Cyrus D. Mehta & Damira Zhanatova

A Maryland Court Blocks Trump’s Latest End-Run Around Birthright Citizenship

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As we discussed in our previous blog, the Trump administration’s August 6, 2026 executive orders were not genuine efforts to comply with the Supreme Court’s decision in Trump v. Barbara. They were an attempt to keep attacking birthright citizenship by changing the labels. The U.S. District Court for the District of Maryland in  Casa v. Trump confirms exactly that. On September 2, 2026, Judge Deborah Boardman held that the administration’s 2026 executive order is “almost certainly unconstitutional” as applied to the certified class and entered a preliminary injunction blocking its enforcement against those children.

The 2026 order identifies several categories of persons it asserts are not covered by birthright citizenship, including those with a parent who is an “alien enemy,” such as a member of a designated Foreign Terrorist Organization or a Specially Designated Global Terrorist; those with a parent who is a foreign government employee, including ambassadors, certain embassy or consular employees, officials of foreign governments, or employees of international organizations with immunity; those whose parent engaged in a commercial transaction or fraudulent activity to obtain or access birthright citizenship, including arrangements to ensure that the mother or a surrogate is present in the United States or a U.S. territory to give birth; and those born in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

In Trump v. Barbara, the U.S. Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present here are citizens at birth under the Fourteenth Amendment. The Maryland court emphasized that the Supreme Court had already decided that children in the identical certified class “satisfy both elements of the Citizenship Clause: they are ‘born . . . in the United States’ and ‘subject to the jurisdiction thereof,’” and therefore “are citizens at birth”. That should have ended the matter. Instead, the administration issued a new executive order purporting to identify categories of U.S.-born children who supposedly fall outside the rule announced in Barbara. Judge Boardman correctly recognized that these new carveouts “bear little to no resemblance to the ‘narrow exceptions’ to the rule of citizenship by birth recognized by the Supreme Court in Barbara” and concluded that “[t]he 2026 Executive Order is almost certainly unconstitutional as applied to the certified class”.

The plaintiffs feared, for instance, that they could be deprived of citizenship under the 2026 executive order if their parents were rightly or wrongly  be labeled an “alien enemy,” and the child could therefore be denied citizenship, “even though they do not fall within a recognized exception to birthright citizenship.”  The court cited the example of a parent who could be characterized as an alien enemy because of their tattoos. The plaintiffs further suggested that they could be  denied citizenship under the birthright tourism clause of the executive order because their mother bought a plane ticket to come to the United States, where she then gave birth, and this  might constitute a  “commercial transaction” that falls within the second executive order’s sweep.

The opinion is especially compelling because it treats the case as one about fidelity to Supreme Court precedent, not creative relitigation. Judge Boardman put it: “The Supreme Court has spoken: Children in the certified class are ‘citizens at birth.’” She then added the line that should end the administration’s latest maneuver: “Barbara is the law of the land. The President must follow it”. Once the Supreme Court has declared that these children are citizens at birth, the Executive Branch cannot order agencies to deny or refuse to recognize that citizenship.

That matters in practical terms because these orders are not abstract. They direct agencies to act. Executive Order 14160 instructed federal agencies that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” for certain U.S.-born children. And when agencies act on an unconstitutional citizenship theory, the harm is immediate. Judge Boardman explained that citizenship is a “most precious right,” and that the threatened denial of citizenship causes irreparable harm because citizenship is “the right to have rights – to freely participate in our political community”.

The “birth tourism” provision is no more valid than the administration’s other carveouts. The 2026 executive order purported to deny citizenship where either parent engaged in a “commercial transaction to purchase or access birthright citizenship,” including commercial arrangements to ensure that the mother, or a surrogate, is present in the United States to give birth. But that theory still collides with Barbara. Whatever one thinks about a parent’s reason for coming to the United States, Barbara does not permit a motive-based exception to birthright citizenship. The Supreme Court’s rule did not turn on whether a parent came temporarily, paid for travel, or had a suspect motive for entering the United States. The Supreme Court held that children born to parents who are unlawfully or temporarily present in the United States are citizens at birth. Congress used the same rule in 8 U.S.C. § 1401(a), which provides that persons “born in the United States, and subject to the jurisdiction thereof,” “shall be nationals and citizens of the United States at birth”. In other words, even if the government characterizes a parent’s trip as “birth tourism,” the child’s citizenship still turns on the child’s birth in the United States and subjection to U.S. jurisdiction. Judge Boardman therefore refused to let the government evade Barbara by repackaging disapproval of parental motive into a new exception to citizenship.

Judge Boardman’s opinion recognizes that the case is about preserving the citizenship of children the Supreme Court has already declared to be citizens. The administration cannot use a new executive order to do indirectly what Barbara forbids directly. As Judge Boardman explained, the relevant question was whether the plaintiffs were entitled to preliminary relief because the order was likely unconstitutional as applied to the certified class, and “[t]he answer to that question is yes”.

The same rule of birthright citizenship appears not only in the Fourteenth Amendment but also in 8 U.S.C. § 1401(a). That statute does not empower the President to create new disfavored subclasses of U.S.-born children. To the contrary, it codifies the ordinary rule of citizenship at birth for those born in the United States and subject to its jurisdiction. That is why the administration’s renewed effort collides not just with the Constitution and Supreme Court precedent, but also with Congress’s own enacted citizenship rule.

The Constitution does not permit the President to sort U.S.-born children into favored and disfavored categories based on their parents’ immigration status, alleged affiliations, motives for travel, or manner of entry. Barbara rejected that project, and Judge Boardman’s injunction makes clear that the administration cannot revive it by administrative ingenuity. Birthright citizenship remains what it has long been: a constitutional and statutory guarantee, not a presidential favor.

But Trump’s attack on birthright citizenship is unrelenting. An interim final rule dated September 4, 2026 implements the foreign-government-employee portion of the 2026 Executive Order by defining “foreign government employee” to include ambassadors, certain embassy or consular employees, persons employed by a foreign government in an official capacity, and persons employed by an international organization that possesses international-organization immunity. That definition is broader than the narrow birthright-citizenship exception traditionally associated with foreign diplomatic officers, and it may sweep in people whose roles are far removed from the classic ambassadorial or diplomatic function, such as a janitor employed by the United Nations or an administrative assistant working in a consular mission.

Fortunately, the administration concedes that the interim final rule will not take effect so long as the injunction in Casa v. Trump remains in place. But that is cold comfort. Trump’s assault on birthright citizenship persists, and he will keep trying to chip away at it with impunity despite Trump v. Barbara. The courts must continue to hold the line, because citizenship by birth is a constitutional guarantee, not a privilege the President may narrow by executive fiat against children born to parents in the United States he does not like.

Cyrus D. Mehta & Damira Zhanatova

Court Strikes Down 75-Country Immigrant-Visa Ban as Unlawful Nationality Discrimination

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By Cyrus Mehta and Damira Zhanatova*

On January 14, 2026, the Department of State announced that, effective January 21, 2026, it was pausing immigrant visa issuance to nationals of 75 countries. The Department publicly justified the policy on the ground that applicants from those countries posed a heightened risk of using public benefits or becoming public charges. That same day, Secretary of State Marco Rubio sent a cable to consular posts worldwide directing officers to implement the policy, and the announcement gave no end date for the pause.

On August 21, 2026, a federal judge in the Southern District of New York struck down the Trump administration’s 75-country immigrant-visa policy. In Catholic Legal Immigration Network, Inc. v. Rubio, Judge Jeannette Vargas held that the policy was unlawful and beyond Secretary Rubio’s statutory authority because it replaced Congress’s individualized immigrant-visa system with a blanket nationality-based refusal rule that required consular officers to deny immigrant visas even when applicants were otherwise eligible. The court also said the INA prohibits discrimination based on nationality in the issuance of immigrant visas and “explicitly strips the Secretary of State of authority over consular adjudication of immigrant visas.”

As described in the court ruling, the Department of State announced an unqualified suspension of immigrant visas for nationals of 75 countries, regardless of individual statutory eligibility, on the stated premise that applicants from those countries posed a heightened public-charge risk. The court treated the policy not as an ordinary adjustment in screening, but as a categorical directive that predetermined outcomes in immigrant-visa cases.

The case also matters because it was resolved as a facial challenge to a government policy rather than as a review of any one applicant’s visa denial. That framing allowed the court to evaluate whether the State Department’s rule itself conflicted with the INA and the APA without requiring the plaintiffs to relitigate individual consular decisions one by one. The ruling is significant because it treats the pause not merely as a procedural delay but as an unlawful, nationality-based immigrant visa refusal system. The decision therefore turns on three overlapping limits: visa refusals must rest on individualized statutory ineligibility, the Secretary of State may not dictate case outcomes reserved to consular officers, and Congress has prohibited discrimination in the issuance of immigrant visas based on nationality and related protected characteristics.

The court’s starting point was the structure of the immigration laws themselves. Under the INA, immigrant visa adjudication is supposed to be individualized. Consular officers assess the applicant’s eligibility, determine whether any legal ground of ineligibility applies, and then either issue or refuse the visa under the rules Congress enacted. The January 2026 policy did something very different. As the court described it, the policy ordered consular officers to refuse immigrant visas to nationals of the listed countries regardless of whether the officer, after individualized review, had determined that the applicant was otherwise eligible.

The court’s analysis of 22 C.F.R. § 40.6 was central. That regulation provides: “A visa can be refused only upon a ground specifically set out in the law or implementing regulations.” It further states that the term “reason to believe,” as used in INA § 221(g), requires “a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations.” The regulation thus reflects a basic premise of immigrant-visa law: refusals must be anchored in legal ineligibility, not in a policy preference that has no basis in the statute or regulations.

The government relied on INA § 221(g), codified at 8 U.S.C. § 1201(g), as the mechanism for carrying out the policy. But the court held that § 1201(g) does not authorize categorical refusals untethered to statutory ineligibility. It “merely provides” that a visa will not be issued if a consular officer determines that the applicant is ineligible under § 1182 or another provision of law, or if the applicant fails to comply with the INA. Read together with 22 C.F.R. § 40.6, the provision permits refusal only on a recognized legal ground. Because the challenged policy required refusals even when no such ground existed, the court concluded that the government had turned § 1201(g) into a tool for categorical denial rather than case-specific adjudication. The opinion also stressed that Congress assigned individualized immigrant visa assessments to consular officers, whereas the policy made those assessments ultimately irrelevant for nationals of the listed countries.

One of the most important parts of the ruling is the court’s distinction between visa issuance and entry or admissibility restrictions. The opinion states that a visa “does not itself authorize entry into the United States”. Instead, it allows the holder to travel to a port of entry and request admission. That distinction became decisive when the government invoked Trump v. Hawaii. In Trump v. Hawaii, the U.S. Supreme Court held that a presidential proclamation restricting entry of nationals from certain countries did not violate 8 U.S.C. § 1152(a)(1)(A) because that proclamation did not impose limits on visa issuance. The U.S. Supreme Court specifically explained that § 1152(a)(1)(A) is “expressly limited to the issuance” of immigrant visas, not the broader question of entry or admissibility. Judge Vargas used that same distinction against the government here. The court said there was “no question” that the 75-country policy regulated visa issuance. In other words, this was not a case about a President’s power to limit entry at the border. It was a case about whether the State Department could deny immigrant visas themselves based solely on nationality. Because 8 U.S.C. § 1152(a)(1)(A) forbids nationality discrimination “in the issuance of an immigrant visa,” the court treated this as a visa-issuance case and applied that rule directly. Section 1152(a)(1)(A) states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”, except as specifically provided elsewhere in the statute. Judge Vargas concluded that the policy ran directly into that prohibition because it “requires consular officers to discriminatorily refuse visas solely on the basis of the applicant’s nationality” and that the text of § 1152(a)(1)(A) leaves “no doubt that Congress intended to abolish nationality-based discrimination in the immigrant visa process”.

The discrimination point is broader than nationality alone. Section 1152(a)(1)(A) also bars discrimination in immigrant visa issuance because of race, sex, place of birth, or place of residence, unless Congress has created a specific statutory exception. Although the challenged policy operated through nationality, the opinion matters because it confirms that the immigrant visa process cannot be reorganized around protected classifications that Congress removed from visa allocation and issuance decisions. Judge Vargas stated: “The Policy’s categorical ban on the issuance of immigrant visas to nationals of nearly 40% of the world’s countries, see ECF No. 48-4 at 1, breaches the commitment of the United States to adjudicate visa applications based solely on an individualized assessment of the applicant’s eligibility under the INA, a principle embodied in the INA generally and Section 1152(a)(1) specifically. The visa ban is thus contrary to law.”

