Cyrus Mehta

The Impossible Feat of Determining Who is an “Illegal Alien” Under Trump’s Unconstitutional Census Executive Order

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In line with other xenophobic actions too numerous to keep tabs on, President Trump issued a Presidential Memorandum dated July 21, 2020 entitled “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” From the title itself, it is readily obvious that the Trump administration does not intend to count undocumented or unauthorized immigrations in the 2020 census, which it pejoratively refers to as illegal aliens. Who is legal or illegal defies an easy definition. US immigration law is so paradoxical that even if one has been ordered removed, this individual may still be authorized to remain in the US and obtain work authorization.

Not only is this executive order unlawful and completely unconstitutional, but it boggles the mind regarding how the administration will ever be able to determine who is authorized or not in the US in order to be counted in the 2020 census.

It is vitally important to count population numbers to divide up seats in Congress among the states. Excluding undocumented immigrants will result in less seats in Congress for Democratic states. If unauthorized immigrants are left out of the apportionment count, according to the Pew Research Center, California, Florida and Texas are each likely to end up with one less House seat, while Alabama, Minnesota and Ohio are each likely to hold onto a seat they would have otherwise lost after the 2020 Census. Since the first Census of the United States in 1790, counts that include both citizens and noncitizens have been used to apportion seats in the House of Representatives, with states gaining or losing based on population change over the previous decade.

Lawsuits have been filed – here, here and here,  justifiably challenging the exclusion of unauthorized immigrants from the census counts on constitutional and other grounds. The Presidential Memorandum follows the Supreme Court’s decision in New York v. Department of Commerce , 588 U.S. ___ (2019) that held that the Trump’s administration’s prior reasoning to include the citizenship question in the Census was “contrived” and thus arbitrary and capricious under the Administrative Procedure Act (see Can the Arbitrary and Capricious Standard under the Administrative Procedure Act Save DACA). Hopefully, the courts will also smack down this Presidential Memorandum for its blatant disregard of the Constitution’s mandate under the Fourteenth Amendment to count all residents in a state.

Section 2 of the Presidential Memorandum excludes “aliens who are not in a lawful immigration status under the Immigration and Nationality Act.” But this too is broad and vague. One who is in the US in temporary B-2 visitor status for three months is in a lawful immigration status. On the other hand, a person who has resided in the US for a decade and whose  status  expired a long time ago could  be authorized to remain in the US upon filing an I-485 application to adjust status to permanent residence by virtue of a recent marriage to a US citizen. The Presidential Memorandum provides the following false rationale for excluding undocumented immigrants:

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.  Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.  Many of these aliens entered the country illegally in the first place.  Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.  States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.  Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.  Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.

However, the rationale still does not explain whether one who entered without inspection, but is now authorized to remain in the US through the filing of an I-360 petition under the Violence against Women Act and a concurrent I-485 application will be included or not in the census. It does not appear that whoever drafted this document really had any idea about how “legal” or “illegal” is considered under the INA.

“Lawful immigration status” is specifically defined in the implementing regulations at 8 CFR 245.1(d)(1) rather than in  the Immigration and Nationality Act (INA) itself,  for purposes of determining who is eligible to adjust status under  INA 245(c)(2). It provides for the following categories of persons who are in “lawful immigration status”:

(i) In lawful permanent resident status;

(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter;

(iii) In refugee status under section 207 of the Act, such status not having been revoked;

(iv) In asylee status under section 208 of the Act, such status not having been revoked;

(v) In parole status which has not expired, been revoked or terminated; or

(vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

It is unlikely, however, that this is what the drafters of the Presidential Memorandum within the Trump administration had in mind in deciding who is in lawful status and who isn’t. As already explained, there is a large universe of persons who are authorized to remain in the United States but who do not fall into any of the above categories pursuant to 8 CFR 245.1(d)(1). Perhaps, one is giving the Trump administration too much credit about thinking through this definition and the drafters just assumed, albeit erroneously, that there are discrete classes of those in lawful status and those who are not.  Immigration law is far more nuanced. One may not have been granted asylum, and thus qualify as an asylee under 8 CFR 245.1(d)(1)(iii), but an applicant for asylum is nevertheless authorized to remain in the US and can also obtain employment authorization after 365 days of filing the application. Similarly, one who files an I-485 application to adjust status is authorized to remain in the US even if the underlying nonimmigrant status has expired.

