Cyrus Mehta

Board of Immigration Appeals Allows Immigration Judges to Disregard Party Stipulations

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The Board of Immigration Appeals in Matter of J-H-M-H held on October 7, 2025 that even if the parties in a case – the noncitizen respondent and the government – have stipulated to certain aspects of the case, Immigration Judges exercise independent judgment and are not required to accept party stipulations. In this case, the respondent and the DHS submitted a joint memorandum  in October 2023 before the Immigration Judge stipulating that the respondent identified as a transgender woman, that the testimony would be consistent with the written materials submitted, and that the respondent was eligible for deferral of removal under the regulations implementing the Convention Against Torture. The IJ rejected the stipulation and set the case for hearing to take testimony. The respondent did not testify in support of the claim and sought to rely on the contents of the application, the personal statement and the stipulation. The IJ denied relief under CAT.

In their appeal, the respondent relied on the Board’s 1989 decision in  Matter of Fefe, which held that at a minimum an asylum applicant take the stand, be placed under oath and be questioned whether the information in the written application  is complete, and that the examination of the respondent will be brief only where the parties have stipulated that the applicant’s oral testimony would be consistent with their written application and be believably presented.  The Board, however, held that Matter of Fefe is no longer binding preceded as it predated the enactment of INA 240(b)(4)(B) in 1996. This provision allows noncitizens to examine evidence against them, present evidence on their own behalf and to cross-examine witnesses. Yet,  the Board recently held in September 2025 in Matter of H-A-A-V- that an IJ may pretermit an asylum application without a full evidentiary hearing on the merits of the claim and also held that Matter of Fefe is no longer binding precedent. It is paradoxical that the Board affirmed an IJ’s insistence to hold a hearing despite a joint stipulation in Matter of J-H-M-H– but affirmed an IJ’s ability to pretermit an asylum application in Matter of H-A-A-V- without a full evidentiary hearing on the merits of the claim.

What does this case mean for future cases? We often stipulate with the DHS attorney on various aspects of the case. For example, there could be a stipulation on the bona fides of the marriage in a review of the I-751 petition in immigration court. The parties may stipulate that allegations made by a foreign government through an Interpol Red Notice against the respondent have no basis and should not be considered when adjudicating an asylum or adjustment application.  Stipulations indeed encourage efficiency and allow the parties to focus on the essential aspect of the case. Under the Trump administration, an IJ may not want to go along with a stipulation out of fear that he or she may get fired. Or a newly appointed military judge inexperienced in immigration law who may not be favorably inclined to grant relief or benefits may want to override a stipulation. 

Stipulations are especially critical in protecting vulnerable clients with mental competency issues. They could include both children and adults with diminished capacity. If they risk facing substantial harm, a joint stipulation where the parties can agree to the respondent’s eligibility for asylum and related relief can serve as an adequate protective measure if the respondent may be unable to testify due to diminished capacity.  A lawyer who represents a client with diminished capacity is required to seek protective action if the client will face harm under ABA Model Rul 1.14, and a stipulation would be one way to protect the client with diminished capacity.  

The Board cited the regulation at 8 CFR 1003.10(b) to uphold the IJ disregarding the stipulation in Matter of J-H-M-H: “In deciding the individual cases before them…immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is necessary or appropriate for the disposition or alternative resolution of such cases.” However, this regulation does not preclude a stipulation from being considered binding on the parties. 

The BIA in Matter of J-H-M-H has unfortunately empowered IJs to disregard stipulations, which in turn would undermine efficiency and result in more backlogs. If there is no case or controversy between the government and the respondent, the IJ ought not be playing any role. This decision promotes more inefficiency and backlogs in an already dysfunctional system.   Immigration practitioners must be prepared to go through a full-fledged hearing  even if there has been a stipulation in case an IJ insists on a full hearing. On the other hand, under Matter of H-A-A-V-, as IJ’s have the power to pretermit asylum  applications without a full evidentiary hearing, practitioners must submit comprehensive applications to ensure that the respondent can establish prima facie eligibility, and in the event of a pretermination, there is a sufficient basis in the record to appeal the decision. 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

Cyrus Mehta

Trump’s Reshaping of the H-1B Visa in the Manner He Chooses is Further Demonstration of Authoritarianism

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2025, the Department of Homeland Security (DHS) promulgated a new proposed rule to introduce a “weighted selection” system for H-1B cap-subject petitions. The new proposed system is aimed at favoring the “allocation of H-1B visas to higher skilled and higher paid aliens”.

Pursuant to the proposed rule, each H-1B lottery registration would be categorized based on the Department of Labor (DOL)’s Occupational Employment and Wage Statistics (OEWS) wage levels and entered into the lottery accordingly:

  • Wage Level IV entries would be added to the selection pool four times
  • Wage Level III, three times
  • Wage Level II, twice
  • Wage Level I, once

The proposed rule makes clear that “each unique beneficiary would only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool.”

The system outlined in the proposed rule would have a devastating impact on U.S. employers and H-1B beneficiaries alike. Wage levels for some industries are much higher than others, so U.S. employers who are unable to pay a level IV wage for a Software Developer (SOC Code 15-1252), for example, which exceeds $100,000 in many geographic areas, will have a lower chance of candidates being selected in the H-1B lottery. Candidates in fields that tend to be lower-paying, such as Acupuncturists (29-1291.00) will have a greater chance of being selected, as employers may be better positioned to offer a Level IV wage if it is still relatively modest. This measure is also likely to deter U.S. employers from sponsoring new graduates for H-1B employment, as a level I wage is often the one that applies to an entry-level position.

This proposed rule is one of a number of measures aimed at eviscerating the H-1B visa program, together with the new $100,000 fee that applies to certain H-1B workers, detailed in our prior blog. This fee will have the effect of pushing many H-1B workers out of the U.S. labor market. Industries like information technology, which depend heavily on H-1B workers because there is not enough U.S. talent to fill open positions, will be impacted the most severely.

These measures are not only detrimental to the U.S. economy and H-1B workers alike, but are also a further example of the Trump administration’s disregard for  laws enacted by Congress, like his imposition of tariffs, firing of federal employees, including Immigration Judges whose decisions he does not like and taking revenge on former government officials he does not like, as with the indictment of James Comey. Trump has likely overstepped his authority as president by unilaterally imposing the new $100,000 fee, which is arbitrarily high and not authorized by the statute. Although Trump is proposing a rule to skew selections in favor of H-1B candidates who will be paid higher wages, there is nothing in the INA that authorizes weighting H-1B selections based on the amount of the offered wage.