The administration publicly tied the policy to public-charge concerns, but the court did not accept the idea that this transformed the policy into a lawful implementation of the public-charge provision. The opinion stated that the “Nationality-Based Pause cannot be fairly read as implementing the public-charge provision,” and instead found that the policy contravened other INA provisions, especially the nationality-discrimination rule and the visa-refusal rules. The court’s objection was not that the administration applied public-charge rules too aggressively. It was that the government used public-charge rhetoric as the rationale for a different kind of measure entirely: a categorical nationality-based immigrant-visa ban that the statutory scheme does not authorize.

The court’s analysis of Secretary Rubio’s authority under 8 U.S.C. § 1104(a) was equally important. Although the Secretary of State has broad authority to administer immigration laws through diplomatic and consular channels, the INA reserves to consular officers the functions relating to the granting or refusal of visas. The court concluded that the January 2026 cable crossed that line because it did not merely guide officers in how to apply existing law. It commanded them to reach a predetermined result. As the opinion put it, the policy “overrides consular discretion and decision-making and dictates whether immigrant visas shall be granted or denied.” That, the court held, exceeded the Secretary’s lawful role.

The court also rejected the government’s threshold arguments that the case could not be heard at all. It concluded that the policy was final agency action because it reflected the government’s settled and operative position and immediately altered the framework governing immigrant visa adjudications for applicants from the covered countries. It also rejected the government’s reliance on consular nonreviewability, reasoning that facial challenges to the lawfulness of agency policies governing visa issuance are different from attempts to overturn individual consular determinations in particular cases.

The court vacated the policy under § 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and ordered that any immigrant visa refusal based solely on the policy be set aside and remanded for further proceedings consistent with the opinion. At the same time, the court limited that relief to policy-based refusals. Refusals supported by other valid grounds were not disturbed. That remedy reflects the logic of the opinion itself: the court did not say that immigrant visa applicants from the listed countries were automatically entitled to visas, but it did hold that the government could not lawfully use this nationality-based policy to deny them. That is why the decision matters beyond this particular 75-country ban. It is a reminder that, even in immigration law, where executive authority can be broad, Congress still controls the legal framework for visa issuance.

The broader significance of the decision is that it reaffirms several basic limits on executive control over immigrant visa issuance. Congress placed consular officers at the center of immigrant visa adjudication, required visa refusals to rest on recognized legal grounds, prohibited discrimination in immigrant visa issuance based on nationality and related classifications, and withheld from the Secretary of State the power to dictate which individual visa cases must be granted or denied. By replacing case-by-case adjudication with a blanket, nationality-based ban, the 75-country policy conflicted with each of those limits. For that reason, the court concluded that the policy was incompatible with the statutory scheme Congress enacted and exceeded the Secretary’s lawful authority.

Nationals of the listed countries may no longer be refused immigrant visas solely because of the 75-country nationality-based pause. On the other hand, a separate 39-country security-based ban implemented through a Presidential Proclamation under INA § 212(f) remains in effect. Although the two measures overlap in part, they are distinct policies. Accordingly, the ruling’s practical effect is greatest for nationals whose eligibility was restricted only by the 75-country pause. For nationals who remain subject to the separate 39-country security-based restriction, the vacatur of the 75-country pause does not, by itself, eliminate any independent restrictions that continue to apply under the proclamation.

 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta, Damira Zhanatova and Kaitlyn Box

BIA Overrules Arrabally: Advance-Parole Travel Can Trigger the Unlawful-Presence Bar

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By Cyrus Mehta, Damira Zhanatova and Kaitlyn Box

On August 13, 2026, the Board of Immigration Appeals issued Matter of DelCarmen-Lara, 29 I&N Dec. 830 (BIA 2026), a decision that immediately changes how practitioners and noncitizens should evaluate advance-parole travel. The Board held that when a person departs the United States under a grant of advance parole, that trip is still a “departure” for purposes of INA § 212(a)(9)(B)(i)(II), the 10-year unlawful-presence inadmissibility bar. In the same decision, the Board overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the precedent that had long been cited for the opposite proposition.

For years, Arrabally gave many noncitizens and their families a measure of protection. Under that 2012 BIA decision, a temporary trip abroad on advance parole was not treated as the kind of “departure” that triggered the 10-year unlawful-presence bar. Arrabally reasoned that travel under advance parole was “qualitatively different” because it presupposed return to the United States and continuation of the adjustment process. DelCarmen-Lara rejects that reasoning and returns to a stricter reading of the statute.

That change is significant because INA § 212(a)(9)(B)(i)(II), as quoted in DelCarmen-Lara, makes inadmissible a person who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States.” The same decision also states that INA § 245(a), 8 U.S.C. § 1255(a), requires an adjustment applicant to prove he or she is “admissible to the United States for permanent residence.” In other words, this is a case about who can still adjust status after travel and who may now be blocked by a bar that Arrabally had once eliminated

In Board’s view, Congress used the word “departure,” did not define it, and did not create a special advance-parole exception in INA § 212(a)(9)(B)(i)(II). The Board also stressed that, elsewhere in the INA, Congress knew how to address advance-parole departures expressly when it wanted to do so. That textual argument became the foundation for overruling Arrabally. The Board acknowledged the statutory scheme in INA § 212(a)(9) is designed to “compound the adverse consequences of immigration violations” by making lawful readmission harder after departure, and it cited authority recognizing that treating advance-parole travel as a triggering departure may produce “a harsh result.” The Board nevertheless concluded that the statutory text did not permit an exception for advance-parole travel. DelCarmen-Lara removes a longstanding defense that practitioners used to protect clients who traveled with government authorization and then sought to continue family-based or other immigration processes inside the United States.

Arrabally had held the opposite. The BIA there said that respondents who temporarily left the United States under advance parole did not thereby make a “departure” that triggered inadmissibility under INA § 212(a)(9)(B)(i)(II). In support of that conclusion, Arrabally emphasized the distinctive nature of advance parole and discounted the fact that advance-parole documents warned travelers they could be found inadmissible under INA § 212(a)(9)(B) upon return. DelCarmen-Lara states the Board had impermissibly read an exception into the statute, and it now “clarif[ies] that the term ‘departure’ under this section of the INA does not include an exception for aliens who leave the country temporarily under a grant of advance parole”.

The facts of the case also make the decision especially important for DACA-based and Temporary Protected Status advance-parole. The respondent in DelCarmen-Lara had been granted DACA in 2013, later departed temporarily, and was paroled back into the United States on January 1, 2024, pursuant to advance parole. Prior to DelCarmen-Lara, a DACA or TPS recipient who may have entered the US without inspection could depart the US under advance parole, and this would render them eligible for adjustment of status as under INA 245(a) an eligible applicant for adjustment of status has to be “inspected and admitted or paroled” into the US. The return of the applicant under advance parole, who may have not otherwise been eligible for adjustment of status due to the entry without inspection, rendered them eligible for adjustment of status. This is no longer the case under DelCarmen-Lara as the trip under advance parole would now trigger the 3 or 10-year bar.  As DelCarmen-Lara explains, adjustment applicants must prove they are “admissible to the United States for permanent residence”. USCIS explains, in its Policy Manual, that adjustment under INA § 245(a) generally requires inspection and admission or parole, physical presence, visa availability, admissibility or a waiver, and a favorable exercise of discretion. In other words, a return on advance parole may satisfy the “paroled” part of adjustment eligibility, but if the travel itself triggers inadmissibility under INA § 212(a)(9)(B)(i), the person may still be unable to adjust, unless a waiver or another solution is available.

The 9 FAM guidance states that both INA § 212(a)(9)(B)(i)(I) and INA § 212(a)(9)(B)(i)(II) are triggered by departure, but it distinguishes the 3-year and 10-year bars. According to 9 FAM 302.11-3(B)(2), the 3-year bar under INA § 212(a)(9)(B)(i)(I) applies only where the person leaves voluntarily before DHS commences proceedings, while the 10-year bar under INA § 212(a)(9)(B)(i)(II) applies after one year or more of unlawful presence whether the departure occurred before, during, or after removal proceedings and regardless of whether the departure was voluntary or under a removal order. Although Matter of DelCarmen-Lara directly addresses the 10-year bar in INA § 212(a)(9)(B)(i)(II), its interpretation of “departure” has implications for the 3-year bar as well, because USCIS has previously applied the Arrabally rationale to both INA § 212(a)(9)(B)(i)(I) and INA § 212(a)(9)(B)(i)(II). 

Another important follow-up question is whether DelCarmen-Lara applies retroactively. The Board answered that directly. Because it was expressly overruling longstanding Board precedent, it performed a retroactivity analysis and held that the new rule would apply prospectively. That limitation is critical for pending matters because it preserves an argument that pre-decision advance-parole travel should not automatically be evaluated under DelCarmen-Lara’s new interpretation.

DelCarmen also illustrates how the Supreme Court’s decision in Loper Bright v. Raimondo, which abolished the longstanding Chevron doctrine, can be used to overturn precedential BIA decisions that are favorable to noncitizens. The Chevron doctrine required courts to defer to an agency’s interpretation of an ambiguous statue. Although the BIA did not directly reference Loper Bright in DelCarmen, Loper Bright’s influence can been felt in the BIA’s citation to Matter of Forjoe as supporting the idea that “Adjudicators must adhere to the unambiguous meaning of statutory language, unless doing so would lead to an absurd or bizarre result that is ‘demonstrably at odds with the intentions of its drafters.’” In Matter of Forjoe, discussed in detail in a prior blog, the BIA held that “admission” in INA § 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H), refers only to a noncitizen’s lawful entry into the United States after inspection and authorization by an immigration officer, overruling Matter of Agour, which had held that “adjustment of status constitutes an “admission” for purposes of determining an alien’s eligibility to apply for the fraud waiver” under INA § 237(a)(1)(H). In Forjoe, the BIA relied on Loper Bright to revisit and narrow its own prior interpretation of INA 237(a)(1)(H) in Agour. 

The BIA’s citation to Forjoe in DelCarmen-Lara to support its narrow interpretation of the term “departure” reflects a troubling post-Chevron trend: in which the BIA is invoking Loper Bright to overturn its own more generous readings of INA provisions. The BIA’s reference to Forjoe in DelCarmen also calls into question whether it is appropriate for the BIA to rely on Loper Bright to overturn its own past interpretations of regulations, or whether determining what the law requires is best left to federal courts. In Matter of Yajure Hurtado, the BIA held that individuals who entered the United States without inspection are ineligible for bond pursuant to INA 235(b)(2)(A), relying on Loper Bright. The California federal court disagreed, however, and held that this “expansive interpretation of ‘applicants for admission’ would effectively nullify a portion of the INA through the DHS’s legislative or interpretive exercise of power”. Several circuit courts have also agreed. See, eg. here, here and here. Loper Bright may have eliminated Chevron deference to the BIA’s interpretation of the statute, but the BIA does not get to invoke Loper Bright to signal to federal courts that its interpretation of the INA is correct and federal courts should follow suit. It is for federal courts to independently interpret an INA provision without regard to the BIA’s interpretation and its faux invocation of Loper Bright. That holding returns the inquiry to the principle from Marbury v. Madison: it is the province and duty of the judicial department to say what the law is. An Article III federal court must decide independently whether INA § 212(a)(9)(B) treats advance-parole travel as a triggering “departure.”