Any attempt to define who is unauthorized in order to exclude them in something as crucially vital as the decennial census count will get it wrong. Even Chief Justice Roberts got it wrong in Chamber of Commerce v. Whiting, 563 U.S. 582 (2011),  when he wrote for the majority that  an individual  who “had been ordered removed” would establish that individual’s lack of authorization to work. In that case, the Supreme Court upheld an Arizona state law suspending business licenses if businesses hired people without work authorization.  David Isaacson in his blog,  If Even the Chief Justice Can Misunderstand Immigration Law, How Can We Expect States to Enforce It Properly?   Removal Orders and Work Authorization,  cites many other instances when a person with a removal order is still entitled to work authorization. For example,  an asylum applicant who has been ordered removed but has filed a petition for review in circuit court can nevertheless apply for work authorization and is authorized to reside in the US during the pendency of the appeal.  8 C.F.R. § 274a.12(c)(18) also contemplates the issuance of work authorization to one who has been ordered removed if the person cannot be removed or where it is impractical to remove him or her.  A DACA recipient who may have been the subject of a removal order at some point is now authorized to reside in the US without fear of removal.

The sheer inability to define who is a so called “illegal alien” further opens up the Presidential Memorandum to challenge in the courts. Persons whom the government may arbitrarily decide are unauthorized may be left out of the count even if they have been in the US for years, paid taxes and been authorized to reside and work under the law. These persons have also been denied their basic humanity by not being treated as persons. This executive action will also deter noncitizens from completing the census as most – unless they are lawful permanent residents -will not know whether they are documented or not.  Four decades ago,  the Supreme Court reaffirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982). It is axiomatic that undocumented individuals are human beings and President Trump cannot change this. Given the sheer impossibility of determining who is and who is not legal, President Trump must be compelled by a court to count all persons for the census regardless of their immigration status. This is also mandated by the Constitution.

Cyrus Mehta

Trump’s Work Visa Ban Violates the Immigration and Nationality Act and So Do the Exceptions

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By Cyrus D. Mehta and Kaitlyn Box*

Trump’s Proclamation 10052  has imposed a ban on foreign nationals seeking to enter the United States on H-1B, H-2B, L and J visas. Trump derived the authority to impose the ban from INA 212(f), which authorizes the President to suspend the entry into the United States of certain categories of individuals whenever he “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”. Trump has relied on this provision to issue numerous proclamations that practically rewrite the immigration laws of the United States.

Proclamation 10052 has been subject to a slew of lawsuits such as Gomez v. Trump, NAM v. Trump, and Panda v. Wolf. These lawsuits challenge Trump’s authority to use INA 212(f) to alter the immigration laws, particularly where the administration has attempted to rewrite broad provisions of the INA by proclamation. For our prior commentary on Proclamation 10052, please see The Real Threat  to the US Economy is Trump’s Proclamation, Not the Workers It Bans, http://blog.cyrusmehta.com/2020/06/therealthreattotheuseconomyistrumpsproclamation.html and Trump’s Visa Ban Causing Havoc to Families and Children, http://blog.cyrusmehta.com/2020/07/trumps-work-visa-ban-causing-havoc-to-families-including-children.html.

Perhaps as a way to moot out the lawsuits, the Department of State recently issued a list of circumstances under which waivers are likely to be issued for Presidential Proclamation 10052 restricting the entry of nonimmigrants.  The full list is at https://travel.state.gov/content/travel/en/News/visas-news/exceptions-to-p-p-10014-10052-suspending-entry-of-immigrants-non-immigrants-presenting-risk-to-us-labor-market-during-economic-recovery.html, and the most significant parts for H-1B and L-1 cases are reproduced below.

Those seeking to resume ongoing employment in the United States in the same position  with the same employer  and same H-1B or L-1  classification are most likely to benefit from the exceptions, assuming that they were not already exempted.

For H-1B applicants not seeking to resume on going employment in the same position and same employer, the most likely exceptions to apply are any two of number 1, 3, and 4 below.  That is, new H-1B petitions filed during or after July where the wage is 15% above the prevailing wage or the applicant has a doctorate or professional degree or many years of experience; or pre-July petitions where the wage is 15% above the prevailing wage and the applicant has a doctorate or professional degree or many years of experience.

