefully, this may be the start of a trend of Courts of Appeals not deferring to zombie precedents, but instead remanding to the BIA for further precedential analysis of whether the BIA wishes to follow in the footsteps of a prior precedent decision vacated by another Court of Appeals, or instead wishes to accede to the Court of Appeals decision which vacated that prior precedent.

The Second Circuit’s decision in Lugo is not the only recent development that I would submit gives support to my previously expressed views regarding zombie precedents.  As discussed in my prior post, the BIA has been known to reverse course and abandon a precedent following its rejection by one or more Courts of Appeals.  Earlier examples included Matter of Silva, 16 I&N Dec. 26 (BIA 1976), where the BIA acquiesced in the Second Circuit’s decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (regarding the availability of relief under former INA §212(c)) rather than insisting on its own contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971), and Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), where the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005) (regarding the exercise of portability under INA §204(j) in immigration court proceedings), after its rejection by several Courts of Appeals, including the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007).  I acknowledged in The Walking Dead that the BIA has in some instances made a precedential choice to reaffirm the reasoning of a prior precedent even after its rejection by multiple circuits, and gave as an example Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012): in that case, the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding regarding the ineligibility of certain Lawful Permanent Residents for waivers of inadmissibility under INA §212(h) had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it.  The BIA has now changed its mind on that point.

In Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), decided on May 12, the BIA withdrew E.W. Rodriguez and  Koljenovic in light of the rejection of the theory underlying them by nine Courts of Appeals.  The immigration court proceedings in Matter of J-H-J- had taken place within the jurisdiction of the Court of Appeals for the Eighth Circuit, which had, in Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014), accepted the BIA’s reasoning in E.W. Rodriguez and  Koljenovic as a reasonable interpretation of the statute.  Thus, the BIA was free to reaffirm E.W. Rodriguez and  Koljenovic in the case if it so wished.  However, given “the overwhelming circuit court authority,” Matter of J-H-J-, 26 I&N Dec. at 564, and the importance of “uniformity in the application of the immigration laws”, id. at 565 (citing Matter of Small, 23 I&N Dec. 448, 450 (BIA 2002)), the BIA instead held that “section 212(h) . . . only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction.” Matter of J-H-J-, 26 I&N Dec. at 565.

Strictly speaking, E.W. Rodriguez and  Koljenovic were not zombie precedents as I have defined that term, never having been themselves vacated by a court.  However, the BIA’s overruling of those precedents in Matter of J-H-J- is, like Matter of Silva and Matter of Marcal Neto before it, an example of the BIA’s willingness to reconsider its own precedent in light of contrary appellate case law from outside the circuit having appellate jurisdiction over the case at hand.

Against this background, it makes increasingly little sense for courts to implicitly assume that the BIA would necessarily insist on following in the footsteps of a precedent decision which has already been vacated by a Court of Appeals.  Rather than giving deference to a zombie precedent, the Courts of Appeals should remand to the BIA for reconsideration of whether it wishes to follow in the footsteps of that precedent, as the Second Circuit did in in Lugo.

Equating Immigrants to Greenhouse Gases: Is This a Valid Basis for Standing to Sue The Federal Government?

It has lately become fashionable for states that oppose President Obama’s immigration executive actions to sue in federal court on grounds that they are unconstitutional.  But in order to get heard in court, a state must demonstrate standing.        

In the Texas v. United States litigation challenging President Obama’s November 2014 Deferred Action for Parent Accountability Program (DAPA) and expanded Deferred Action for Childhood Arrival (DACA) programs, plaintiff states led by Texas successfully invoked standing by equating immigrants to noxious air pollutants that cause greenhouse gases. While greenhouse gases can only cause harm, immigrants, legal or not, are more likely to confer benefits than harm. Is it appropriate for a judge to give standing to a state opposing federal immigration policy based on the sort of harm that pollutants would cause it?

Parties seeking to resolve disputes in federal court must present actual “Cases” or “Controversies” under Article III of the US Constitution. Plaintiffs must demonstrate that they have standing in order to satisfy Article III. They must establish three elements set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) that there is 1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.