 DelCarmen-Lara changes the way advance parole has to be analyzed in any case involving prior unlawful presence. A trip on advance parole is no longer just a travel event. After the Board’s August 13, 2026 decision, it may be a “departure” under both INA § 212(a)(9)(B)(i)(I) and INA § 212(a)(9)(B)(i)(II), and that has immediate consequences for adjustment cases because INA § 245(a) still requires the applicant to be admissible to the United States for permanent residence. Cases involving DACA history, prior unlawful presence, adjustment under INA § 245(a), or reopening after a return on parole should now be screened with DelCarmen-Lara in mind. The unlawful-presence inquiry remains intensely fact-specific. Under the State Department’s 9 FAM 302.11 guidance, unlawful presence generally begins when a period of authorized stay ends or when a person is present without admission or parole, while also recognizing that some periods still count as authorized stay, including deferred action and certain procedural postures. The same guidance makes clear that a later authorized period does not wipe out unlawful presence already accrued. In practice, that means these cases now turn on careful timeline work: identifying when unlawful presence started, whether it stopped, what periods may have been authorized, and whether the person can still satisfy the admissibility requirement for adjustment despite DelCarmen-Lara. 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus D. Mehta & Damira Zhanatova

The 2026 Public Charge Rule: A New Tool to Restrict Legal Immigration

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By Cyrus Mehta and Damira Zhanatova*

Starting September 18, 2026, DHS will significantly change how public charge determinations are made. The final rule rescinds the 2022 Biden-era public charge regulations at 8 C.F.R. §§ 212.20-212.23 and revises the public-charge-bond provisions at 8 C.F.R. § 103.6(c). For adjustment applicants, this means USCIS officers will no longer apply a detailed regulatory framework that defines key terms, limits the benefits inquiry, and directs the analysis through specific regulatory rules. Instead, adjudications will rely more directly on INA § 212(a)(4), future USCIS guidance, and broader officer discretion under the totality-of-the-circumstances standard.

DHS characterized the 2022 framework as overly restrictive and stated that rescinding it would restore officers’ ability to consider all relevant facts. In that sense, the 2026 rule differs from both the 2019 and 2022 approaches. Before the 2019 rule, public charge inadmissibility was administered without binding regulatory definitions, with officers relying on the statute, precedent decisions, and individualized adjudication. The 2022 rule, by contrast, defined a person “likely at any time to become a public charge” as someone likely to become primarily dependent on the government for subsistence, demonstrated either by receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. DHS now takes the position that this definition, like aspects of the 2019 framework before it, constrained officers from fully evaluating whether an applicant was likely to be self-sufficient.

DHS has been clear about its policy objective. In the 2025 proposed rule, the agency stated that it was “moving away from a bright-line primary dependence standard” in favor of a more flexible and individualized approach. DHS also argued that the 2022 framework effectively constrained officers by limiting both the public benefits they could consider and the factors they could weigh. According to the agency, the goal is to return to what Congress intended: a case-by-case determination based on all relevant evidence.

For adjustment applicants, the most significant change is not simply which benefits may be considered. It is the extent of the discretion afforded to adjudicating officers. DHS has indicated that officers may consider the mandatory factors listed in INA § 212(a)(4)(B), other case-specific circumstances, and even empirical data relevant to self-sufficiency. This is a far more open-ended framework than the 2022 rule and may result in less predictable and uneven outcomes. Once regulatory definitions are removed, similar fact patterns may be treated differently from one office to another or even from one officer to another. The agency has made clear that new USCIS guidance will shape how this framework operates, but such guidance will not go through public notice-and-comment procedures. That means some of the most important rules in practice may emerge through internal training, policy updates, interview trends, RFEs, and NOIDs rather than through regulations published in the Code of Federal Regulations.

The benefits inquiry is where many applicants will feel this change most sharply. DHS argued that the 2022 rule produced illogical results by requiring officers to disregard entire categories of public benefits, including Medicaid, CHIP, SNAP, and housing assistance, even when those benefits might bear on an applicant’s ability to support themselves. DHS has made it clear that the agency believes officers should not be barred from considering a wider universe of means-tested public benefits when evaluating self-sufficiency. That is a significant shift from the 2022 approach, which tied the inquiry more closely to cash assistance for income maintenance and long-term institutionalization. In the new system, lawful benefit use may still become part of a negative evidentiary narrative, even if no single benefit or application is automatically disqualifying. While focusing on traditional non-cash and cash assistance, the flexible criteria raise concerns that other welfare support such as health, food, and housing programs could be factored against applicants. This could cause a chilling effect as many immigrant families will be afraid to access any public benefits for which a household member is eligible, forgoing supports in times of need to preserve future immigration prospects. This would result in worse health outcomes for individuals, families and communities. 

At the same time, this remains a prospective inquiry. Public charge is still supposed to be a forward-looking determination about whether the applicant is likely at any time to become a public charge, not a punishment for having participated in a benefit program at some point in the past. DHS itself frames the inquiry as a totality-of-the-circumstances review rather than a single-trigger rule. In adjustment cases, USCIS will continue to use information from Forms I-485 and I-693, as well as interview questioning, to assess age, health, family status, assets, resources, financial status, education, skills, and the receipt of means-tested public benefits. 

The 2026 rule does not appear to revive Form I-944. Instead, USCIS is expected to revise Form I-485 before the rule takes effect. The revised Form I-485 is therefore likely to be used to inquire about public charge. USCIS has announced that it will publish a revised Form I-485 and that older editions postmarked or submitted electronically on or after September 18, 2026, will not be accepted. Applicants should expect the public charge questions on the new form to do more than ask whether they are exempt from INA § 212(a)(4). The form may seek more detailed information about the applicant’s household, financial resources, health insurance or ability to pay for medical care, education and skills, employment history, and receipt of means-tested public benefits. Even if USCIS does not revive a separate Form I-944, the expanded I-485 questions may function as a condensed public charge worksheet, requiring applicants to anticipate how their answers could be weighed under the totality of the circumstances.

The affidavit of support may also offer less protection than many family-based applicants previously assumed. Under the 2022 framework, a sufficient Affidavit of Support under INA § 213A was incorporated into a structured analysis. Under the new framework, USCIS will have greater flexibility in determining how much weight to give Form I-864 within the broader totality-of-the-circumstances review. The statutorily mandated affidavit remains important, but applicants may need to present a more comprehensive picture of their financial stability, health coverage, employment history, skills, and overall ability to remain self-sufficient.

Another area of concern is the indirect role of family or household benefits. DHS has indicated that the analysis generally focuses on the applicant rather than benefits received by relatives. However, the final rule also makes clear that family-member benefits may become relevant in certain circumstances. For example, if a family member’s means-tested benefits indicate that the applicant’s household income falls below a program threshold, that information may be considered as part of the applicant’s assets, resources, and financial status under INA § 212(a)(4)(B). Similarly, where a family member’s public benefits help support the applicant financially, that fact may be considered in the overall analysis. Although DHS does not treat family-member benefits as an independent negative factor, it leaves room for them to be considered indirectly.

The bond provisions are also moving in a less forgiving direction. DHS has amended 8 C.F.R. § 103.6(c) to provide that receipt of a means-tested public benefit, or other noncompliance with a bond condition, may result in a bond breach. DHS also removed language stating that USCIS may cancel a public charge bond at any time after determining that the noncitizen is not likely to become a public charge. According to the agency, these changes align the bond provisions with the rescission of 8 C.F.R. § 212.21 and clarify that bond cancellation requires the designated form. Under revised 8 C.F.R. § 103.6(c)(1), Form I-356 remains the mechanism for requesting cancellation after the fifth anniversary, provided the bond has not been breached.

The 2026 public charge rule represents a significant shift away from the structured framework of prior regulations and toward a more discretionary, case-by-case assessment under INA § 212(a)(4). By emphasizing the totality of the circumstances and affording officers greater flexibility in weighing statutory factors, benefit use, and other evidence, DHS has created a framework that may produce greater uncertainty. Applicants subject to the public charge ground of inadmissibility should be prepared for a scrutinized review in which benefit use, financial resources, health, education, employment history, and household circumstances may all receive closer attention. In practice, that may translate into more detailed questioning, increased requests for evidence, and a greater need to present a comprehensive record demonstrating the ability to remain self-supporting. 

The May 2026 USCIS memorandum on adjustment of status has already armed USCIS officers with greater discretion by emphasizing that adjustment under INA § 245 is a matter of administrative grace and extraordinary relief, not an entitlement. When that discretionary framework is combined with the broadened public charge rule, USCIS will have still more room to deny adjustment applications even where applicants satisfy the threshold statutory requirements. Public charge concerns may become one more discretionary factor in a wider adverse narrative, allowing officers to weigh financial vulnerability, benefit use, household circumstances, health coverage, and employability against the applicant in deciding whether adjustment should be granted. This convergence of policies underscores the need for applicants to treat the I-485 filing not merely as a form-driven eligibility submission, but as an affirmative request for favorable discretion supported by a complete and persuasive record. The public charge rule would provide even more discretion to officers to deny adjustment of status applications in light of the USCIS memo that indicates that adjustment of status requires extraordinary discretion. 

The Trump administration has been open about disfavoring immigration to the US, whether legal or illegal. The new public charge rule provides the Trump administration another powerful tool to restrict legal immigration to the US. 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Beyond Loper Bright: Rodriguez v. Ortega and the Fifth Amendment Limit on Mandatory Immigration Detention

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By Cyrus D. Mehta and Kaitlyn Box*

In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine. Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled. We have discussed Loper Bright at length in prior blogs (here, here, here  and here). 

Loper Bright has proved a powerful tool for challenging the Board of Immigration Appeal (BIA)’s reinterpretation of INA 235(2)(A) and INA 236 to hold that noncitizens who entered without inspection (EWI) are not eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A). This BIA decision was a marked reversal of policy, as bond had been permitted for noncitizens who entered without inspection for three decades, since the passage of the Immigration Act of 1996. The decision also disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which notably excludes respondents who have entered without inspection. Addressing this discrepancy, the BIA stated that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”. 

Aware that a federal court would not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), the BIA invoked Loper Bright to conclude that the language under INA 235(b)(1)(2) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c), stating: “the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”

In a previous blog, we discussed Buenrostro-Mendez v. Bondi (5th Cir. 2026) the Fifth Circuit agreed with Yajure Hurtado, holding that noncitizens who entered without inspection are ineligible for bond. The court addressed the statutory discrepancy by stating that “Section 1226(a) undeniably does work independent from § 1225(b)(2)(A) because only § 1226(a) applies to admitted aliens who overstay their visas, become deportable on many different grounds, or were admitted erroneously due to fraud or some other error… Not only does § 1226(c) sweep in deportable aliens in addition to the inadmissible aliens covered by § 1225(b)(2)(A)…it also eliminates the option of parole for those to whom it applies.” In a dissenting opinion, Justice Douglas found that “Combining the ordinary meaning of ‘seeking’ with the statutory definition of ‘admission,’ there is no need to resort to strained analogies with the college admissions process to determine the meaning of key statutory terms governing detention.”

Nonetheless, most district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. District court cases that have cited Buenrostro to date have primarily done so to point out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for example,  Aroca v. Mason, Pascual Jose-de-Jose v. Noem,  Carlos Roldan Chang v. Noem. In a New Jersey district court case, Judge Padin wrote in her opinion that the court was “unpersuaded” by the Fifth Circuit’s decision in Buenrostro, reasoning that “the majority’s interpretation risks rendering substantial portions of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Department of Homeland Security was not likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who is unlawfully already in the United States as well as those who present themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025). The Second Circuit has now reached the same conclusion in Cunha v. Freden, holding that § 1226(a), not § 1225(b)(2)(A), governs the detention of a noncitizen who entered without inspection years earlier and was later arrested in the interior. The Eleventh Circuit likewise rejected the government’s broad reading of § 1225(b)(2)(A) in Alvarez v. Warden, Federal Detention Center Miami, concluding that interior EWI respondents are generally eligible for bond under § 1226(a). These circuit decisions confirm that Buenrostro-Mendez is not the consensus view, but part of a widening circuit split over whether long-resident noncitizens arrested inside the United States can be subjected to mandatory no-bond detention merely because they entered without inspection.   Only a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g.  D.M.R.D. v. Andrews and Zhuang v. Bondi.  Even the Fifth Circuit’s decision in Buenrostro-Mendez also does not preclude release based on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit did not consider whether a noncitizen detained under 8 U.S.C. § 1225 may be constitutionally entitled to a bond hearing at the outset of proceedings, or even to release on constitutional grounds. It also leaves intact habeas corpus as a key mechanism for challenging unlawful prolonged detention.