  • For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:
  1. The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.  Labor Condition Applications (LCAs) approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
  2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:a.)    Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR

    b.)    The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

  3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
  4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
  5. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

Essentially the same public-health, government-supported, and ongoing-employment exceptions (the first three unnumbered bullet points) are in place for L-1A and L-1B cases, but the other exceptions are a bit narrower for them.

For an L-1A, the additional exception is:

  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
  1. Will be a senior-level executive or manager;
  2. Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
  3. Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

For L-1B cases, the additional exception is:

  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
  1. The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
  2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
  3. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

Although the State Department guidance offers welcome exceptions for some H-1B and L-1 visa holders (as well as H-2B and J visa holders) who are seeking to overcome the latest ban, the guidance suffers from the same problem as the original proclamation – it amounts to a rewrite of the INA in violation of the Administrative Procedure Act. Take, for example, the requirement that: “The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.” This additional wage requirement is entirely absent from the INA.

Another example is a provision in the guidance which states that “L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.” The requirement that petitioners employ five or more U.S. workers also has no basis in the INA or in 8 Code of Federal Regulations. For L-1B applicants, the need to demonstrate significant and unique contributions to the petitioning company, that the  specialized knowledge is specifically related to a critical infrastructure need and that the applicant has spent multiple years with the same company has no basis in the law or regulations. Under the existing INA and regulations, the L-1B applicant must demonstrate that he has had one year of qualifying experience in a managerial, executive or specialized knowledge capacity.

Despite the fact that Proclamation 10052 still places significant restrictions on the H-1B and L-1 visa categories, the new guidance may provide exceptions for several categories of individuals who would have been banned under the original proclamation. For example, the new guidance exempts many healthcare workers and medical researchers, not just those treating COVID-19 patients. Additionally, the exemptions might allow H-1B employees who were trapped outside the United States when the proclamation was issued to reenter. See Stuart Anderson, “New State Dept. H-1B Visa Guidance Won’t Stop Immigration Lawsuits”, Forbes (Aug. 13, 2020, 12:37 AM EDT), available at: https://www.forbes.com/sites/stuartanderson/2020/08/13/new-state-dept-h-1b-visa-guidance-wont-stop-immigration-lawsuits/#703a38fa4f47.

Even if an H-1B or L-1 visa holder is able to overcome the proclamation through a national interest exception, however, that individual could still be unable to reenter the United States if she had recently been present in one of the countries included in the proclamations banning travelers coming from certain countries due to COVID-19, such as Brazil or the Schengen Area. The new guidance does not include any exceptions to the proclamations banning travelers from Brazil and the Schengen Area, so employees prevented from entering the United States under these proclamations would likely need a separate exception. It is hoped that the State Department apply the same national interest exception under all the proclamations that a traveler has been subjected to during Covid-19.

The new Department of State guidance is the latest example of the Trump administration attempting to rewrite the immigration laws in circumvention of the APA. The original proclamation is a rewrite of the law and so is the latest guidance that requires an applicant to qualify under the national interest exception.  So long at this policy continues, lawsuits challenging Trump’s authority to rewrite the INA in this way will likely be a key tool in ensuring the protection of visa holders and their U.S. employers.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

(The authors thank David Isaacson for his input and assistance)

David Isaacson

Elephants, Mouseholes, and Sickness: My Comment on the Latest Anti-Asylum Proposed Rule. Do You Have One Too?

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On the heels of the prior proposed rule restricting asylum and withholding of removal that I commented on and blogged about, the Department of Homeland Security and Executive Office for Immigration Review have put out yet another proposed rule to drastically restrict asylum and withholding of removal. This one would allow the expedited removal of asylum claimants who have come from countries where a “contagious or infectious disease” is “prevalent or epidemic” (which is to say, virtually everywhere), on the basis that they are a “danger to the security of the United States” and thus barred from asylum and withholding of removal. Those claimants who can establish that they would be tortured in their home countries may instead be removed to a different country.

