Administrative Review Versus Judicial Review When an Employment-Based Petition Is Denied

Under the Trump administration, there have been an increasing number of denials of employment-based petitions, especially of H-1B visas. To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program, and indeed, all legal immigration. It does not matter that employment-based visas help facilitate American competitiveness globally by attracting worldwide talent, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. Rather, the administration continues to attack all pathways to legal immigration under its misguided America First philosophy.

The stakes for an approval have become even higher, as USCIS recently announced that it will “issue an NTA [Notice to Appear] where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” In yet another recent policy, USCIS instructs adjudicating officials to deny applications based on the lack of “sufficient initial evidence” without the issuance of an RFE or notice of intent to deny. This could be subjectively viewed as resulting in more denials followed by NTAs.

Upon the USCIS Service Center denying an employment-based petition, the petitioner may file Form I-290B, Notice of Appeal or Motion in order to appeal to the Administrative Appeals Office (AAO) within 30 days (plus 3 days if received in the mail) of the decision. Alternatively, the petitioner may request a motion to reopen or a motion to reconsider or both with 33 days of the decision. The petitioner may also opt to seek judicial review in federal court without going to the AAO. In addition, a petitioner may also wish to re-file the petition, which may at times be the best strategy. However, the re-filing option may not always be available, such as when the H-1B cap for the fiscal year has already been reached or the beneficiary’s nonimmigrant status has ended and consular processing would be problematic for whatever reason.

This blog will discuss the advantages and disadvantages of administrative review over judicial review.

Advantages of Seeking Administrative Review

Filing Form I-290B is more administratively convenient, efficient and less costly for the client. If the USCIS has made an obvious error, requesting that the USCIS either reopen or reconsider or do both may be an effective and simple strategy. For example, if an H-1B is erroneously denied without an RFE or NOID, and it was clearly an error, the filing a motion to reopen may make more sense over judicial review.

In the event that the petition has been denied on substantive grounds, filing an appeal to the AAO allows one to supplement the record by providing additional evidence such as a more detailed expert evaluation. The process is less formal than going to federal court. Writing the brief in support of the appeal or motion is an extension of what was already said in the response to the Request for Evidence prior to denial, although the new brief must make new and creative arguments to overcome the denial.

Even when the intention is to file an appeal on Form I-1290B, the official who made the initial decision, according to agency regulation, will first review the appeal and determine whether to take favorable action and grant the benefit request. This process is called “initial field review.” Thus, every appeal is first treated as a motion to reopen or reconsider. There are many occasions where a case based on an egregious denial can be reopened and reversed without going through the AAO.

There is nothing to lose and a chance of a favorable result – the AAO could either outright reverse a denial or remand back to the USCIS Service Center, which in turn, could issue another RFE. If the AAO dismisses the appeal, one can still seek review in federal court.

Disadvantages of Seeking Administrative Review

The success rate at the AAO is very low. In FY2017, with respect to H-1B petitions, the AAO dismissed 598 appeals, sustained only 22 and remanded 44. With respect to L-1 petitions, the AAO dismissed 181 appeals, sustained only 15 and remanded 6.

The process is also not expeditious. If the beneficiary is already in the US and does not have another underlying nonimmigrant status, he/she will start accruing unlawful presence for purposes of triggering the 3/10 year bar upon the denial of the request for change or extension of status. If the individual’s appeal is not successful after 180 days of unlawful presence have accrued, the beneficiary will be subject to the bars upon departing the US.  (If the individual’s appeal is successful, any related application for change of status or extension of stay is likely to be reopened on Service motion following the granting of the petition, but one cannot know for sure in advance whether this will happen.)

The AAO may not just affirm the USCIS denial, but may also improve upon it by providing better reasoning or even affirming for different or additional reasons. This would render it more difficult to seek judicial review.

Advantages of Seeking Judicial Review

The case is reviewed by a judge who is not part of the USCIS and is not influenced by its prevailing policy as an adjudicator within the AAO is.

There may also be an opportunity to have the case resolved with an Assistant US Attorney who may advise his/her client, the USCIS, to reverse the decision rather than fight it out in court.