On July 2, 2026, in Sosnava Rodriguez v. Ortega, No. 26-50183 (5th Cir. 2026), a Fifth Circuit panel held that the government may not detain noncitizens under § 1225(b)(2)(A) for more than ninety days without providing them a bond hearing. The case involved three long-term U.S. residents who were detained under 8 U.S.C. § 1225(b)(2)(A) while their removal proceedings remained pending. Although the court accepted, consistent with Buenrostro-Mendez, that § 1225(b)(2)(A) mandates detention for noncitizens who entered without inspection and confers no statutory right to a bond hearing, Rodriguez did not concern Loper Bright or the degree of deference owed to an agency’s statutory interpretation. Rather, the decision turned on a distinct constitutional question: whether continued detention authorized by statute becomes unconstitutional when it deprives a person of liberty without adequate process. The Fifth Circuit framed the issue under the Due Process Clause of the Fifth Amendment, which protects “persons” physically present in the United States, including noncitizens who have lived here for many years. Relying on the Supreme Court’s due process decisions in Zadvydas v. Davis, 533 U.S. 678 (2001), Demore v. Kim, 538 U.S. 510 (2003), and Carlson v. Landon, 342 U.S. 524 (1952), the court reasoned that Congress may authorize categorical detention of certain noncitizens, but only within constitutional limits. Those limits become especially important when detention is prolonged, individualized review is unavailable, and the government has not shown that the person is dangerous or likely to flee. The Fifth Circuit therefore concluded that the Constitution does not permit indefinite or extended detention based on unlawful-entry status alone and that these petitioners could not be detained for more than ninety days without a bond hearing.

This is why Rodriguez should not be understood as another post-Loper Bright statutory-interpretation case. Loper Bright requires courts to exercise independent judgment in construing statutes, but Rodriguez shows that constitutional due process imposes an independent limit even where the government prevails on the statutory question. Indeed, because the holding rested on the Fifth Amendment rather than on statutory ambiguity or agency deference, Rodriguez did not even need to cite Loper Bright. The government cannot avoid the Fifth Amendment merely by arguing that § 1225(b)(2)(A) mandates detention. If detention becomes prolonged and the detainee has no meaningful opportunity to contest dangerousness or flight risk, due process may require an individualized bond hearing. Rodriguez is therefore significant for habeas challenges because it allows petitioners to argue that, even if Buenrostro-Mendez controls the statutory issue within the Fifth Circuit, continued detention without a bond hearing may still violate the Fifth Amendment.

However, on July 10, a majority of the Fifth Circuit voted to rehear Rodriguez en banc, which had the effect of vacating the panel decision. That development should not be overstated. The panel opinion was vacated not because the Fifth Circuit rejected its reasoning, but because the full court agreed to reconsider the case. The en banc court could still affirm the panel’s due process holding, which would make Rodriguez even more powerful as binding Fifth Circuit precedent. Even in its vacated posture, however, the panel decision remains useful. Fifth Circuit precedent confirms that a vacated panel decision may still be cited for its persuasive reasoning. See Cheejati v. Blinken, 106 F.4th 388, 395 (5th Cir. 2024) (explaining that although a prior panel decision had been vacated, the court still found its reasoning persuasive); Munn v. City of Ocean Springs, 763 F.3d 437, 441 (5th Cir. 2014) (treating a vacated decision as persuasive). Thus, while Rodriguez is no longer binding panel precedent pending en banc review, it can still be cited as persuasive authority in challenges to detention beyond ninety days, and it may yet become more authoritative if the full Fifth Circuit affirms the panel’s constitutional analysis.

The en banc court may ultimately adopt Judge Wilson’s dissent in Rodriguez v. Ortega, which concluded that due process does not require a bond hearing for noncitizens detained under § 1225(b)(2)(A). In our view, however, the panel majority’s opinion is better reasoned. It more faithfully reconciles the government’s authority to detain with the Fifth Amendment’s protection against prolonged detention without individualized review, and it is more consistent with the Supreme Court’s guidance in Zadvydas, Demore, and Carlson. The en banc court should therefore reaffirm the panel’s approach rather than adopt the dissent’s narrower view of due process.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus D. Mehta & Damira Zhanatova

H-1B for Entrepreneurs: Can You Transfer Your H-1B to Your Own Startup?

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By Cyrus Mehta and Damira Zhanatova*

For years, many H-1B professionals treated a layoff as an immigration emergency and entrepreneurship as something they had to postpone. The January 17, 2025 H-1B modernization rule changes that somewhat. It gives H-1B workers a clearer path to move into a startup they own, not because USCIS created a special startup visa, but because the rule now expressly recognizes the ability of beneficiary-owned petitioners to file H-1B petitions on behalf of H-1B workers, even when those workers own or control the petitioning entity.

That policy shift was intentional. In the rulemaking just before President Biden left office, DHS acknowledged that existing immigration pathways for entrepreneurs are limited and explained that the beneficiary-owner provisions were designed to promote access to the H-1B program for entrepreneurs, start-up entities, and other beneficiary-owned businesses while also imposing reasonable conditions to protect program integrity. DHS also explained that clarifying how the regulations apply to entrepreneurs would give greater certainty to founders and encourage more beneficiary-owned businesses to participate in the H-1B program. In other words, the goal was not only to modernize the text of the regulation, but to make the H-1B category more realistically usable for startup founders. 

That matters most when an H-1B worker anticipates a termination and wants to act quickly, assuming there are no other employers willing to offer the worker a new position and promptly file an H-1B extension petition. The general H-1B portability framework allows an H-1B worker already in the United States to begin working for a new employer when the new employer files a nonfrivolous H-1B petition before the worker’s authorized stay expires and includes an approved Labor Condition Application covering the offered work. For an entrepreneur, that means a properly formed startup may be able to step in as the new petitioner if it is a real operating business and the offered role is a genuine specialty occupation. 

The core legal change is that founder ownership no longer defeats the petition by itself. Under 8 C.F.R. § 214.2(h)(4)(ii)(4), the definition of a “United States employer” now expressly includes an entity in which the H-1B beneficiary has a controlling interest, provided that the entity has a bona fide U.S. job offer, a legal presence in the United States, is amenable to service of process, and has an IRS tax identification number. This means that founder control is no longer treated as disqualifying on its own; the key limitation is that the petition must still be for a genuine H-1B-caliber position. The regulation also allows a beneficiary-owner to perform certain duties related to owning and directing the business, but only if specialty occupation duties remain the majority of the role.

That clarification is significant because DHS expressly rejected the argument that the beneficiary-owner provision constitutes unlawful “self-sponsorship.” The rule draws a legal distinction between an individual acting in a personal capacity and a separate business entity filing as a United States employer. It also moves away from emphasizing the traditional common-law control test that previously made founder-owned H-1B petitions difficult and instead focuses the inquiry on whether the petitioning company qualifies as a U.S. employer and offers a bona fide specialty-occupation position. Even when the beneficiary is the sole owner, the company may still file an H-1B petition if it satisfies the regulatory definition of a U.S. employer and offers a bona fide specialty-occupation position. The real question is not whether the founder owns the company, but whether the company is legitimate and whether the position qualifies as an H-1B specialty occupation.

That is the key point for laid-off or at-risk workers. A software engineer, data scientist, product architect, or other professional may be able to form a startup and transfer H-1B employment to that company if the new role is structured as a real specialty-occupation position. The founder can still perform some business-building functions, but specialty-occupation duties must remain the majority of the job. The petition must establish that the founder is not merely “running a business,” but is primarily performing the kind of specialized duties that support H-1B classification under 8 C.F.R. § 214.2(h). The startup must therefore be presented as a real U.S. employer offering a real professional role, not as a shell entity created only to preserve status.

The rule also reflects a practical understanding of how startups actually operate. DHS recognized that founders often need to perform non-specialty duties directly related to owning and directing the business, especially in the early stages of growth. Those duties may include signing leases, finding investors, negotiating contracts, developing a business plan, engaging with potential suppliers and stakeholders, and recruiting talent. DHS also acknowledged that founders, like other H-1B workers, may perform incidental duties from time to time. But the line remains important: apart from incidental duties, any non-specialty work must be directly related to owning and directing the business, and the founder still must spend a majority of the time performing specialty-occupation duties authorized under the petition.

That means founder petitions should be drafted with precision. USCIS will look at all of the job duties described in the petition, the expected percentage of time devoted to each duty, and, in extension cases, the time actually spent performing those duties during the prior petition validity period. A founder case is therefore strongest when the petition clearly separates the specialty-occupation work from the business-building work and shows that the specialty-occupation side of the role remains dominant.

This change is especially important for H-1B workers who want to act before or immediately after termination. Under 8 C.F.R. § 214.1(l)(2), DHS may permit a grace period of up to 60 consecutive days following cessation of employment, or until the end of the petition validity period, whichever is shorter. If the worker can form the company quickly during that window, define a bona fide specialty-occupation position, and document that the role is primarily specialized professional work, the new company may serve as the H-1B petitioner. The founder can still engage in business-building activity, but 8 C.F.R. § 214.2(h)(4)(ii)(4) provides that, where the beneficiary has a controlling interest in the petitioner, the beneficiary may perform duties directly related to owning and directing the business only so long as specialty-occupation duties remain the majority of the role.

There is, however, a time limitation. Under 8 C.F.R. § 214.2(h)(9)(iii)(E), petitions filed by a U.S. employer in which the H-1B beneficiary has a controlling interest are limited to up to 18 months for the initial approval, and the first extension is also limited to up to 18 months. This means the rule creates a workable founder path on a temporary basis, but not a long-term path. Startup founders using this strategy should expect earlier extensions and should plan to maintain strong evidence showing that the company is active and the position continues to qualify.

The 2025 rule also does not relax the requisite H-1B wage requirements. DHS emphasized that nothing in the final rule changes the Department of Labor’s administration and enforcement of Labor Condition Application requirements, including prevailing wage and wage-level rules. That is important for founder cases because some startup roles may involve a combination of technical and business-related duties. Even in those cases, the petitioner still must comply with all applicable wage requirements. The founder-owned structure creates flexibility in ownership and duties, but it does not create an exception to the LCA rules or permit reduced wages.

Some founders may also benefit from concurrent H-1B employment. DHS clarified that the beneficiary-owner provisions do not prevent concurrent H-1B employment with multiple qualifying specialty-occupation roles, including with another entity in which the beneficiary may also have an ownership interest, so long as each petition independently qualifies and the beneficiary is otherwise eligible. That means a founder may, in some situations, continue with one H-1B employer while also obtaining authorization to work for a startup the founder owns.

Workers who already have a pending adjustment application may also have a separate portability option under INA section 204(j). If the Form I-485 has been pending for 180 days or more, and the qualifying immigrant petition has already been approved or was still pending when USCIS was notified of the new job offer after the 180-day mark and was later approved, the applicant may use Form I-485 Supplement J to preserve the adjustment case through a new offer of employment in the same or a similar occupational classification. That framework is implemented in 8 C.F.R. § 245.25(a), which permits continued eligibility through a continuing job offer or a qualifying new job offer, including self-employment. For startup founders, that means a new role with the founder’s own company may support adjustment portability if the role remains closely tied to the job described in the underlying immigrant petition. While the adjustment applicant remains authorized to remain and work in the United States through an employment authorization document (EAD), it is prudent to maintain underlying H-1B nonimmigrant status. An individual with a pending I-485 application remains amenable to removal if they do not maintain an underlying nonimmigrant status.

That issue should be approached carefully. A founder who was sponsored for a technical or professional role should define the startup position in a way that remains connected to that underlying occupation. If the original green-card case was based on a software engineering position, for example, the founder role should continue to emphasize software engineering or similarly aligned technical duties rather than shifting into a purely general executive role. The stronger the connection between the old role and the new one, the stronger the portability argument under INA section 204(j) and 8 C.F.R. § 245.25(a). The pending-I-140 language in 8 C.F.R. § 245.25(a) is also important because it covers cases in which the immigrant petition was still pending when USCIS was notified of the new job offer after 180 days and was later approved. That can be especially helpful for workers whose employment situation changed before the immigrant petition was fully adjudicated.

For long-term permanent residence planning, many startup founders should also consider the National Interest Waiver pursuant to the employment-based second preference (EB-2). Unlike a traditional employer-sponsored green card case, the EB-2 NIW allows self-petitioning and waives the job-offer and labor-certification requirements if the founder first qualifies for EB-2 and then satisfies the three-part Dhanasar test: the proposed endeavor must have substantial merit and national importance, the founder must be well positioned to advance it, and, on balance, waiving labor certification must benefit the United States. This framework often fits entrepreneurs better than PERM, especially because labor certification can be difficult in self-employment or owner-beneficiary scenarios. Strong founder NIW cases usually include a clear business plan, evidence of the founder’s ownership and central role, proof of funding or market traction, intellectual property or other innovation, and letters or other documentation showing why the specific venture has meaningful U.S. impact. 