In Texas v. United States, the states attempted to show harm through the influx of immigrants who will remain in the United States through deferrals of their removals and thus burden them. The basis for linking the harm caused by immigrants to noxious pollutants stems from the seminal Supreme Court decision in Massachusetts v. EPA in which plaintiffs requested the Environmental Protection Agency to regulate greenhouse gas emissions from motor vehicles under section 202 of the Clean Air Act. After EPA refused to do so, plaintiffs, which included Massachusetts, sought review of the EPA’s refusal in the Supreme Court to regulate greenhouse gases. Massachusetts successfully sought standing under Lujan by showing that global warming caused by greenhouse gas emissions was so widespread that the failure of the EPA to regulate them would cause the state environmental damage such as coastal flooding of its shores. Justice Steven delivered the opinion of the Court by beginning with this broad pronouncement on global warming:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

Later, in showing how Massachusetts as a landowner would suffer injury even though global warming was widespread, Justice Stevens stated:

That these climate-change risks are “widely shared” does not minimize Massachusetts’ interest in the outcome of this litigation. [citation omitted]. According to petitioners’ unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl.  5(c), Stdg.App. 208. These rising seas have already begun to swallow Massachusetts’ coastal land. Id., at 196 (declaration of Paul H. Kirshen 5), 216 (MacCracken Decl.  23). Because the Commonwealth “owns a substantial portion of the state’s coastal property,” id., at 171 (declaration of Karst R. Hoogeboom  4),[citation omitted] it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be “either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.” Id.,  6, at 172.[citation omitted]. Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., 7, at 172; see also Kirshen Decl.  12, at 198.[citation omitted]

While it is undeniable that greenhouse gases can cause only harm, should this case be applicable when a state uses it to invoke standing to challenge federal immigration policy? Texas, the lead plaintiff in Texas v. United States, argued that the President’s executive actions would cause a significant economic burden as deferring removal of certain classes of non-citizens would allow them to  apply for drivers licenses, which  in turn would cost the state several million dollars. Texas relied on this trifling economic burden as the injury that would give it standing,  which Judge Hanen accepted among other standing legal theories. After providing standing, Judge Hanen temporarily blocked the executive actions, and a trenchant criticism of his reasoning in doing so can be found here.  Judge Hanen elaborated at great length in equating the harm that Massachusetts would suffer through global warming with the harm that Texas would suffer as a result of “500,000 illegal aliens that enter the United States each year.” Judge Hanen went on to further expound his views on the harms caused by illegal immigration, as follows:

The federal government is unable or unwilling to police the border more thoroughly or apprehend those illegal aliens residing within the United States; thus it is unsurprising  that, according to prevailing estimates, there are somewhere between 11,000,000 and 12,000,000 illegal aliens currently living in the country, many of whom burden the limited resources in each state to one extent or another. Indeed, in many instances, the Government intentionally allows known illegal aliens to enter and remain in the country. 

While emphasizing the alleged harms that undocumented immigration would cause to the states, Judge Hanen gave short shrift to the well-reasoned amicus brief of 12 states   demonstrating the overwhelming benefits that DAPA and DACA would confer to the states.  Amici argued that the recipients of a prior DACA program in 2012, which was not challenged in the litigation, caused 60% of the recipients to find new jobs and that wages increased by over 240%. Allowing immigrants to work legally and increase their wages substantially increases the state tax base. The granting of deferred action also provides many social benefits, amici argued, as it allows parents to support US citizen children, thus reducing the cost of state social service benefits and it also allows families to remain united.  According to the amicus brief, “When fit parents are deported, it can be difficult for the State to find the parents and reunite them with their children. The existence of fit parents – even if they have been deported – can also prevent the State from seeking alternative placement options for a child, such as a guardianship or adoption by another family member or third party.[citation omitted]. Deferred deportation allows families to remain together, even if only temporarily.”The government appealed Judge Hanen’s preliminary injunction to the Fifth Circuit Court of Appeals. In a hearing before a panel in the Fifth Circuit to lift the block while the government’s appeal was pending, Massachusetts v. EPA was again discussed, as presented in David Isaacson’s summary:

Continuing with the standing discussion, Judge Smith directed AAG Mizer to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to be a key case on the standing issue.  Mizer responded, first, that there isn’t a territorial effect in this case as in Massachusetts, where the state’s territory was being affected (by rising sea levels resulting from global warming).  Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA, Mizer argued, “is not enacted to protect the states”.