CNN’s Fareed Zakaria  cited the proclamation implementing the $100,000 fee as evidence that the “America is moving down the path of illiberal democracy.” We agree.

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

Cyrus Mehta

Poking Holes at the Poorly Drafted Proclamation Banning H-1B Workers through a $100,000 Fee

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By Cyrus D. Mehta and Kaitlyn Box*

The Proclamation banning H-1B workers unless a $100,000 fee is paid is so blatantly unlawful that it rewrites parts of the INA. However, a successful challenge to the proclamation – after the Supreme Court upheld Trump’s travel ban for nationals of mainly Muslim countries under INA 221(f) in Trump v. Hawaii – is not a foregone conclusion. This Proclamation is also issued pursuant to INA 221(g).

The Proclamation rehashes much of the objections to the H-1B visa program that have become outdated and seem to cast Indian heritage IT firms in an unfavorable light. H-1B workers are no longer cheap labor and provide great value to US companies, which in turn create more jobs for US workers. H-1B workers are mostly paid six figure salaries. The rules also ensure that H-1B workers are paid the higher of the prevailing or actual wage. A court may not challenge the President’s rationale behind the proclamation, but a court could still evaluate whether the imposition of the $100,000 fee rewrites H-1B law or only supplants it. It  is a complete rewrite of the law, and so a court should be able to distinguish this proclamation from Trump vs Hawaii. The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice. Trump is not a King, and if he likes to be King, he should not be given unbridled power to rewrite provisions of the INA that Congress has enacted. 

Otherwise, it makes a mockery of the separation of powers doctrine, which is a defining feature of democracy because it distributes governmental authority among three distinct branches – legislative, executive and judicial.

Previously too when Trump imposed a similar ban, on October 1, 2020, U.S. District Judge Jeffrey S. White issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. Judge White ruled the president does not possess a monarch’s power to cast aside immigration laws passed by Congress. The order in NAM v. DHS prevented the State Department and Department of Homeland Security from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.” See our prior blogs on challenging Trump’s bans under INA 221(f) here and here, and discussing NAM v. DHS here. 

 USCIS Director Edlow’s memo thankfully tamps down the widespread panic that the initial Proclamation caused and the $100,000 supplemental fee applies to H-1B petitions filed after 12.01 AM ET on September 21, 2025. The threat of litigation and the opposition from corporate America and universities forced the Trump administration to back off a bit.

However, the Proclamation was poorly drafted and did not state that it would apply to petitions filed on or after September 21, 2025 and lawyers had to do their job to advise clients consistent with the language of the Proclamation. The guidance clearly stated that the fee would apply to H-1B workers outside the US after September 21, 2025. Therefore, it was disingenuous of the White House to falsely accuse “corporate lawyers and others with agendas” for “creating a lot of FAKE NEWS around President Trump’s H-1B Proclamation”

Edlow’s memo does not make things clear at all. We do not know whether the Proclamation would apply to H-1B extensions filed after September 21, 2025 for workers who are outside the US and will apply for H-1B visa stamps assuming they were the subject of approved H-1B petitions filed before September 21, 2025 whether by the same or a different employer.

The Edlow memo also does nothing for the future of the H-1B program. Cap exempt employers who are universities and nonprofits affiliated with universities or research institutions will be hit with the $100,000 fee when they file a new petition. After next year’s H-1B lottery selections in 2026, employers will have to also pay the $100,000 fee for any new petition. It will be  impossible  for employers to hire talented students from US universities. 

The White House subsequently issued an H-1B FAQ , but it again creates more confusion. It states that the Proclamation “requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025.”  The Proclamation, because it is based on INA 212(f) which addresses the “entry of any aliens” or of “any class of aliens”, should not apply to someone inside the US who is seeking an extension of stay, and it should also not apply to a change of status to H-1B in the US, even if the most recent White House guidance, which again is as poorly drafted as the prior clarifications and the Proclamation itself, does not state it. For example, if one is currently in F-1 status, the employer applies for this person in the 2026 H-1B lottery,  the case gets selected and the new petition is filed as a change of status from F-1 to H-1B while the person has  always been in the US, the $100,000 fee under the Proclamation should arguably not apply.  The same would hold true if a non-profit cap exempt employer files a new H-1B petition after September 21, 2025 and requests the change of status for a beneficiary from F-1 to H-1B status. 

 The imposition of this fee will in effect kill the H-1B visa program and will no longer attract foreign talent to the shores of the US. US companies instead will also flee the US so that they can hire this talent overseas. Trump is in effect has killed the goose that laid the golden eggs by imposing this atrocious fee.

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

Cyrus Mehta & Kaitlyn Box*

BIA Grasps for Loper Bright Like a Drowning Person Grasps for Straws

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By Cyrus D. Mehta and Kaitlyn Box*

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) despite allowing bond since the passage of the Immigration Act of 1996. Mr. Yajure Hurtado entered the United States without inspection in November 2022. He was later granted Temporary Protected Status, but that designation expired on April 2, 2025, and he was thereafter apprehended and placed in removal proceedings. He requested bond, but the Immigration Judge indicated that he did not have the jurisdiction to set bond given the circumstances of Mr. Yajure Hurtado’s case and, in the alternative, that bond would be denied because Mr. Yajure Hurtado posed a flight risk. 

 The BIA affirmed that an IJ does not have the jurisdiction to grant the bond request because any noncitizens present in the US without inspection are applicants for admission pursuant to INA 235(b)(2)(A) and subject to mandatory detention. 

After almost three decades, the BIA finds now finds that the language in INA 235(b)(2)(A) is clear, but completely 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 do not make reference to respondents who have entered without inspection. The BIA addressed this discrepancy but stating 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’”.

This re-interpretation of the applicable statutory provisions by the BIA will result in the detention of respondents even if they have been in the United States for many years and have a meritorious application for relief. The BIA knows that a federal court will not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), and so preemptively invoked Loper Bright v. Raimondo, 603 US 369 (2024) 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). In Loper Bright v. Raimondo, which was discussed at length in a prior blog, the Supreme Court abolished the long-standing Chevron doctrine, under which, courts were required to defer to the government agency’s interpretation of an ambiguous statute. 

The BIA in Yajure Hurtado invoked Loper Bright, 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). The Supreme Court in Loper Bright did not hold that the long-standing practice of the government can somehow change, or even eviscerate, explicit statutory text that is contrary to that practice.” But the maze of statutory provisions, which include INA 235(b)(1)(2)(A) and INA 236(c) and 30 plus years of allowing bond,  do not clearly and explicitly authorize mandatory detention for noncitizens who entered without inspection. 