At the same time, founders should avoid relying on broad claims that startups create jobs or that an industry is important in general. USCIS looks for evidence that the particular endeavor has concrete national significance and that the founder is genuinely positioned to carry it forward. The EB-2 NIW may have more limited immediate utility for founders from heavily backlogged countries, such as India, because visa-number availability may remain years away. Even so, an approved EB-2 NIW petition can still serve as an important anchor for 3-year H-1B extensions under AC21 § 104(c), as implemented in 8 C.F.R. § 214.2(h)(13)(iii)(E), so long as an immigrant visa is not immediately available at the time the H-1B extension is filed.

If the founder qualifies, they may also be eligible for classification as a Person of Extraordinary Ability under the first-preference employment-based category (EB-1A). Similar to the EB-2 NIW, the EB-1A category is particularly advantageous for founders because it does not require a job offer, labor certification, or employer sponsorship. Instead, eligible founders may self-petition, providing greater flexibility and independence in pursuing permanent residence. The standard, however, is higher: the founder must demonstrate sustained national or international acclaim and recognition in the field, either through a one-time major achievement or by satisfying at least three of the regulatory criteria. In addition, the founder must establish an intent to continue working in the area of extraordinary ability and show that such work will substantially benefit the United States. For an H-1B founder, EB-1A may therefore be a powerful long-term pathway where the record includes strong evidence such as significant awards, published material about the founder, original contributions of major significance, participation as a judge of the work of others, a leading or critical role for distinguished organizations, high remuneration, or other comparable evidence demonstrating that the founder is among the small percentage of individuals who have risen to the very top of the field.

The practical takeaway is straightforward. The January 17, 2025 H-1B modernization rule does not give every laid-off worker a free pass to preserve status through a paper startup. What it does do is create a much clearer path for genuine founders to move their H-1B to a company they own, so long as the company is a real U.S. employer, the offered position is a bona fide specialty occupation, and specialty-occupation duties remain the majority of the role. For workers who need an immediate status solution, that can turn layoff risk into a realistic transition to entrepreneurship, even if founder-owned petitions require earlier extension planning because of their shorter approval periods. For workers who already have a pending adjustment application, there may also be a separate green-card protection strategy through INA section 204(j) and Form I-485 Supplement J if the new founder role remains in the same or a similar occupational classification as the underlying immigrant position. And for longer-term residence planning, the EB-2 National Interest Waiver and, where the founder can meet the higher extraordinary ability standard, the EB-1A may both serve as important pathways for entrepreneurs because they allow self-petitioning and may be better suited to founder-led cases than the conventional labor certification model.

Finally, the H-1B entrepreneur rule remains viable even under a Trump administration that has otherwise moved aggressively to limit immigration options, most recently through a rule replacing duration-of-status admissions for F-1 students, J-1 exchange visitors, and representatives of foreign information media with fixed periods of admission and formal extension procedures. This broader restrictive environment makes it all the more important for the administration to recognize the role that H-1B entrepreneurs can play in innovation, job creation, and economic growth. We hope the administration will preserve and fairly implement this pathway so that qualified founders who satisfy the H-1B requirements can continue building businesses in the United States.

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Trump v. Barbara: How the Supreme Court Dodged a Bullet on Birthright Citizenship

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By Cyrus D. Mehta and Kaitlyn Box

The Supreme Court’s decision in Trump v. Barbara did far more than invalidate an overreaching executive order – it prevented a wholesale destabilization of American citizenship that could have echoed backward through generations. By a narrow but decisive majority, the Court rejected President Trump’s attempt to narrow birthright citizenship, reaffirmed the core holding of United States v. Wong Kim Ark, and drew clear lines that future administrations will find difficult to cross.

Trump’s executive order tried to rewrite the Fourteenth Amendment’s Citizenship Clause by narrowing the meaning of “subject to the jurisdiction thereof.” Under the executive order, a person born in the United States would not be a citizen at birth if, at the time of birth, both of the child’s parents were either undocumented, or held only a nonimmigrant status (for example, F-1, H-1B, etc.). This clashed directly with the text and history of the Fourteenth Amendment and with 8 U.S.C. § 1401(a), which together embody the longstanding rule that almost all persons born on U.S. soil, regardless of their parents’ immigration status, are citizens at birth.

The majority, in an opinion by Chief Justice Roberts, rejected the government’s theory and reaffirmed the rule announced in Wong Kim Ark at the end of the nineteenth century. The Citizenship Clause, the Court said, is “declaratory” of the common-law principle of jus soli: if you are born in the United States and are subject to its laws, you are a citizen at birth, with only narrow, historically recognized exceptions such as the children of foreign diplomats, enemy occupiers, and, historically, members of Native American tribes before Congress extended citizenship by statute. The majority emphasized that neither the word “legal” nor “permanent” nor any reference to parental status appears in the Citizenship Clause, and it declined to read them in. The Court rejected the idea that the meaning of “subject to the jurisdiction” could be transformed in response to modern political anxiety about unauthorized immigration or “birth tourism.”

“Citizenship, then and now,” Roberts states, “was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”

At oral argument, Justice Amy Coney Barrett had highlighted how “messy” and unworkable a parent-focused test would be. If citizenship turned on parental domicile, lawful presence, or subjective intent to remain, the government would be forced into endless, intrusive factual inquiries. Foundlings—abandoned infants whose parents are unknown—would languish in legal limbo if citizenship depended on the status of parents who cannot be identified. Even where parents are known, the government would have to reconstruct, years later, their precise legal status and even their state of mind at the time of birth. Justice Barrett’s hypotheticals, such as that of a U.S. citizen living abroad who returns briefly to the United States to give birth and then leaves again, underscored the absurdity of tying a newborn’s citizenship to parental “intent to stay.” The majority opinion took those concerns seriously, noting that a constitutional rule that invites such guesswork is not a rule at all, but an invitation to arbitrary decision-making.

Had the executive order been upheld, the immediate consequences for future children would have been profound. Children born in the United States to undocumented parents would no longer have citizenship at birth. Depending on the nationality laws of their parents’ home countries, some might qualify for citizenship elsewhere, but others would not, rendering them effectively stateless. 

The order would also have swept in children born to parents in lawful but temporary status, including H-1B professionals, H-4 dependents, students, exchange visitors, and tourists. Newborns, however, are not “admitted” at a port of entry and are not assigned a nonimmigrant status at birth. It is far from clear what lawful status such children could hold, if any, from the moment of birth. Parents would have been thrust into a frantic race to file complex applications with U.S. Citizenship and Immigration Services days after the child’s birth, and innocent errors or delays could lead to their infants being treated as out of status and removable.

Beyond these immediate disruptions, the order threatened to draw U.S. citizen parents into the same web of suspicion. Once citizenship no longer flows automatically from birth on U.S. soil, vital records offices, hospitals, and federal agencies could start to demand proof that a child meets whatever conditions the executive or Congress has grafted onto the Constitution. Parents might have been asked to demonstrate not only their own citizenship or lawful status, but also that they were domiciled in the United States and intended to remain here at the time of birth. A U.S. citizen who had long resided abroad and returned home to give birth and before resuming life overseas, could have found her child’s citizenship questioned on the ground that she lacked the necessary “ties” at the crucial moment. What is now a simple administrative act—recording the birth of an American child—could easily have become an adversarial process.

The most dangerous implications, however, laid in the potential retroactive use of a narrowed constitutional rule. During oral argument, Justice Sotomayor recalled the historical episode in which Native Americans, who had previously been treated as citizens in some contexts, were denied that status and even stripped of it based on shifting interpretations of law and policy. If the Court were to declare that the Fourteenth Amendment never guaranteed citizenship at birth to those whose parents were unlawfully present or only temporarily in the country, that logic would not be confined to future births. It would invite litigation and executive action to revisit and undo the citizenship of people now living as American citizens.

The majority addressed this concern obliquely by emphasizing continuity and reliance. It cited over 150 years of practice and precedent in which the United States has consistently treated birth on U.S. soil, with very limited exceptions, as sufficient for citizenship. By framing Wong Kim Ark as both historically grounded and repeatedly reaffirmed, the Court signaled that citizenship acquired under that understanding is not a mere policy choice but a constitutional baseline. To overturn that baseline would not simply correct an error; it would reorder the political community in ways the Fourteenth Amendment was adopted to prevent.

Justice Kavanaugh’s concurrence, while more cautious in its constitutional analysis, helped solidify the result. He expressed some sympathy for the view that Congress might, in theory, have authority to define by statute certain narrow categories of noncitizens born here, but concluded that the existing statute, 8 U.S.C. § 1401(a), plainly grants citizenship at birth to almost all persons born in the United States. Whatever Congress’s latent power might be, the President lacks any authority to override this statutory command by executive order. Kavanaugh’s opinion stressed separation of powers: even if one accepts a more limited view of the Citizenship Clause, it is for Congress, not the president acting alone, to make changes of this magnitude. That concurrence, grounded in statutory interpretation and institutional humility, provided an additional barrier against presidential attempts to unsettle citizenship by decree.

In contrast, the dissents sketched the alternate future the country narrowly avoided. In the principal dissent, Justices Thomas and Gorsuch adopted a narrow reading of the Fourteenth Amendment’s Citizenship Clause and would have upheld Trump’s executive order. They argued that “subject to the jurisdiction thereof” does not simply mean being subject to U.S. laws in the ordinary sense, but requires a fuller, genuine allegiance and a lawful, consensual relationship with the United States. In their view, the Framers of the Fourteenth Amendment did not intend to confer automatic citizenship on the U.S.-born children of parents who had no legal right to remain in the country or who were present only fleetingly and conditionally. The dissenters relied heavily on historical sources and Reconstruction-era debates to claim that the Clause was aimed at freeing formerly enslaved people and securing their status, not at constitutionalizing a broad jus soli rule for all comers, regardless of parental status. They treated Wong Kim Ark as either wrongly decided or at least tightly limited to its facts: a child born in the United States to parents who were long-term, legally resident subjects of a foreign sovereign. From that perspective, the dissenters maintained that the Trump administration’s interpretation was a permissible, even necessary, restoration of the original understanding of the Citizenship Clause, and that the executive order did not contradict the Constitution but implemented it.

Justice Alito wrote separately to stress practical and policy concerns, though he agreed with the core constitutional reasoning of Thomas and Gorsuch. He accepted the premise that “subject to the jurisdiction” incorporates a concept of allegiance and lawful, non-transient presence. He argued that, in a modern context of large-scale unauthorized migration and what he termed “birth tourism,” it is reasonable to interpret the Clause so that birthright citizenship does not extend to the children of those who deliberately evade the immigration laws or enter solely to secure citizenship for a child. Alito’s dissent emphasized that the Constitution should not be read to “lock in” what he viewed as unintended consequences of a broad jus soli rule. He suggested that the political branches must retain flexibility to respond to contemporary problems, and saw Trump’s order as a permissible exercise of that flexibility. While he disclaimed any desire to strip citizenship from those long recognized as Americans, his framework did not supply a clear constitutional barrier against future retroactive efforts; instead, he gestured to reliance interests and administrative practicality as reasons to proceed cautiously

Gorsuch also wrote a separate brief dissent, in which he suggested that Trump’s executive order might violate the Constitution as it applies to the children of undocumented immigrants who intend to live in the United States permanently. “If those parents are not domiciled here,” Gorsuch queried, “then where are they domiciled? And if the answer is nowhere,” he continued, “how can we reconcile that conclusion with this Court’s longstanding recognition that every person is domiciled somewhere?” Because the challengers in this case have argued that Trump’s order is invalid in all circumstances, rather than just some, Gorsuch explained, “these questions may not be properly before us. But their answers are undeniably important to a Nation committed to a view of citizenship open to all children born here to parents who can call this country their home.”