If the plaintiff prevails, the attorney may seek fees under the Equal Access to Justice Act.

One can ask for extraordinary remedies through a preliminary injunction (or temporary restraining order followed by a preliminary injunction) to maintain the nonimmigrant status of the beneficiary during the pendency of the matter, or at least prevent the beneficiary from accruing unlawful presence during the pendency of the matter.

Moreover, if an NTA is issued upon the denial of petition, then one potential advantage in federal court litigation is to ask the court in the preliminary injunction to restore the status of the beneficiary, which could then be grounds for termination of the removal proceedings. It should be noted that business immigration attorneys will also need to either hone in or develop their litigation skills for beneficiaries who are placed in removal proceedings, which was discussed in our previous blog, “Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy.” Attorneys will need to simultaneously navigate the removal process while challenging the denial of the underlying petition.

In a few cases, the beneficiary has been able to establish standing as a plaintiff in litigation involving nonimmigrant visas. See e.g., Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016). In the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

Disadvantages of Seeking Judicial Review

Seeking judicial review can be far more expensive and time consuming. In addition, a federal court may exercise a more deferential standard, where under the Administrative Appeal Act (APA) a denial may be set aside only if  it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002). Factual findings may be set aside by a federal court only if “unsupported by substantial evidence”—which is not quite the same thing as review for “clear error” as in appellate review of a lower court’s fact-finding, but is still far from de novo review. See 5 U.S.C. § 706(2)(E); Dickinson v. Zurko, 527 U.S. 150 (1999).  The AAO, on the other hand, can undertake a de novo review of all issues of fact, law, policy, and discretion, and can also address new issues that were not addressed in the prior decision. See AAO Practice Manual, Chapter 3 Appeals.

New evidence cannot be introduced into the record.

Some employers also fear government retaliation, although this may be anecdotal and not necessarily official policy. Employers also are shy about unwanted publicity when they become plaintiffs.

The stakes have never been higher for employment-based immigration. With the very real threat of deportation looming, practitioners and employers alike must weigh the benefits and risks with any of these options when seeking review of a denial. For some, a motion to reopen and reconsider may be sufficient for a more obvious error. Others may wish to resolve a recurring, systemic issue by seeking judicial review in a district court. Regardless, it is clear that the role of the immigration practitioner, especially those practicing business immigration, must be prepared to increasingly litigate these petitions in order to prevent further carnage of the existing immigration system.

“Vague Laws Invite Arbitrary Power”: Making the Case for Crimes Involving Moral Turpitude Being Void for Vagueness

The Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) dramatically held that one aspect of the crime of violence definition contained within the aggravated felony provision of the Immigration and Nationality Act (INA) was unconstitutionally vague. An aggravated felony conviction can result in a non-citizen’s swift removal from the United States, and thus the Supreme Court’s decision in Dimaya provided much needed respite to non-citizens who have been charged with removability under the vague clause of the residual clause in the crime of violence provision. This led one to question whether a crime involving moral turpitude (CIMT) could similarly be challenged for being impermissibly vague under the Supreme Court’s reasoning in Dimaya.

Unfortunately, on July 17, 2018, the Ninth Circuit in Martinez-de Ryan v. Sessions denied a petition for review of a foreign national’s denied application for cancellation of removal based on a finding that she had committed a CIMT. No. 15-70759 (9th Cir. 2018). The Ninth Circuit rejected the Petitioner’s arguments that the phrase ‘crime involving moral turpitude’ is unconstitutionally vague, and distinguished the Supreme Court’s decisions in Dimaya and its predecessor, Johnson v. United States, 135 S. Ct. 2551 (2015). The relevant aggravated felony provision in Dimaya was the residual clause of the crime of violence definition at 18 U.S.C. § 16(b), which provides that “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”. The relevant provision in Johnson was the residual clause of “violent felony,” as defined by 18 U.S.C. § 924(e)(2)(B), in the Armed Career Criminal Act, which similarly provides that a violent felony is one that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court found in each respective case that the residual clauses created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Dimaya at 1213; Johnson at 2557. The residual clauses had resulted in reliance upon judge’s “guesswork and intuition,” and “fail[ed] to give ordinary people fair notice of the conduct it punishes,” which invited “arbitrary enforcement” by judges. Johnson at 2557. Such arbitrary enforcement, the Court held, was determinative of impermissible vagueness.