Comments for this rule must be submitted by the end of the day (11:59 pm) on Monday, August 10. The preferred way to submit comments is through the “Federal eRulemaking Portal: http://www.regulations.gov.”, and “identified by Docket Number USCIS 2020-0013.” In particular, you can comment at https://www.regulations.gov/comment?D=USCIS-2020-0013-0001 .

As with the previous rule, whether or not you have more than 5,000 characters (the limit for the fillable form box, though you can exceed it by attaching a document) to say about this outrageous attack on asylum, I would strongly recommend that you say something. The more substantively different comments that are received (duplicates will be given little weight), the more objections DHS and EOIR will need to consider and address before promulgating a final rule.

Below is the current draft of my comment, a final version of which I will be submitting on Monday. This version does not comply with the fillable-field 5,000-character limit, so I intend to submit my comment as an attachment, which I ended up doing with a longer version of my comment last time, although while perhaps including a shorter summary in the character-restricted box.
__________________________

As a lawyer whose practice has included asylum work for more than 14 years, I write to comment on Docket Number USCIS 2020-0013, a proposed rule of both USCIS/DHS and EOIR/DOJ.

This proposed rule follows on DHS/EOIR RIN 1125-AA94 (which I will refer to as the “previous proposed rule”) as yet another effort to dramatically limit asylum in the United States, inconsistently with the structure and spirit of the Immigration and Nationality Act. It simply takes a different approach. If the previous proposed rule to limit asylum was baroque in its complexity, a sort of “kitchen-sink” approach, this proposed rule is a more precisely targeted dagger to the heart of the asylum system. The rule essentially proposes to equip the asylum system with an on/off switch—and there is little mystery about how this Administration believes the switch should be flipped. But such a major alteration of the statutory scheme requires Congressional authorization, and Congress has not authorized the installation of this particular switch.

The effect of proposed 8 CFR 208.13(c)(10)(ii) and proposed 8 CFR 208.16(d)(2)(ii) is to give the Secretary of Homeland Security, Attorney General, and Secretary of Health and Human Services the power to effectively end asylum from any country or region they wish, simply by designating one or more countries or regions as countries or regions where a dangerous disease is “prevalent or epidemic”, and asserting that the entry of asylum claimants from those countries or regions would pose a “danger to the security of the United States”. Most applicants from that country or region can then be summarily denied any protection at all. The few applicants who satisfy the impossibly high burden of affirmatively claiming a fear of torture, and then meeting the entire standard for deferral of removal during the course of an abbreviated credible fear interview, can simply be faced with removal to a third country (or, if they establish a likelihood of torture in that third country, presumably a fourth country). Some may then withdraw their claims, rather than be sent to a country about which they may know nothing and where they might die of starvation even if they were not tortured. Others, who do not withdraw their claims, can then be sent to the third country.

The bottom line will be that, as long as the relevant cabinet officials concur, no one fleeing persecution, no matter how badly persecuted they may have been and how strong their claim for asylum may be under the law enacted by Congress, need ever be allowed into the United States. Until dangerous diseases disappear from the countries of the world – which will probably never happen – asylum and withholding of removal will be a thing of the past.

This sort of leveraging of one ancillary, vaguely-worded provision within the law to defeat the operation of the entire asylum process is not consistent with the statute as properly interpreted. As the Supreme Court has told us: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). The “danger to the security of the United States” bars are ancillary in the sense that they were clearly never intended to screen out vast quantities of people.

In essence, the position of DHS and EOIR as reflected by the proposed rule is that, at least in a world where dangerous diseases are “prevalent” in many countries, the asylum process itself is a “danger to the security of the United States”. This is the proverbial tail wagging the dog, but worse—one might better describe it as the tail strangling the dog. DHS and EOIR may not in this way abolish the asylum process created by Congress.

The proposed rule cites the Attorney General’s opinion in Matter of A-H-, 23 I&N Dec. 774, 788 (AG 2005), for the broad proposition that “phrase “danger to the security of the United States” is best understood to mean a risk to the Nation’s defense, foreign relations, or economic interests.” Proposed Rule at 41209. But Matter of A-H- concerned a very different kind of danger than the danger purportedly at issue here. The applicant there was “a leader-in-exile of the Islamic Salvation Front of Algeria who was associated with armed groups that committed widespread acts of persecution and terrorism in Algeria,” Matter of A-H-, 23 I&N Dec. at 774 hn.1. It is quite a leap from a leader associated with terroristic armed groups, to ordinary citizens of countries where a dangerous disease is “prevalent”. That the proposed rule is forced to make such a leap, in order to find support for its position, is evidence of the weakness of the position.

