An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next

On Thursday, June 23, the U.S. Supreme Court issued two decisions of significance to immigration law: a 4-4 affirmance without opinion in United States v. Texas, and a 5-3 decision in Mathis v. United States.  The first, which was more obviously immigration-related, is very disappointing and has rightly received a great deal of media attention, but the second is also worth noting and is somewhat more positive.


The Court’s evenly-divided decision – or one might say lack of decision – in United States v. Texas left standing the previous 2-1 decision of a panel of the Court of Appeals for the Fifth Circuit, which had upheld District Judge Andrew Hanen’s preliminary injunction against Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and against the related expansion of Deferred Action for Childhood Arrivals (“DACA+”).  This is quite a momentous outcome to have been reached without explanation.  As former Solicitor General Walter Dellinger has written: “It is hard to know what to say about an immigration opinion affecting 4.3 million people that reads, in its entirety: ‘The judgment is affirmed by an equally divded Court.’  Seldom have so many hopes been crushed by so few words.”


It has long been customary for an evenly divided Supreme Court to affirm the judgment below without offering opinions, as was done here (and has been done since at least 1909), although this is not a custom followed by all multi-member appellate courts in the United States.  The Court of Appeals for the First Circuit sitting en banc, for example, has provided opinions explaining the views of its judges when it has divided 3 to 3 in recent years and so affirmed the district courts below, as in the immigration detention case of Castaneda v. Souza, on which the First Circuit split in December 2015.  If the Supreme Court were to adopt a similar custom, one would at least have the satisfaction of knowing the reasoning behind the Justices’ votes.  In this particular case, one might also have hoped that some of the Justices who voted to affirm the Fifth Circuit could have been convinced to change their minds by a compelling dissenting opinion that they knew they would have to confront publicly, although presumably draft opinions were circulated internally, given the long lapse of time between oral argument in the case on April 16 and the issuance of decision last week.  The 4-4 deadlock, and the Supreme Court’s custom of not issuing opinions in that scenario, has left those Justices who voted to affirm the Fifth Circuit in the position of being able to do so without having to explain formally and publicly why such a position is legally coherent.


While it is frustrating that the injunction in United States v. Texas was affirmed without explanation and without any precedential decision, however, this does have the benefit of leaving the door open for a different outcome in the long run.  United States v. Texas could return to the Supreme Court once a 9th Justice is seated on the Court, and potentially be decided differently, in one of at least two ways.


First, as SCOTUSBlog pointed out soon after the 4-4 decision came down, the government can petition the Supreme Court to rehear the case, and ask that the petition be held until a 9th Justice is seated on the Court.  Former Solicitor General Dellinger also endorsed that approach in his above-quoted post at Slate’s “Supreme Court Breakfast Table”.  This would be one way for U.S. v. Texas to come back before the Supreme Court, potentially quite quickly after a 9th Justice is seated.  Under Supreme Court Rule 44, a petition for rehearing ordinarily will only be granted both “by a majority of the Court” and “at the instance of a Justice who concurred in the judgment or decision”, but it is unclear how this latter requirement could possibly be applied in the case of a 4-4 affirmance without opinion, where the Court has not issued its own judgment and there is no public record of any Justice concurring in the affirmance more than any other Justice.  Thus, it appears that an ordinary majority, presumably composed of the 4 Justices who voted to reverse plus a newly arrived 9th Justice, could grant a petition for rehearing if it were still pending when a 9th Justice were confirmed.


SCOTUSBlog also noted today, however, that the Court had denied one petition in another case seeking such rehearing by a 9-member Court, which may not bode well for the rehearing possibility.  Specifically, the Court denied rehearing in Hawkins v. Community Bank of Raymore, which had been the subject of an affirmance without opinion by an equally divided Court on March 22, 2016.  One might think, though, that there is a significant difference between a case like U.S. v. Texas, decided just before the end of the term and affecting national policy so substantially, and a case like Hawkins, in which the Court failed 3 months earlier to reach a conclusion regarding the questions “(1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.”  Without meaning to minimize the significance of discrimination against married women seeking credit, one might reasonably suggest that this sort of garden-variety issue of statutory interpretation does not call for unusual procedural measures to achieve a final, reasoned resolution to the same extent as the issue of the legitimacy of DAPA and DACA+.


