Cyrus Mehta

Challenging a Nonimmigrant Visa Revocation in Removal Proceedings

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By Cyrus D. Mehta

A visa is a travel document and is not the same as having a  nonimmigrant status. Ordinarily, revocation of an F-1 visa while the student is in the United States prevents the student from using that visa for a future admission until they obtain a new visa stamp, but does not by itself terminate nonimmigrant status. That familiar distinction, however, does not end the inquiry. Congress expressly made deportable a noncitizen “whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked” under INA § 221(i). See INA § 237(a)(1)(B). Thus, DHS may attempt to convert the State Department’s revocation of the visa foil into a charge of deportability even when the F-1 student has continued to attend school and otherwise complied with the conditions of status.

The Statutory Basis for Review

INA § 221(i) gives the Secretary of State or a consular officer authority to revoke a visa “at any time, in his discretion.” It expressly forecloses judicial review of the revocation—including review through habeas corpus, mandamus, or the All Writs Act—except in the context of a removal proceeding when the revocation provides the sole ground for removal under INA § 237(a)(1)(B). The bar applies to review of the revocation itself; it does not necessarily foreclose habeas or other review of a legally distinct claim concerning detention, transfer, or another collateral government action merely because a visa revocation appears in the factual background.

The regulation likewise confirms broad revocation authority, including provisional revocation, while requiring notice only “if practicable.” 22 C.F.R. § 41.122. The regulation should nevertheless be read together with the governing statute and the State Department’s own rules and procedures. Because there appears to be no reported decision defining the scope of review permitted by § 221(i) in removal proceedings, the respondent should first require DHS to prove that an authorized official actually revoked the visa, that the revocation was final and remained operative, and that the revocation concerned the visa or other documentation on which the charge rests. The respondent should also preserve the argument that § 221(i)’s review proviso permits the immigration judge to consider legal and constitutional objections to the revocation when it supplies the sole ground of removability, while recognizing that the extent of such review remains unsettled. A dismissal of the criminal charge underlying the revocation may be relevant to that challenge, but does not necessarily establish that the revocation lacked a legally sufficient basis. In all events, DHS must establish the charge of removability by clear and convincing evidence. See INA § 240(c)(3)(A); 8 C.F.R. § 1240.8(a).

What the Immigration Judge Can Decide?

The immigration judge has statutory and regulatory authority to determine removability. INA § 240(a)(1), (c)(1)(A); 8 C.F.R. § 1240.1(a)(1). If the only charge is the visa-revocation clause of § 237(a)(1)(B), the judge must determine whether DHS has proved every element of that charge. The respondent should further argue that § 221(i)’s express exception permits the presentation of legal and constitutional objections to the revocation in that proceeding; otherwise, the statutory phrase permitting review “in the context of a removal proceeding” would appear to do no work. Because no reported decision has defined the scope of that review, however, counsel should preserve the argument without assuming that the immigration judge may reconsider every factual or discretionary premise underlying the State Department’s action.

That does not necessarily mean that an immigration judge can order the Department of State to reissue or reinstate a visa. The immigration judge may terminate proceedings if DHS fails to prove deportability. The respondent should also preserve the argument that termination is warranted if the revocation on which the sole charge depends was legally ineffective, while recognizing that the immigration judge’s authority to adjudicate the underlying validity of the revocation remains unsettled. Counsel should build the administrative record with the revocation notice, the State Department communication, the consular file to the extent obtainable, the SEVIS history if the respondent is a student, the Form I-20 record, proof of continuing study, and any evidence bearing on the stated ground for revocation. If the asserted basis implicates speech or an unsupported inadmissibility finding, those issues should be raised expressly before the immigration judge and again before the BIA.

Why a Petition for Review Is Still Necessary?

If the judge sustains the charge, the respondent should appeal to the BIA and exhaust each legal and constitutional claim. That course is reinforced by Acting Director Sirce E. Owen’s Policy Memorandum 25-45, Consideration of Constitutional Arguments in Agency Adjudications (Sept. 5, 2025), which states that EOIR adjudicators generally may consider arguments arising under constitutional law and, in particular, constitutional challenges to the application of a statute in an individual case, subject to limited exceptions. Judicial review of the final order of removal would then ordinarily be sought through a petition for review in the appropriate court of appeals under INA § 242, rather than through an action in federal district court under the Administrative Procedure Act. The petition for review must ordinarily be filed within 30 days of the final order. INA § 242(b)(1). Counsel should invoke the court of appeals’ authority to review preserved questions of law and constitutional claims, while recognizing that no reported decision appears to have determined whether, or to what extent, § 221(i) permits review of the underlying discretionary revocation in that posture.

The principal practical obstacle may be access to the revocation record. Visa records are generally confidential under INA § 222(f), and DHS may rely on database entries, interagency communications, or summaries rather than the underlying consular material. Counsel should request the documents on which DHS relies, object when a conclusory notation does not establish who revoked the visa, when the action occurred, whether it remains operative, or the statutory basis invoked, and seek appropriate safeguards if the government invokes classified or law-enforcement-sensitive information. The respondent need not disprove an undisclosed rationale; DHS bears the burden of proving the charged ground with reliable evidence in the removal record.

The “sole ground” limitation is crucial. If DHS pleads both revocation and a separate status violation—for example, failure to pursue a full course of study—the government may argue that § 221(i)’s review proviso has not been triggered. Counsel should contest unsupported alternative allegations, demand clarity about whether the charges are genuinely independent, and preserve the argument that the government cannot defeat Congress’s review mechanism merely by repackaging the same alleged conduct as a second charge.

Has a Court of Appeals Recently Decided the Issue?

As of October 2026, there does not appear to be a recent published BIA precedent or reported federal court of appeals decision squarely adjudicating a petition for review in which an F-1 student’s visa revocation was the sole ground of removability under § 237(a)(1)(B). The scarcity of authority is itself significant. The 2025 student cases generated extensive district-court litigation over SEVIS terminations, detention, and constitutional claims, but they did not produce a reported merits decision defining the scope of § 221(i) review after an immigration judge and the BIA entered a final removal order. See Congressional Research Service, Visa Issuances, Refusals, and Revocations: Selected Current Legal Considerations, R49040, at 18–20 (July 21, 2026) (discussing visa revocations inside the United States, removal proceedings following revocation, and the 2025 student-visa enforcement actions, but identifying no modern reported appellate decision resolving the scope of § 221(i) review).