Instead of following Dimaya and Johnson, the Ninth Circuit in Martinez-de Ryan found that it should follow precedent in Jordan v. DeGeorge, 71 S. Ct. 703 (1951) (finding that “whatever else the phrase … may mean,” crimes involving fraud “have always been regarded as involving moral turpitude”) and its Ninth Circuit corollary decision, Tseung Chu v. Cornell, 247 F.2d 929 (1957), which came after the enactment of the 1952 Act (which slightly changed the wording of the CIMT provision from the 1917 Act which controlled in DeGeorge). Though acknowledging that Johnson and Dimaya “cast some doubt on [DeGeorge’s] general reasoning,” the Ninth Circuit nevertheless reasoned that Johnson and Dimaya dealt with residual clauses, whereas the definition of CIMTs are “tethered to common law principles.” Martinez-de Ryan, at *2.

It is unclear what the Ninth Circuit means when it states that CIMTs are tethered to common law principles. The impermissible vagueness of CIMTs are evident in courts’ ongoing failure to establish a consistent framework to evaluate whether a crime involves ‘moral turpitude,’ and inconsistent outcomes when dealing with the same crimes. In Johnson, the court acknowledged that the failure of persistent efforts to establish a legal standard can provide evidence of vagueness. 135 S. Ct. at 2558 (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921)). As applied to CIMTs, the persistent failure to delineate a clear analytical framework that apprises people of common intelligence, and indeed learned judges, of its meaning is a clear indication of unconstitutional vagueness.

Courts have attempted to define moral turpitude in varying degrees, typically with reliance on Black’s Law Dictionary, which currently defines the phrase as:

shameful wickedness — so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people.

MORAL TURPITUDE, Black’s Law Dictionary (10th ed. 2014); see also, e.g., United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970). The Board of Immigration Appeals (BIA) has added that a CIMT is “per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). The varying definitions of moral turpitude in case law are as vague as the phrase itself.

These open-ended definitions have led to inconsistent application by judges, where they must rely upon their own biases, or on precedent decisions where other judges have relied upon their own biases, to determine what is morally reprehensible. In his powerful dissent in DeGeorge, Justice Jackson declared that “uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds,” not on the whims of judges. DeGeorge, at 242.  He similarly rejected the malum in se versus malum prohibitum distinction, stating that “this classification comes to us from common law, which in its early history freely blended religious conceptions of sin with legal conceptions of crimes.” Id. at 237. Even accepting the government’s contention in DeGeorge that these crimes ought to be “measured against the moral standards in contemporary society,” we would see uneven application throughout the country and overtime. Id. Justice Jackson concluded that “irrationality is inherent” when creating case law based on fluid morality, as opposed to finite statutory meaning. Id. at 239.

In future challenges to the CIMT provision, practitioners can point to various inconsistencies as evidence of arbitrary enforcement, and hence, vagueness. For example, some courts have treated 18 U.S.C. § 1001 (false statements) as a CIMT (see, e.g., Ghani v. Holder, 557 F.3d 836 (7th Cir. 2009)), and others have not (see, e.g., Hirsch v. Immigration & Naturalization Serv., 308 F.2d 562 (9th Cir. 1962)). Similarly, some courts have treated certain money laundering crimes as a CIMT (Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007), holding that the intentional use of monetary instruments to conceal or disguise proceeds of any crime was a CIMT), and others have not (Goldeshtein v. I.N.S., 8 F.3d 645 (9th Cir. 1993), holding that structuring financial transactions to avoid currency reporting was not a CIMT). Admittedly, the arbitrary and inconsistent enforcement argument is difficult to make when it comes to crimes involving fraud (see, e.g., Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007), holding that trafficking of counterfeit good, even absence of an intent to defraud, is a CIMT; see also, Planes v. Holder, 652 F.3d 991, 997-98 (9th Cir. 2011), stating “the longstanding rule that crimes that have fraud as an element” are CIMTs), and in the case of Ms. Martinez-de Ryan, bribery of an official under 18 U.S.C. § 666(a)(2) (see also, Matter of V-, 4 I&N Dec. 100 (BIA 1950), holding that attempted bribery was a CIMT).