Layered over these doctrinal disagreements was a deeper dispute about the nature of citizenship itself. The majority and concurrences treated citizenship as a foundational status that must be stable, knowable, and insulated from day-to-day politics. They viewed the Citizenship Clause as a hard-won guarantee, adopted in direct response to Dred Scott and the exclusion of Black Americans from the political community, meant to fix in the Constitution a clear, objective rule for who belongs. The dissents, by contrast, cast citizenship as more contingent and malleable, something that can be recalibrated to reflect current policy concerns about migration and enforcement. Under that vision, the meaning of “subject to the jurisdiction” becomes a tool for shaping the membership of the polity rather than a safeguard against its manipulation. Had the dissenters’ view prevailed, the multigenerational implications would have been staggering. If X, born in the United States decades ago to parents now classified as outside the Fourteenth Amendment’s protection, was never a citizen at birth, then X could not have lawfully passed citizenship to Y. If Y is not a citizen, Y cannot transmit citizenship to Z. Family trees that stretch back for generations in the United States would be legally reimagined as never having produced a single American citizen. Many who championed the executive order in the name of restricting immigration might have awoken to find that their own citizenship, and that of their children and grandchildren, rested on the very understanding of the Fourteenth Amendment they sought to undo.

By rejecting that path, the Court has allowed the United States to dodge a constitutional bullet. Trump v. Barbara confirms that citizenship acquired by birth on U.S. soil, subject to U.S. law, is not a revocable privilege but a constitutional guarantee. It closes the door, at least for now, on efforts to use executive power to narrow that guarantee and to reopen settled questions about who is American. It also restores a clear line between the political branches: whatever debates may arise in Congress about the outer edges of citizenship, the President cannot, by unilateral order, rewrite the constitutional and statutory rules that have defined the national community for more than a century.

Trump and many of his supporters envision mass deportations as a way to reshape the country’s demographic and political future. What Trump v. Barbara underscores is the peril in trying to achieve that goal by tampering with the foundations of citizenship itself. Had the Court blessed the executive order, it would have created the legal and conceptual space to question the citizenship of millions, including many who never imagined their status could be in doubt. By instead reaffirming the Fourteenth Amendment’s broad and inclusive promise, the Court has preserved not only the rights of today’s newborns, but also the stability and integrity of American citizenship across generations.

 

Cyrus Mehta

Mullin v. Doe: Blessing a Race-Neutral Cover for Racial Animus

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By Cyrus D Mehta and Damira Zhanatova*

The Supreme Court’s decision in Mullin v. Doe is a major setback for TPS holders and a deeply troubling signal about how the Court is willing to treat racialized immigration policy. By allowing the Trump administration to move forward with ending Temporary Protected Status (TPS) for Haitians and Syrians, the Court not only stripped away a critical layer of protection for hundreds of thousands of people, but also dismissed powerful evidence that racial animus infected the decision to terminate Haiti’s TPS designation.

The majority opinion, written by Justice Alito, begins with the statute’s judicial-review bar. The Court reads 8 U.S.C. §1254a(b)(5)(A) to mean that courts may not review “any determination” by DHS “with respect to the designation, or termination or extension of a designation” of a foreign state. In the Court’s view, the word “determination” is broad enough to cover not only the final decision to terminate TPS, but also the entire chain of events leading to it. That reading allows the Court to reach the sweeping conclusion that the statute “squarely bars all of respondents’ non-constitutional claims.” 

That holding is especially significant because it forecloses APA challenges based on process. The district courts had concluded that DHS failed to comply with the Immigration and Nationality Act’s mandatory consultation requirements before ending TPS for Haiti and Syria. Justice Kagan’s dissent explains the point clearly: the statute requires the Secretary, “after consultation with appropriate agencies of the Government,” to review country conditions and determine whether the TPS criteria continue to be met. The mandatory steps are not optional, and the government’s scant email exchange with the State Department did not satisfy them. As she puts it, the communications were about “foreign policy concerns,” not about whether the countries were actually safe for return, and that meant the Secretary did not fulfill the consultation requirement. In her words, “After today, a secretary can announce to the world that she didn’t consult with anyone – more, that she didn’t evaluate country conditions at all – before making, extending, or terminating a TPS designation. And the courts will be powerless to intervene.”

The majority’s reading makes procedural defects far harder to challenge, even where the agency skipped or truncated the very steps Congress prescribed. It also means that if a client’s TPS termination challenge rests on consultation failures, arbitrary review practices, or other process defects, the path to relief is now far narrower.

That reading of the statute is already troubling. But the Court went further. It also rejected the claim that Haiti’s TPS termination was driven by racial animus. The record included repeated disparaging comments by President Trump and former Homeland Security Secretary Kristi Noem about Haitians, immigrants, and TPS recipients. Trump said Haitian immigrants were eating people’s pets and claimed unlawful immigrants are “poisoning the blood of our country” and have “bad genes.” Noem described some immigrants as “leeches,” “entitlement junkies,” and “foreign invaders” who “suck dry our hard-earned tax dollars.” Justice Alito acknowledged that political discourse has become “increasingly couched in terms that would have scandalized the public just a short time ago,” but he still concluded that the statements were not enough to show Haiti’s TPS designation was terminated because of the race of the Haitian people.

That is where the majority’s reasoning becomes most dangerous. It treats racialized hostility as legally irrelevant so long as the government can recast it as general immigration policy. Justice Kagan’s dissent forcefully pushes back. She said the majority was wrong to hold that the courts cannot review whether the Secretary followed the statute’s required procedures. In her view, a secretary cannot skip consultation, terminate TPS, and then claim the decision is insulated from judicial scrutiny. She also said the racial evidence was “plain to see” and that the President’s statements were “so repellent and racially inflected” that the majority would not even repeat them in full. As she put it, “[t]he statements fairly shout, in their racial undertones and overtones alike, that race entered into the president’s resolve to remove Haitians from this country.” Justices Sotomayor and Jackson joined her dissent. 

Justice Kagan’s dissent is also candid and persuasive. She explains that the equal protection framework is Arlington Heights, under which plaintiffs need only show that race was “a motivating factor” in the decision, not the only or even the primary one. She emphasizes that courts must consider historical background, sequence of events, and contemporary statements by decisionmakers. She then quotes the President’s statements at length,  and the force of her language is strikingly forthright in contrast to the majority that was too embarrassed to quote him. Haitians, she writes, were described as “eating the dogs,” “eating the cats,” and “eating the pets of the people that live [in Springfield, Ohio].” Haitians in the United States “probably have AIDS.” Haiti was called a “shithole country,” “filthy, dirty, [and] disgusting.” Haitian immigration was said to be “like a death wish for our country,” and Haitians were accused of “poisoning the blood” of the country. She notes the contrast with the desire for people from “Norway” and “Sweden.” Her point is direct: “Haitians are Black. (Norwegians and Swedes not so much.)” The references to filth, disease, and primitiveness are, in her words, “shot through with racial stereotypes and tropes.” She concludes that “[t]he statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”

The dissent makes clear that discriminatory purpose can be inferred from context, not just explicit racial slurs. That is particularly important in immigration cases, where coded language, historical animus, and repeated disparagement often substitute for direct racial labels. Justice Kagan also explains that the majority’s “race-neutral explanation” does not defeat the claim. Under Arlington Heights, the question is not whether race was the sole cause. It is enough if race was one motivating factor among others. In her view, if race entered the decision at all, the Haiti TPS termination is “irretrievably tainted.”

That is why the majority’s treatment of the record is so troubling. It does not deny the ugly rhetoric. It simply says the statements are not “overtly racial” and can be understood as policy views about immigration and TPS. It sends the message that a president and his administration can use racially loaded language about Haitians and other immigrants from poorer countries, then shield the resulting policy decision behind a facially neutral administrative rationale. The Court unfortunately took a similar approach in 2018 in Trump v. Hawaii, looking past Trump’s overt animus towards Muslims to uphold a travel ban targeting Muslim-majority nations under the guise of national security.

Justice Thomas’s concurrence makes the implications even broader. He would hold that the TPS statute’s “no judicial review” language bars constitutional claims too. In his view, Congress’s intent to preclude judicial review is clear, and there is no constitutional obstacle to stripping federal courts of jurisdiction over these claims. He goes further and argues that “aliens have no equal protection rights against the federal government.” He says the Constitution’s Equal Protection Clause applies to the states, not the federal government, and he criticizes the Court’s recognition of an equal protection component in the Fifth Amendment’s Due Process Clause. He also maintains that even if the Due Process Clause contains some nondiscrimination principle, it would not apply here because TPS is a government-created privilege, not a protected right.

Thomas’s concurrence is notable because it points toward an even more restrictive future in which not only APA claims, but also constitutional claims, could be barred entirely in TPS litigation. That position is not the law of the majority opinion, but it underscores how fragile judicial review has become in this area.

The practical consequences of the decision are immediate and severe. It could affect roughly 350,000 Haitians and 6,100 Syrians who hold TPS, and it could also reverberate for hundreds of thousands of other TPS holders from more than a dozen countries whose status has been terminated. The government’s ability to expel people quickly will depend in part on whether they already have deportation orders pending. In many instances, TPS holders do not have such orders, which may give them some ability to contest removal from the country as well as seek relief either before or in removal proceedings. But where removal orders are already in place, the government may be able to move more quickly.

That distinction matters in practice. TPS holders are not abstract legal categories. They are clients, coworkers, students, caregivers, parents, and long-time residents who have lived lawfully in the United States and built lives here. Many have succeeded in college, advanced in their careers, supported U.S. citizen family members, and contributed to their communities. The decision is especially cruel because it strips away protection while minimizing the legal significance of the rhetoric that helped produce the policy in the first place.

Our earlier blog captured this same pattern months before the Supreme Court ruled. That post explained how Trump and J.D. Vance used baseless claims about Haitian immigrants in Springfield, Ohio, and why such rhetoric had real-world consequences for Haitian TPS holders. It also linked those comments to the broader Trump-era effort to terminate TPS protections for Haitians and other non-white immigrant communities. Mullin v. Doe now reflects the same dynamic at the highest judicial level: the Court has accepted a legal framework that makes it easier to separate poisonous rhetoric from policy consequences, even when the two are plainly connected.

The administration celebrated the ruling as a win for temporary status and administrative discretion. White House spokesperson Abigail Jackson called it “a tremendous win,” and DHS general counsel James Percival said, “The T in TPS stands for TEMPORARY.” But that framing misses the central issue. The case is not only about whether TPS is temporary. It is about whether the government can use racially charged rhetoric against Haitians and other immigrant communities, terminate their protection through procedures lower courts found defective, and avoid meaningful judicial review. In Mullin v. Doe, the Court’s majority unfortunately said yes.

Congress can still protect vulnerable TPS recipients by passing a bill that could legalize their status notwithstanding the Supreme Court decision. There would need to be a supermajority vote of 60 in the Senate even if the House passes a bill with a simple majority. While this may seem daunting given that the GOP has a majority in both chambers of Congress, the composition and control of both chambers might change after the midterms in November 2026! While the Trump administration may be taking a victory lap, history will not be too kind to it and this Supreme Court. This case that condoned Trump’s despicable racism towards Haitians will be relegated to history’s dustbin like Dred Scott,  Plessy v. Ferguson and Korematsu. 

 

Cyrus Mehta

From USCIS Approval to Consular Refusal: Is a 214(b) Denial of an O-1 Visa Legally Justified?

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By Cyrus D. Mehta and Manjeeta Chowdhary *

For many beneficiaries, approval of an O-1 petition by U.S. Citizenship and Immigration Services (“USCIS”) feels like the final hurdle has been cleared. After all, USCIS has already reviewed the petition and determined that the beneficiary qualifies for O-1 classification as an individual possessing extraordinary ability or achievement in the relevant field. Yet, in practice, some beneficiaries encounter an unexpected obstacle at the consular stage: a refusal under Section 214(b) of the Immigration and Nationality Act (“INA”).

Section 214(b) provides that every applicant for a nonimmigrant visa, other than applicants for certain expressly dual-intent categories such as H-1B, L, and V, is presumed to be an immigrant unless the applicant establishes entitlement to the requested nonimmigrant classification. However, the analysis does not stop there. The statute also requires that the applicant “establish…that he is entitled to a nonimmigrant status under Section 101(a)(15).” According to the US Department of State, a refusal under INA Section 214(b) may occur where an applicant either fails to establish qualification for the requested visa category or fails to overcome the presumption of immigrant intent where required by law. In many visa classifications, this inquiry focuses heavily on demonstrating strong ties abroad, such as employment, residence, family, or financial commitments outside the United States. The burden remains on the applicant to establish eligibility for the requested classification pursuant to Section 291 of the INA. 

