David Isaacson

“Safe” Third Country Agreements and Judicial Review in the United States and Canada

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The subject of safe third country agreements, or as the U.S. government has begun calling them “Asylum Cooperation Agreements”, has been in the news lately in both the United States and Canada.  The U.S. and Canada have had such an agreement with one another since 2002, implemented pursuant to section 208(a)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. 1158(a)(2)(A), and section 208.30(e)(6) of Title 8 of the Code of Federal Regulations (CFR) in the U.S., and pursuant to section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) and sections 159.1-159.7 of the Immigration and Refugee Protection Regulations (IRPR) in Canada.

The idea of a safe third country agreement (STCA) as it has traditionally existed, as between the U.S. and Canada, is that the two countries agree that many applicants for asylum or refugee status, who have first come to one of the two countries should apply in that country where they first arrived, rather than going to the other country to apply.  If both countries have “generous systems of refugee protection,” as the preamble to the U.S.-Canada STCA puts it, then there may arguably be efficiency in relegating people to apply for asylum in the first of the two countries that they reach.

The U.S.-Canada STCA covers only people who make a claim at a land border port of entry or are being removed from one of the two countries through the territory of the other.  It does not apply to citizens of either country or stateless persons last habitually residing in either country.  It also has other exceptions for applicants who have certain family members with lawful status in the country where they wish to make a claim, or whose family members already have ongoing asylum/refugee claims in that country, or who are unaccompanied minors, or who either have a valid visa for the country where they wish to apply or did not need a visa for that country but did for the other.  In addition, each country may exempt additional applicants whom it determines to process itself on the basis that it is in its public interest to do so. These exceptions are laid out at Articles 2, 4, and 6 of the agreement itself, and are also detailed at 8 C.F.R.§ 208.30(e)(6) and at IRPR sections 159.2 and 159.4-159.6.

As many refugee claimants have come to have less faith in the U.S. asylum system than the Canadian refugee system, and due to the restriction of the U.S.-Canada STCA to entrants at land ports of entry (or instances of removal through one country by the other), an increased number of refugee claimants have entered Canada at unauthorized crossing points outside a port of entry in order to make a claim, most notoriously at Roxham Road along the New York-Quebec border.  (The idea is not to evade immigration officers, but simply to avoid the application of the STCA; news articles describe an oft-repeated formal warning to the applicants that entry at that specific place will result in arrest, which does not generally dissuade people since being arrested after entry into Canada, and making a refugee claim, is precisely their goal.)  There has been discussion of modifying, suspending, or terminating the agreement, and one Conservative Member of Parliament suggested that the entire U.S.-Canada border be designated as a port of entry, although in practice that would have very peculiar consequences for the immigration system as a whole (since it would mean applicants for admission in general could show up at any point along the border to be processed).  There has also been a legal challenge, discussed further below, to the notion that the U.S. can currently qualify as a safe third country consistent with Canadian constitutional law and international obligations.  The Canadian government also recently, as part of a budget bill, added to IRPA a provision separate from the STCA but also evidently designed to discourage claimants from the United States, section 101(1)(c.1), which bars refugee claims by those who have previously claimed in the United States or another country with which Canada has an information-sharing agreement—a provision I have criticized in a prior blog post.

The U.S., meanwhile, has been entering and seeking to enter into “Asylum Cooperation Agreements” with various Central American countries, Guatemala being the first followed by Honduras and El Salvador.  An interim final rule was published last week to implement such agreements, and removal from the United States under the Guatemala agreement is said to have begun just a few days ago.

The signing and implementation of these “Asylum Cooperation Agreements” has attracted a great deal of criticism, because describing Guatemala, Honduras and El Salvador as safe third countries, or safe countries in any sense, would be highly dubious, to put it mildly.  A piece in Foreign Policy described the Agreement with Guatemala as “a lie”, given Guatemala’s high level of crime – the U.S. State Department’s Overseas Security Advisory Council (OSAC) having written of the country as “among the most dangerous countries in the world” with “an alarming high murder rate” – and lack of resources to process asylum cases – the country having apparently received only 257 asylum claims in 2018 and adjudicated only 17.  Indeed, even the U.S. asylum officers implementing the plan to remove asylum-seekers to Guatemala under the agreement have reportedly been given “materials . . . detailing the dangers faced by those in the country, including gangs, violence, and killings with “high levels of impunity.””  Honduras, where the U.S. Government is said to intend to implement a similar agreement by January, is also problematic to describe as a “safe” country, with OSAC relaying a Department of State Travel Advisory “indicating travelers should reconsider travel to the country due to crime.”  Similarly El Salvador, with which the U.S. has also signed an agreement despite its having one of the highest homicide rates in the world.  And given the radically underdeveloped asylum systems in Guatemala and likely the other countries as well, the requirement under INA 208(a)(2)(A) that “the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection” if removed seems unlike to be met.  The point of threatening removal to these countries seems to be more to discourage asylum claims entirely.