Practitioners can also point out that the INA includes specific criminal grounds for deportability and inadmissibility, including the failure to register as a sex offender, domestic violence, stalking, and child abuse, and defines what each of those crimes mean. Congress has failed to similarly define what is meant by moral turpitude, allowing courts to unevenly apply CIMT analyses, rendering some folks removable/inadmissible and others not, despite being found guilty of committing the same crimes. In Dimaya, Justice Gorsuch in his concurring opinion wrote that “[v]ague laws invite arbitrary power.… Today’s vague laws… can invite the exercise of arbitrary power… by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” 138 S. Ct. at 1223 (2018) (concurring in judgment). Without a precise definition of a CIMT, one can argue that such vagueness invites judges to make the law up according to their own biases, resulting in the erroneous removal of non-citizens.

The Ninth Circuit’s decision in Martinez-de Ryan v. Sessions is not the end of the road for finding a CIMT unconstitutionally vague. Although the Ninth Circuit followed a Supreme Court precedent in DeGeorge, Dimaya and Johnson have cast some doubt on its general reasoning. Specifically, in light of Dimaya and Johnson, one can argue that the vagueness of the CIMT definition has resulted in reliance upon judge’s “guesswork and intuition,” and has failed “to give ordinary people fair notice of the conduct it punishes,” resulting in arbitrary enforcement by judges. Dimaya at 1223 (citing to Johnson at 2557). Those who are unable to apply for relief because they have been found to have either been convicted of or have admitted to a CIMT must continue to litigate in other circuits until a CIMT is also rightfully found to be unconstitutionally vague.


(The author thanks Cyrus Mehta for his considerable assistance in writing this blog)

Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.







Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not “Lawfully Present”

In a November 2017 article, the Washington Post described “How Trump is building a border wall that no one can see”: how the Trump Administration was, “in a systematic and less visible way . . . following a blueprint to reduce the number of foreigners living in the United States those who are undocumented and those here legallyand overhaul the U.S. immigration system for generations to come.”  A month later, the New York Times published a similar article on Trump Administration efforts to reduce legal immigration using existing executive authorities.  The latest guidance from U.S. Citizenship and Immigration Services (USCIS) regarding when USCIS will issue a Notice to Appear (NTA) is another step in that direction, and an even more problematic one than it might appear to be at first glance.

USCIS recently announced in a Policy Memorandum, PM-602-0050.1, that it is changing the way it decides whether to issue an NTA placing someone into removal proceedings in immigration court.  In all cases other than those involving Deferred Action for Childhood Arrivals (DACA), which is the subject of separate NTA guidance, this new memorandum supersedes the previous USCIS NTA guidance that had been in effect since 2011.

The new NTA guidance in PM-602-0050.1 is said to be intended to implement the Trump Administration’s enforcement priorities as set out in the January 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.”  It lists a number of scenarios in which an NTA will generally be issued absent high-level approval to do otherwise, but perhaps the most significant is one buried at the bottom of page 7 of the memorandum, after discussion of various scenarios relating to fraud or criminal cases.  The memorandum states there that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”  This encompasses a wide variety of scenarios.

The new guidance’s apparent conversion of USCIS into an immigration-enforcement entity, contrary to the agency’s originally-intended mission as a benefits-granting entity distinct from the enforcement activities of other Department of Homeland Security components, has drawn criticism from the American Immigration Council and the American Immigration Lawyers’ Association, among others.  The criticism has understandably been from a broad, overarching perspective, and the new NTA policy is indeed deeply problematic from that perspective.  Some of the practical implications of the new policy, however, are also worth exploring in more detail.