Even if rehearing is not granted, it is likely that U.S. v. Texas may ultimately return to the Supreme Court, unless it is rendered moot in the meantime by Congressional enactment of comprehensive immigration reform or recission of DAPA by a hypothetical Republican President.  (Hillary Clinton, the presumptive Democratic Presidential nominee, has made quite clear that she would seek to defend and expand administrative relief such as DAPA, not rescind it.)  The injunction issued by Judge Hanen and upheld by the Fifth Circuit was a preliminary injunction, and the case would now ordinarily be expected to proceed to a trial on the merits, or at least some sort of further proceedings.  At the conclusion of such further proceedings, Judge Hanen may then issue a permanent injunction.  The grant of such a permanent injunction could be appealed back to the Fifth Circuit, and if it were again affirmed by the Fifth Circuit, the government could seek certiorari from the Supreme Court regarding that affirmance.  One hopes that by the time the case worked its way back up through the Fifth Circuit to the Supreme Court in this fashion, there will be a 9th Justice seated on the Supreme Court.


There has also been some speculation that a new case regarding DAPA and DACA+ could be commenced, in a Circuit other than the Fifth Circuit, which might come out differently and create a circuit split.  It may be unlikely that such other litigation, even if deemed feasible, would make it back to the Supreme Court sooner than one of the other two routes discussed above.  If there is a way to launch such other litigation despite the current national scope of the injunction against DAPA and DACA+, however, it could have other benefits: David Leopold, for example, suggests in a recent blog post that further litigation might allow DAPA and DACA+ to go into effect in portions of the United States even if not nationwide.  Achieving such a goal would be difficult, given the current nationwide injunction against DAPA and DACA+ issued by Judge Hanen and upheld by the Fifth Circuit, but it appears that some intelligent and creative attorneys may be looking to see if they can find a way.


Ultimately, however, it appears that the future of DAPA and DACA+ will likely depend on who (if anyone) fills the currently vacant 9th seat on the Supreme Court.  In this, as in many other things, the outcome of this November’s elections will be crucial.


If Hillary Clinton is elected President and the Democrats retake the majority in the Senate, the 9th Justice who would be confirmed, whether that is President Obama’s nominee Chief Judge Merrick Garland of the Court of Appeals for the D.C. Circuit or a new nominee put forward by President Clinton, would likely vote to overturn the injunction against DAPA and DACA+ if and when the case returned to the Supreme Court.  In the tragic event of a Donald Trump Presidency, on the other hand, the issue would be moot, since DAPA and DACA+ would be rescinded anyway.  In the event that Hillary Clinton is elected President and the Republicans maintain control of the Senate, one hopes that they would not attempt to block a Supreme Court nomination indefinitely, but given the current behavior of the Senate Republican majority, one cannot be sure.  Therefore, a Democratic victory in not only the Presidential election, but also a sufficient number of Senate elections to reclaim the majority (requiring a net gain of at least four seats), would give the best hope for a revival of DAPA and DACA+.  If the Democrats can also regain the majority in the House of Representatives, then the issue of DAPA and DACA+ could be rendered moot in a much more pleasant way: comprehensive immigration reform, along the lines of the Senate CIR bill S.744 that was passed by the Democratic Senate with a bipartisan majority in 2013 but denied a vote in 2013 and 2014 in the Republican-controlled House of Representatives, could become law.  Hopefully, many of the U.S. citizen relatives of those who would be affected by DAPA, DACA+, or comprehensive immigration reform will be motivated by these possibilities to turn out and vote in November.


Until comprehensive immigration reform becomes law or DAPA and DACA+ come into effect, however, immigration attorneys will remain on the lookout for other small pieces of good news where we can find them.  The Supreme Court’s decision Thursday in Mathis v. United States, while at first glance not about an immigration case at all, provided just such a piece of good news for noncitizens with certain types of criminal convictions.  (Since most significant criminal convictions would have precluded applying for DAPA and DACA+, the set of noncitizens who will benefit from Mathis has very little overlap with the set of those harmed by U.S. v. Texas, so it may only be from the perspective of immigration attorneys that Thursday was something of a good news / bad news situation; hopefully I do not strike the reader as too insensitive for examining the two decisions in one blog post nonetheless.)


Mathis was primarily a sentencing case, arising under the Armed Career Criminal Act, or ACCA.  That statute provides for harsher criminal sentences against those with certain sorts of prior criminal convictions.  ACCA has been interpreted by the Supreme Court to provide for a “categorical approach”, where what is important is what one can be certain a person has been convicted of, that is, the elements of their crime, and not other facts regarding what they may actually have done in the past.