Older authority such as Knoetze v. U.S. Department of State, 634 F.2d 207 (5th Cir. 1981), reviewed a visa revocation under the Administrative Procedure Act and rejected a due-process challenge based on inadequate notice. Congress subsequently amended § 221(i) in 2004 to foreclose judicial review of a revocation except in the specified removal-proceeding context. Knoetze therefore does not define the nature or scope of the review now preserved when revocation supplies the sole ground of removal under § 237(a)(1)(B). Nor should decisions concerning the revocation of an approved visa petition—such as Bouarfa v. Mayorkas, 604 U.S. 6 (2024), which addressed DHS’s authority under § 205, 8 U.S.C. § 1155—be conflated with the State Department’s revocation of a visa under § 221(i).

The Öztürk Case: A Successful IJ Challenge, but No Petition-for-Review Precedent

Rümeysa Öztürk’s case provides a useful recent illustration of the administrative route, although it did not culminate in a court of appeals decision reviewing a final removal order. After the State Department revoked her F-1 visa and ICE arrested her in March 2025, she pursued parallel challenges: a habeas and constitutional action concerning her detention, a district-court challenge to DHS’s termination of her SEVIS record, and a defense to removability in immigration court. A federal district court ordered her released in May 2025; the Second Circuit’s reported decisions in Öztürk v. Hyde, 136 F.4th 382 (2d Cir. 2025), and Öztürk v. Hyde, 155 F.4th 187 (2d Cir. 2025), concerned habeas jurisdiction and detention—not review of the visa revocation under § 221(i).

On January 29, 2026, Immigration Judge Roopal Patel terminated Öztürk’s removal proceedings after concluding that DHS had not met its burden of proving removability. See Petitioner-Appellee’s Rule 28(j) Letter Regarding Removal Proceedings, Öztürk v. Hyde, No. 25-1019 (2d Cir. Feb. 9, 2026). Because the IJ’s decision and the immigration-court record have not been made public, it is not known whether the IJ rejected the legal basis for the visa revocation, found DHS’s evidence of revocation insufficient, concluded that revocation did not establish the charged statutory ground, relied on the restoration of Öztürk’s SEVIS record, or identified some other deficiency in DHS’s case. The ruling therefore demonstrates that DHS’s reliance on an F-1 visa revocation did not automatically establish removability in Öztürk’s case, but it cannot presently be cited for a specific construction of INA §§ 221(i) or 237(a)(1)(B). DHS appealed to the BIA, but the parties later jointly sought termination of the BIA proceedings as part of a settlement. The government acknowledged that Öztürk had been in lawful nonimmigrant status when DHS terminated her SEVIS record and had remained in lawful status while in the United States; her SEVIS record was to be treated as though the termination had never occurred. She completed her doctorate and returned to Turkey voluntarily in April 2026.

Öztürk’s case demonstrates that a respondent can prevail before the immigration judge by requiring DHS to prove a legally sufficient ground of removability despite the prior visa revocation. Second, the case does not answer the ultimate appellate question posed here: there was no final BIA removal order and hence no petition for review asking a circuit court to define the scope of review preserved by § 221(i).

Preserving the Visa-Revocation Challenge

  1. Separate visa revocation from status termination. Determine whether DOS revoked only the visa, DHS terminated SEVIS, the school terminated the student’s record, or some combination occurred. Each action has a different decisionmaker and legal consequence.
  2. Pin down the charge. If the NTA relies solely on the visa-revocation language in § 237(a)(1)(B), invoke § 221(i)’s express review proviso. If DHS alleges a separate status violation, require proof of that independent charge.
  3. Contest removability before the IJ. Challenge the fact, authorization, finality, and legal validity of the revocation; object to hearsay or conclusory database evidence; and insist that DHS carry its clear-and-convincing burden.
  4. Create and exhaust the record. Raise statutory, regulatory, and constitutional objections before the IJ and BIA, even if the agency claims it lacks authority to grant affirmative relief against DOS.
  5. File a timely petition for review. After the BIA’s final order, seek review in the court of appeals and request a stay of removal where necessary. Frame the issue as review expressly preserved by § 221(i) in the context of the final removal order.

Conclusion

A visa revocation does not ordinarily erase a nonimmigrant’s status, but Congress has made the revocation itself a possible ground of deportability. When DHS uses that ground alone, Congress has also preserved review. The immigration judge must first adjudicate the charge and should be asked to assess the legal effectiveness of the revocation; the BIA must then be given the opportunity to correct any error; and a court of appeals reviews the resulting final order through a petition for review. As a practical matter, nonimmigrants whose visas have been revoked while they remain in the United States generally do not appear to be placed in removal proceedings based solely on the revocation. The absence of reported decisions may reflect the relative rarity of such cases. It may also reflect a reluctance by the government to pursue a charge that could produce precedent confirming a respondent’s ability to challenge the revocation when it supplies the sole ground of deportability under INA § 237(a)(1)(B).

 

Cyrus Mehta

The Fifth Circuit Retreats from Due Process in Sosnava Rodriguez v. Ortega

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The Fifth Circuit has now erased the constitutional protection that a divided panel recognized only months ago in Sosnava Rodriguez v. Ortega. On October 23, 2026, the en banc court reversed the district courts and held that three longtime Texas residents who entered without inspection were not entitled to a bond hearing before being detained during their removal proceedings.

The decision is a stark reversal of the panel opinion we discussed in our July 19 blog, “Beyond Loper Bright: Rodriguez v. Ortega and the Fifth Amendment Limit on Mandatory Immigration Detention.” Relying  on the Supreme Court’s recognition that due process protects people physically present in the United States regardless of their immigration status, the panel had held that due process requires bond hearings within 90 days for similarly situated detainees. The full court vacated that ruling and has now rejected its central premise.

What the en banc court held

The majority treated the petitioners, who had entered the United States without inspection, as applicants for admission subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). It concluded that they had no constitutional right to an individualized bond hearing and that the duration of their detention did not warrant habeas relief. The court therefore reversed the three district court judgments and vacated the writs of habeas corpus.

The practical consequence is severe. In Texas, Louisiana, and Mississippi, a noncitizen whom the government classifies as an applicant for admission because of an entry without inspection may now be detained throughout removal proceedings without an immigration judge ever deciding whether confinement is necessary. The person’s length of residence in the U.S., family ties, lack of criminal history, and ability to establish that he presents neither danger nor flight risk do not trigger a hearing under the en banc majority’s rule.