AILA Executive Director Ben Johnson aptly remarked, “Stripping immigration judges of their authority to conduct bond hearings or redetermine custody for potentially millions is a disastrous plan. Without justification, individuals who have patiently awaited their fair day in court will now be indiscriminately detained. This effectively eradicates the possibility of bond for many, regardless of their long-standing residence, employment, or contributions to our society. Detaining vast numbers without judicial review, often in inhumane conditions, will inflict irreparable harm.” This concern is further exacerbated by the recent Supreme Court decision in Noem v. Perdomo, which permits ICE to detain and remove individuals based on racial profiling. Those who entered without inspection face detention without bond until removal, even if their detention is solely due to the color of their skin.

It is hoped that a federal court through a habeas corpus petition quickly reverses the BIA under Loper Bright, the very precedent that the BIA has clutched onto like a drowning person grasping for straws!

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

 

Cyrus Mehta & Kaitlyn Box*

Neighborhood Snooping: USCIS’s New Roadblock to Citizenship

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USCIS seems to be obsessed about heightening the good moral character standard for citizenship for the purpose of delay.

On August 19, 2025 USCIS announced that it would evaluate good moral character in the naturalization context to encompass a “holistic assessment of an alien’s behavior, adherence to societal norms, and positive contributions that affirmatively demonstrate good moral character”.

As if that was not enough to make naturalization more burdensome, on August 22, 2025 USCIS announced that it would resume neighborhood investigations to cover the vicinity of an applicant’s place of residence and employment for at least the 5-year period prior to filing the application for naturalization. The authority for conducting neighborhood investigations stems from INA 335(a)  to corroborate an applicant’s residency, good moral character, attachment to tthe US Constitution and disposition to the good order and happiness of the United States that is prescribed under INA 316.  However, the neighborhood requirement under INA 335(a) has long been dormant.

From 1802 to 1981, citizenship applicants were required to present two witnesses who could testify to their qualifications for citizenship. In 1981, Congress eliminated the requirement for witnesses in place of neighborhood investigations, if necessary. But by 1991, the former Immigration and Naturalization Service stopped conducting neighborhood investigations.

USCIS now under the Trump administration is reviving neighborhood investigations to thwart one’s path to citizenship. It will make the decision to conduct or waive neighborhood investigations on an individualized discretionary basis after reviewing relevant evidence in the record.  This suggests that an applicant would have to include letters from neighbors and others in the N-400 application in order to stave off a neighborhood investigation. The USCIS guidance on neighborhood investigations states:

USCIS may request information from the alien seeking naturalization to inform its decision on conducting the neighborhood investigation such as testimonial letters from neighbors, employers, co-workers, and business associates who know the alien and can provide substantiated information about the alien, including any of the requirements for naturalization. If such evidence is not contained in the alien’s application for naturalization, USCIS may request that the alien submit such evidence. Submitting such evidence proactively with the Application for Naturalization can assist USCIS in determining whether a waiver of a neighborhood investigation is appropriate in a particular case without a need to issue a Request for Evidence.

As explained in our prior blog, the heightened good moral character requirement in the August 19 announcement, and now further elevated in the August 22 announcement,   is a significant departure from the previous USCIS policy concerning good moral character. Although the INA does not specifically define good moral character, USCIS had previously held naturalization applicants to the standard of an average U.S. citizen, rather than requiring them to provide evidence of exemplary character or contributions. See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947); Petition of De Leo, 75 F. Supp. 896 (W.D. Pa. 1948); and Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019).

The USCIS’s basis for finding good moral character in the absence of disqualifying criminal convictions and other adverse factors was practical and made sense as it provided an objective standard for adjudicators to process the application in a streamlined and expeditious manners. Now the requirement to evaluate good moral character based on positive contributions, including corroboration from neighbors, will cause delays and bog down the system. At this time, even under the not too immigrant friendly Trump administration, Form N-400 naturalization applications are processed and approved for the oath ceremony in less than 6 months assuming the applicant meets all the criteria.

Moreover, the whole notion of interviewing the neighbor seems outdated and unworkable. People are mostly anonymized and do not mix with neighbors. In suburban towns, most people drive to and from their homes. There is no village square or green for neighbors to mingle, dine or dance after work or during the weekends. Even in large cities such as New York where people live in apartment buildings within dense neighborhoods, one hardly knows the neighbor who lives on the same floor.  Most people will barely know each other in a large Manhattan apartment condominium, and when they ride elevators, most barely greet each other keeping their eyes fixated on their mobile phone until the end of the elevator ride  relieved that they escaped  the need to make polite conversation about the weather.

One wonders too how a USCIS investigator conducting a neighborhood visit will breakthrough to a neighbor in a New York building. They will first have to get through security to be allowed to go to the neighbor’s apartment or randomly visit several neighbors. How  will they knock on all 20 doors on the floor assuming they have passed security downstairs?   Would the neighbor who may be accosted in a nightie early in the morning  even deign to allow a stranger to visit them to talk about someone they have barely heard of. There is also a danger that the neighbor may have biases, and such a visit would also undermine the applicant’s privacy as the neighbor may not have even realized that the applicant was not a US citizen. Consider the scenario where a neighbor, a staunch MAGA supporter, has heard rumors of the applicant’s liberal views—this could be seen as a perfect opportunity to undermine them. Additionally, personal grievances could come into play, such as annoyance over noisy children or disputes with a coop board member, if the applicant is one,  over increased maintenance fees or carpeting requirements to dampen noise.

The revival of the policy of neighborhood visits appears to be a calculated cynical maneuver by officials in the Trump administration to introduce unnecessary hurdles in the path to U.S. citizenship. This policy not only complicates the naturalization process but also serves as an affront to applicants who have already demonstrated their commitment to the United States through legal channels. By subjecting them to the scrutiny of neighbors—who may harbor biases or personal grievances—this policy risks undermining the fairness and integrity of the naturalization process.

Furthermore, the policy is anachronistic, harking back to a time when community ties were stronger and neighbors were more familiar with one another. In today’s urban and suburban environments, where anonymity often prevails, such visits are not only intrusive but also largely ineffective. They place an undue burden on both applicants and their neighbors, who may be unwilling or unable to provide meaningful insights into the applicant’s character.

Ultimately, this policy shift seems less about ensuring the integrity of the naturalization process and more about creating barriers that discourage and delay applicants. It is a disservice to those who aspire to become contributing members of American society and an intrusion into the private lives of individuals.