The success of the legal challenges to President Obama’s executive actions hinges on whether courts will give plaintiffs standing or not. In Crane v. Johnson, the Fifth Circuit upheld the lower court’s finding that Mississippi, a plaintiff, did not have standing as its claim to fiscal injury arising out of deferral under the DACA 2012 program was speculative.  More recently, a three judge panel in the D.C. Circuit was skeptical of Arizona sheriff Joe Arpaio’s challenge against DAPA and expanded DACA based on standing. While they were skeptical that the deferred action programs will result in more immigrants being detained in Maricopa County jails, one George W.  Bush appointee judge again cited Massachusetts’ standing to sue to prevent environmental harm from greenhouse gases by asking why “at least at the state level, isn’t concern about public safety and crime and that sort of things costs and crime should not be at least equal to the sovereignty concern to the sea level rise taking a few inches of shoreline.”

Although the government has argued in its appeal brief that the Clean Air Act gave a state such as Massachusetts the right to sue while the INA does not in the context of deferred action and prosecutorial discretion, a broader and more compelling argument can be made against invoking Massachusetts v. EPAin immigration litigation. Analogizing the ability of certain classes of immigrants to temporarily remain in the United States to greenhouse gases is both specious and offensive. It is well recognized that greenhouse gases only cause harm, and thus a state impacted by them can readily demonstrate injury in order to seek standing to sue the federal government. Immigrants, unlike greenhouse gases, bring great benefits to the United States. Any manufactured claim of harm by a state, like what Texas has claimed with the so called economic burden caused by issuing driver’s license, is far outweighed by the benefits that immigrants bring to this country. Apart from all the benefits that were discussed by the states opposing the legal challenge, even a second grader can figure out that handing out licenses to people who otherwise could not get it before deferral ensures that many more will drive safely in the state of Texas.

One would also not use this analogy in other contexts as it is highly offensive to link human beings to greenhouse gases.  Imagine if a state were to challenge a federal policy of providing federal benefits to same-sex married couples whose marriages are valid where celebrated but not in the state of their residence, on the basis that this policy led more same-sex married couples and their families to reside in that state and thus overburden its schools and public hospitals. If the state invoked Massachusetts v. EPA, it would be viewed as highly offensive and also not a very strong argument.  Plaintiffs seem to be getting away for the time being in linking immigrants to noxious pollutants, and it is hoped that some judge will strike down this odious analogy so that it is  no longer invoked in immigration litigation.


By  Cyrus D. Mehta

The AAO decision in Matter of Simeio Solutions, LLC,  26 I&N Dec. 542 (AAO 2015) has already caused headaches as it will make it more costly and burdensome for employers who hire H-1B workers. An overview of the AAO decision can be found at AAO Firmly Tethers H-1B Workers To The LCA Like A Dog Is To A Leash. In Matter of Simeio, the AAO concluded that changes in the beneficiary’s places of employment, resulting in the obtaining of a new Labor Condition Application (LCA) constituted a material change to the terms and conditions of employment as specified in the original petition,  thus necessitating the filing of an amended petition. 
Every time an H-1B worker moves to a location not covered in the LCA, the employer will have to file an amended petition. The filing of an amended H-1B petition will incur additional costs for an employer. At an April 30, 2015 DHS Ombudsman call on the AAO decision,  it was estimated that if an employer moves 50 workers three times a year, that would be 150 amended petitions resulting in half a million dollars in legal fees and costs.   It will also give a right to the USCIS to adjudicate the H-1B petition as no deference is given to a prior approval when there is a material change in the employment. It is also a fact that the USCIS Vermont Service Center and California Service Center do not always apply consistent standards when adjudicating H-1B petitions. If the Vermont Service Center approved an H-1B petition, and the worker will be assigned to a work location within the jurisdiction of the California Service Center,  there is a likelihood that the amended H-1B petition will be adjudicated under a stricter standard, resulting in a Request for Evidence and even a denial. 
Prior to Simeio Solutions, employers relied on informal USCIS guidance indicating that so long as a new LCA was obtained prior to placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO has now explicitly stated in Simeio Solutions, footnote 7, that the Hernandez guidance has been superseded. Employers who relied on the prior guidance who file amended H-1B petitions to comply with Simeio Solutions should not be penalized for not previously filing an amended H-1B petition by deeming that the H-1B worker fell out of status. 
When is an amended petition not legally required even after Simeio Solutions
Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required and nor will an H-1B amendment be required. The original LCA should still be posted in the new work location within the same area of intended employment. So a move to a new job location within New York City would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.
There is also nothing in the law and regulations that require an employer to first obtain an approval of the amended petition prior to placing a worker there. Footnote 11 in the Simeio decision suggests that the new LCA, along with the amended H-1B petition, must be submitted, before the beneficiary would be permitted to begin working in the new place of employment. It does not suggest that the amended H-1B petition has to be approved before the worker would be permitted to work. Still, there is an exception in the DOL regulations to immediately filing a new LCA, and by corollary an amended H-1B petition, even when an H-1B worker is moved to a new location. Employers may take advantage of the short term placement exception at 20 CFR 655.735. Under the short term placement exception, an employer may under certain circumstances place an H-1B worker at a new job location for up to 30 days, and in some cases 60 days (where the worker is still based at the original location), without obtaining a new LCA. Thus, when an employer needs to urgently transfer an H-1B worker to a new location, it can do so under the short term placement exception without needing to also immediately file an amended H-1B petition. This exception is limited, though, since if the H-1B worker is placed at the new location for more than the 30 or 60 days, the employer needs to obtain a new LCA and also file an amended H-1B petition. An employer also cannot use the short term placement exception if there is already an existing LCA at that location. 