The majority transforms admission doctrine into a detention rule

Judge Wilson’s majority begins with the petitioners’ concession that they are “applicants for admission” detained under § 1225(b)(2)(A), and then gives that statutory classification sweeping constitutional significance. Relying principally on Department of Homeland Security v. Thuraissigiam, which upheld the limitation on federal court review of expedited removal orders at 8 U.S.C. § 1252(e)(2), the majority reasons that an unadmitted noncitizen may invoke only the procedures Congress has supplied for determining admission. Lengthy residence in the U.S., family and community ties, and arrest deep inside the country do not alter that conclusion. In the majority’s view, formal admission—not physical presence or the strength of a person’s connections to the country—marks the constitutional boundary.

The majority also rejects procedural due process balancing under Mathews v. Eldridge, which would require balancing the private individual’s interest, the government interest, and the likelihood of an erroneous deprivation. Because Congress made detention mandatory under its reading of § 1225(b)(2)(A), it treats dangerousness and flight risk as legally irrelevant. A hearing cannot be constitutionally required, it says, to decide facts that the statute does not make material. That reasoning is circular: the statutory denial of individualized consideration becomes the reason the Constitution cannot require individualized consideration.

On substantive due process, the majority defines the asserted right narrowly—as freedom from immigration custody while removal proceedings remain pending—and finds no deeply rooted historical right of that description. It applies rational-basis review and regards detention as reasonably connected to ensuring a noncitizen’s appearance and effectuating removal. It further limits Zadvydas v. Davis, which emphasized that a noncitizen who has been ordered removed cannot be detained indefinitiely, to post-removal-order detention where removal is no longer realistically attainable, declining to treat six months as a constitutional benchmark during ongoing proceedings. Under the majority’s rule, detention remains permissible so long as it has a nominal endpoint—removal or release—and removal remains a viable prospect.

Judge Ho’s concurrence: a broader theory of political control

Judge Ho’s lengthy concurrence goes further than the majority. It situates the dispute within the political branches’ asserted plenary power over admission and removal and warns against converting due process into a judicial license to revise Congress’s detention choices. Its central move is to characterize detention as an incident of exclusion rather than as an ordinary deprivation of liberty. If a person has never been admitted, the concurrence reasons, continued physical presence cannot generate a constitutional entitlement to remain free while the government decides whether removal will occur.

The concurrence is rhetorically powerful but analytically troubling. It collapses two different questions—whether a person may lawfully remain in the United States and whether the government may imprison that person without proving that detention is necessary. A bond hearing does not confer lawful status, prevent removal, or second-guess Congress’s admissibility rules. It asks only whether incarceration is justified while those rules are administered. Treating that modest procedural safeguard as an intrusion upon sovereign control obscures the liberty interest actually at stake.

Judge Ho’s approach also gives insufficient weight to the traditional role of habeas corpus. Habeas is not a demand for admission; it is the historic mechanism for testing executive custody. A theory that places detention beyond meaningful judicial scrutiny whenever the government invokes the admission fiction risks allowing a statutory label to do what the Suspension Clause and Due Process Clause were designed to prevent: make executive imprisonment effectively self-justifying.

The dissents better understand the constitutional question

The dissents resist the majority’s attempt to turn the entry fiction into a constitutional eraser. Judge Southwick’s principal dissent, joined by five judges, returns to the Fifth Amendment’s text and the Supreme Court’s recognition in Zadvydas that its protection extends to all persons within the United States, regardless of whether their presence is lawful, unlawful, temporary, or permanent. Thes petitioners at issue were not arriving at the border. They had lived here for many years, raised U.S. citizen children, and were arrested in settled communities. The dissents persuasively argue that Thuraissigiam, involving a recent entrant apprehended near the border who sought additional review of an asylum determination, should not extinguish the liberty interests of longtime residents challenging imprisonment rather than exclusion.

The separate dissents by Judges Haynes, Higginson, and Douglas reinforce different aspects of the same constitutional error. They emphasize that habeas courts have historically examined whether executive detention serves a lawful purpose; that civil confinement cannot become punishment by administrative declaration; and that due process ordinarily demands some opportunity to test whether detention bears a real relationship to danger, flight risk, or removal. Their disagreement with the majority is not about creating an absolute right to release. Rather, they insist on preserving a neutral hearing at which the government must justify continued confinement.

The dissents offer the better argument. The majority permits Congress’s choice of a detention category to determine the scope of the very liberty interest against which that category must be measured. It treats decades of residence as constitutionally meaningless, conflates release from custody with admission into the country, and reduces habeas review to confirming that the government selected the right statutory box. The dissents preserve the more fundamental rule: immigration power is broad, but it does not place executive imprisonment beyond the Constitution.

Moreover, a bond hearing is not an extravagant remedy. It does not guarantee release. It merely allows an immigration judge to consider evidence, evaluate danger and flight risk, and determine whether detention serves a legitimate civil purpose. For the government to imprison a father, worker, or longtime community member while removal proceedings unfold—and never explain to a neutral adjudicator why that imprisonment is necessary—is precisely the kind of arbitrary deprivation the Due Process Clause should forbid.

The advocates’ response

The American Immigration Council and the National Immigration Project condemned the ruling in forceful terms. Rebecca Cassler, senior litigation attorney at the Council, called it “an affront to the U.S. Constitution” and distilled the issue to its core: if the government seeks to deprive a person of liberty, it must explain why detention is necessary, and the detained person must be able to ask a judge to review that decision.

 

When courts degrade the meaning of liberty for some, we all suffer the consequences.

— Rebecca Cassler, American Immigration Council

 

Ellie Norton, supervising attorney at the National Immigration Project, emphasized the human stakes. The case concerns three fathers who had lived in the United States for years and supported U.S. citizen children, yet were separated from their families without a chance to seek release from an immigration judge. She also warned that transfers into detention facilities within the Fifth Circuit may be used to place people under this restrictive rule.

Why the ruling extends beyond immigration detention

The majority’s logic should concern more than just immigration lawyers. Constitutional guarantees are most vulnerable when courts permit the government to place a disfavored group outside their protection. Although the immediate holding governs immigration detention within the Fifth Circuit, its reasoning diminishes the principle that physical liberty may not be taken without a meaningful opportunity to be heard.

The ruling also sharpens a geographic split over the governing detention statute. The Second, Sixth, and Eleventh Circuits have rejected the government’s position and held that longtime residents arrested in the interior after entering without inspection are detained under INA § 236(a), not § 235(b)(2)(A), and therefore may seek bond from an immigration judge. The Seventh Circuit has also indicated that it would reject the government’s interpretation. By contrast, the Fifth and Eighth Circuits have accepted the government’s mandatory-detention theory. The relevant discretionary-bond provision is INA § 236(a); INA § 236(c) concerns mandatory detention for specified criminal and related grounds.