 

 

 

 

Cyrus Mehta

Trump Resorts to Heightened Good Moral Character Standard and Anti-Americanism to Deny Citizenship and Immigration Benefits 

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump Administration has been creatively finding ways to put obstacles in the path of people applying for US citizenship and other immigration benefits. In this latest obstacle, broad and amorphous terms such as “anti-Americanism” and “good moral character” have been deployed as ways to evaluate, and perhaps deny, a claim to citizenship, permanent residence or another immigration benefit.

Heightened Good Moral Character Standard

On August 19, 2025, USCIS issued a Policy Alert modifying the standard for evaluation of good moral character in the naturalization context to encompass a “holistic assessment of an alien’s behavior, adherence to societal norms, and positive contributions that affirmatively demonstrate good moral character”.  The Policy Alert emphasizes that USCIS officers must now “account for an alien’s positive attributes and not simply the absence of misconduct”, and “place greater emphasis on an alien’s positive attributes and contributions in GMC determinations”, including: 

  • Sustained community involvement and contributions in the United States. 
  • Family caregiving, responsibility, and ties in the United States. 
  • Educational attainment. 
  • Stable and lawful employment history and achievements. 
  • Length of lawful residence in the United States. 
  • Compliance with tax obligations and financial responsibility in the United States.

This policy shift is a significant departure from the previous USCIS policy concerning good moral character. Although the INA does not specifically defines good moral character, but USCIS had previously held naturalization applicants to the standard of an average U.S. citizen, rather than requiring them to provide evidence of exemplary character or contributions. See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947); Petition of De Leo, 75 F. Supp. 896 (W.D. Pa. 1948); and Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019). Holding naturalization applications to the standard of an average U.S. citizen is consistent with  8 C.F.R. § 316.10(a)(2), which also  also explicitly states that U.S. Citizenship and Immigration Services (USCIS) must consider “the standards of the average citizen in the community of residence” when assessing an applicant’s claim of good moral character. The USCIS evaluated good moral character based on the absence of certain criminal convictions and other serious offenses. Not so anymore after the policy shift. Applicants for citizenship will not have to be prepared to provide positive evidence of good moral character at a naturalization interview. This would make it more onerous for applicants to include numerous documents to ensure that the examiner is satisfied with good moral character. 

Indeed, USCIS seems to be elevating the standard that may not be contemplated in the INA or the regulations. For instance, USCIS spokesman Matthew J. Tragesser told Newsweek: “U.S. citizenship is the gold standard of citizenship—it should only be offered to the world’s best of the best. Today, USCIS is adding a new element to the naturalization process that ensures America’s newest citizens not only embrace America’s culture, history, and language but who also demonstrate Good Moral Character. This memo ensures that USCIS officers are accounting for an alien’s positive contributions to American society—including community involvement, achievements, and financial responsibility rather than the absence of their misconduct. USCIS will continue to restore integrity in the nation’s immigration system—especially when it comes to the prestigious privilege of citizenship.”

According to the authors, it is not appropriate for the USCIS to require that an applicant demonstrate that they are the “world’s best of the best.” There is a separate category for immigration classification termed as the “person of extraordinary ability” pursuant to INA 203(b)(1)(A). If a naturalization applicant must demonstrate that they are the “world’s best of the best” Congress should have required this in the INA and that is not the case. An applicant who is otherwise eligible for naturalization and have not been convicted of a disqualifying offense should be able to become a citizen even if they may not be the “world’s best of the best.” 

One may currently be unemployed because they cannot find a job or they have retired, but that should not be used against them for not having stable employment. Similarly, one may be law abiding but may not have sustained community involvement and contributions to the US. A naturalization applicant should be judged to the standard of an average US citizen and not to the “world’s best of the best.” 

Anti-Americanism

On the same day, USCIS promulgated a second Policy Alert emphasizing that officers should assess whether a noncitizen has “endorsed, promoted, supported, or otherwise espoused the views of a terrorist organization or group, including those who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies, in any case involving an exercise of discretion”. The Policy Alert highlights several case types where USCIS exercises discretion, including national interest waivers, requests for extension of stay, changes of status, reinstatement of F or M nonimmigrant status, and certain “EB-5 investor petitions and applications in cases involving threats to the national interest, fraud, deceit, misrepresentation, and criminal misuse”. “Anti-American ideologies or activities” are not defined in the Policy Alert, which raises concerns that the term could be applied in a way that is overbroad or punishes noncitizens for speech that is political or critical of the Trump administration. 

The Policy Alert also references INA § 313(a) which provides that a noncitizen “(1) who advocates or teaches, or who is a member of or affiliated with any organization that advocates or teaches, opposition to all organized government; or (2) who is a member of or affiliated with (A) the Communist Party of the United States; (B) any other totalitarian party of the United States; (C) the Communist Political Association; (D) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (E) any section, subsidiary, branch, affiliate, or subdivision of any such association or party…” is not eligible for naturalization. 

INA§ 313(a), however, applies in the naturalization context, where good moral is assessed more critically. This standard should not be used to determine whether a noncitizen’s actions are anti-American and constitute a basis for denying an application for adjustment or reinstatement of status. This is especially true if a noncitizen’s opposition to, for example, the Trump administration’s tariffs or Israel’s war in Gaza will be interpreted as anti-American outside the naturalization context.

The Trump Administration officials are constantly reminding noncitizens that being on a visa in the US or on a green card is a privilege and not a right, and noncitizens need to follow the law to ensure that they stay out of trouble. We beg to disagree. How does the USCIS define “anti-Americanism.” Being critical  of the Trump administration or for that matter any administration should not be deemed as anti-American. Indeed, it should be considered a virtuous activity to be critical of America or its administration as it is through criticism and dissent that we can reflect on all points of view, self-correct, grow and evolve. 

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” The Supreme Court has made clear the Constitution’s “freedom of speech and of press is accorded aliens residing in this country.” Wixon, 326 U.S. at 148 (citing Bridges, 314 U.S. 252). The First Amendment does not “acknowledge[] any distinction between citizens and resident aliens.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953); see also Wixon, 326 U.S. at 161 (Murphy, J., concurring) (“[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders … including those protected by the First Amendment.” (cleaned up)).  

This has been established law for more than 70 years. See, e.g., Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1065 (9th Cir. 1995)
; Rafeedie v. I.N.S., 795 F. Supp. 13, 22 (D.D.C. 1992) (“It has long been settled that aliens within the United States enjoy the protection of the First Amendment ….”) (footnote and citations omitted). That is because the First Amendment operates as a restraint on government subjecting those under its power to disfavored treatment based on their opinions. See generally Pahls v. Thomas, 718 F.3d 1210, 1239 (10th Cir. 2013).