In its use of the categorical approach, ACCA operates similarly to several provisions of the Immigration and Nationality Act (INA) regarding noncitizens with criminal convictions.  As the Supreme Court explained in Moncrieffe v. Holder, 569 U.S. ____, 133 S.Ct. 1678 (2013), the categorical approach, grounded in the language of immigration statutes that ask what a noncitizen was “convicted” of, “has a long pedigree in our Nation’s immigration law.”  Indeed, it goes back more than 100 years, at least back to the Second Circuit’s decision in United States ex rel. Mylius v. Uhl, 210 F.860 (2d Cir. 1914).  There are some provisions of immigration law that have been interpreted to deviate from the categorical approach, such as the $10,000 loss threshold for a fraud crime to qualify as an aggravated felony under section 101(a)(43)(M)(i) of the INA, addressed in the Supreme Court’s 2009 decision in Nijhawan v. Holder, but they are the exception, not the rule.


Because both ACCA cases and many areas of immigration law rely on the categorical approach, the reasoning of ACCA cases is often found to control in immigration cases.  Moncrieffe, for example, which addressed the immigration consequences of a conviction under Georgia law for possession of marijuana with intent to distribute, cited and relied upon Shepard v. United States, 544 U.S. 13 (2005), and Johnson v. United States, both ACCA cases.  (The particular ACCA provision involved in Johnson was held unconstitutionally vague by the Court, but the principles behind the categorical approach were still usefully elucidated in that case.)  Footnote 2 of the Mathis majority opinion specifically acknowledged the applicability of the categorical approach discussed in Mathis to immigration cases, citing Kawashima v. Holder, 565 U. S. 478, 482–483 (2012).


In both the ACCA context and the immigration context, issues have arisen regarding the application of the categorical approach to what are known as “divisible” statutes.  In effect, such statutes contain multiple separate crimes, and so one can look at the record of the conviction, using what is known as the “modified categorical approach” to determine which of these crimes applied.  The Supreme Court clarified in Mathis that this is only to be done when the difference between the components of the statute of conviction turns on a true element, a fact on which a jury would have to agree to convict, or which a defendant would have to admit in a guilty plea.  It does not apply to alternate means of commission of a crime, even if they are listed in the statute of conviction.


Mr. Mathis had been convicted multiple times of burglary under Iowa law, which covered unlawful entry into “any building, structure, [or] land, water or air vehicle.”  Mathis, slip op. at 5.  For ACCA purposes, on the other hand, the Court had held years earlier that a conviction only counted as “burglary” if it involved unlawful entry into a building or other structure.  The question thus became whether one could look at the record of Mr. Mathis’s conviction to see whether he had been convicted of breaking into a building or other structure, on the one hand, which would qualify as ACCA “burglary”, or breaking into a land, water or air vehicle, which would not so qualify.  Iowa case law made clear that these were merely alternative means of committing a single crime, and that a jury could convict someone of burglary without agreeing on whether the defendant had burgled a building or a vehicle.  The government sought nevertheless, however, to argue based on documents from Mr. Mathis’s prior criminal cases that he had in fact been convicted of burglarizing a house and not a vehicle.


In a decision written by Justice Kagan and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, the Court held that this was not permissible.  Facts on which a jury need not be unanimous are not elements of a crime, and so the Iowa burglary statute at issue was not truly divisible: it created only one crime, not many.  Because the categorical approach focuses on what the defendant was convicted of doing, and not what he or she may have actually done, one cannot pick through the record of a prior case and speculate regarding whether the jury might have agreed on something that the law did not require it to agree on in order to convict.


Justice Breyer, joined by Justice Ginsburg, dissented, arguing that if the record revealed that evidence supported conviction of a defendant only pursuant to one statutory word or phrase, it should not matter whether that word or phrase was termed an element or a means.  Justice Alito, writing only for himself, compared the Court’s ACCA case law to a Belgian woman who had set out for Brussels and ended up in Zagreb, Croatia, by following her GPS too unquestioningly.  Accusing the majority of “pointless formalism”, he hypothesized a lengthy plea colloquy in which a defendant admitted to burglarizing a house at “10 Main St.” in the face of lengthy questioning from the judge regarding whether this address might represent a yacht, house boat, trailer, or tent.  (The hypothetical defendant’s response to this last query was said to be, “No, it’s made of brick.  I scraped my knee on the brick.”)  Even in this case, he lamented, “[a]s the Court sees things, none of this would be enough.”