While readers should review the short term placement rule in its entirety, an employer who wishes to take advantage of this rule must:

(i) Continue to pay such worker(s) the required wage (based on the prevailing wage at such worker’s(s’) permanent worksite, or the employer’s actual wage, whichever is higher); 

(ii) Pay such worker(s) the actual cost of lodging (for both workdays and non-workdays); and 

(iii) Pay such worker(s) the actual cost of travel, meals and incidental or miscellaneous expenses (for both workdays and non-workdays). 

Finally, if an H-1B worker is placed at a location that is considered a non-worksite under 20 CFR 655.715, which does not trigger an LCA,  the AAO decision is also inapplicable. Non-worksites include locations where employee developmental activity is conducted such as management conferences, staff seminars, etc. Non-worksites may also include locations where little time is spent by the employee at anyone location, and where the worker’s job is “peripatetic in nature.” They may also include situations where the H-1B worker’s job is spent at one location but where the worker occasionally travels for short periods to other locations  “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” 20 CFR 655.715 provides the following examples of non-worksites, although readers are well advised to read the rule in its entirety:

A computer engineer sent out to customer locations to “troubleshoot” complaints regarding software malfunctions; a sales representative making calls on prospective customers or established customers within a “home office” sales territory; a manager monitoring the performance of out-stationed employees; an auditor providing advice or conducting reviews at customer facilities; a physical therapist providing services to patients in their homes within an area of employment; an individual making a court appearance; an individual lunching with a customer representative at a restaurant; or an individual conducting research at a library.

The regulation also provides the following examples of “worksites” that would trigger a new LCA, and now under Simeio, an amended H-1B petition: 

A computer engineer who works on projects or accounts at different locations for weeks or months at a time; a sales representative assigned on a continuing basis in an area away from his/her “home office;” an auditor who works for extended periods at the customer’s offices; a physical therapist who “fills in” for full-time employees of health care facilities for extended periods; or a physical therapist who works for a contractor whose business is to provide staffing on an “as needed” basis at hospitals, nursing homes, or clinics. 

Employers will soon feel the brunt of the AAO decision as they start moving H-1B workers, which in some industries like IT, accounting and management consulting is the norm. The exceptions to filing an amended H-1B petition while useful are still limited. As employers feel overly burdened by the AAO decision, they may consider resorting to litigation as the AAO has created a new rule without going through the appropriate notice and comment procedure under the Administrative Procedure Act.  According to the AAO, “[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security.” The AAO cites INA 101(a)(15)(H)(i)(b), 8 CFR 214.2(h)(4)(i)B)(1) and 20 CFR 655.700(b) to support its position, but none of these provisions seem to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is “not certified to the Secretary of Homeland Security.”   The DOL certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security. The AAO’s invention of a new rule relating to the validity of the LCA is also ripe for litigation. Finally,  an H-1B worker should not found to be in violation of status for failure to file an amended H-1B petition prior to Simeio. If the USCIS begins to retroactively apply Simeio so as to penalize employers and H-1B workers, this too would be ripe for federal court litigation.