That split creates a powerful incentive for DHS to transfer and detain as many noncitizens who entered without inspection as possible in jurisdictions like Texas, Louisiana, and Mississippi. Once detention is located within the Fifth Circuit, immigration judges will be expected to follow Buenrostro-Mendez and Sosnava Rodriguez and deny bond jurisdiction, even when another circuit might treat the same person as eligible to seek bond under INA § 236(a). Geography may therefore determine whether a detained person ever receives an individualized custody hearing. This forum-shifting strategy compounds the due process problem by allowing the government’s choice of detention site to dictate the governing law and potentially strip people of protections available where they lived or were arrested.

The Supreme Court may narrow Sosnava’s practical reach

The Supreme Court has agreed to review the statutory question in Rhoney v. Barbosa da Cunha: whether a noncitizen who entered without inspection and was later arrested in the interior is detained under INA § 235(b)(2)(A) or under the discretionary detention provision in INA § 236(a). If the Court agrees with the Second, Sixth, and Eleventh Circuits that § 236(a) governs, the practical impact of Sosnava Rodriguez on this category of detainees would be sharply reduced. They would be statutorily eligible to seek bond from an immigration judge, so courts ordinarily would not need to reach Sosnava’s constitutional holding that an “unadmitted” person detained under § 235(b)(2)(A) has no right to an individualized bond hearing.

Such a Supreme Court ruling would not formally overrule Sosnava. The decision would remain on the books for people properly detained under § 235(b)(2)(A), including those whose statutory classification differs from the longtime interior residents at issue in Barbosa da Cunha. But it would remove the statutory premise on which Sosnava operates for many noncitizens who entered without inspection years earlier: if § 236(a), rather than § 235, supplies the detention authority, their access to bond follows from the statute.

Does Sosnava threaten other immigration habeas cases?

Sosnava should not control a habeas petition brought by a noncitizen who was admitted to the United States merely because the case concerns immigration detention. That category includes not only lawful permanent residents but also people admitted in nonimmigrant status—such as workers, students, visitors, and others—who may later fall out of status, become removable, or be detained while contesting removal. Sosnava’s central reasoning repeatedly turns on the petitioners’ status as never-admitted “applicants for admission,” their detention under § 235(b)(2)(A), and the entry fiction. A person who was inspected and admitted stands on materially different constitutional and statutory ground. Sosnava’s holding therefore should not apply to such a habeas petitioner. Indeed, Zadvydas v. Davis involved admitted resident aliens and confirms that habeas remains available to test statutory and constitutional limits on continued custody.

Still, the government may invoke some of Sosnava’s broader propositions in other detention cases—its narrow framing of the asserted liberty right, its reluctance to use Mathews v. Eldridge to require a hearing on facts the detention statute does not make relevant, and its distinction between pre-removal and post-removal detention. Those propositions could influence prolonged-detention litigation involving LPRs, former nonimmigrants, and other admitted noncitizens detained under INA § 236(c) or other provisions. But these habeas petitioners can argue forcefully that Sosnava is limited by its own rationale: it does not erase the greater due process protections accorded to admitted noncitizens, decide the constitutionality of prolonged detention under § 236(c), or disturb Zadvydas’s recognition that § 2241 habeas is the basic vehicle for challenging unlawful continued custody.

The better reading, therefore, is that Sosnava creates a serious obstacle for constitutional bond claims by people actually governed by § 235(b)(2)(A) in the Fifth Circuit, but it is not a categorical bar to immigration habeas. Its holding should not extend to LPRs, nonimmigrants, former nonimmigrants, or other people who were inspected and admitted. For every future habeas petitioner, the detention statute, admission history, procedural posture, duration of confinement, and relief sought remain critical. Challenges by admitted noncitizens should be framed through the statutory provision that authorizes custody and the Supreme Court precedents applicable to that distinct form of detention.

What comes next

The American Immigration Council and the National Immigration Project have made clear that they will continue the fight. Their forceful response also suggests that they have carefully considered the avenues that may remain after the en banc ruling, although the press release does not identify particular next steps. Those avenues may include seeking further review and continuing to challenge detention through statutory and constitutional arguments in cases presenting different facts and in jurisdictions that have rejected the Fifth Circuit’s approach.

The essential constitutional question remains unchanged: Can the government imprison a person for civil immigration purposes without ever proving to a neutral adjudicator that detention serves a legitimate need? The Fifth Circuit has answered yes for noncitizens who entered without inspection. That answer elevates an entry classification over the Fifth Amendment’s protection of persons and permits liberty to depend on geography. The Constitution should demand more.

This blog is for informational purposes only and does not constitute legal advice.

Cyrus Mehta

Agarwal v. Miller Clashes with Mukherji v. Miller Over the EB-1 Final Merits Determination

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By Cyrus D. Mehta and Manjeeta Chowdhary

A federal district court in Nebraska has reopened a consequential debate over how U.S. Citizenship and Immigration Services adjudicates EB-1A extraordinary ability petitions. In Agarwal v. Miller, Chief District Judge Brian C. Buescher dismissed a challenge to USCIS’s “final merits determination,” declining to follow the earlier decision in Mukherji v. Miller, which had invalidated that second step of the agency’s analysis.

 

The result is striking. Two judges in the same district have reached opposing conclusions about an adjudicatory framework that is not expressly set out in the Immigration and Nationality Act or its implementing regulations. The disagreement matters not only to EB-1A petitioners, but also to the broader question of how much interpretive latitude agencies retain after Loper Bright Enterprises v. Raimondo.

The EB-1A Framework and the Contested Second Step

Congress reserved the EB-1A classification for individuals of extraordinary ability in the sciences, arts, education, business, or athletics whose ability has been demonstrated by sustained national or international acclaim and whose achievements have been recognized through extensive documentation. See INA § 203(b)(1)(A).  The regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x) permit a petitioner to establish eligibility through a major, internationally recognized award or by satisfying at least three of ten enumerated evidentiary criteria.

Following the Ninth Circuit’s decision in Kazarian v. USCIS, the agency developed a two-step framework. At step one, the adjudicator decides whether the evidence meets at least three regulatory criteria. At step two—the “final merits determination”—the adjudicator evaluates the record as a whole to decide whether the beneficiary possesses the required high level of expertise and sustained acclaim.