Moreover, the screening process to determine whether asylum-seekers can be exempted from removal to Guatemala, based on a fear of persecution there, is already being implemented in a way that has been described as “a sham process, designed to generate removals at any cost.”  Under the interim final rule, those subject to potential removal under an “Asylum Cooperation Agreement” will not be allowed to consult with attorneys or others during the screening process, or present evidence.  As the interim final rule puts it at new 8 C.F.R. § 208.30(e)(7), “In conducting this threshold screening interview, the asylum officer shall apply all relevant interview procedures outlined in paragraph (d) of this section, except that paragraphs (d)(2) and (4) of this section shall not apply to aliens described in this paragraph (e)(7)”—8 C.F.R. § 208.30(d)(4) being the provision that gives the right in ordinary credible-fear proceedings to “consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, and . . . present other evidence, if available.” This is different than the U.S.-Canada STCA, which specifically provides in its Statement of Principles that “Provided no undue delay results and it does not unduly interfere with the process, each Party will provide an opportunity for the applicant to have a person of his or her own choosing present at appropriate points during proceedings related to the Agreement.”  Unless vulnerable people with no legal representation, no opportunity to consult with an attorney or anyone else, and no opportunity to present evidence can prove to an asylum officer that they are more likely than not to be persecuted on a protected ground or tortured in Guatemala, they will be given the option of being returned to their home country of feared persecution or being removed to Guatemala.  One might reasonably describe this as outrageous, and a question that naturally comes to mind is whether it would survive review by a court.

The question of judicial review of the propriety and application of safe third country agreements and “Asylum Cooperation Agreements” has indeed arisen in both the United States and Canada, with different initial indications regarding the result.  In the U.S., the suggestion has been made by at least one commentator that the recent U.S. decision to send certain asylum applicants to Guatemala pursuant to an agreement may not be judicially reviewable (or at least “any lawsuits challenging the new rule will face significant obstacles”.)  In Canada, on the other hand, a challenge to the Canada-United States STCA, asserting that given current conditions in the U.S. the STCA violates the Canadian Charter of Rights and Freedoms, was argued before the Federal Court of Canada earlier in November and is awaiting decision.  A previous challenge to the Safe Third Country Agreement and the regulations implementing it had some success before being rejected by the Federal Court of Appeal of Canada in part on the basis that the organizations which had brought the challenge did not have standing to do so in the abstract; the current challenge includes a family of rejected refugee applicants seeking judicial review.

The basis for the potential lack of judicial review in the United States regarding safe third country agreements and their implementation is section 208(a)(3) of the INA, 8 U.S.C. § 1182(a)(3), which provides that “No court shall have jurisdiction to review a determination of the Attorney General under paragraph (2).”  (Recall that safe third country agreements, as a bar to asylum, are authorized by section 208(a)(2)(A) of the INA, which is part of the referenced paragraph 2.)  There are potential exceptions to this rule, such as the exception at 8 U.S.C. § 1252(a)(2)(D) for review of constitutional claims or questions of law on petition for review of a removal order, and the provision at 8 U.S.C. § 1252(e)(3) for review of written policies regarding expedited removal procedures within 60 days of their implementation, as in Grace v. Barr (formerly known as Grace v. Sessions and Grace v. Whitaker).  It may well be that the deeply problematic agreements with Guatemala, Honduras, and El Salvador, and the details of their implementation, will be subject to judicial review under one of these exceptions or otherwise.  There is certainly at least some basis, however, for the existing conventional wisdom that judicial review will be quite difficult.

Under Canadian law, on the other hand, judicial review of administrative action cannot be precluded in this way.  As I explained in my above-mentioned prior blog post, even aspects of the refugee determination as to which administrative decision-makers are given deference by the courts will be reviewed for reasonableness, because as explained by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, “The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies.  This power is constitutionally protected.”