The proposed rule also contains another major logical flaw. The premise of the proposed rule is that COVID-19 and other dangerous diseases would pose a threat to the United States if asylum applicants from countries suffering from those diseases were not expeditiously removed. However, the proposed rule takes no account of whether a disease is more prevalent in the United States or in the country from which the asylum seeker is coming. Given current statistics regarding COVID-19, in particular, many countries of the world would have a more logical basis to exclude travelers from the United States as a danger to public health than the other way around. Statistics from the World Health Organization (see (see https://covid19.who.int/table) indicate that the United States has more COVID-19 cases than any other country in the world, and more than double as many as any country other than Brazil. Another analysis of the data (at https://www.statista.com/chart/21170/coronavirus-death-rate-worldwide/) found that of the 10 worst-affected countries in the world, the United States has suffered more deaths per 100,000 inhabitants than any nation other than the United Kingdom and Chile. It is fundamentally arbitrary and capricious to exclude from the protection of asylum in the United States an applicant who comes from a country where a dangerous disease is prevalent, but less prevalent than in the United States, on the basis that this asylum-seeker is a danger to the United States. The logic seems to be that the asylum-seeker can be presumed to carry the dangerous disease, but how can that be so if they are less likely to have the disease than people already in the United States? Indeed, the arbitrariness is so great as to indicate that the (lesser) prevalence of infectious disease in other countries is simply being used as a pretext to shut down the asylum process

Admittedly, at least at the nation’s land borders, the impact of the proposed rule would be limited in the short run by the fact that CBP is already summarily expelling most asylum applicants under a legally dubious use of what it describes as “Title 42” authority, that is, pursuant to 42 U.S.C. § 265 (as enforced by “customs officers” under 42 U.S.C. § 268(b)). Presumably, however, one reason why DHS is attempting to create similar summary-expulsion authority by way of enhanced expedited removal under Title 8 of the U.S. Code is that it is aware the Title 42 expulsions are legally dubious, and may ultimately be halted by the federal courts—as one particular Title 42 expulsion indeed was halted following a lawsuit, spearheaded by the ACLU, in the case of J-B-B-C- v. Wolf. That the immediate impact of the proposed rule may be lessened by an existing legally dubious measure does not make the proposed rule itself any less legally problematic.

There is yet another major problem with the proposed rule, and that is who has proposed it. The proposed rule states at page 41214:

“The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register.”

The power to sign the document, that is, ultimately comes from Chad F. Wolf, even if it may not be his electronic signature on the document itself.

Others have pointed out why Chad F. Wolf was never properly delegated the powers of the Secretary of Homeland Security in the first place, and I will not rehash those arguments in their entirety, but will instead incorporate by reference, in my comment, paragraphs 157-210 of the complaint in Casa de Maryland v. Wolf, 8:20-cv-02118-PX (D.Md. filed 7/21/20), available at https://asylumadvocacy.org/wp-content/uploads/2020/07/Casa-de-Maryland-v.-Wolf-Complaint.pdf and provided as an attachment hereto for ease of reference. I also provide, as an attachment to this comment, an informative blog post from Lawfare along similar lines, see https://www.lawfareblog.com/senate-should-ask-chad-wolf-about-his-illegal-appointment. My point is a simpler one. Even assuming for the sake of argument that he had come to his position entirely appropriately (a point I do not concede), Chad F. Wolf has been purporting to occupy his position on an acting basis for longer than permitted by statute.