The controversy arises because neither the statutory text nor the regulation expressly labels or describes this second step. In practice, petitioners can satisfy three, four, or even five criteria and still be denied because USCIS concludes that the evidence, viewed in its totality, does not show that the beneficiary is among the small percentage at the very top of the field.

Mukherji’s Challenge to the Final Merits Determination

In Mukherji v. Miller, another judge in the District of Nebraska set aside an EB-1A denial after USCIS acknowledged that the petitioner satisfied five regulatory criteria. The court concluded that the agency’s two-step framework had not been validly adopted through notice-and-comment rulemaking, that USCIS had not adequately explained the policy change, and that the legality of the final merits determination presented a question of law for independent judicial judgment after Loper Bright.

USCIS initially appealed but later withdrew the appeal. That left Mukherji intact for the individual petitioner without creating binding appellate precedent. It also left unresolved whether other courts would accept its reasoning.Agarwal Takes the Opposite Path

Agarwal arose from a materially similar challenge. The plaintiff attacked USCIS’s denial of an EB-1A petition and the agency’s reliance on the Kazarian two-step policy. Judge Buescher rejected the challenge and dismissed the complaint with prejudice:

“In these circumstances, even though Agarwal prefers the post-Loper Bright Enterprises decision in Mukherji v. Miller, No. 4:24CV3170, 2026 WL 895708 (D. Neb. Jan. 28, 2026), the Court declines to follow Mukherji because it is unsound and unconvincing.”

The court relying on the Fifth Circuit decision in Amin v. Mayorkas treated the final merits inquiry not as an unlawful extra-regulatory hurdle, but as a permissible means of deciding whether the petitioner ultimately satisfied the statutory requirement of extraordinary ability demonstrated by sustained acclaim. On this view, meeting three regulatory criteria is necessary when there is no qualifying one-time achievement, but it is not automatically sufficient. The enumerated criteria identify types of evidence; they do not displace the statute’s ultimate eligibility requirements.

According to Amin, which was decided before Loper Bright,  the statute does not merely require a petitioner to accumulate three categories of evidence. It requires extraordinary ability, sustained national or international acclaim, recognition through extensive documentation, an intention to continue working in the area of expertise, and prospective substantial benefit to the United States. A court can therefore reason that USCIS must evaluate whether the evidence proves those ultimate statutory elements. But this does not fully answer the objection to the agency’s final merits framework. There is a meaningful difference between applying statutory elements and imposing a separate, binding adjudicatory rule with elastic standards untethered to the regulatory text. The central question is not whether USCIS may consider the quality and probative value of evidence. Of course it may. The harder question is whether the agency may use an administratively created second step to discount evidence that has already satisfied the regulation, particularly when that step has become the principal basis for denial.

Corner Post and Agarwal’s Six-Year Limitations Analysis

Agarwal also raises an important threshold issue under 28 U.S.C. § 2401(a), the default six-year statute of limitations for civil actions against the United States. USCIS issued the Kazarian analysis in 2010, and the government argued that any challenge to it became time-barred in 2016. Judge Buescher did not accept that position. Consistent with the Supreme Court’s decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, Agarwal treated the limitations period as running from the agency’s denial of the petitioner’s EB-1 petition.

In Corner Post, the Supreme Court held that an Administrative Procedure Act claim does not accrue under § 2401(a) until the plaintiff is injured by final agency action. A right of action accrues when the plaintiff has a “complete and present cause of action”—that is, when the plaintiff can file suit and obtain relief. Thus, the six-year clock does not necessarily begin when an agency first issues a rule or policy. It begins when that agency action causes injury to the particular plaintiff.

Applied to Agarwal, the relevant injury was USCIS’s final denial of the EB-1 petition using the Kazarian analysis, not the agency’s issuance of that analysis in 2010. Before the denial, Agarwal could not show the concrete injury for which relief was sought. Because the action was brought within six years of the final denial, the claim was not barred under § 2401(a), even though more than six years had passed since 2010.

This aspect of Agarwal is therefore favorable to EB-1 petitioners. The court rejected the government’s attempt to turn § 2401(a) into a statute of repose that would categorically insulate the Kazarian analysis from challenge after 2016. Under Corner Post, the provision is a statute of limitations measured from accrual of the particular plaintiff’s right of action. The distinction is especially compelling in immigration adjudication. A prospective EB-1 petitioner may not have filed a petition, received a final decision, or even possessed a claim when USCIS adopted the Kazarian analysis in 2010. Starting and ending the limitations period in 2010 and 2016 would allow the claim to expire before the policy was ever applied to that petitioner. Agarwal correctly recognized that the six-year period begins with the final denial that first injures the petitioner.

Why Loper Bright Still Matters

Agarwal should not be read as restoring broad judicial deference to USCIS. Loper Bright requires courts to exercise independent judgment on questions of statutory meaning. An agency’s interpretation may persuade, but it does not control merely because the statute is ambiguous.

The post-Loper Bright inquiry should therefore focus on whether the INA and the regulation, properly interpreted, authorize the precise work that USCIS asks the final merits determination to perform. If the second step simply assesses whether the evidence proves sustained acclaim and top-of-field status, it may be characterized as application of the statutory standard. If it adds new requirements—such as indefinite preeminence, uninterrupted recognition, or evidentiary expectations not found in the statute or regulation—it remains vulnerable to challenge.

This distinction is critical. Judicial review cannot stop just because the USCIS has developed a  “final merits determination” without notice and comment.  Courts must examine how USCIS actually used the framework in the case before them. An agency may not evade meaningful review by describing an extra-textual requirement as a holistic assessment.

Kisor v. Wilkie Does Not Rescue the Final Merits Determination

Kisor v. Wilkie is also relevant because it sharply limits deference when an agency claims to be interpreting its own regulation. Under Kisor, a court must first exhaust the traditional tools of construction and find the regulation genuinely ambiguous. Even then, the agency’s interpretation must be reasonable, authoritative, within its substantive expertise, and the product of its fair and considered judgment rather than a convenient litigating position or an unfair surprise.

The final merits determination does not comfortably fit that framework. USCIS is not interpreting an ambiguous term in the EB-1 evidentiary regulations when it adds a second evaluative stage after determining that the prescribed criteria have been satisfied. The EB-1A regulation states that evidence of a qualifying one-time achievement or at least three of ten listed criteria is required; the EB-1B regulation identifies at least two of six. Final merits does not resolve the meaning of a word or phrase within those criteria. It overlays an additional decisional structure on the regulations.