Admittedly, even under Canadian law judicial review can be procedurally limited by legislation, although not eliminated.  Under section 72(1) of IRPA, for example, seeking review in the Federal Court of Canada of any decision under IRPA generally requires “making an application for leave to the Court.”  Moreover, under section 72(2)(d) of IRPA, the leave application is adjudicated by a single judge of the Federal Court “without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance”, and under section 72(2)(e), there is no appeal with regard to an application for leave.  Even if leave is granted, the single level of judicial review at the Federal Court may be all there is: under section 74(d) of IRPA, an appeal to the Federal Court of Appeal of Canada in an immigration matter is generally possible “only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.”  (Under certain very limited circumstances, an appeal can be taken to the Federal Court of Appeal even absent a certified question, but the threshold for that is quite high, as clarified recently in the citizenship context by Canada (Citizenship and Immigration) v. Fisher-Tennant, where the Court of Appeal quashed a government appeal against what was at most an ordinary error by the Federal Court in finding Andrew James Fisher-Tennant to be a citizen of Canada.)  So there is not an unlimited amount of judicial review, but there is necessarily some.

To the extent that the existing exceptions under the INA do not prove adequate to allow for full judicial review of decisions under safe third country agreements or “Asylum Cooperation Agreements”, Congress should give serious consideration to revising INA § 208(a)(3) to provide for judicial review of such decisions to exist in the United States, as it exists in Canada.  It was one thing, although still deeply problematic from a rule-of-law perspective, when the statute in practice only attempted to guard from judicial review decisions to return asylum-seekers to a plausibly safe country such as Canada.  If agreements are to be made with other, much more dangerous countries such as Honduras, Guatemala, and El Salvador, however, then judicial review of these agreements and how they are applied in practice becomes significantly more urgent.  Given the conditions in these countries, the question of whether people can be sent to such countries under safe-third-country agreements without any judicial review could literally be a life-or-death issue.

 

Cyrus Mehta

Filing an EB-1 as a Multinational Manager After the Approval of an EB-2 for a Backlogged Indian Beneficiary

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It requires skill and creativity to assist Indians caught in the employment based backlogs to find ways speed up the process or ameliorative solutions. The India employment-based second preference (EB-2) and employment-based third preference (EB-3) dates have barely moved for years, and the prospects for a beneficiary of an I-140 petition born in India for obtaining permanent residence anytime soon are bleak.

One strategy is to file an I-140 petition in the employment-based first preference (EB-1) for an individual who is stuck in the EB-2.  Under the State Department November 2919 Visa Bulletin, the Final Action Date for EB-2 India is May 13, 2009. The Final Action Date for EB-1 India is January 1, 2015. Since it is possible to capture the earlier priority date of the EB-2, a successful filing under EB-1 can assist the person to escape the backlog and gain permanent residency more quickly.

Take for instance Sunil Kumar who already has an approved I-140 under EB-2 with a priority date of January 1, 2012. His employer, ACB Corp. sponsored him through the labor certification process as a Systems Analyst. ABC Corp. wishes to promote Sunil to the position of Vice President, Cloud Projects. Under the new position, Sunil will be required to manage all cloud based projects of ABC Corp’s Fortune 500 corporate clients. Sunil will oversee subordinate managers and professional employees, mainly software developers and systems analysts, in this new position of Vice President, Cloud Projects.

Before moving ahead, an important caveat: Sunil and his fact pattern is a made up for purposes of illustrating a legal strategy. Any resemblance to actual persons, entities or actual events is purely coincidental.

Prior to coming to the US, Sunil was employed with ABC Pvt. Ltd. in India, a wholly owned subsidiary of ABC Corp., in the position of Systems Analyst from January 1, 2008 to December 31, 2010. He entered the US in H-1B status on January 1, 2011 to work for ABC Corp as a Systems Analyst.

In order to sponsor an employee under INA 203(b)(1)(C) as a multinational manager or executive for permanent residency (EB-1C), not only must the proposed position in the US be managerial or executive in nature, but the prior employment in the qualifying entity in India should have also been managerial or executive in nature for one year in the past three years, which as will be explained below, can be tolled in certain circumstances. While Sunil was employed as a Systems Analyst at the qualifying entity in India with no obvious managerial duties, towards the end of his employment in India, from October 1, 2009 till December 31, 2010, due to his talent and acumen, Sunil was assigned to manage important migration projects on behalf of ABC Pvt. Ltd. clients in India even though he was not formally employed as a manager. While the title of his position remained Systems Analyst, Sunil managed other professional employees with respect to various complex migration projects that he successfully completed on behalf of his employer.