Before addressing some of the implications of this decision for immigration purposes, I will pause to note that Justice Alito’s lengthy hypothetical colloquy, humorous though it may be, strikes me as not really supporting his argument, and perhaps even as weakening it.  In the real world, a judge would almost never go through such a lengthy discussion of the nature of the premises burgled if that did not affect the crime of which the defendant was to be convicted or the punishment for which the defendant was eligible.  If the defendant had actually broken into a car parked right outside the garage of the house at 10 Main Street to steal money and jewelry, rather than breaking into a car parked inside the garage and the garage itself to steal the same money and jewelry, one would not expect him to start an argument with the judge, in the context of a law which made the penalty for the two versions of the crime exactly the same.  Rather, if asked whether he broke into a “structure” at 10 Main Street, there is a good chance that such a hypothetical defendant would simply say “yes”, and that would be the end of it.  To quote from Justice Kagan’s majority opinion:


“At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he “may have good reason not to”—or even be precluded from doing so by the court. . . .  When that is true, a prosecutor’s or judge’s mistake as to means, reflected in the record, is likely to go uncorrected. See ibid. Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.”


Justice Alito’s hypothetical colloquy, which I admit was quite funny, draws its humor partly from its unrealistic nature.


And just as the sorts of uncorrected inaccuracies to which Justice Kagan refers “should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence”, as Mathis makes clear, they also should not come back to haunt the defendant by triggering deportation.  In footnote 3 of Mathis, Justice Kagan specifically notes a scenario in which the Mathis rule will apply to immigration cases:


To see the point most clearly, consider an example arising in the immigration context: A defendant charged under a statute that criminalizes “intentionally, knowingly, or recklessly” assaulting another—as exists in many States, see, e.g., Tex. Penal Code Ann. §22.01(a)(1) (West Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor’s statement that he committed the crime intentionally (as opposed to recklessly) if those mental states are interchangeable means of satisfying a single mens rea element. But such a statement, if treated as reliable, could make a huge difference in a deportation proceeding years in the future, because an intentional assault (unlike a reckless one) qualifies as a “crime involving moral turpitude,” and so requires removal from the country.


Under Mathis, if recklessness and intentional assault are indeed interchangeable means of satisfying the same mens rea requirement under a particular statute, then for immigration purposes the statute cannot be divided between them.


That is, even someone who seemingly pled guilty to intentional conduct, under such an indivisible statute, should be considered as if he or she had only pled guilty to reckless conduct, because, as Moncrieffe explained, “we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized,” 133 S. Ct. at 1684.  As Mathis’s footnote 3 explains, this makes more sense than might at first glance appear, because someone convicted under such a statute would have had no reason to dispute the allegation that he or she had acted intentionally rather than recklessly—unless perhaps he or she had consulted immigration counsel prior to entering a plea.  Allowing the proverbial hairs of a state statute’s text to be split, adversely to the noncitizen, beyond the point where the distinction makes any difference under state law, would penalize those who did not have immigration consequences in mind at the time of their plea or trial.  Certainly, for a variety of reasons, all noncitizens charged with a crime should consult with a competent immigration attorney before pleading to any charge or otherwise proceeding with their criminal case, but the law should not unnecessarily and unfairly penalize those who fail to heed this advice.


The distinction between recklessness and intentional conduct is not the only context in which this means/elements distinction may have relevance for immigration law.  For example, attorneys whose clients have been convicted of possession of a controlled substance, under state laws covering at least some substances not federally controlled, should explore whether the identity of the substance is an element or a means under the relevant state law—whether, in order to obtain a conviction, the state is required to prove which controlled substance a defendant possessed.  If the identity of the substance is a means and not an element, then the conviction may, under Mathis, fall within the protection of the Supreme Court’s decision last year in Mellouli v. Lynch, which required a controlled substance conviction to relate to a federally controlled substance in order to cause adverse immigration consequences.  (The Third Circuit’s 2013 en banc decision in Rojas v. Attorney General rejected what it called the “formal categorical approach” in this controlled-substance context, but it is not clear that this aspect of Rojas can survive the combination of Mellouli and Mathis in states where the identity of the controlled substance is a means and not an element under state law, although we will have to wait and see how the case law develops to be sure.)  There will be other areas, as well, where a statute which lists multiple ways of committing a crime is actually indivisible under state law, and so a noncitizen is entitled under Moncrieffe and Mathis to the assumption that he or she committed the crime in whichever way is least harmful for immigration purposes.


Mathis is therefore good news for a significant number of immigrants, and their attorneys, even though this small piece of good news may pale in comparison to the disappointment of U.S. v. Texas and the continued injunction against DAPA and DACA+, which are bad news for substantially more immigrants.  With respect to the latter, we can hope for, and fight for, the possibility that the November elections may bring more good news.