The O-1 visa category differs from other traditional nonimmigrant classifications such as the B or F-1. The Foreign Affairs Manual (FAM), which guides consular officers in visa adjudications, recognizes that O-1 does not fit neatly within the conventional immigrant-intent framework that applies to many other nonimmigrant visas.

Under 9 FAM 402.13-10(U), an O-1 applicant remains subject to INA Section 214(b) and is therefore “presumed to be an immigrant” until the applicant establishes eligibility for O-1 nonimmigrant status. At first glance, that rule appears no different from the standard applied to many other nonimmigrant categories. The analysis, however, is more nuanced. The FAM explains that although “an intent to remain temporarily in the United States is a requirement for O-1 classification,” an O-1 applicant “does not have to have a residence abroad which they do not intend to abandon.” It also recognizes that “dual intent” is permissible for O-1 visa holders. This distinction is significant.

Unlike visitor, student, and certain other nonimmigrant categories – where applicants are often expected to show strong ties abroad and an intent to leave the United States after a temporary stay – an O-1 applicant need not prove an unabandoned foreign residence. At the same time, O-1 classification is not formally recognized as a statutory dual-intent category like H-1B or L-1, as Congress has not explicitly stated that it is dual intent. Instead, it occupies a quasi-dual-intent position within immigration law, reflected in regulation and Department of State guidance.

Indeed, 8 C.F.R. Section 214.2(o)(13) expressly states that the approval of a permanent labor certification or the filing of an immigrant preference petition “shall not be a basis” for denying O-1 classification or admission. The regulation also recognizes that an O-1 beneficiary may lawfully enter the United States on a temporary basis while simultaneously seeking permanent residence. Likewise, 9 FAM 402.13-5(B) confirms that the approval of a permanent labor certification or the filing of a preference petition, standing alone, should not support denial of O-1 classification. The same principle applies to O-3 visa applicants. O-2 classification, however, is treated differently, as O-2 applicants generally must show a residence abroad that they do not intend to abandon.

This raises a frequently misunderstood question. If an O-1 beneficiary may lawfully pursue permanent residence, need not maintain a foreign residence that they do not intend to abandon, and may still qualify for O-1 classification, what then supports a refusal under INA Section 214(b)?

Although the O-1 category permits substantial flexibility regarding immigrant intent, temporary intent remains essential. The governing regulations contemplate that an O-1 beneficiary may lawfully pursue permanent residence while simultaneously intending to remain in the United States only for the temporary period authorized under O-1 classification. Accordingly, the inquiry in an O-1 case may shift toward whether the applicant genuinely intends to enter the United States for the approved temporary engagement and has otherwise established entitlement to O-1 nonimmigrant classification.

As part of the inquiry of whether the applicant has established entitlement to the O-1 nonimmigrant classification, a consular officer may evaluate issues extending beyond traditional immigrant-intent concerns. These may include: whether the applicant sufficiently understands the proposed work or engagement; whether interview responses align with the approved petition and DS-160; whether the petitioner relationship and proposed employment arrangement are sufficiently clear and consistent with the petition; whether the proposed itinerary is consistent with the petition; whether the applicant has adequately established temporary intent consistent with O-1 classification; and whether the applicant has sufficiently established qualification for the requested nonimmigrant classification. This distinction is important because Department of State guidance makes clear that INA Section 214(b) is not limited solely to immigrant-intent concerns. A refusal may also result where an applicant has not sufficiently established qualification for the requested nonimmigrant classification. INA Section 214(b) can also conveniently be used to deny the visa when it may be more cumbersome to deny the visa on criminal inadmissibility or security grounds 

For applicants and attorneys alike, preparation for the visa interview remains critical. Beneficiaries should be prepared to clearly explain the proposed engagement or employment, understand the petitioner and the nature of the professional relationship, maintain consistency between the petition, DS-160, and interview responses, and explain the temporary nature of the approved stay while thoughtfully addressing questions concerning future immigration plans.

At the same time, visa adjudications are highly discretionary and often conducted under significant time constraints. In some circumstances, questions may arise regarding documentation, petition details, or an applicant’s explanation of the proposed engagement. Department of State guidance separately contemplates referral of approved O petitions to USCIS for reconsideration where concerns exist regarding the continuing validity of the approved petition itself. Likewise, certain cases may warrant additional administrative review or submission of further documentation before a final determination is reached. This raises an important practical distinction between concerns relating to an applicant’s present eligibility for visa issuance and concerns regarding the underlying basis of the approved O-1 petition itself.

 Importantly, a refusal under INA Section 214(b) is not necessarily the end of the road. Applicants may reapply for an O-1 visa and, where appropriate, address the concerns that may have contributed to the refusal. Where a refusal appears to rest solely on the applicant’s supposed inability to overcome the presumption of immigrant intent – for example, if the officer focused heavily on “ties” to the home country – a reasonable argument can be made that the officer misapplied the O-1 framework, which does not require an unabandoned foreign residence. In such cases, the applicant may consider seeking an advisory opinion from the State Department’s Visa Office. By contrast, where the refusal is grounded in a conclusion that the applicant has not established entitlement to O-1 status itself, it may be more difficult to obtain an advisory opinion because such requests are generally considered only when the dispute is over the legal standard, not the underlying facts of eligibility. In practice, advisory-opinion requests through LegalNet are usually framed by counsel, highlight a clear legal misinterpretation, and seek clarification rather than a reconsideration of factual determinations. Unfortunately, the doctrine of consular non-reviewability would preclude judicial review of a Section 214(b) denial. 

Ultimately, approval of an O-1 petition is highly significant, but it does not end the inquiry. Visa issuance remains a distinct adjudicative process. Understanding the nuanced interaction between INA Section 214(b), temporary intent, and O-1’s unique flexibility regarding immigrant intent remains essential to effective preparation and successful visa processing.  Anecdotal evidence suggests that there have been a spate of recent § 214(b) denials, many of which are unwarranted.   Although this blog has focused on O-1 refusals under INA § 214(b), similar analytical issues can arise in other nonimmigrant visas that enjoy quasi-dual intent – such as E, R, and P visas – where there must still be an intent to depart the United States at the end of the authorized stay, even if long-term or permanent immigration plans are also being pursued.

*Manjeeta Chowdhary is an Associate at Cyrus D. Mehta & Partners PLLC. 

 

DEPORTATION JUDGES
Prof. Stacy Caplow

Deportation Judges

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By Prof. Stacy Caplow, Brooklyn Law School[1]

Do you want to be a judge?  Hurry up to apply—the deadline is July 17, 2026.  Look no further than this ad which says:

“Help write the next chapter of America. Apply today to become a deportation judge. Define America for Generations.”[2]

The Trump administration is remaking the Immigration Court in its own image springing into a hiring frenzy following the rapid-fire depletion of more than 100 experienced Immigration Judges.[3]    Between February 2025 and May 2026, this aggressive recruitment effort netted 134 new full time and 22 temporary IJs.[4] The general qualifications of the individuals who heeded this call surprised no one:  Their numbers overwhelmingly included immigration enforcement lawyers, prior prosecutors and veteran or active military officers.  A mere three new IJs had any obvious experience representing immigrants, and even those career interludes were brief and in the past.

Another troubling revelation was how many individuals appointed to this stressful, high volume, complex job lacked any apparent prior knowledge of or experience in immigration law.  In addition to this minimal level of relevant substantive experience, a significant number had received JD degrees within the past 15 years and a few even had earned that degree in less that the supposedly requisite seven years.  Adding insult to injury, the EOIR reduced their training from six weeks[5] so that some new judges were presiding over merits hearings only a few weeks after being sworn in.[6]

These preferences should surprise no one who has paid attention to the goals of this administration to reduce, if not eliminate, grants of relief such as asylum or cancellation of removal, to reduce decades of due process guarantees by ordering removal without an evidentiary hearing, and to deter judicial independence with the threat of firing. By all reports, the restaffing of the immigration court has achieved these goals. resulted in higher rates of denials in asylum cases. Over the last twelve months, the Immigration Court asylum grant rate has plummeted.[7]

The posted job qualifications are very broad yet do not prioritize or even specify any prior knowledge of or experience in immigration law and practice in addition to the minimum requirements of a law degree and law license.[8]  The remaining preferred prior experience includes litigating criminal cases, including in the military, or conducting administrative hearings.  It is not unexpected, therefore, that a great number of the new IJs have government enforcement, military, and/or prosecution backgrounds.  Many have a combination of some or all of these credentials.

Despite this rapid-fire hiring binge, the credentials of these newly appointed IJs actually hew pretty closely those IJs appointed during the first Trump administration.  Once again, large numbers of IJs are drawn from the ranks of government employees.  They come from enforcement offices, particularly ICE Office of the Principal Legal Advisor, as well as USCIS and EOIR.  Similar numbers of IJs have military and prosecution backgrounds, or both.  The number of new judges with past judicial experience is comparable also.

 

Credential 2017-2020[9] 2025-2026[10]
 

Gov’t Immigration Enforcement Background

 

  

46%

  

42%
 

Military Background

 

  

22%

  

31%
 

Prosecution Background

 

  

51%

  

40.2%
 

Judicial Background

 

  

17%

  

13.4%

 

Government Employment Background

Former Government-Side Immigration Lawyers

Immigration Gov't Enforcement Background

Immigration Gov’t Enforcement Background

Forty-two percent, 54/134, new IJs have at one time practiced with the ICE’s Office of the Principal Legal Advisor (OPLA), the Immigration Court prosecutors, worked for USCIS as asylum officers or legal counsel or have been lawyers at EOIR. This number closely tracks the forty-six percent of the IJs appointed during the first Trump administration who also had this background. These credentials are not prima facie objectionable since this background reflects a deeper understanding of immigration law and court practice, but a one-sided career may produce judgment distortion and possibly affect objectivity. In addition, the many edicts issued by EOIR that subvert transparent fact-finding processes of immigration court hearings by granting pretermission with a hearing, [11] restricting online access to observers,[12] creating “mega/mass master calendar hearings[13] are designed to diminish the individual discretion and decisional autonomy of IJs.  Given past loyalties to these enforcement institutions, and the chilling track record of terminations without any stated cause, IJs, especially the new appointees, likely rightly fear for their jobs if they deviate from these dictates. Independence is undermined by both the selection process and the oversight of EOIR.

Military and Prosecution Background

 Again, these credentials have always been well represented on the Immigration Court bench. Often the IJ has both credentials on their resume.  Many of the former government lawyers also combine past military and prosecutorial backgrounds.

Thirty-one percent, 42/134, of the new IJs have been or are currently service members. This number represent a significant increase likely due to the controversial reassignment of JAG lawyers to the immigration bench.[14]

Military Background

Military Background

Former prosecutors also proliferate the new ranks of IJs.  Forty-two percent, 54/134 have been former prosecutors in either state or federal offices. This is likely an undercount since some EOIR biographies refer to general positions with a “State’s Attorney” or US Attorney’s Office and do not specify civil or criminal divisions.  Unless this distinction was clear, that individual was not counted as a former prosecutor.

Prosecution Background

Prosecution Background

Government lawyer backgrounds do not conclusively create anti-immigrant bias, but for someone who has worked almost exclusively in an authoritarian workplace routinely opposing various forms of relief, beholden to orders and policies that might undercut or eschew discretion and open-mindedness, and be subject to discipline for perceived deviations, judicial independence may be difficult to imagine or achieve.

Indeed, the very title Deportation Judge and the language used in the job announcement encourage a perception of the position as enforcement and anti-immigrant.  For example, the ad describes the job as “Ensur[ing] adherence to the law; combat[ing] fraud and ensur[ing] those seeking to exploit vulnerabilities in our immigration system are not successful,” implying that the system is riddled with bad actors who need to be ferreted out and deported. There is no message of the benefits or humanitarian role of the Department of Homeland Security other that a reference to deciding “who gets to stay.”