That distinction matters. Kisor concerns how an agency may interpret its own genuinely ambiguous regulation; it does not authorize an agency to supplement an unambiguous regulatory scheme with a new substantive test. Calling final merits an “interpretation” cannot substitute for identifying the precise regulatory ambiguity being construed. If USCIS cannot point to genuinely ambiguous text that the second step interprets, there is no basis for Kisor deference.

Even if some regulatory language were genuinely ambiguous, a court would still have to decide independently whether the final merits framework falls within the bounds of a reasonable interpretation and reflects fair and considered judgment. A framework that permits adjudicators to demand indefinite preeminence, uninterrupted acclaim, or other proof not specified in the regulation risks creating precisely the unfair surprise that Kisor cautions against.

Loper Bright and Kisor therefore address complementary problems. Loper Bright requires independent judicial judgment when an agency interprets a statute. Kisor confines any deference when an agency interprets its own regulation. Here, USCIS’s more fundamental difficulty is that final merits appears not to interpret the EB-1 regulation at all, but to add a second substantive hurdle that the regulatory text does not contain.

Exceeding the Minimum Criteria Must Count for Something

The final merits analysis should also account for how far a petitioner has surpassed the regulatory threshold. For EB-1A, the regulation generally requires three out of ten criteria; for EB-1B outstanding professors and researchers, it generally requires two of six. If USCIS agrees that an EB-1A petitioner has satisfied more than three criteria, or that an EB-1B petitioner has satisfied more than two, those findings should bolster rather than disappear from the agency’s ultimate assessment.

This is consistent with the concern addressed in Amin v. Mayorkas. Although satisfying the minimum number of criteria does not mechanically compel approval, the criteria cannot be treated as a meaningless counting exercise. Each additional satisfied criterion adds probative weight to the record. USCIS must rationally explain why evidence sufficient to meet multiple regulatory categories nevertheless fails to establish extraordinary ability or outstanding achievement when considered collectively.

A final merits determination becomes vulnerable when it acknowledges that a petitioner has substantially exceeded the threshold but then repeats generalized conclusions about lacking sustained acclaim or top-of-field standing. The agency must grapple with its own favorable findings. Otherwise, step two risks becoming an undefined veto that nullifies step one rather than a reasoned evaluation of the same evidence.

Scripps Remains a Useful Path

Scripps College v. Jaddou offers a more nuanced way to understand—and constrain—the final merits determination. Scripps College sought EB-1B classification for art historian Julia Lum as an outstanding professor or researcher. USCIS agreed that Dr. Lum satisfied three of the six regulatory criteria: judging the work of others, making original scholarly contributions, and authoring scholarly books or articles. The regulation required only two. USCIS nevertheless denied the petition at final merits.

The District of Nebraska did not hold that satisfying the threshold criteria automatically compelled approval, nor did it invalidate final merits review wholesale. Instead, it applied ordinary APA review and asked whether USCIS had engaged in reasoned decision-making. The court concluded that the denial was arbitrary and capricious, granted summary judgment to Scripps College, and remanded the matter.

The value of Scripps lies in its insistence that final merits cannot become an opportunity for USCIS to disregard its own favorable findings. Once the agency determined that Dr. Lum met three criteria—one more than the regulatory minimum—those findings formed part of the evidentiary record that USCIS had to evaluate rationally. The agency could consider the quality of the evidence, but it could not treat the satisfied criteria as though they had no cumulative significance.

Scripps thus preserves a meaningful distinction between qualitative review and impermissible re-adjudication. At step one, a criterion may itself contain a qualitative component, and USCIS may assess whether the evidence meets it by a preponderance of the evidence. At final merits, the agency may consider the evidence together to decide whether the statutory standard is met. But it may not quietly heighten the criteria, demand proof that the regulation does not require, or use generalized conclusions to negate findings already made at step one.

This reasoning complements Amin v. Mayorkas. Meeting the minimum number of criteria is not necessarily dispositive, but exceeding the minimum should carry additional evidentiary force. If three satisfied criteria in an EB-1B case are treated no differently from two—or if five satisfied criteria in an EB-1A case are treated no differently from three—the regulatory framework risks becoming largely ornamental. USCIS must explain why the cumulative evidence, including every criterion it found satisfied, still falls short.

Scripps remains especially useful after Agarwal. Even if a court accepts the legality of a two-step framework in principle, a petitioner can still prevail by showing that USCIS applied final merits arbitrarily in the individual case. The litigation should focus on contradictions between the agency’s step-one findings and its final-merits conclusions, failures to address material evidence, extra-regulatory demands, and explanations that run counter to the record.

In this sense, Scripps supplies a narrower but highly practical path. Petitioners need not win the broader argument that final merits is invalid in every case. They can argue that USCIS must conduct the analysis transparently, consistently, and under the preponderance standard—and that a reviewing court should set aside a denial when the agency uses final merits as an unexplained veto over evidence it has already credited.

A Conflict That Invites Circuit Court Resolution

Agarwal is a setback for efforts to dismantle the final merits determination, but it is not the last word. Nor does it erase Mukherji. Instead, the decisions frame the dispute more precisely: where does legitimate evaluation of the statutory standard end, and where does an unlawfully created additional eligibility test begin?

The answer should not turn on whether USCIS calls its analysis “final merits,” “totality of the evidence,” or something else. It should turn on statutory and regulatory text, the procedures through which the agency adopted its framework, and the reasons the agency actually gave for denying the petition. After Loper Bright, courts and not the  USCIS must independently determine the boundaries of INA 203(b)(1)(A) and INA 203(b)(1)(A), and determine whether how much deference to give to the USCIS’s invented final merits determination. Amin v. Mayorkas was decided before Loper Bright. 

Until a circuit court provides authoritative guidance post Loper Bright, EB-1 petitioners should continue to build records capable of surviving USCIS’s two-step review while preserving four complementary arguments. First, Agarwal correctly applied Corner Post and 28 U.S.C. § 2401(a) in rejecting the government’s contention that a challenge to the 2010 Kazarian analysis expired in 2016; the six-year period runs from the final EB-1 denial that first injures the petitioner. Second, under Loper Bright and Kisor, courts must independently determine the governing law, and USCIS cannot obtain deference merely by labeling final merits an interpretation when it does not identify genuinely ambiguous regulatory text that the second step construes. Third, under Amin and Scripps, criteria satisfied beyond the regulatory minimum must carry cumulative evidentiary weight in final merits. Fourth, Scripps College v. Jaddou permits a court to set aside an arbitrary application of final merits when USCIS disregards favorable findings, imposes extra-regulatory demands, or offers an explanation that runs counter to the record—even without invalidating the entire framework. The clash between Mukherji and Agarwal ensures that these issues will remain central to extraordinary ability and outstanding researcher litigation.