The Trump Administration cannot broadly use anti-Americanism as a cudgel to punish noncitizens for speech it disfavors. This is antithetical to the principles set forth in the First Amendment. Deploying anti-Americanism as a weapon to punish noncitizens or would be entrants to the US would also diminish America’s standing in the world and would place it on par with a pariah totalitarian state. 

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

Cyrus Mehta

Resolving Conflicts of Interest When an H-1B Worker is Terminated

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The recent trend of issuing  a Notice to Appear (NTA) to terminated H-1B workers – even within their 60-day grace period – has created new ethical challenges for immigration attorneys who often represent both employer and employee.[1] The NTA is the document that begins removal proceedings. The removal proceeding against the H-1B worker is initiated when the employer notifies USCIS about the termination even though the H-1B worker is within their 60-day grace period.[2]

An employer must pay the H-1B worker until there is a termination of employment.[3] The Department of Labor has insisted that the employer only effectuates a bona fide termination if it notifies USCIS under 8 CFR §214.2(h)(11), otherwise the DOL will continue to hold the employer liable for back wages even if the employee has been terminated.

Immigration attorneys generally represent both employer and employee, and they face a potential conflict especially since the employee will likely receive an NTA if there is a termination and the employer notifies the USCIS. Yet, the employer must be advised to notify the USCIS about the H-1B worker’s termination to avoid back wage liability.  In  Amtel Group of Florida v. Yongmahapakorn, [4] the Administrative Review Board (ARB) held that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR §655.731(c)(7)(ii):  (1) the employer must expressly terminate the employment relationship with the H-1B worker,  (2) the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11), and (3) the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E).[5]

The attorney can navigate this conflict under the American Bar Association’s Model Rule 1.7 (although the attorney needs to refer to the analog of the Model Rule under their state bar rules of professional conduct). Model Rule 1.7 permits the attorney to represent clients notwithstanding a conflict so long as the attorney can competently and diligently represent both clients, and each affected client has given informed consent in writing. Comment 22 to Rule 1.7 authorizes advance waivers to conflicts of interest under certain circumstances.[6] If the conflict is foreseeable,  such as termination of employment in the future, there is a greater likelihood that the client will have the requisite understanding and give informed consent.

The attorney should inform both employer and employee at the outset of the presentation regarding what will happen if there is termination.[7] The clients should be informed about the employer’s obligation to notify USCIS at the point of termination. A change or extension of status should be filed prior to the last day of termination if possible. If the H-1B worker is placed in removal, the proceeding may be terminated by an Immigration Judge if the H-1B worker’s change or extension of status is approved.[8] If the employer does not consent to the representation of the employee post termination, the H1-B worker should be referred to independent counsel for advice and representation.

Some attorneys undertake sole representation of the employer in the H-1B context to avoid these sorts of conflicts, but this should be undertaken carefully as the sole representation model could break down if the attorney was advising the employee and the employee assumed that the employer’s attorney was also representing the employee and relied on advice. The sole representation model could also potentially break down after the employer starts the green card process and the attorney becomes more involved in advising the employee especially regarding adjustment of status, which is filed by the employee.

Arguably advising an employer to notify the USCIS about the termination of the H-1B worker may not pose a conflict as the employer is obligated to follow the rule to avoid back wage liability. This may have been the case before the current administration started issuing an NTA and cutting short the 60-day grace period. The withdrawal of the H-1B can now result in devastating consequences for the H-1B worker who may be placed in removal proceedings. When there is a conflict, the attorney is required to withdraw from the representation of both affected clients. However, in the immigration context this will neither serve the interests of the employer and terminated H-1B worker especially when the attorney represents the employer with multiple H-1B workers. Instead, it would be more prudent for the attorney to represent both by setting forth the parameters of the representation between the employer and employee client at the very outset of the representation, which will enable the attorney to handle the representation of both clients more readily if there is termination down the road.

There may be situations where the attorney started representing the employer and not the H-1B worker who may have been overseas at the time of initiating the H1-B process.  However, it would still be incumbent upon the attorney to notify the employee about the potential consequences of the employer notifying the USCIS about the termination. The employee should also be advised about the consequences of the withdrawal, which could potentially result in the initiating of removal proceedings. If the attorney will be unable to represent the employee in removal proceedings, the employee should be advised to seek independent counsel in this regard.

In a situation where the attorney is more in contact with an employer and is advising that employer on a variety of immigration matters for its employees, the employee could be considered as  as an accommodation or secondary client that may enable the attorney to continue to represent the employer and not the employee upon termination.[9] In Rite Aid Corporation Securities Litigation, [10] which was not an immigration case but a good example of how this would play out in immigration practice, the court held that the informed consent standard may be dropped to its lowest point when there is an “accommodation client.” There the same law firm represented Rite Aid and the CEO, and in the engagement letter, the law firm indicated that in the event of a conflict, the firm would continue to represent Rite Aid while CEO would retain separate counsel. The conflict waiver was upheld because the CEO was an accommodation client as he agreed to engage counsel through the corporation. It is worth pointing out that in the immigration context, the attorney continues to represent the employer client but withdraws from representing the terminated H-1B worker and does not take any adverse action against the worker such as claiming damages.

By setting clear expectations, obtaining informed consent, and navigating conflicts with diligence, attorneys can effectively manage dual representation in H-1B cases while safeguarding the interests of both the employer and the employee. In the event that the attorney has to opt out from representing the employee, that may be permissible if the employee is expeditiously referred to independent counsel to represent them in the removal case. As USCIS practices change under the Trump administration, immigration lawyers must continually reassess their engagement strategies and update conflict waivers to reflect new risks.

 

[1] See https://www.nafsa.org/regulatory-information/reports-ntas-issued-h-1bs-after-employer-withdraws-petition

[2] See 8 CFR 214.1(l)(2). One possible explanation for issuing an NTA during the grace period is that the regulation also allows for the 60-day grace period to be shortened or eliminated

[3] See 20 C.F.R. § 655.731(c)(7)(i).

[4]  See ARB Case No. 04-087, ALJ Case No. 2004-LCA-006 (Sept. 29, 2006),

[5] Cf.   Jain v. Metromile, Inc., ALJ Case No. 2021-LCA-00018 (July 19, 2022) (the back wages obligation stops when USCIS approves a change of employer petition on behalf of the H-1B worker);  Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) (employer’s failure to pay return transportation costs for a terminated H-1B employee was not fatal when the worker voluntarily decided not to return to her home country but instead remained in the U.S. and sought H-1B status through a new employer).

[6] See ABA Formal Op. 05-434 on advance waivers.