While Sunil was in H-1B status and performed his duties in an exemplary manner, ABC Corp decided to sponsor Sunil for permanent residency for the position of Systems Analyst.  A PERM labor certification was filed on Sunil’s behalf on January 1, 2012, and after it got approved, an I-140 petition under EB-2 was also filed and easily got approved. The PERM labor certification that supported the I-140 under EB-2 required a Bachelor of Computer Science degree plus five years of progressively responsible experience as a systems analyst. The five years of experience described in Column K of the PERM labor certification for Sunial included managing technology migration projects for large corporate clients. The 15 months of Sunil’s employment at ABC Pvt Ltd. in India from October 1, 2009 to December 31, 2010 could have been viewed as managerial, but an I-140 under EB-1C was not contemplated in 2012 since the position of Systems Analyst in the US was not managerial. Moreover, it was not clear then whether the duties in India during the last fifteen months of his employment would be considered managerial as he was not formally employed as a manager. It was also not conceivable then that the EB-2 would languish in the backlogs until 2019 and beyond.  At the present time, however, ABC Corp. is very keen on promoting Sunil to the position of Vice President, Cloud Projects, which is clearly a managerial position.

Sunil potentially qualifies under EB-1C based on the proposed position of Vice President in the US and his prior managerial experience in India from October 1, 2009 to December 31, 2010. Although the qualifying experience at the foreign entity must be for one year in the past 3 years, the “one of three year” requirement may be met even if the person is in the United States for more than three years if s/he is working for the same employer, affiliate, or subsidiary in the United States and was employed for at least one of the last three by company abroad before entering in valid nonimmigrant status. 8 C.F.R. §204.5(j)(3)(i)(B).  Sunil has been in valid H-1B status from January 1, 2011 till today for ABC Corp, which is a wholly owned subsidiary of ABC Pvt. Ltd in India. Although the six year limitation under H-1B has long since gone, he has been able to obtain 3 year extensions pursuant to § 104(c) of the American Competitiveness in the 21st Century Act by virtue of his approved I-140 under the India EB-2, which has not yet become current.  Thus, the experience that Sunil obtained from October 1, 2009 to December 31, 2010 would potentially be qualifying experience for classification as a multinational executive or manager under EB-1C. Although Sunil was admittedly a first level supervisor,  INA § 101(a)(44)(A)(iv) states that “[a] managerial employee must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals.” Since Sunil managed professional employees, a case can be made that he was engaged in qualifying managerial role.

Sunil also has a daughter, Sujata, who is going to turn 21 on January 1, 2020. Pursuant to the current I-140 under EB-2, there is no hope that Sunil’s daughter will be able to protect her age under the Child Status Protection Act, codified at INA §203(h). If ABC Corp. files a new I-140 under EB-1C, however, even if Suneeta crosses 21 on January 1, 2020, once the EB-1C is approved and captures the EB-2 priority date of January 1, 2012 (and the priority date of January 1, 2012 for  EB-1 India continues to remain current), any time between the filing of the I-140 petition and the approval of the I-140 petition can be subtracted from Sujata’s age pursuant to INA §203(h)(1)(A)&(B). As long as the I-140 was filed prior to her 21st birthday, even if it gets approved after her 21st birthday, that time can be subtracted from her age and artificially bring the age under 21. Sunil may also file an I-485 application for adjustment of status concurrent with the I-140 petition under EB-1C, and corresponding I-485 applications can be filed by his daughter, Sujata, and his spouse, Suneeta. The USCIS allows such an I-485 filing concurrently with an I-140 udder EB-1C if it is clearly explained that the EB-2 priority date  will be captured upon the approval of the EB-1C.  While Suneeta has work authorization under the H-4 EAD rule,  8 CFR § 214.2(h)(9)(iv), she is nervous that she will not be able to continue to have it as the Trump administration has declared its intention to rescind the rule. Suneeta will be able to obtain an EAD based on her I-485 pursuant to 8 CFR § 274a (12)(c)(9). Unlike the renewal of an H-4 EAD, an EAD obtained based through I-485 gets automatically renewed for 180 days provided the renewal is filed prior to the expiration of the initial EAD.

If the I-140 under EB-1 gets approved, the January 1, 2012 priority date of the EB-2 will transfer to the EB-1, and Sunil, Suneeta and Sujata will get permanent residency once their I-485 applications are approved.