By indicating that an NTA will be issued when, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present,” the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision.  That is, if an applicant for extension of nonimmigrant stay, change of nonimmigrant status, or adjustment of status was protected from the accrual of unlawful presence by the pendency of their application, but became unlawfully present the day that the denial was issued and mailed, it would seem that an NTA will follow.

Given the substantial processing times for many applications for change of status or extension of stay, this criterion could capture a great many nonimmigrants who in good faith applied to change to a different status, or extend their stay, well before their initial period of authorized stay expired.  According to the USCIS webpage regarding processing times, for example, an I-539 application for extension of stay or change of status which is processed at the USCIS Vermont Service Center is estimated to take between 9 months and 11.5 months.  So even someone who applies 9 months before the expiration of their initially authorized stay likely will not receive a decision before that period expires, and will thus be unlawfully present upon the issuance of an unfavorable decision on their application and subject to an NTA under the new USCIS policy.  Indeed, if a tourist or business visitor admitted for 6 months wishes to apply for an extension of stay or change of status, it would be mathematically impossible to do so far enough in advance to avoid this consequence in the event of a denial, because the projected processing time is longer than their entire initial period of admission!

Petitions and applications for extension of stay or change of status could also be denied for reasons which the nonimmigrant in question may not have anticipated.  As my partner Cyrus Mehta has pointed out, the new NTA guidance could apply, for example, to an H-1B skilled worker affected by new stricter USCIS policies regarding H-1B approvals, if the denial of an application for extension of stay comes after the expiration of the worker’s prior status.  It could also apply to an F-1 student who is the innocent victim of a mistake by a Designated School Official (DSO), or a B tourist or business visitor whom a USCIS officer decides has not given a sufficiently compelling explanation of why they want to remain for an extended but still temporary period of time.

Even one who has applied in good faith for a change of status or extension of stay, expecting it to be granted, may therefore under the new policy be placed in removal proceedings. Subjecting well-meaning temporary workers, students, tourists and other nonimmigrants to immigration court proceedings, and even potential detention, just because USCIS disagrees with the merits of their application for extension of stay or change or adjustment of status, is indicative of a malicious attitude towards noncitizens that we have also seen in other contexts from this Administration.

Because of what is likely to happen next in many such cases, this new policy is not merely malicious, but counterproductive as well, even when evaluated according to the goals that the Administration is presumably trying to accomplish (unless the Administration is more interested in harassing noncitizens, and generally deterring them from coming to the United States, than in encouraging timely departure following the denial of particular applications).  Initial hearings in removal proceedings often take several months to schedule even with the current backlog at the immigration courts, which will presumably get worse, not better, under the new NTA policy.  So our hypothetical denied applicant for change of status or extension of stay, who may have been planning to depart from the United States shortly after receiving the denial, will now be instructed to await an immigration court hearing in several months.  If he or she chooses to leave the United States in the meantime, and is unable to return for the removal hearing, this could result in a five-year bar to returning to the United States, pursuant to section 212(a)(6)(B) of the INA, which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”  An order of removal issued at such a hearing could also potentially lead to inadmissibility for ten years under section 212(a)(9)(A) of the INA, although the text of the statute (which refers to seeking admission “within 10 years of the date of such alien’s departure or removal”) suggests that this second bar ought not to apply where the person has already left at the time of the removal order (and unlike section 212(a)(6)(B) inadmissibility, 212(a)(9)(A) inadmissibility can at least be overcome by a grant of permission to reapply for admission under section 212(a)(9)(A)(iii) of the INA).  Thus, the statute provides a strong incentive for our hypothetical denied applicant, having been placed in removal proceedings, not to leave the United States before his or her hearing.

As long as the immigration court proceedings take place within one year of the denial of a timely-filed application for change of status or extension of stay by one who has not worked without authorization, our hypothetical denied applicant is likely to be better off staying in the United States to attend his or her hearing, so as to avoid the above-discussed types of inadmissibility, and then seeking voluntary departure under section 240B of the INA.  (The three-year bar for those unlawfully present for more than 180 days but less than one year, under section 212(a)(9)(B)(i)(I) of the INA, only applies by its terms to those who departed “prior to the commencement of proceedings under  . . . section 240” and so does not apply to someone placed in removal proceedings, though the ten-year bar for one year of unlawful presence under section 212(a)(9)(B)(i)(II) would apply.)  Thus, in this instance, the virtual wall will operate to keep in the United States for a substantial additional period of time someone who may have been perfectly willing to leave on their own shortly after the denial of their application for change of status or extension of stay, had they not been placed in removal proceedings.