Trump and the Snake

Donald Trump is fond of reading the lyrics from Al Wilson’s 1968 R&B hit song “The Snake” in his campaign rallies.  While this is a catchy tune, Trump has now corrupted the song by associating it with his opposition to Muslims. He first called for a ban on Muslims entering the United States, including Syrian refugees, and recently modified it by calling for a suspension of immigration from areas of the world when there is a proven history of terrorism against the United States or its allies.  Trump most recently said that the United States should consider more racial profiling, in response to a question about whether he supported greater law enforcement scrutiny of Muslim Americans after the Orlando mass shooting. If all of these proposals were implemented, it would impede the ability of millions of temporary visa holders and immigrants to legitimately enter the United States.

This video depicting  Trump’s reading of The Snake in his rally in Greensboro, NC on June 14, 2016 is too chilling to watch, as the reading is interspersed with the ejection of a protestor amidst frenzied chants of “USA… USA”. Although the lyrics are inspired by Aesop’s fable of the Farmer and the Viper,   the lyrics appear very sinister when Trump associates them with his war on Muslims. The lyrics revolve around a tender hearted woman who rescues a half frozen snake. After the snake is rescued, he bites the woman, and when she is dying, the snake tells her that she knew very well that she took in a poisonous snake. One view regarding the moral of this fable is to teach the lesson not to expect a reward from the wicked. Another view is that the rescuer realizes that it is his own fault for pitying a scoundrel. Trump first associated these lyrics with Syrian refugees, fully realizing that almost all the refugees have genuinely escaped harm in Syria, and many have been desperate enough to even die, including children, while trying to reach safer shores.

Read the lyrics yourself to see how they have been twisted to suit Trump’s agenda:

On her way to work one morning
Down the path alongside the lake
A tender hearted woman saw a poor half frozen snake
His pretty colored skin had been all frosted with the dew
“Oh well,” she cried, “I’ll take you in and I’ll take care of you”
“Take me in oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

She wrapped him up all cozy in a curvature of silk
And then laid him by the fireside with some honey and some milk
Now she hurried home from work that night as soon as she arrived
She found that pretty snake she’d taking in had been revived
“Take me in, oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

Now she clutched him to her bosom, “You’re so beautiful, ” she cried
“But if I hadn’t brought you in by now you might have died”
Now she stroked his pretty skin and then she kissed and held him tight
But instead of saying thanks, that snake gave her a vicious bite
“Take me in, oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

“I saved you,” cried that woman
“And you’ve bit me even, why?
You know your bite is poisonous and now I’m going to die”
“Oh shut up, silly woman,” said the reptile with a grin
“You knew damn well I was a snake before you took me in
“Take me in, oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

 Trump has even more shamelessly exploited these lyrics after the massacre of innocent LGBT party goers in an Orlando night club by Omar Mateen, who was discovered to be a Muslim and born in the United States. The snake, according to Trump, represents the Muslim immigrant who was let into the country, and who now viciously bites the people who let him in.  Even though Mateen was a US citizen by virtue of his birth in this country, Trump falsely asserted in one of his speeches that he “was born in Afghan, of Afghan parents, who immigrated to the United States.” Trump went on to add that the  “only reason the killer was in America in the first place was because we allowed his family to come here.”  While there was profiling of Muslim immigrants following the terrorist attacks on September 11, 2001, Trump’s proposals would far exceed the profiling policies that were put into place following 9/11.

Following 9/11, the Bush administration through Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized the then INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism.

The Bush Administration then implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Not a single terrorist was discovered under the Special Registration program, which proved to be a colossal waste of tax payer money and was disbanded.

Trump now wishes to take these discredited policies even further. Although there was profiling since 9/11, and every application for an immigration benefit since those attacks is viewed through the prism of national security, immigration did not stop. The basic architecture of our immigration system remained intact, and eligible applicants have been admitted while undergoing more extensive security checks.  If Trump’s proposals are implemented, there will be a complete ban on immigration from countries where there is a proven history of terrorism against the United States. Just as finding out who is a Muslim would be unclear, it is equally unclear whether this ban would include people from countries such as Syria or Pakistan, or whether it would also involve certain European countries such as France, the United Kingdom and Belgium. Would it also include countries like India or The Philippines, which sends one of the largest numbers of immigrants to the United States? The ban would cover visitors, students and people from these countries, which have all inspired terrorist attacks on its soil, who are legitimately immigrating, including spouses of US citizens. To blame immigrants for the Orlando killings goes beyond the pale, which was perpetrated by a mentally unstable American citizen who may have been inspired by terrorism but also by hate against LGBTs. And where does this stop? Trump said that if the parents were not allowed into the country, this massacre would not have happened. But what about the countless gun deaths caused by other mentally unstable US citizens?  Is Trump blaming these killers’ ancestors who may have at some point in time come from another country? Trump is inappropriately casting doubt on an entire  religion of over 1.2 billion adherents worldwide who are essentially peaceful.