The Federal Vacancies Reform Act (FVRA), codified in relevant part at 5 § U.S.C. 3346, provides:

(a)Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—
(1)
for no longer than 210 days beginning on the date the vacancy occurs; or
(2)
subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.
(b)
(1)
If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve—
(A)
until the second nomination is confirmed; or
(B)
for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
(c)
If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

Chad F. Wolf has purportedly been serving as Acting Secretary of Homeland Security since November 13, 2019 (which was not during an adjournment of the Congress sine die). See Chad F. Wolf, https://www.dhs.gov/person/chad-f-wolf. The proposed rule was filed on July 8, 2020, 239 days later. The better view is that the 210-day FVRA clock began to run substantially before Mr. Wolf’s appointment, upon the resignation of Kirstjen Nielsen as the last Senate-confirmed Secretary of Homeland Security; the purpose of the FVRA would not be served by allowing the President to install an endless line of different acting Secretaries for as long as desired so long as a new one came in every 209 days. But even on the most generous conceivable calculation, beginning only with the acting service of Mr. Wolf himself, the 210 days for Mr. Wolf would have run before the proposed rule was filed. No nomination has been filed with the Senate for the position of Secretary of Homeland Security, so there is no second 210-day clock.

Chad F. Wolf was, purportedly, appointed as Acting Secretary of Homeland Security after the resignations of Kristjen Nielsen and then Kevin McAleenan. This is not, in the sense of the statute, a “vacancy caused by sickness”, 5 U.S.C. 3346(a). Thus, he was no longer capable of serving in an acting capacity, in accordance with the law, as of the time this proposed rule was promulgated, more than 210 days after not only the vacancy but also the beginning of his purported appointment.

Presumably, DHS does not intend to defend the prolonged service of Mr. Wolf on the basis that the failure to submit a nomination for his position was “caused by sickness,” 5 U.S.C. 3346(a), in the form of a sickness on the part of the current President. Nor is a more general form of metaphorical sickness on the part of the Executive Branch likely to be the sort of thing contemplated by § 3346(a), even if reasonable people might believe it to exist. In some colloquial sense, one could perhaps describe this proposed rule itself as “caused by sickness”, but the FVRA addresses whether sickness was a cause of a vacancy in an office, not whether it was the cause of a vacancy in a putative acting official’s conscience. There is no circumstance here that would excuse a violation of the 210-day limit.

Because Mr. Wolf was purporting to serve as Acting Secretary of Homeland Security in violation of the FVRA at the time he authorized Chad Mizelle to sign the proposed rule in the Federal Register, his action in doing so “shall have no force or effect.” 5 U.S.C. § 3348(d)(1). The proposed rule was never validly promulgated, and for that reason alone no final rule should be issued, even leaving aside the substantive defects discussed above.

This is not a mere technicality. The FVRA is intended to protect the Constitutional principle that appointed officers must be confirmed by the Senate, by preventing the President from ignoring the Senate indefinitely and leaving “acting” officers in place indefinitely. That is precisely what has happened with Mr. Wolf, and it is precisely what the statute forbids. The Constitution demands that this rule not move forward from such a fundamentally illegitimate beginning.

But for the reasons discussed above, it is not merely the identity of the putative acting official promulgating this rule that is illegitimate. It is the entire cynical attempt to destroy the asylum system in the United States using purported infectious disease concerns as a pretext. This is simply not something that the Executive Branch has the legal authority to do.

David Isaacson

Implementation of Safe Third Country Agreement Held to Violate Canadian Charter of Rights and Freedoms—So Why Will Prior U.S. Asylum Claimants Be Denied a Hearing at the Refugee Protection Division in Canada Even After This Takes Effect?

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In Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2020 FC 770 (July 22, 2020), the Federal Court of Canada recently ruled that the statute and regulations implementing the Safe Third Country Agreement (STCA) between Canada and the United States regarding the processing of asylum and refugee claims were of no force or effect because they violated section 7 of the Canadian Charter of Rights and Freedoms.  This is good news for those in the United States who may want to claim refugee status at a Canadian land port of entry in the future, which the STCA ordinarily prohibits, but it is not as good as it may seem at first glance.  The ruling was suspended for six months, so the STCA rules remain in effect at least until January 22 (possibly longer if the suspension is extended pending appeal).  The ruling also does not affect a different restriction on making refugee claims in Canada if one has previously applied for asylum in the U.S. or certain other countries, section 101(1)(c.1) of the Immigration and Refugee Protection Act (IRPA), which was recently upheld against a Charter challenge.  As I will explain, however, the reasoning in Canadian Council for Refugees severely undermines the policy basis for section 101(1)(c.1), suggesting that it should be repealed even if it is not void as violative of the Charter.