Even if a Circuit court rules against the final merits determination, it will not be binding outside the circuit court’s jurisdiction but it will at least provide persuasive authority in those cases until other circuit courts also rule the same way. There is a risk that a  circuit court may also rule the other way and keep the final merits determination intact. Then another plaintiff may have to obtain a decision from another circuit court ruling against the final merits determination, and if there is such a circuit split, the Supreme Court may have the last word. Before we get there, it is important for petitioners to use Loper Bright to get rid of the final merits determination that Mukherji did in as many cases as possible at the district court level.

Cyrus D. Mehta & Damira Zhanatova

Matter of Ho Revisited: Protecting Adjustment Applicants in Removal Proceedings When Visa Numbers Are Unavailable

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By Cyrus Mehta and Damira Zhanatova* 

The October 2026 Visa Bulletin created an unusual opening for some EB-4 applicants, including Special Immigrant Juveniles (SIJs), whose dates for filing have advanced to January 1, 2025.  As a result, these individuals may be eligible to file Form I-485 under USCIS’s October 2026 guidance permitting employment-based adjustment applicants to use the Dates for Filing chart, even though an immigrant visa is not currently available under the Final Action Dates chart. The EB-4 final action date in the October 2026 Visa Bulletin remains December 15, 2022. That filing opportunity, however, does not shield a noncitizen from DHS enforcement actions or placement in removal proceedings before a visa number becomes available for final approval of the adjustment application. For instance, an individual with a pending I-485 application filed when the Dates for Filing chart was current could still be detained while on a domestic flight within the United States. ICE has been coordinating with TSA to detain and charge as removable individuals with pending I-485 applications on the grounds that their initial visa status has expired or, in the case of an SIJ, that they entered without inspection.

That is where Matter of Ho, 15 I&N Dec. 692 (BIA 1976), becomes relevant. In Ho, the Board held that where respondents were eligible for adjustment in all other respects, and the sole reason they could not obtain adjustment was that visa numbers that had been available when the applications were filed later became unavailable, the case should be held in abeyance rather than denied outright. The Board expressly applied that principle in deportation proceedings, rejecting the notion that such protection disappears simply because the respondent seeks adjustment before an Immigration Judge rather than USCIS. Ho stands for the proposition that, when adjustment is otherwise approvable, the subsequent unavailability of a visa number should not defeat the application. Instead, adjudication should be paused until a visa number becomes available. The logic of Ho is therefore closely tied to whether visa availability is the only remaining obstacle to adjustment and whether no other issues remain to be resolved.

The same principle appears in Matter of Briones, 24 I&N Dec. 355, 357 n.3 (BIA 2007), where the BIA, citing Ho in footnote 3, stated that a respondent who had a current priority date when the adjustment application was filed is not rendered ineligible by subsequent visa retrogression, although final approval must be held in abeyance. EOIR’s continuance guidance likewise provides that cases filed when a visa was immediately available but later retrogressed should be held in abeyance. Federal case law has similarly treated Ho as binding Board precedent that Immigration Judges and the BIA must at least confront when retrogression is the only barrier to completion of adjustment processing. In Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008), the Fifth Circuit reversed and remanded a denial of a continuance on abuse of discretion grounds where the agency failed to apply Matter of Ho.

Matter of Ho can be distinguished from Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026). Pinzon Rozo did not involve post-filing visa retrogression. The respondent there had an approved SIJ petition, but there was a nearly four-year gap between his priority date and the currently available visa date, so the BIA held that the Immigration Judge erred in granting a continuance to await a visa for an uncertain and lengthy period. Unlike Matter of Ho, Pinzon Rozo did not involve a visa-availability case, but instead involved an I-360 petition that had been filed when visa dates were not current, with the beneficiary waiting for the priority date to become current.

That distinction matters for SIJ and EB-4 respondents who file during a month like October 2026, when USCIS permits use of the Dates for Filing chart, and who are later put into proceedings, including after an ordinary domestic-travel encounter, before the Final Action Date is current. It also matters where the applicant properly filed and visa numbers later retrogressed before the Immigration Judge is ready to adjudicate the application. The argument is not that filing an I-485 prevents DHS from issuing an NTA. Rather, once a properly filed adjustment application is pending and visa-number unavailability is the sole remaining obstacle, Ho and Briones provide the strongest basis for asking the court to continue proceedings or hold the application in abeyance.

Although this discussion arises in the EB-4 context, the same reasoning may extend to EB-2 and EB-3 beneficiaries who timely filed I-485 applications under the Dates for Filing chart and were later placed in removal proceedings after their underlying H-1B or L-1 status expired. Such applicants may have reasonably relied on the lawful period of stay authorized by their pending adjustment applications and on employment authorization issued through those applications, only to be charged by ICE with removability because their nonimmigrant status had lapsed. For these respondents as well, where the adjustment application was properly filed and visa-number unavailability is the only remaining impediment to final adjudication, counsel should invoke Ho and Briones in seeking a continuance or abeyance rather than denial of adjustment.

The harder question is whether an Immigration Judge must accept that argument when the case was filed with USCIS under the Dates for Filing chart, but the Final Action Date is not current by the time the court addresses adjustment. The best reading for respondents is that this situation is closer to Ho and Briones than to Pinzon Rozo, because the problem is later visa-number unavailability at the time of adjudication, not an initially speculative wait for visa eligibility.

Matter of Ho is newly important in the October 2026 EB-4 context and in other contexts in which an I-485 application was filed with an I-130, I-140, I-360, or I-526 petition when the Dates for Filing chart was current. Where the applicant was eligible to file, and the only thing preventing approval is the subsequent unavailability of a visa number, counsel should argue for abeyance or a continuance under Ho and Briones and distinguish Pinzon Rozo as a case involving a priority date that was never close to becoming current in the first place.

Where a respondent properly filed for adjustment, is eligible in all other respects, and later cannot obtain final approval solely because visa numbers are unavailable, counsel should argue for abeyance or a continuance under Ho and Briones and distinguish Pinzon Rozo as a case involving a priority date that was never close to becoming current in the first place. Under Ho, when visa-number unavailability is the only obstacle, the case should be held in abeyance until visa availability returns rather than denied on that basis. Counsel can argue that this approach is consistent with the Board’s longstanding treatment of visa retrogression and is particularly appropriate where the respondent complied with all legal requirements and visa-number unavailability arose only after the adjustment application was properly filed.