While Trump’s rhetoric is frightening enough, there is ample authority in the law that would allow him to implement his proposed ban if he became President. Section 212(f) of the Immigration and Nationality Act provides in part, as follows:

(f) Suspension of entry or imposition of restrictions by President – Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or ay class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Apart from Congress putting a check on the President’s authority under INA 212(f), and possibly the courts,  the only likely limitations on the exercise of this authority is with respect to lawful permanent residents who have taken brief trips abroad and would be assimilated to the status of a continuously-present resident under Delgadillo v. Carmichael, Kwong Hai Chew v. Colding and Landon v. Plasencia. Even they would be at some risk of being denied readmission, and would probably be better advised not to travel outside the US under a hypothetical President Trump.

The good news is that despite playing to irrational fear and reciting the lyrics of The Snake, Trump’s poll numbers have slipped. The conventional wisdom used to be that a Republican presidential candidate who was forceful on security issues would gain an advantage prior to an election. It appears that the attack in Orlando has not helped Trump, and fear mongering may have lost its appeal.  This could well change if there was another attack orchestrated by a foreign terrorist organization rather than by an unstable US citizen, but so far Trump’s war on Muslims does not seem to be helping him. After all the senseless racial profiling following 9/11, it should become pretty obvious to the American people that profiling a whole community for the acts of one person is not a good law enforcement tactic. It would only alienate the community whose members are well integrated into the American fabric and contributing to the country, and who would also be willing to cooperate with law enforcement. It is also most un-American to profile a whole community as a substitute for individualized guilt, which goes against the principles upon which this nation was founded and has set an example for scores of countries around the world.

If Trump continues to slip, it is hoped that The Snake again be viewed as a cool R&B song in the soul music genre rather than a hate anthem against Muslims.

Can a STEM OPT Student Be Employed At A Third Party Client Site?


The most frequently asked question in response to my recent blog entitled, “A Closer Look At The Form I-983 – Training Plan for STEM OPT Students”,  is whether a STEM OPT student can be employed at a third party client site or at multiple client sites. I would argue that the answer to this question ought to be YES! Since the new rule only took effect on May 10, 2016, there isn’t yet any strong anecdotal evidence on whether Designated Student Officers (DSO) will approve Forms I-983 which set forth training to take place at client sites. However, there isn’t anything in the governing regulations that expressly forbids this type of employment.

This is a big issue for many students and employers because under the standard 12-month OPT program, the employer may employ the student in a regular job, even at third party sites, as long as the employment is related to their major area of study in the US. However, in order for the student to obtain a 24-month STEM OPT extension, the employer and student, through the submission of the Form I-983 to the DSO, must demonstrate that the student will be employed only as a trainee. The Form I-983 specifically requires the employer to attest that the student will “receive on-site supervision and training by experienced and knowledgeable staff” and that the employer “has sufficient resources and personnel to provide the training and is prepared to implement the program.” Department of Homeland Security (DHS) has made it clear in the preamble to the new regulations that the STEM OPT extension is not apt for certain types of employment arrangements which include multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. Students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Form I-983, and the employer that signs the Form I-983 must be the same entity that employs the student and provides the practical training experience.

None of the above listed requirements prevent the employment of a STEM OPT student at a third-party client site. I would argue that the issues surrounding such employment are similar to the issues surrounding the employment of an H-1B beneficiary at a third party client site. In the case of the H-1B, the employer must also establish that a valid employer-employee relationship will exist with the H-1B beneficiary throughout the requested H-1B validity period. By now, most H-1B employers are used to the USCIS requirements published in its memo entitled, “Determining Employer-Employee for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (“the Neufeld Memo”). Under the Neufeld Memo, in considering whether or not there is a valid “employer-employee relationship,” USCIS must determine if the employer exercises a sufficient level of “control” over the prospective H-1B employee. To demonstrate control, the employer can submit various evidence including a copy of its employment agreement with the prospective employee; copies of its contractual agreement(s) with the end client where the employee will work; a letter from the end client describing its relationship with the employer and the prospective employee; sample staff evaluation forms to demonstrate how the employee will be evaluated; a clear description of how employee supervision will be conducted; a list of the various benefits provided to the employee by the employer; and so on.

I would argue that similarly, in the case of the STEM OPT student, the employer should be able to satisfactorily demonstrate its control over the student despite placement of the student at an end client site. Under the final rule, the Form I-983 must, among other things: (1) Identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision. Admittedly, having the student work at a client site makes for a more difficult case. However, if the employer already has employees at that site who can implement the employer’s training program by providing the training, on-site supervision and evaluation of the student, then the Form I-983 ought to be approvable.  The employer may face a more insurmountable hurdle in a case where the student would be its only employee stationed at the client site. In such a case it would be very difficult to argue that the employer will provide a structured and guided work-based learning experience for the student, although a case could still potentially be made for a bona fide training program if the employer has ready access at the site to supervise the trainee.