In the presence of ever more outrageous immigration policies from the Trump Administration, such as the separation of children from their parents and the recent news that the Administration will likely fail to meet a court-ordered deadline to reunify separated children under 5 with their parents, there is a risk that more subtle anti-immigration measures may be overlooked.  As with other Trump Administration malfeasance, however, it is important not to succumb to such “outrage fatigue”.  The fact that the Administration has done even worse things does not mitigate the callous and counterproductive nature of a decision to place many well-meaning nonimmigrants in removal proceedings, and effectively prevent them from leaving the United States in a timely fashion after denial of an application even if they wish to do so.

Threading the Needle: Challenging Trump’s Travel Ban Despite Trump v. Hawaii

On June 26, 2018, the US Supreme Court in a 5-4 decision in Trump v. Hawaii upheld President Trump’s travel ban against seven countries, the majority of which are predominantly Muslim. Chief Justice John Roberts, in writing the majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.”

There has already been much criticism of this decision. Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of the Executive Order to be neutral on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution. Still, ironically, the majority made reference to Korematsu v. United States, 323 U.S. 214 (1944) as a result of Justice Sonia Sotomayor referencing this decision in her powerful dissent. She found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy.

The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel ban, it is not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

The irony here is that although the majority found that the motivation behind the executive order that resulted in the internment of Japanese-Americans was gravely wrong and has no place in law under our Constitution while Trump’s travel ban is facially neutral, the ban has resulted in the tragic and forced separation of families from the banned countries. It has also prevented the future entry of skilled people from these countries. For instance, if a US citizen sponsors a parent of Iranian nationality, that parent can never immigrate to the United States under the travel ban. The same prohibition would be applicable to a spouse who is an Iranian national who is the beneficiary of an approved I-130 petition filed by her US citizen spouse. While there are supposedly waivers for entry, as Justice Breyer in his separate dissent observed, the Government “is not applying the Proclamation as written,” where the Secretaries of State and Homeland Security have failed to issue guidance to consular officials on the issuance of waivers, and where only 430 waivers have been issued in total, representing “a miniscule percentage of those likely eligible for visas.” Justice Breyer points to a particularly egregious example of a travel ban waiver denial of a child with cerebral palsy from Yemen to demonstrate his point. Due to the war in Yemen, he explained, the young child could no longer access her medication for her disease, and was thus no longer able to move or speak and was going to die if she did not receive treatment soon. Despite this predicament and the young child’s clear eligibility for a waiver according to Presidential Proclamation 9645 (explaining that case-by-case waivers may be granted in circumstances involving, for example, “the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”), the consular official denied her waiver. After this story had been highlighted in an amicus brief before the Supreme Court, the family received an update from the consulate that they were eligible for waivers; however, instead of receiving visas, the case was put into administrative processing. It took several more months and international attention to get this child a waiver, indicating that these waivers are not being granted despite an individual’s clear eligibility for them, as outlined in the EO.

If waivers of those who are clearly eligible do not get approved, and one can find a pattern of wholesale denials that are consistent with Trump’s animus and hostility towards people from these banned nations, then it may be possible to assert that the motivations behind the denial of the waivers are based on improper stereotyping of certain nationalities that have no place under our Constitution, like the majority in Trump v. Hawaii found in Korematsu. Finding parallels behind the motivations that resulted in the forced internment of Japanese Americans to the wholesale denial of entry to people eligible for visas just because they happen to be nationals of predominantly Muslim countries could potentially result in further litigation that can overrule the ban, or at least force the Administration to actually implement its waiver process as outlined in the Proclamation. This will no longer be the facially neutral policy that the majority gave a pass to, rather the application of that policy through a sham waiver process will put more focus on the animus displayed by Trump towards Muslims. In other words, the failure to issue waivers, if shown to be a result of Trump’s animus towards Muslims, could be used as evidence to show that not only is the waiver process a sham, but could invalidate the entire EO in a future challenge.