This strategy assumes that like Sunil, a backlogged beneficiary under EB-2, had qualifying managerial experience with a related foreign entity prior to being employed in the US, and the experience indicated in the PERM labor certification is consistent with the qualifying experience that will be indicated in support of the I-140 under EB-1C. The USCIS also strictly scrutinizes the managerial role of the beneficiary at both the qualifying foreign entity and the proposed managerial role in the US. Many similar cases have been arbitrarily denied even where a strong case was made demonstrating the managerial role at both entities.  Still, those whose facts are similar to Sunil can try to file a new I-140 under EB-1. Even if the beneficiary does not have prior qualifying managerial experience at the related foreign entity, if he or she has attained recognition in cloud related projects and can qualify as a person of extraordinary ability under INA 203(b)(1)(A) (EB-1A), an I-140 petition can be attempted  under EB-1A. An EB-1A I-140 filed as a person of extraordinary ability is also very difficult to obtain, and the USCIS routinely denies such petitions. Yet another more safe approach is to transfer the employee to the foreign related entity in an executive or managerial capacity for one year, and then file an EB-1C after the completion of one year of qualifying employment. However, this strategy will not help if there is a child who is imminently aging out and uprooting a family for one year from the US is less than ideal.

Still, when one’s back is against the wall, and there is a child who is aging out, it is worth trying every legitimate measure permissible under the law. My good colleague Brent Renison has also suggested creative solutions for surviving spouses and children who will age out.  If there were no country cap, Indians would not be so badly affected and Sunil with a priority date of January 1, 2012 under EB-2 would have by now had a green card, and also likely become a US citizen, and so would his wife and daughter. Until country caps are eliminated through the passage of S386, or S2603, although S386 has a significantly better chance of passing than S2603, Indians will continue to languish in the EB backlogs. A lucky few may be able to escape the backlogs by filing EB-1 petitions, but not everybody will be eligible to do so.

(This blog is for informational purposes and is not intended to constitute legal advice).

Cora-Ann Pestaina

Court Shoots Down Embarrassing Leaps by USCIS to Justify an H-1B Denial

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Ever got that frustrating feeling that the USCIS adjudicator first decided that the H-1B petition needed to be denied and only then set about finding reasons, however shaky, to support that denial?  Ever wondered how it is possible for the adjudicator to completely ignore the preponderance of the evidence standard in favor of the criminal standard of beyond all reasonable doubt? The case of Innova Solutions, Inc. v. Kathy A. Baran, case number 2:18-cv-09732 in the US District Court for the Central District of California evokes these exact types of feelings and questions.

As background, except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See e.g. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings) . . .

The “preponderance of the evidence” standard requires that the evidence demonstrate that the applicant’s claim is “probably true,” where the determination of “truth” is made based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, Matter of E-M- also stated that “[t]ruth is to be determined not by the quantity of evidence alone but by its quality.” Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof.  See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

Matter of Chawathe, A74 254 994 (Admin. Appeals Ofc. / USCIS Adopted Decision, Jan. 11, 2006).

Under the preponderance of the evidence standard, the adjudicating USCIS officer is supposed to approve the petition as long as it is “more likely than not” that the petitioner’s claim is true. Cases like Innova demonstrate that this standard is surely not being applied, at least not across the board.

Innova sought to employ the foreign national beneficiary as a Solutions Architect to work in-house at their corporate headquarters developing their proprietary software and hardware. USCIS issued what has become a typical RFE requesting additional information to establish the specialty occupation nature of the position; the beneficiary’s qualifications; and that an employer-employee relationship existed.  Innova’s RFE response included a cover letter explaining the type of the work in which the beneficiary would be engaged; a description of the beneficiary’s typical day by percentage; an organizational chart; a Proof of Concept for the project the beneficiary would be involved with; Innova’s tax returns; Innova’s lease for the area where the Beneficiary would work; and an overview of Innova. Still, USCIS denied the petition on the grounds that the employer-employee relationship had not been established and Innova had failed to demonstrate that the beneficiary would be working in-house and not placed with an end-client and failed to show sufficient in-house employment for the duration of the requested H-1B period.

Innova filed suit thereby allowing us to see that no argument is too weak for USCIS to rely upon.

Despite Innova’s clear statements in its initial petition and RFE response, USCIS argued that it was rendered incapable of determining whether the beneficiary would be working on Innova’s product or whether he would be working at a third party client site all because Innova’s website indicated that Innova’s main function is to provide information technology consulting services to other companies. But the court pointed out that this same website indicated that Innova provided “services” and “solutions” to its clients. Under the “solutions” portion of the website was information about software programs and applications created by Innova. The court stated that “because USCIS visited Innova’s website and relied on the website as evidence in making its findings, USCIS may not then ignore evidence on the website contradicting its position.”