With regard to multiple worksites, in the preamble to the regulations, DHS made it clear that the Form I-983 may incorporate provisions for project, position, or department rotations that directly relate to the STEM student’s field of study, provided there will be appropriate supervision during each rotation and the employer otherwise meets all relevant requirements. Similarly, changes in client site locations can be well documented and explained upon submission of the Form I-983. New and previously unforeseen changes can always be addressed through the preparation and submission of a modified Training Plan to the DSO.

The fact that the Form I-983 must be submitted to the DSO and not to DHS is significant because with filings submitted to DHS, there is usually a filing fee and the potential for costly (time and money) rejections by an inaccessible, unseen and unknown officer. A DSO is an individual who is typically more accessible. Should the DSO not approve the initial Form I-983, there should, hopefully, be more of an opportunity for the employer and student to understand the Training Plan’s defects and to provide additional information in a new submission.

The new STEM OPT rule would allow talented students who have graduated from US universities in vital STEM fields to remain for an additional 24 months. As a result, the rule must encompass all kinds of modern work arrangements, including working at third party sites. Otherwise, entire industries, including IT, management consulting or accounting, would be deprived of engaging talented foreign students. Foreign students can also benefit by receiving training in industries whose business model relies on assigning employees to third party client sites. It is industries that rely on assigning workers to third party sites that give American businesses a competitive edge by providing them with much needed flexibility. They should not be left out from the new rule!

Were the DOJ Lawyers Really Unethical in Texas v. USA?

Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.

Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand  recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomsky does not even think the DOJ lawyers did anything wrong.

I completely agree. Let’s look at Rule 3.3 of the American Bar Association Model rules of Professional Conduct and the corresponding Texas Disciplinary Rules of Professional conduct, which Judge Hanen used, along with a fair sprinkling of dialogs from popular films, for finding that the DOJ lawyers were not truthful to the court. One of the cardinal ethical cannons is that a lawyer has a duty of candor to a tribunal.  ABA Model Rule 3.3 provides in relevant part:

a)  A lawyer shall not knowingly:

1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

The relevant potions of the Texas version of Rule 3.3 are similar:

a)  A lawyer shall not knowingly:

1) Make a false statement of material fact or law to a tribunal

2) Fail to disclose a fact to as tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;


    5)  offer or use evidence that the lawyer knows to be false.

In order for a lawyer to violate Rule 3.3, he or she must have knowingly made a false statement to the tribunal. Was there such a knowing violation of Rule 3.3 here?

On June 15, 2012, the Obama administration announced DACA that allowed young people who came to the United States prior to the age of 16 and had lived continuously since June 15, 2007, and were not in a lawful status, to be granted deferred action.  On November 20, 2014, DHS Secretary Jeh Johnson issued a memo expanding DACA by changing the eligibility criteria to cover those who had come to the United States prior to January 1, 2010 instead of June 15, 2007 and by removing the maximum age limit of 31 (“Johnson Memo”). The Johnson Memo also lengthened the deferred action time from two to three years. The Johnson Memo further granted deferred action to parents of US citizens or resident children, known as the Deferred Action for Parent Accountability (DAPA), if they had arrived into the United States on or before January 1, 2010.

A group of states challenged the Johnson Memo in Texas v. USA by filing in a court in Brownsville, TX,  where Judge Hanen sat who had already expressed strong views against the Obama administration on immigration.  Judge Hanen granted a preliminary injunction on February 16, 2015 blocking DAPA and expanded DACA. Much has already been written to rebut the conclusions in this flawed decision, and the further flaw in the Fifth Circuit’s affirmation of Judge Hanen’s preliminary injunction.  The preliminary injunction order did not expressly block the original DACA 2012 program. Qualified applicants thus continued to apply for DACA 2012 benefits. Under the terms of the Johnson Memo, qualified applicants under DACA 2012 started receiving grants of deferred action for 3 years instead of 2 years as of November 24, 2014.