It is at this juncture that Justice Kennedy’s tepid concurrence can provide the ammunition for future plaintiffs who challenge the waivers, and thus Trump’s travel ban. The following extract from Justice Kennedy’s concurrence is worth quoting in verbatim:

There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive…

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, dis­cretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their ac­tions, even in the sphere of foreign affairs. An anxious world must know that our Government remains commit­ted always to the liberties the Constitution seeks to pre­serve and protect, so that freedom extends outward, and lasts.

Thus, all hope is not lost for future plaintiffs adversely impacted by the travel ban. There might be a way to thread the needle by demonstrating that the actual application of the Executive Order, which the majority found facially neutral, is no longer so neutral if waivers are denied wholesale by government officials that are motivated by Trump’s original animus towards Muslims. It was this animus that resulted in the first two versions of the travel ban that were struck down by the lower courts of appeals, and which resulted in the third ban that was the subject of the Supreme Court’s decision in Trump v. Hawaii. It was also the same majority in Trump v. Hawaii that found Korematsu abhorrent but distinguished it from the supposedly facially neutral Executive Order of Trump. But plaintiffs can show that this very same EO is no longer neutral because the waivers are not accessible as misrepresented by the Government in Trump v. Hawaii. As explained above, there have been no official guidelines issued by the Secretaries of State and Homeland Security regarding how consular officials will adjudicate waivers, and whether those denied can seek further redress or review within the administrative system.  Such a failing to issue waivers or at least issue guidance to obtain these waivers again calls into question the ‘neutrality’ of the ban. Once the improper motivation can be shown, especially through the application of the waivers, litigants can again potentially challenge the ban.

As we’ve previously explained, while INA § 212(f) grants wide discretion to the President, “maximum power does not mean absolute power.” Aziz v. Trump2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). Once plaintiffs find an opening by challenging the ban through the sham waiver process, other authorities that limit the power of the President can spring to life. For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court found that the power of the Executive is “subject to important constitutional limitations.” In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court stated that the President’s Article II powers are subject to review, and ruled that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention. In Boumediene v. Bush, 553 U.S. 723, 765 (2008), the Supreme Court declared that the political branches cannot “switch the Constitution on or off at will” and extended the right of habeas review to a non-citizen outside the US. Moreover, in INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court reaffirmed that Courts were empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.” And as was argued in the Ninth Circuit, even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

Finally, until Trump became President, no one realized that INA § 212(f) could be applied so broadly so as to eviscerate visa classifications created by Congress. Trump v. Hawaii will embolden Trump even further to restrict legal immigration without going through Congress. For instance, he may apply 212(f) to certain family preference categories and restrict the entry of foreign nationals who are the beneficiaries of approved I-130 petitions, by declaring that their entry will be detrimental to the interest of the United States. The same would be true if Trump hypothetically decided to restrict H-1B beneficiaries, say from India, because he believed that their entry into the US would be inconsistent with his Buy American Hire American Executive Order, and thus detrimental to the interest of the United States. It is at this point that a less pliant Congress may have to step up and limit the broad language under 212(f) so that a president like Trump with authoritarian impulses will not be able to trample upon the separation of powers doctrine.

As Trump v. Hawaii passes through the ages, the dissents of Justice Sotomayor and Justice Breyer will have more force than the majority opinion. A powerful dissent signals to another court that the majority got it wrong, similar to Justice Murphy’s dissent in Korematsu. A dissent also sends a signal to Congress that it can overrule a Supreme Court decision by changing the law. This is how Justice Ginsburg’s powerful dissent in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618 (2007), resulted in Congress enacting the Ledbetter Equal Pay Act. There is thus hope for the nation to redeem itself if a future Congress modifies INA § 212(f) thus effectively overruling Trump v. Hawaii.