[7] Even if an attorney cannot foresee conflicts in join representation, NYC Bar Op. 2017-7 advises that the lawyer must nevertheless explain the implications of the joint representation to the extent “reasonably necessary to permit the client[s] to make informed decisions regarding the representation.”

[8] 8 CFR 1003.18(d)(1)(D)(4).

[9] The notion of the primary and secondary client exists in case law. See Allegaert v. Perot, 565 F.2d 246 (2d Cir.1977). See also Cyrus D. Mehta, “Finding the “Golden Mean” in Dual Representation,” Immigration & Nationality Law Handbook, 2005-06 Ed. at 29, copyright © 2005 American Immigration Lawyers Association (AILA); reprinted in AILA’s Selected Fundamentals Of Immigration Law 2005-06 Ed. A version of the article is also available on AILA InfoNet at AILA Doc. No. 07081769 (posted August 17, 2007).  See also “Finding the ‘Golden Mean’ in Dual Representation – Updated”, Immigration Briefings, August 2006, © 2006 West, a Thomson business.

[10] 139 F. Supp.2d 649 (E.D. Pa. 2001). See also SuperCooler Tech v. The Coca Cola Co., 6:23-cv-187-CEM-RMV (M.D. Fla. Jul. 17, 2023) (advance waiver upheld when Coca Cola consented to law firm .representing another client SuperCooler in a lawsuit accusing Coca-Cola of misappropriation of trade secrets and intellectual property and sought over $100 million in damage).

 

 

Cyrus Mehta & Kaitlyn Box*

CSPA Disharmony is More Beautiful Than Monotony Notwithstanding a Discrepancy between USCIS and DOS Policy in Protecting the Age of the Child

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By Cyrus D. Mehta and Kaitlyn Box*

In early 2023, USCIS reversed its longstanding policy of recognizing only the Final Action Dates (FAD) in the State Department Visa bulletin as protecting a child’s age under the Child Status Protection Act (CSPA), and agreed to use the Dates for Filing (DFF) to protect the age of the child. This shift in policy allowed the age of many more children to be protected under the CSPA.  USCIS acknowledged that:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

Cyrus Mehta had long advocated for the use of the DFF for CSPA calculation purposes, and discussed the implications of this policy change at length in a prior blog entitled “CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Filing While DOS Allows Child’s Age to Be Protected under the Final Action Date”. 

Now, USCIS without advance notice has again reverted to its prior policy, stating in an August 8, 2025 Policy Alert that: 

… “a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin. The new guidance applies to requests filed on or after August 15, 2025. We will apply the Feb. 14, 2023, policy of CSPA age calculation to adjustment of status applications pending with USCIS before August 15, 2025, as these aliens may have relied on that policy when they filed.    

This policy update ensures both USCIS and the Department of State use the Final Action Dates chart in the Visa Bulletin to determine when a visa becomes available for the purposes of CSPA age calculation. This establishes a consistent CSPA age calculation for aliens who apply for adjustment of status and immigrant visas. The Feb. 14, 2023, policy resulted in inconsistent treatment of aliens who applied for adjustment of status in the United States versus aliens outside the United States who applied for an immigrant visa with the Department of State.”

This change will become effective for applications filed on or after August 15, 2025. 

USCIS’ February 14, 2023 policy that used the DFF to protect the age of the child was salutary, and should have been left in place. This policy protected many more children from aging out, and had a clear legal basis since the DFF allowed one to apply for adjustment of status based on visa availability under INA 245(a)(3) while the child’s age was also frozen based on visa availability under INA 203(h)(1)(A).

The August 2025 policy reversal is ostensibly aimed at ensuring that both the USCIS and the Department of State (DOS) use the FAD chart to determine when a visa becomes available for purposes of the CSPA calculation. A discrepancy indeed existed between the USCIS and State Department policy, as DOS did not issue guidance that corresponded to USCIS’ February 14, 2023 guidance, nor did it update Foreign Affairs Manual (FAM) accordingly. However, both the USCIS and State Department could have instead used the DFF rather than the FAD to determine visa availability.

Notwithstanding the discrepancy between USCIS and State Department policy, using the DFF for CSPA calculation purposes benefited children in the U.S. in a nonimmigrant status whose age got protected under the DFF, and who sought to acquire permanent residence within one year of visa availability, even though their parents obtained an immigrant visa, and permanent residence, under the Final Action Dates some years later.  It also benefitted the entire family if they were here in the US and all filed I-485 adjustment applications together as it kept them united and they were able to derive benefits from the I-485 such as work authorization and travel permission. 

USCIS’ policy reversal will have significant implications for children whose age will no longer get protected under the CSPA. Children of parents who were born in backlogged countries such as India and China are likely to suffer the most severe hardship, as it may be many years before the FAD becomes available, resulting in the children aging out before their age can be protected under the CSPA. Children who may age out before their age can get protected under the CSPA may be reluctant to even file an adjustment of status application in the current climate, as denials if the children age out could result in them being placed into removal proceedings.  

It bears considering whether the cruel policy reversal can potentially be challenged under the Administrative Procedure Act, arguing that the reversal was arbitrary and capricious as the USCIS did not provide a reasoned explanation for its action under DHS v. Regents of the University of California. In Regents, which was discussed in detail in a prior blog, the Court struck down the rescission of the DACA program on the ground that DHS failed to provide a reasoned explanation for taking this action. The Court also focused on the agency’s failure to factor in the reliance interests of DACA recipients, many of whom had enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program.

The anomaly between the USCIS and DOS policy existed when the new policy was announced on February 23, 2023, and so to necessitate a  reconciliation  is a poor justification for reversing the policy. Nothing has changed since 2023. Moreover, even if USICS has provided an August 15, 2025 cutoff date, the reversal would still impact reliance interests as enunciated by the Supreme Court majority in Regents. The DFF will still allow applicants and their children to file I-485 applications after August 15, but once their children age out, their I-485 will get denied. Children are likely to be deterred from filing I-485 applications if there is a risk that they will age out before the FAD becomes current. Despite the weighty impact on reliance interests,  USCIS has failed to provide a reasoned explanation for the reversal.

As the USCIS will continue to use the DFF to protect the age of the child until August 15, 2025, applicants who are eligible to file I-485 adjustment of status applications should do so immediately. After August 15, 2025, while a child may be able to file an I-485 under the DFF it will not protect the age of the child. If the FAD does not become current before the child becomes 21, or if the child turns 21 and cannot utilize the age protection formula under the CSPA, the child’s I-485 application will get denied. This could potentially jeopardize the child’s chances of changing to another nonimmigrant status such as F-1. Although  the Board of Immigration Appeals (BIA)  in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975) recognized an inherent dual intent in all nonimmigrant visas, it may be not be recognized by this Administration under the circumstances of an I-485 that was filed and denied. If children  proceed abroad for an F-1 visa they too risk refusal of the visa under INA 214(b) as they may not be able to rebut the presumption that they are intending immigrants. 