Another reason for USCIS’ denial was that Innova failed to provide sufficient evidence to establish that it created its own products in-house. To justify its reasoning, USCIS pointed out that the Proof of Concept PowerPoint that Innova submitted with its RFE response merely established that the product exists and not that Innova is the company producing it or that the beneficiary would work on it. USCIS dismissed information on the project because all information about it “was submitted by petitioner or petitioner’s counsel in counsel’s cover letter”, i.e. there was no published or printed information. USCIS even went as far as to claim that despite Innova’s submission of a copy of its lease for a 450ft space, it remained unknown whether this is sufficient space to produce the information technology project or whether the space is being used to develop and produce the claimed product. USCIS also claimed that Innova’s tax returns were not sufficient to establish that the company produced a product that it sold within those tax years.

Thank goodness for the existence of rational judges. The court held that it was illogical for USCIS to dismiss Innova’s PowerPoint in its entirety just because there was an absence of printed work published about the product. The product is nonexistent and Innova consistently stated that the beneficiary was needed to produce the product. Regarding USCIS’ purported lack of knowledge as to whether the corporate headquarters would be able accommodate the work on the project, the court pointed out that it was entirely clear that the beneficiary would only require a desk and a computer! And, as for the tax returns, the court reminded USCIS that these were only submitted to prove that the company had sufficient work available for the beneficiary and not to prove it sold goods. Further, the product on which the beneficiary would work was intended to be used in-house to provide solutions to Innova’s clients and there was no stated intention to sell it.

Overall, USCIS claimed that it had to deny the case due to “numerous inaccuracies and contradictions.” Thankfully, the court did not find these to be plausible. The court shot down USCIS’ claim that there was an inaccuracy in Innova’s statement that it had 177 employees because the organizational chart it submitted showed only 7 people. The court pointed out that Innova never claimed that the chart listed every single employee. It was actually submitted to show that the beneficiary would report to the Vice President of the company.  USCIS also isolated one job duty that indicated the beneficiary would “clarify the ambiguities and issues with the business stakeholders and help the team in proper execution of the project” and used this to state that it appeared he may be working with clients. The court found that there was no evidence that he would not be doing this in-house as the company stated.

And, in its biggest leap, USCIS took Innova old job advertisements, submitted to prove that Innova typically required a Bachelor’s degree for the offered position, wherein Innova had stated a requirement for travel to client sites, and used these to support its argument that the beneficiary would be traveling to client sites.  The court had to point out that a showing relevant to the specialty occupation argument did not demonstrate that the beneficiary would also be required to travel.

The jumps and leaps that USCIS made to deny this case truly indicate a complete disregard for the preponderance of the evidence standard. Rather than adhering to the rule of law, USCIS is blatantly more concerned with its agenda to maintain its steady attack on the H-1B visa category. With all the evidence submitted by Innova, it was unquestionably “more likely than not” that its claims were true. While the court didn’t go as far as to state this, it appears that USCIS applied the “beyond all reasonable doubt” standard, the highest standard of proof possible. Thankfully, they were not allowed to get away with it in this instance.  Hopefully, more and more employers are finding the courage to fight back and illuminate for the rest of us, how far USCIS will sometimes go and to provide us with case law that can be cited to prevent future, similar casualties, especially for employers who simply cannot finance a federal law suit. Plucky Innova deserved to win this one even though it has lost previously in other H-1B matters.  RFE responses should remind USCIS that it needs to consider the record as a whole; that USCIS cannot isolate specific statements to try to justify its claims; and that there must be a rational connection between any stated reasons for denial and the actual facts of the case. And, as if H-1B petitions haven’t gotten hard enough, it may behoove us to sit with each piece of evidence and try to imagine how it could possibly be misinterpreted or reimagined to justify a denial. Although, try as we might, some things are just unimaginable.

 

 

Cyrus Mehta

Trump Is Not King, Cannot Rewrite Public Charge Law Through Executive Fiat

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Can President Trump act like a king by rewriting US immigration law through the invocation of INA 212(f)? Although America shrugged itself from the yoke of King George III in 1776, Trump issued a Proclamation on October 4, 2019 in total disregard of a Congressional statute – defining who is likely to become a public charge – that would bar intending immigrants from the United States if they do not have health insurance lined up within 30 days of their admission. A federal court in Oregon in Doe v. Trump issued a Temporary Restraining Order on November 2, 2019, one day before the Proclamation was to take effect. Although the TRO is only valid for 28 days, it is still a significant victory in the opening salvo of yet another challenge to thwart Trump’s ability to rewrite large swaths of the Immigration and Nationality Act.