Judicial Experience

Prior judicial experience is unquestionably a plus for any adjudication setting, even the unique immigration court.[15]  Slightly more than 13% (18/134) of the new IJa worked either full or part-time in local administrative courts although none had any immigration focus and often were tribunals for state agencies dealing with commercial, family or health matters. A few had been judicial law clerks.  But as is so often pointed out, the law, especially in these unstable times, is complex, the decisions in immigration court are life-altering and almost always require an exercise of discretion.[16]  The evaluation and application of discretionary factors is a sensitive and quite subjective process that relies on well-developed tools of evaluation and judgment in often highly fact-sensitive cases.  While some prior adjudicators may have developed solid judgment in their respective realms, immigration, with its potentially drastic consequences, poses different. Balancing. Judicial temperament and administrative skills may not be sufficient to assure fair and just outcomes.

Judicial Experience

Judicial Experience

Prior Immigration Law/Practice Experience

Typically, many  IJs come to the bench with immigration law practice experience, most often as ICE Trial Attorneys. As such, they are, or should be, familiar with the proceedings and the applicable legal principles.  Nevertheless, more than 50% of new IJs (67/134) lack any obvious, perceivable immigration law background.  Again, this complete lack of relevant knowledge of this complex legal regime, combined with hasty, shallow training in substantive law, contradicts the usual qualifications for a judge in a specialized practice area.  Thrown into presiding over full hearings or applying the swiftly evolving new case law from the BIA as well as the policy dictates of EOIR, these judges have a recklessly steep learning curve. As they are learning, they have to decide life-or-death claims.

Since these newly appointed judges are refilling the ranks of more, and in many cases much more, experienced IJs, their appointments are not equivalencies for the judges they are replacing.

 

No Obvious Immigration Law Experience

No Obvious Immigration Law Experience

Age and General Legal Experience

The 2026 appointments present a “goldilocks” problem since many judges are very early in their careers while many are very late in their careers. Considering the pressures of the immigration bench, the extent and depth of knowledge needed, and the maturity and temperament to run a courtroom with patience, dignity and respect, this job requires experience.

The stated amount of post-licensing experience is frighteningly undemanding: seven years of any post-bar admission experience.[17]  Although most of the newly named IJs do have more than the bare minimum years of experience, 35 of them have been admitted for less than 15 years.  It is difficult to imagine that the 35 individuals who graduated from law school with 15 years or less before taking the bench possess the maturity and disposition necessary for this challenging job. Six of the 35 new IJs graduated after 2016 and one the graduated only in 2018.

Years Since JD

Years Since JD

At the other end of the spectrum are the considerable number of new IJs who are older than 60. Assuming they received their undergraduate degrees at age 22 in the 1970s or 1980s, 25 judges are in their 60s or even 70s.  Most jurisdictions require judges to retire or take senior status by age 70 although there does not seem to be a mandatory retirement age in EOIR. While these new IJs have had longer, and in some cases more responsible, careers, none of them specialized in immigration law.  It is difficult to imagine that they will serve for many years on the immigration bench. Given the time necessary to reach full capacity and mastery, investing in senior IJs may not be an efficient use of resources.

Senior Age

Senior Age

Immigrant Advocacy Backgrounds

Hiring

One of the key differences between the Trump 1.0 and 2.0 appointments and those IJs appointed by Biden is the greater diversity of the Biden judges. Early in 2021, the number of IJs appointed by Biden who had a background as immigrant advocates jumped noticeably.  In the first year of his administration, 19.4% of Biden’s new IJs had worked for most, if not all, of their careers at nonprofits or private immigration firms.  This contrasts to the 10-11 appointed during the full four years of Trump 1.0.  Only three of the biographies of the 2026 appointed noted any immigrant advocacy work experience, and even that occurred during the early years of their careers.

Firing

The Biden administration explicitly valued diversity and inclusion by inviting applicants “from all backgrounds to join our corps of dedicated adjudicators.”[18] The inescapable impression created by the 100+ purge was that EOIR targeted Biden appointees since all but 15 of them had appointed after 2021. They also consisted of more liberal IJs with higher grant rates many of whom were women, came from identifiable ethnic backgrounds, had immigrant advocacy careers, and/or were recognized as Democrats.  Most were summarily fired without explanation. Others were fired after issuing decisions that the administration disliked.[19]

Some terminated IJs are fighting back. For example, in Irma Pérez v. Todd Blanche, et al.,[20] the complaint alleges sex and age discrimination as well as a civil rights violation.  Her complaint identifies by name 37 women judges who were fired, seven judges with Spanish surnames, and 4 judges with South Asian or Middle Eastern surnames.  Other discrimination lawsuits have been filed in the District of Columbia,[21] Massachusetts,[22] Illinois,[23] and California[24]  advancing similar allegations and facts. An earlier lawsuit challenging the terminations was unsuccessful before the Merit Systems Protection Board so the IJs have turned to the federal courts.[25]

Conclusion

Immigration Court watchers do not need to be told that the bench has been radically transformed over the past 18 months.  Of course, it is dangerous to over-generalize but it is easy to see that the demographics tilt inescapably in favor of people whose backgrounds and experiences imply a sympathy with this administration’s goals.  The job description attracts people with identifiable political and ideological beliefs.  Diversity and inclusion are not hiring goals. Once appointed, the new judges are going along with the program:  terminating applications thus opening the doors for detention and removal; ordering removals to third countries pursuant to Asylum Cooperative Agreements; denying relief in record numbers. Judges whose decisions defy the administration lose their jobs.

Immigration Court has always been a treacherous place to navigate especially for the unrepresented.  Today, its hallways and courtrooms are locations of both legal and physical risk, not only to the individuals appearing there but to lawyers and court observers.[26]  Under the thumb of overbearing ideologues, IJs can no longer be counted on to exercise independent, unbiased judgment or to protect the rights of immigrants.

 

[1] Guest author Prof  Stacy Caplow is a leader in the field of clinical legal education. For more than ten years, Prof. Caplow was the law school’s first dean overseeing all aspects of clinical and experiential education.  Read her full biography at https://www.brooklaw.edu/contact-us/caplow-stacy/

[2] See https://join.justice.gov/.

[3] The National Association of Immigration Judges (NAIJ) has been collecting information about fired judges.  This anonymous list notes that 103 judges lost their jobs.  The list does not separate IJs who may have retired but all but 15 were appointed after 2021 so it’s doubtful that any of them left voluntarily,  List on file with author.

[4] EOIR Notice May 21, 2026: 77 new judges,  https://www.justice.gov/opa/media/1441861/dl; April 8, 2026: 15 new judges, https://www.justice.gov/eoir/media/1435381/dl?inline ; March 11, 2026: 42 new judges, https://www.justice.gov/eoir/media/1430876/dl?inline.  In order to facilitate hiring temporary IJs, EOIR promulgated new regulations at 8 CFR §1003.10 that eliminated the level of experience for this position.  Formerly, it was restricted to individuals who had either been immigration adjudicators or experienced government attorneys. The new rule mirrors the more lenient requirements for full IJs but limits the term of service. 90 F.R. 41883, Aug. 28, 2025,  https://www.govinfo.gov/content/pkg/FR-2025-08-28/pdf/2025-16573.pdf.

[5] Fact Sheet, Executive Office for Immigration Review Immigration Judge Training, https://www.justice.gov/eoir/page/file/1513996/dl?inline

[6] Celine Castronuovo, Trump Immigration Judges Pushed to Deny Asylum in Swift Training,  Bloomberg Law, Feb. 4, 2026,  https://news.bloomberglaw.com/us-law-week/trump-immigration-judges-pushed-to-deny-asylum-in-swift-training.

[7] Austin Kocher, The Asylum Denial Machine, June 19, 2025, https://austinkocher.substack.com/p/the-asylum-denial-machine ; TRAC Immigration, Immigration Court Asylum Grant Rates Cut in Half, https://tracreports.org/reports/766/ (During August 2025, only 19.2 percent of asylum seekers were granted asylum). A year earlier during August 2024, the grant rate was 38.2 percent).

[8] Applicants must possess qualifying post-licensure litigation or adjudication experience.

Qualifying trial experience includes experience litigating cases in which a complaint was filed with a court or administrative agency, or a charging document (e.g., indictment, notice of violation, or information) was issued by a court, administrative entity, grand jury, or appropriate military authority. Qualifying experience conducting administrative hearings or adjudicating administrative cases includes relevant experience handling cases in which a formal procedure was initiated by a governmental administrative body.

https://www.usajobs.gov/job/853385500

[9] The percentages for the first Trump administration are drawn from Stacy Caplow, The Sinking Immigration Court: Change Course, Save the Ship, 4  A.I.L.A. L.J, 39, 46-50 (2022).  In turn, these numbers derive from the various EOIR announcement of new appointments during that time period. 

[10] The percentages are drawn from the EOIR Notices, supra n. 3.

[11] Pretermission of Legally Insufficient Applications for Asylum, PM 25-28, Effective: April 11, 2025

[12] Fact Sheet, Observing Immigration Court Hearings, Nov. 2025.

[13] Trump Administration Short Circuits Due Process with New Mass Hearings for Unrepresented Immigrants, Nat’l Immig. Justice Ctr., May 29, 2026.

[14] Memorandum Opinion for the General Counsel Department Of War, Detailing Attorneys to the Department of Justice to Serve as Immigration Judges and Special Assistant United States Attorneys, Oct. 23, 2025 (“The Department of War may detail attorneys to serve as immigration judges on a reimbursable basis.”); Ximena Bustillo , Military lawyers called up to relieve a shortfall in immigration judges, NPR, Sept. 2, 2025; N.Y.C. Bar Ass’n, Report By The Immigration & Nationality Law Committee and the Rule Of Law Task Force Condemning the Use of Military Lawyers as Temporary Immigration Judges, Jan 15, 2026.

[15] See supra note 6.

[16] The famous describes immigration court a deciding “death penalty cases in a traffic court setting.”  IJ Dana Marks provided this unforgettable description on an episode of Last Week with John Oliver.

[17] EOIR, How to Become an Immigration Judge,  https://www.justice.gov/eoir/how-become-immigration-judge.

[18] Notice, EOIR Announces 24 New Immigration Judges, Oct. 27, 2021, https://www.justice.gov/d9/pages/attachments/2023/05/30/eoir_announces_24_new_immigration_judges_10272021.pdf.  In this small but representative batch, 50% of the new IJs had worked at some point as immigrant advocates either for NGOs or in private practice.

[19] Hamed Aleaziz, Nicholas Nehamas and Steven Rich , Judges Fired After Blocking Deportations of Pro-Palestinian Students, NY Times, Apr. 11, 2026; Joshua Goodman,  Military Lawyerr Swiftly Fired From Immigration Bench After Defying Trump Deportation Push, AP, Dec. 19, 2025.

[20] 2:26-cv-06173 (C.D. Cal , 2026), https://www.law360.com/articles/2487026?sidebar=true. See also, Celine Castronuovo and Megan Crepeau, Fired Immigration Judges Test Trump’s Executive Power in Suits, Bloomberg News, June 10, 2026, https://news.bloomberglaw.com/us-law-week/fired-immigration-judges-test-trumps-executive-power-in-suits ;

[21] Nemer v. Bondi, 1:25-cv-04170, (D.D.C.); Former Immigration Judge files lawsuit accusing Trump administration of bias in her firing, NBC News, Dec. 2, 2025

[22] Simon Rios, Fired Mass. immigration judge sues Trump administration to get his job back, WBUR, May 18, 2026, https://www.wbur.org/news/2026/05/18/massachusetts-george-pappas-chelmsford-boston-judge-sues-trump.

[23] Espinoza v. Blanche, 1:26-cv-05157 (N.D. Ill., May 5, 2026).

[24] Lilien v. Blanche, No. 3:26-cv-03965 (N.D. Cal.); Chamberlin v. Blanche, 3:26-cv-04390  (May 12, 2026); Luz Pena, Fired Bay Area Immigration Judge sues DOJ alleging discrimination over gender, age and political views, May 7, 2026, https://abc7news.com/post/fired-bay-area-immigration-judge-sues-doj-alleging-discrimination-gender-age-political-views/19054420/.

[25]Jackler and Jarosh v. Dep’t of Justice, MSPB Docket No. DA-0752-25-0330-I-1, Mar. 20, 2026

[26] Victoria Bekiemkis, Brad Lander found not guilty of blocking elevator at New York ICE facility, The Guardian, June 11, 2026,  https://www.theguardian.com/us-news/2026/jun/11/brad-lander-not-guilty-blocking-elevator-new-york-ice.