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

 

Cyrus Mehta

USCIS’s Dystopian Implementation Plan to Allow Inheritance of Temporary Statuses from the Parents for the US Born Child Instead of Automatic Citizenship

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The USCIS has issued an Implementation Plan to end birthright citizenship under Executive Order 14160, Protecting the Meaning and Value of American Citizenship. See 90 Fed. Reg. 8449 (2025) (E.O.). 

The E.O. provides that the following categories of individuals will no longer be considered to be born “subject to the jurisdiction” of the United States and therefore will no longer be U.S. citizens at birth:

 (1) children whose “mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth”; and 

(2) children whose “mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

The Implementation Plan considers the following categories as “lawful but temporary”, which the newborn child will inherit from one of the parents if they falls under one of these categories:

  • Aliens granted withholding of removal under INA 241(b)(3) or withholding of deportation under former INA 243; 
  • Aliens granted withholding of removal or deferral of removal under the Convention Against Torture; 
  • Aliens granted voluntary departure, satisfactory departure, or a stay of removal; 
  • IMMACT 90 Family Unity beneficiaries; 
  • LIFE Act Family Unity beneficiaries; 
  • Nonimmigrants (unless listed separately below), including dual intent categories and T and U nonimmigrants; 
  • Citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau residing in the United States pursuant to Compacts of Free Association; 
  • Parolees; 
  • TPS beneficiaries to include applicants establishing prima facie eligibility; 
  • Visa Waiver Program entrants; 
  • Deferred action recipients; and 
  • Deferred Enforcement Departure recipients. 

By contrast, aliens whose presence is lawful and not temporary include, and such a child will automatically be a citizen at birth: 

  • American Indians born in Canada who entered the U.S. under INA 289; 
  • Asylees; 
  • Conditional permanent residents; 
  • Lawful permanent residents; 
  • Refugees; and 
  • Individuals who are nationals but not also citizens of the United States.

The USCIS has hatched  a sinister plan to implement Trump’s currently unconstitutional  birthright citizenship executive order where the newborn child will not automatically be a US citizen but would inherit the lawful but temporary status of the mother in case the EO, which is currently blocked under Barbara v. Trump, is  permitted to go into effect. If the mother is unlawfully present, and does not fall under any of the lawful but temporary categories,  the child will also be considered unlawfully present as soon as it is born. The immigration authorities can technically remove the child who is unlawfully present. 

And what if a child is born to a mother whose nonimmigrant visa status such as H-4 is pending, it would ridiculously result in the child being  born into the world with a similarly pending status? And more ridiculous is if a child is born to a parent in F-1 status, which is considered lawfully present because of “Duration of Status” even if the parent has violated that status through unauthorized employment. The newborn child will be considered lawfully present but in violation of F-1 status and be technically subject to removal. Similarly a child born to a parent who has a pending asylum application will be considered unlawfully present, according to the Implementation Memo, and will also be subject to removal unless the parent is granted asylum. 

According to a Times of India article on the Implementation Plan, where Cyrus Mehta is extensively  quoted, if the child does not automatically become a citizen they will not be able to sponsor the parents when they turn 21 given the decades long backlogs in the employment based green card categories for persons born in India. If this child inherits the H-4 status from the parent who is in H-1B or H-4 status, the child will have to find its  own way in the legal immigration system when they turn 21. Will this child also be charged to the parent’s country of birth, which is India, and will need to wait for decades before they become lawful permanent residents? The child’s age may not be protected under the Child Status Protection Act if the parent’s I-140 petition under the India EB-1 or EB-2 does not become current before the child turns 21. 

The Implementation Plan will adopt what USCIS  does with children of parents present in the United States on diplomatic visas who are not subject to the jurisdiction of the United States pursuant to 8 U.S.C. 1401(a) but are entitled to acquire lawful immigration status by registering. See 8 CFR 101.3. USCIS intends to broaden this practice to permit the children of noncitizens that possess lawful but temporary status to register to acquire any lawful status that at least one parent possesses. But the policy under 8 CFR 101.3 is more sensible as the child of the diplomat who is not subject to the jurisdiction of the US is entitled to lawful permanent residence. Under the Implementation Plan the child will inherit the temporary and unstable status of the parent such as withholding of removal. If the parent is not lawfully present, the child will also be born unlawfully present and will be subject to removal.   

However dystopian this may be for a hapless newborn,  parents need not panic because so far not a single federal court has sided with Trump’s EO and each court has found it unconstitutional. The USCIS will also have to change the regulations to allow inheritance of temporary statuses by registration, which will be long drawn and subject to challenge in the courts. The USCIS has also proposed to defer enforcement against such children until the regulations are promulgated.  It is hoped that the majority of justices in the Supreme Court, if it gets there, will also find the EO blatantly unconstitutional and affirm birthright citizenship under the Fourteenth Amendment.

 

Cyrus Mehta & Kaitlyn Box*

Notwithstanding Trump’s Threats, Can the Government Really Take Away a Person’s Citizenship?

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In recent weeks, the Trump administration’s immigration enforcement efforts have increasingly turned towards U.S. citizens. Indeed President Trump has been insinuating that his administration would look into taking away the citizenship of a number of high profile people.

A June 11, 2025 memorandum entitled Civil Division Enforcement Priorities and authored by Assistant Attorney General Brett A. Shumate states that:

The Department of Justice may institute civil proceedings to revoke a person’s United States citizenship if an individual either “illegally procured” naturalization or procured naturalization by “concealment of a material fact or by willful misrepresentation.” 8 U.S.C. § 1451(a). The benefits of civil denaturalization include the government’s ability to revoke the citizenship of individuals who engaged in the commission of war crimes, extrajudicial killings, or other serious human rights abuses; to remove naturalized criminals, gang members, or, indeed, any individuals convicted of crimes who pose an ongoing threat to the United States; and to prevent convicted terrorists from returning to U.S. soil or traveling internationally on a U.S. passport. At a fundamental level, it also supports the overall integrity of the naturalization program by ensuring that those who unlawfully procured citizenship, including those who obtained it through fraud or concealment of material information, do not maintain the benefits of the unlawful procurement.