While INA § 212(f) does give extraordinary power to a president, Trump has tried to use his powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

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 any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

Trump soon after becoming president invoked INA § 212(f) through presidential proclamations to impose his travel ban against nationals of mainly Muslim countries. This was done to fulfill a campaign promise to impose a ban on Muslims, which is also why it is known as a Muslim ban.  He decided without foundation that the entry of Iranian nationals (one of the countries subject to the ban) would be detrimental to the interests of the United States even though they came to marry a US citizen or visit relatives.   The Supreme Court, disappointingly,  upheld the third version of the ban in  Trump v. Hawaii  in June 2018 stating that INA § 212(f) “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.” One should still give credit to prior lower federal court decisions that blocked the first and second versions of the travel ban, on the grounds that Trump exceeded INA 212(f), which were far worse than the watered down third version that was finally upheld.

Trump got more emboldened. On November 9, 2018, he issued another proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States.  The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation. The key issue is whether INA § 212(f) allowed a president like Trump with authoritarian impulses to override entire visa categories or change the US asylum system?   INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration had virtually closed the designated ports of entry for asylum seekers, which forced them to cross the border through irregular methods. In East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (2018),  the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus, INA § 212(f) could not be used as a justification to override INA § 208. Although the Supreme Court has temporarily blocked East Bay Sanctuary Covenant from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided, Supreme Court has not passed any judgment on the merits of the case.

On October 3, 2019, Trump yet again invoked INA §212 (f) by issuing a Proclamation to ban intending immigrants from entering the United States if they did not have health insurance within 30 days of their arrival in the United States. Under the Proclamation, an intending immigrant who has satisfied all statutory requirements set out in the INA will nevertheless be permanently barred from entering the United States if that person cannot show, to the satisfaction of a consular officer, that he or she either “will be covered by approved health insurance” within 30 days of entering the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” Except for certain special Immigrant Visa applicants specifically from Iraq and Afghanistan, and unaccompanied biological and adopted children, the Proclamation will be applied to all intending immigrants. The Proclamation, which was to take effect on November 3, 2019, was expected to affect nearly two-thirds of all legal immigrants, with a disproportionate impact on immigrants from Latin America, Africa, and Asia.

The Proclamation provides eight specific types of “approved health insurance” for an intending immigrant: (1) an employer-sponsored plan; (2) an “unsubsidized health plan offered in the individual market within a State;” (3) a short-term limited duration insurance (“STLDI”) plan “effective for a minimum of 364 days;” (4) a catastrophic plan; (5) a family member’s plan; (6) TRICARE and similar plans made available to the U.S. military; (7) a visitor health insurance plan “that provides adequate coverage for medical care for a minimum of 364 days;” and (8) Medicare. A prospective immigrant may also obtain a “health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee,” but the Proclamation provides no guidance as to how “adequate coverage” is defined.

The Proclamation excludes from the scope of  “approved health insurance” any “subsidized” healthcare offered in the individual market within a State under the Affordable Care Act, as well as Medicaid for individuals over 18 years of age, even though some states have chosen to make Medicaid available to certain adults over 18 years of age, including certain new and recently arrived immigrants. The Proclamation relies on a single dispositive factor—the health care insurance status of an individual—to determine whether the individual will “financially burden” the United States. It is designed to exclude a large number of otherwise qualified immigrants because in reality only an STDI plan and a visitor health insurance plan would be available to one who has yet to enter the United States. Even if such plans were available, they would exclude people with preexisting conditions and would not have the essential health benefits as required under the ACA to which a new immigrant could access, but which would not qualify under the Proclamation.

Based on the likelihood of success on the merits standard that applicable for the grant of a TRO, Judge Michael Simon  in Doe v. Trump found that the Proclamation’s reliance on the health care insurance status of an individual as the sole factor for determining inadmissibility as a public charge conflicted with INA § 212(a)(4) in at least five ways.

First, Congress in INA §212(a)(4)(A) has spoken directly to the circumstances in which an individual may be deemed to become a “financial burden” to the United States and has rejected the Proclamation’s core premise of lack of health insurance being the sole factor. This provision states that “[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” When determining whether an individual may become a public charge, the statute enumerates the factors that are to be considered “at a minimum” to include the applicant’s age; health; family status; assets, resources, and financial status; and education and skills. The statute outlines the permissible factors in the public charge determination and nowhere mentions an individual’s health care insurance status as one of the permissible factors, according to Judge Simon. Given the statute’s enumeration of age and health, the statute’s omission of “health care insurance status” is important.