The STCA, which I have discussed in prior posts, ordinarily precludes asylum-seekers who are present in one of the United States or Canada from making a claim for asylum or refugee status at a land border port of entry of the other country.  Some claimants with qualifying family members may still make refugee claims at a Canadian port of entry, as may unaccompanied minors and a few other categories of people.  (The STCA does not apply to those who enter between ports of entry, although such entries in order to apply for refugee status are currently forbidden during the COVID-19 pandemic by an Order in Council under the Quarantine Act.)  In general, however, one who comes to a Canadian land port of entry to make a refugee claim, and is not exempt from the STCA, will be sent back to the United States.

Upon being sent back to the United States, however, such claimants are often detained under unacceptably harsh conditions, just like other asylum claimants at a U.S. port of entry.  As the Court in Canadian Council for Refugees explained of one such claimant returned to the United States, who was an applicant in the case and had provided an affidavit:

Ms. Mustefa, upon being found ineligible . . . was returned to the US by CBSA officers and immediately taken into custody by US authorities.  She was detained at the Clinton Correctional Facility for one month and held in solitary confinement for one week.  She was released on bond on May 9, 2017.

[96]  Ms. Mustfa’s imprisonment evidence is compelling.  In her Affidavit she explains not knowing how long she would be detained or how long she would be kept in solitary confinement.  She describes her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.”  Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons.  Ms. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds.  Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside people who had criminal convictions.  She explains the facility as “freezing cold” and states that they were not allowed to use blankets during the day.  Ms. Mustefa states that she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released, if at all.”

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 95-96.  There were also similar, although anonymized, affidavits provided by other rejected asylum claimants, further confirmed by “affidavit evidence of lawyers who provide assistance to those detained.”  Id. at ¶ 98.

Because this deprivation of liberty and the hardship resulting from detention result when refugee applicants covered by the STCA are returned to the United States under the implementing statute and regulations and are handed over to U.S. officials by Canadian officials, they were held to engage Section 7 of the Charter, which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  They were also found not to be justified under Section 1 of the Charter, which provides that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Court therefore held that the STCA implementing provisions, “s. 101(1)(e) of the IRPA and s. 159.3 of the Regulations are of no force or effect pursuant to section 52 of the Constitution Act, 1982, because they violate s. 7 of the Charter.”  Canadian Council for Refugees, 2020 FC 770 at ¶ 162.  This holding was not made immediately effective, however.  Rather, the Court stated in the conclusion of its opinion that “To allow time for Parliament to respond, I am suspending this declaration of invalidity for a period of 6 months from the date of this decision.”  Id. at ¶ 163.

Even if the declaration of invalidity takes effect, however, this unfortunately will not mean that all those coming to Canada from the United States to seek protection will be entitled to the full refugee status determination process.  Under section 101(1)(c.1) of IRPA, enacted just last year,

A claim is ineligible to be referred to the Refugee Protection Division if

. . . .

the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;

IRPA s. 101(1)(c.1).  There are several countries with which Canada has such information-sharing agreements, including the United Kingdom, Australia, and New Zealand as well as the United States, but the creation of IRPA section 101(1)(c.1) appears to have been primarily targeted at people who had previously made asylum claims in the United States.

As I discussed in a previous blog post, the measure that became IRPA section 101(1)(c.1) was based on the incorrect premise (publicly stated by a spokesman for the then-Immigration Minister) that the U.S. and Canadian asylum systems were “similar enough” that an application rejected by the U.S. would likely be rejected by Canada as well.  Claimants covered by section 101(1)(c.1) will, under IRPA section 113.01, have access to a somewhat enhanced version of a Pre-Removal Risk Assessment (PRRA) that comes with a right to an oral hearing, but the PRRA process is a poor substitute for a full Refugee Protection Division hearing and traditionally has a lower approval rate.