Prior to the preliminary injunction of February 16, 2015, in conversations between Judge Hanen and DOJ attorneys, the DOJ attorneys indicated to the court that USCIS had not taken any actions pursuant to the Johnson Memo. Although actions had been taken since November 24, 2014 to grant three year deferred action periods rather than two years, those stemmed from the DACA 2012 program. They were also well publicized.  The expanded DACA, which brought forward the entry date from June 15, 2007 to January 1, 2010, was to take effect on February 18, 2015. Thus, when DOJ attorneys denied that the government had not taken any actions regarding expanded DACA, it was well conceivable that issuing three year deferred action periods instead of two years were actions stemming from the DACA 2012 program and had nothing to do with the expanded DACA program, which had not gone into effect.

After the preliminary injunction was issued, which applied to “expansions (including any and all changes)” to DACA 2012, the DOJ filed an Advisory indicating that out of an abundance of caution it was informing the court that it had granted three year periods of deferred action under the original DACA 2012 guidelines in the event of any misunderstanding.

Given this lack of clarity, as well as the fact that DACA 2012 was never the subject of the lawsuit, could the DOJ attorneys have knowingly made a false statement to be sanctioned under Rule 3.3? This Ethics Committee of the American Immigration Lawyers Association first questioned whether this was so in 2015, but it has become even more important to assert whether there was a Rule 3.3 violation Judge Hanen’s order.ABA Rule 1.0(f) defines the terms “knowingly,” “known” or “knows” as “actual knowledge of the fact in question.” Rule 1.0(f) goes on to state that a “person’s knowledge may be inferred from circumstances.” When the DOJ attorneys were giving an assurance to the court about no action being taken, it could have well been understood to be in relation to recipients who would have become eligible under the expanded DACA, which had not gone into effect., Even the expansion of the deferred action term from two years to three years, if referred to by Judge Hanen,  could have meant to relate to those recipients who would become eligible under the expanded DACA and not relating to the granting of a three year term to qualified recipients under the DACA 2012 program, which had nothing to do with the proposed preliminary injunction. It should be noted that since DACA 2012 was not part of the preliminary injunction, the administration could have fashioned any new benefits for them, and could have theoretically issued a separate guidance memorandum articulating three year renewals rather than two years, separate from the guidance in the Johnson Memo.

Rule 3.3 also allows a lawyer to correct false statements that may have previously been made to the tribunal, which the DOJ did through the Advisory seeking clarification. Unfortunately, Judge Hanen did not view this as clarification but as a further admission that the government lawyers had deceived the court. It is hard to imagine that DOJ lawyers would have knowingly and intentionally deceived the court when three year work permits were being publically announced and given out to those eligible under DACA 2012, and it was a well publicized fact.   There was nothing to hide, and it is inappropriate for a judge to use Rule 3.3 to club not one lawyer but thousands when it was not so clear that knowing false statements had been made to the court.

Although government lawyers oppose private immigration lawyers, and often take unreasonable positions against our clients we defend, Judge Hanen’s reprimand should not be cause for celebration as such a fate could well befall a private lawyer. When there are issues of differing interpretation, involving complex immigration law and policy in hotly contested litigation, it is extremely problematic to use Rule 3.3 to accuse a lawyer for knowingly making false statements to a court or tribunal. While it is one thing for a lawyer to lose a case, it is quite another for a judge to also sanction a lawyer for ethical violations when there was no clear dividing line between an immigration program such as DACA 2012 that was not being enjoined and an expanded version of it that was being enjoined. This is especially so and rather precipitous when the case is still pending at the Supreme Court in United States v. Texas and the issues are yet to be resolved.  And when a lawyer seeks to clarify the ambiguity, as required under Rule 3.3, a judge should not use that as a basis to accuse the lawyer for deliberate deception.  Handing out sanctions for ethical violations in such a ham handed manner not only unfairly undermine a lawyer’s reputation, but create a chilling effect, and in this case demonstrates Judge Hanen’s bias and hostility towards only one of the parties in Texas v. USA.

On June 3, 2016, the government filed a mandamus action against the lower district court for exceeding its scope, with an accompanying request for a stay, essentially asserting that its lawyers did not intentionally intend to deceive the court, and any perception by Judge Hanen that there was a Rule 3.3 violation was due to miscommunications regarding the scope of the preliminary injunction. The government further complains that there was no hearing prior to the issuance of these unusual sanctions. This is a new front in the government’s battle against a district court judge that has blocked President Obama’s deferred action program, and has also imposed an unusual reprimand for alleged ethical violations. In this instance, it is hoped that the government wins the day on both fronts. A dual victory will allow deserving undocumented immigrants to remain in the United States and it will also nullify the bizarre ethics sanctions of a hostile judge, thus sending a message that ethics rules should not be arbitrarily used to club well intentioned lawyers in hotly contested litigation.

(The views in this blog are the personal views of the author, and do not necessarily reflect the views of any organization that he is part of)