Second the statute precludes any single factor from being a dispositive factor, which requires a totality of the circumstances test to be applied. The totality of the circumstances test has long been a feature of the public charge ground even before Congress statutorily mandated it in 1996. The court in Doe v. Trump cited Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) in support of the long use of the totality of circumstances test. The Proclamation, on the other hand, conflicts with the statutory text by deeming an individual to be a financial burden based solely on her health care insurance status and eschewing all the other statutory factors including, perhaps most incongruously, the health of the individual herself.

Third, the Proclamation’s dispositive reliance on health care insurance status contravenes decades of agency interpretation.

Fourth, the Proclamation’s reliance on an individual’s accessing short-term health care benefits as a reason to find the person a “financial burden” has been expressly rejected. Citing City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., (N.D. Cal. Oct. 11, 2019) (the public charge statute has had a “longstanding allowance for short-term aid”).

Fifth, the Proclamation revives a test for financial burden—the receipt of non-cash benefits—that Congress has rejected. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996), which amended the INA by codifying five factors relevant to a public charge determination. The Senate rejected the effort to include previously unconsidered, non-cash public benefits in the public charge test and to create a bright-line framework of considering whether the immigrant has received public benefits for an aggregate of twelve months as “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet.” S. Rep. No. 104-249, at *63-64 (1996) (Senator Leahy’s remarks). Accordingly, in its final bill, Congress did not include the receipt of Medicaid, Security Income, and other means-tested public benefits as determinative of a public charge.

Based on these five reasons, the court in Doe v. Trump issued the TRO on the ground that plaintiffs were able to show a substantial likelihood of success on the merits.  The court specifically relied on East Bay Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA 212(f) to amend the INA. The court also held that notwithstanding this being a presidential proclamation, it was “not in accordance with the law” under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A). Further, the court also noted that the Plaintiffs have satisfied their burden of showing Defendants’ implementation of the Proclamation likely constitutes final agency action, thus akin to a final substantive rule, that is “arbitrary, capricious, [or] an abuse of discretion.” While the government has yet to submit arguments, and another hearing is scheduled shortly, it is remarkable that once again a court has struck down Trump’s use of INA §212(f) to rewrite the immigration law. In the instant case, Trump has undermined provisions that Congress has specifically enacted to determine who is likely to become a public charge. If courts do not check the president’s use of INA §212(f) to issue policies that reflect his racist views, there will be no limit with what Trump can do with our immigration laws without having to go through Congress to change them, or even issuing regulations under the Administrative Procedures Act.

There are other arguments that can be advanced to show how utterly incompatible the Proclamation is to specific provisions of the INA. The Proclamation would also bar immigrants based on approved self-petitions under the Violence Against Women Act.  Congress specifically indicated that VAWA self-petitioners will be excepted from the public charge requirements in INA 212(a)(4)(A)-(C).  How can the Proclamation override these provisions in the INA that created an exception for VAWA petitioners and require them to have health insurance?

In addition, the Proclamation is also a gross violation of the APA as the Proclamation is ultra vires of the INA. This argument can be further bolstered if the court considers Justice Robert’s invocation of Justice Friendly in the census case,  Department of Commerce v. New York, favoring judicial  review of executive actions:

Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Furthermore, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not.

It is also no secret that the Proclamation is designed to exclude immigrants from poorer countries from Latin America, Asia and Africa, which Trump has derided as “shithole countries.” The President’s derisive language towards Muslims was successfully used against him in the Fourth Circuit decision in IRAP v. Trump, to demonstrate that the Muslim ban violated the Establishment Clause of the US Constitution. It has also been used against him in litigation opposing the termination of Temporary Protected Status.  Although the Supreme Court did not consider violation of the Establishment Clause argument, it does not mean that plaintiffs cannot pursue constitutional arguments in Doe v. Trump. Here, the Proclamation has violated the Equal Protection Clause as it discriminates against immigrants from poorer countries who will not be able to afford the health insurance or will be forced to buy substandard insurance plans. The healthcare exchanges under the Affordable Care Act clearly allows a new immigrant to buy into a subsidized healthcare plan, which they cannot decline under a particular income level. This is inconsistent with the statutory and regulatory structure that directs a lawful permanent resident to do so under the ACA.

The American Immigration Lawyers Association along with a coalition of civil rights groups under Latino Network inspired the lawsuit, which makes me feel proud to be a member of AILA and especially AILA’s Administrative Litigation Task Force. We have a long road ahead as the government will respond with arguments in favor of presidential power, but now is the time to make the most compelling arguments to stop a president like Trump from invoking INA § 212(f) to rewrite immigration law in a way that is both inconsistent with the INA and with the foundational principle of America being a nation of immigrants.