Unfortunately, in a decision the day after the Canadian Council for Refugees ruling that received less publicity, a judge of the Federal Court upheld IRPA section 101(1)(c.1) against a Charter challenge.  In Seklani v. Canada (Public Safety and Emergency Preparedness), 2020 FC 778 (July 23, 2020), the Court held that section 101(1)(c.1) did not violate Section 7 of the Charter, because Section 7 was only engaged at the point of actual removal and a possible application to defer this removal, not an earlier stage when access to Refugee Protection Division proceedings was being determined.   Those subject to section 101(1)(c.1) would not be immediately removed to the United States, or anywhere else, when their claims were found ineligible to be referred to the Refugee Protection Division.  Rather, they would still have access to the PRRA process before removal (although the applicant in Seklani did not immediately have such access because his home country of Libya was subject to an Administrative Deferral of Removals and so he was not subject to imminent removal in any event), would still be able to seek a deferral of removal from the Canada Border Services Agency (CBSA), and would be able to seek judicial review and a stay of removal in connection with a denial of the PRRA or the deferral of removal.  Their Section 7 rights were thus found not to be engaged by the ineligibility determination.

Whether or not the holding in Seklani that section 101(1)(c.1) does not violate the Charter is correct, the judgment regarding the STCA in Canadian Council for Refugees further supports the argument that section 101(1)(c.1) is bad policy and should be repealed.  The U.S. policy regarding detention of asylum-seekers at the border that underlay the judgment in Canadian Council for Refugees is itself a substantial distinction between the U.S. asylum system and the Canadian refugee system—one that further undercuts the suggestion in support of section 101(1)(c.1) that the two systems are the same and failure in the U.S. asylum system would likely portend failure in the Canadian refugee system.

If an asylum applicant is detained upon reaching the United States in the way that Ms. Mustefa was, and in the way that many other asylum applicants are when they seek to enter the United States, this can significantly impact their chances of success on their asylum claim.  It is more difficult to find counsel, gather evidence, or contact potential witnesses when one is in detention. It is not even merely an issue of a one-month detention such as Ms. Mustefa experienced, although that is bad enough; being released from detention has become sufficiently difficult that it has inspired a number of class-action lawsuits, such as Damus v. McAleenan, which addressed the extremely low rates of parole from custody by several ICE field offices around the United States, and Velesaca v. Wolf, which addressed the near-universal denial of release on bond by the ICE New York City Field Office.

The Canadian Council for Refugees judgment itself recognized the difficulties in pursuing an asylum claim that are caused by detention, in the course of finding an increased risk of return to harm for one of the applicants that implicated the Section 7 interest in security of the person.  As the Court explained:

In the case of ABC, I am satisfied that the evidence supports a finding that the risk of refoulement for her is real and not speculative had she been detained in the US.  I find this based upon the evidence documenting the challenges in advancing an asylum claims for those detained.  There is evidence of the barriers in accessing legal advice and acquiring the necessary documents to establish an asylum claim in the US.

[107]  Professor Hughes describes the difficulties faced by those who are detained including: detainees not being able to afford phone calls, people from outside the detention facility not being able to contact detainees because they cannot call them, evidence being lost due to transfers between detention centres, and detainees not having access to translators they may need to fill in the necessary forms.

[108]  Mr. Witmer, a lawyer working with detainees, describes issues with “basic communication” as an impediment to the making of an asylum case.  He notes that detainees are unable to leave messages with a call back number.  He also notes that while many detainees are accustomed to communicating with family using email, social media and internet-based communication apps, they do not have access to these services in detention.

[109]  Further, lawyer Timothy Warden-Hertz estimates that, at the detention centres his organization services, the Northwest Detention Center (NWDC), 80-85% of those detained do not have a lawyer and must represent themselves.  He estimates that 75% of asylum claims from the NWDC are denied as compared to the national average of 52% of claims being denied.

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 106-109.

Those who make refugee claims under Canadian law at a port of entry (if exempt from the STCA) or otherwise, in contrast, are not generally automatically detained as in the United States.  They may obtain counsel, communicate with friends and relatives to gather evidence, and prepare for their hearings without being hindered in these efforts by incarceration.

In this regard, as in the other respects discussed in my previous post, U.S. asylum proceedings are simply not “similar enough” to Canadian refugee proceedings.  Accordingly, it is inappropriate to presume, as IRPA section 101(1)(c.1) does, that those whose U.S. asylum claims are denied, would have little chance of succeeding in Canadian refugee claims.  Section 101(1)(c.1) should be repealed, and those whose claims were denied under the inappropriately detention-intensive U.S. asylum system should be given a full opportunity to pursue their refugee claims in Canada.