The Civil Division shall prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence. To promote the pursuit of all viable denaturalization cases available under 8 U.S.C. § 1451 and maintain the integrity of the naturalization system while simultaneously ensuring an appropriate allocation of resources, the Civil Division has established the following categories of priorities for denaturalization cases:

      1. Cases against individuals who pose a potential danger to national security, including those with a nexus to terrorism, espionage, or the unlawful export from the United States of sensitive goods, technology, or information raising national security concerns;
      2. Cases against individuals who engaged in torture, war crimes, or other human rights violations;
      3. Cases against individuals who further or furthered the unlawful enterprise of criminal gangs, transnational criminal organizations, and drug cartels;
      4. Cases against individuals who committed felonies that were not disclosed during the naturalization process;
      5. Cases against individuals who committed human trafficking, sex offenses, or violent crimes;
      6. Cases against individuals who engaged in various forms of financial fraud against the United States (including Paycheck Protection Program (“PPP”) loan fraud and Medicaid/Medicare fraud);
      7. Cases against individuals who engaged in fraud against private individuals, funds, or corporations;
      8. Cases against individuals who acquired naturalization through government corruption, fraud, or material misrepresentations, not otherwise addressed by another priority category;
      9. Cases referred by a United States Attorney’s Office or in connection with pending criminal charges, if those charges do not fit within one of the other priorities; and
      10. Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue.

If a U.S. citizen is convicted of an offense relating to some of the factors in the Shumate memo, such as perpetuating fraud against an individual or in the course of obtaining a PPP loan, there should not be a basis for finding that he “illegally procured” naturalization or procured naturalization by “concealment of a material fact or by willful misrepresentation” under 8 U.S.C. § 1451(a) if the illegal acts occurred exclusively after he naturalized. The DOJ recently succeeded in denaturalizing Elliot Duke, who was arrested and charged with distribution of child pornography after he naturalized. However, Duke confessed to downloading and distributing child pornography even prior to his naturalization, and had answered “no” to the question on Form N-400 that asks whether one has “ever committed a crime or offense for which you were not arrested”. In U.S. v. Olivar, which is the subject of further analysis in a prior blog, the Ninth Circuit upheld the revocation of an individual’s citizenship who had agreed to commit crimes in the future, although he had not committed any overt act prior to naturalization. Unlike Duke, Olivar’s citizenship was revoked not because of his responses on Form N-400, but on the basis that he lacked good moral character during the five-year period preceding his naturalization. Although Oliver had not actually engaged in any criminal activity before becoming a U.S. citizen, his agreement to commit crimes occurred prior to naturalization.

Trump has already threatened Zohran Mamdani, the Democratic nominee for mayor of New York City and a naturalized U.S. citizen, stating: “A lot of people are saying he’s here illegally. We’re going to look at everything”. In response to assertions that Mr. Mamdani would not impede ICE’s efforts to make arrests in New York City, Trump replied, “Well then we’ll have to arrest him.” In a letter addressed to Attorney General Pam Bondi, Republican Congressman Ogles requested that the Justice Department open an investigation into whether Mr. Mamdani should be subject to “denaturalization proceedings” over rap lyrics Mr. Ogles claimed expressed solidarity with individuals convicted of terrorism-related offenses, before he was a U.S. citizen.

Trump has also threatened to rescind the U.S. citizenship of former talk show host Rosie O’Donnell, stating on Truth Social, “Because of the fact that Rosie O’Donnell is not in the best interests of our Great Country, I am giving serious consideration to taking away her Citizenship”. INA 349 provides that acts such as obtaining naturalization in a foreign state, entering the armed forces of a foreign state as an officer or if such armed forces are in hostilities against the United States, obtaining employment in the government of a foreign state after acquiring the nationality of that foreign state, or making a formal renunciation of nationality before a consular officer. A U.S. citizen can also lose citizenship if s/he is convicted of treason or related subversive acts. The provision requires that an individual voluntary perform these expatriating acts “with the intention of relinquishing United States nationality.” In Afroyim v. Rusk, 387 U.S. 253 (1967), the Supreme Court held that a U.S. citizen has “…[A] constitutional right to remain in a free country unless he voluntarily relinquishes that citizenship.” In a subsequent decision, Vance v. Terrazas, 444 U.S. 253 (1980), the Court held that “in establishing loss of citizenship, the Government must prove an intent to surrender United States citizenship, not just the voluntary commission of an expatriating act such as swearing allegiance to a foreign nation. Congress does not have any general power to take away an American citizen’s citizenship without his ‘assent,’ which means an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from his conduct.” These cases are discussed at length in a prior blog.

While the threats against Mamdani and O’Donnell have no basis, the Trump administration under the Shumate Memorandum may try to denaturalize citizens based on concealment of a material fact or by willful misrepresentation before they naturalized. However, it is a high burden on the government to commence denaturalization proceedings against a citizen in federal court. “The immigration courts have no jurisdiction over U.S. citizens, so the only way for the administration to attempt to strip citizenship is to go through the actual federal judiciary, which is far more independent and much less likely to look favorably upon efforts to target the relatively ironclad protections of citizenship,” according to an article in Slate where Cyrus Mehta is quoted.  In civil cases the government must prove its case by clear, convincing, and unequivocal evidence, leaving no reasonable doubt . For a criminal conviction, the federal government must show “proof beyond a reasonable doubt” that the individual violated 18 U.S.C. § 1425 because the individual knowingly obtained or attempted to obtain naturalization through fraud for him or herself or for another individual. Denaturalization as a result of a criminal conviction is subject to a ten-year statute of limitation.

In 2017, the Supreme Court held in a unanimous decision in Maslenjak v. United States that only an illegal act that played a role in an individual’s acquisition of U.S. citizenship could lead to criminal denaturalization, narrowing the scope under which an individual may be denaturalized under 18 U.S.C. § 1425. In Maslenjak, the government under the Obama and Trump administrations sued to revoke Diana Maslenjak’s U.S. citizenship for making false statements regarding her husband’s membership in a Bosnian Serb militia in the 1990s. The Supreme Court ruled that if an applicant made a false statement during the citizenship process, the statement must have played some role in the individual obtaining citizenship in order to warrant the revocation of citizenship. The court stated that “small omissions and minor lies” that did not influence the award of citizenship do not necessitate denaturalization.

As discussed in a prior blog,  this ruling is significant. It prohibits a government official from revoking a naturalized American’s citizenship based on an insignificant omission or misrepresentation. If the applicant did not indicate that she was a member of her school club to the question on the naturalization application asking about membership in any club at anytime and anywhere in the world, a vindictive prosecutor can no longer use this as a basis to indict her under 18 USC 1425(a), seek a conviction and then revoke her citizenship.

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