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

 

Cyrus Mehta

When Government Threats Collide with the Ethics of Asylum Representation

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DHS General Counsel James Percival’s September 15, 2026 letter to the American Immigration Lawyers Association is troubling not because it reminds lawyers that fraud and frivolous filings are prohibited. No responsible immigration lawyer disputes that. It is troubling because the letter largely collapses the distinction between fraud, frivolousness, and a claim that the government ultimately finds unpersuasive, while casting immigration lawyers as responsible for the asylum backlog. That accusation demands a clear response.

Immigration lawyers do not need an elementary lesson in asylum law from an administration that has systematically sought to close the courthouse door to asylum seekers. They need the government to administer the law faithfully. Congress made asylum available to a person who is unable or unwilling to return to the country of nationality “because of persecution or a well-founded fear of persecution” on account of a protected ground. The phrase “well-founded fear” is not surplusage, and it does not impose a more-likely-than-not test.

In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Supreme Court made this point unmistakably clear. The asylum standard is more generous than the clear-probability standard governing withholding of removal. An applicant need not prove that persecution is more likely than not. As the Court explained, even a one-in-ten chance of persecution may establish a well-founded fear in an appropriate case. A lawyer who advances a good-faith claim within that legal framework is not abusing the system merely because DHS disputes the claim or an adjudicator eventually denies it.

The letter also treats broad categories—gang violence, domestic violence, private-actor persecution, and conditions in countries DHS considers generally safe—as though labels can substitute for individualized adjudication. They cannot. Persecution by a nonstate actor may support asylum when the government is unable or unwilling to control the persecutor. Particular social group claims require careful analysis of the facts, the statute, and governing precedent. Moreover, the BIA’s precedents defining “particular social group” are not beyond challenge. 

After Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), courts must exercise independent judgment on questions of statutory interpretation and may not defer to an agency merely because the statutory language is ambiguous. Lawyers may therefore challenge in good faith restrictive BIA interpretations of “particular social group,” even if Percival believes the underlying claims do not furnish a basis for asylum. Internal relocation likewise must be reasonable, not merely imaginable. These are fact-intensive and legally contestable questions, not grounds for branding counsel unethical before a claim has been heard.

Immigration lawyers already operate under demanding ethical rules that require advocacy, not timidity. ABA Model Rule 1.1 enjoins lawyers to provide competent representation, including the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the matter, while Model Rule 1.3 requires reasonable diligence and promptness. Model Rule 3.1 permits lawyers to advance claims that have a nonfrivolous basis in law and fact, including a good-faith argument for the extension, modification, or reversal of existing law. Lawyers may therefore boldly advance asylum claims for their clients, challenge restrictive precedent, and seek the development of the law so long as their factual representations are truthful and their legal arguments are made in good faith. The ethical boundary is clear: under Model Rule 3.3, a lawyer may not knowingly make a false statement of fact or law to a tribunal or offer evidence the lawyer knows to be false. These duties do not run only in the government’s direction. A lawyer also has a duty not to abandon a legally supportable claim out of fear that an enforcement agency may retaliate merely because the issue is contested or the facts are difficult.

That is why Percival’s warning is especially pernicious. The threat of fines and discipline, untethered from a careful distinction between knowingly fraudulent conduct and good-faith advocacy, can chill lawyers from representing the very people asylum law was enacted to protect. Asylum seekers often arrive traumatized, detained, unfamiliar with the legal system, unable to speak English, and without records that can readily corroborate events occurring in repressive or chaotic countries. They are made still more vulnerable when the government portrays their advocates as presumptive participants in wrongdoing.

Nor can DHS fairly lay the asylum backlog at the feet of immigration lawyers. The government has aggravated the very problem it now blames on the bar. At a time when the immigration courts were already overwhelmed, the administration fired or pushed out more than 100 immigration judges and sharply reduced the corps available to adjudicate cases. Backlogs reflect years of congressional underfunding, shifting adjudicatory standards, administrative dysfunction, abrupt policy changes, and a system in which immigration courts remain housed within the prosecuting agency. Removing adjudicators while accusing lawyers of causing delay is not accountability. Lawyers who present applications authorized by statute do not create a backlog simply by insisting that their clients receive the process the law promises.

Percival’s suggestion that countries in the Western Hemisphere are generally safe, and that claims from the region therefore lack a basis for asylum, is equally untenable. The Western Hemisphere is not a single country-condition category, and generalized assurances of safety cannot displace evidence concerning a particular applicant, persecutor, locality, or government’s ability and willingness to provide protection. The United States itself invaded Venezuela in January 2026, using military force and removing its president—an intervention that produced further political and regional upheaval. An administration that has contributed to instability in Latin America cannot credibly invoke the hemisphere’s supposed safety as a reason to prejudge asylum claims arising there. Whether an applicant has a well-founded fear must be decided under the statute on an individualized record, not by geopolitical slogan.

AILA has properly rejected the premise that immigration lawyers are the culprits and reaffirmed the ethical obligation of lawyers to pursue lawful relief for vulnerable clients. Percival’s letter is not an isolated attack. In 2017, Attorney General Jeff Sessions denounced “dirty immigration lawyers” who, he claimed, encouraged clients to make false asylum claims by supplying “magic words.” In March 2025, the White House issued a memorandum accusing the immigration bar and major law firms’ pro bono practices of coaching asylum seekers to conceal their past or lie about their circumstances, and linked this alleged conduct to fraud and threats to national security. These sweeping accusations stigmatize an entire bar for providing representation that the law permits and professional ethics often require.

Immigration lawyers should not be intimidated. They should continue to represent vulnerable immigrants without fear, guided by the rules of professional conduct: investigate the facts, counsel clients candidly, reject fabrication, and advance every nonfrivolous meritorious argument available under the law. They should also continue to press for interpretations of asylum law that protect asylum seekers and to develop the law through good-faith challenges to restrictive agency precedents. A lawyer who complies with ethical rules while pursuing an asylum claim has nothing to fear or apologize for. That lawyer is not undermining the legal system, but performing noble work essential to its integrity. The asylum system depends not only on truthful applications and ethical lawyers, but also on an executive branch that respects statutory rights, controlling precedent, individualized adjudication, and the essential role of counsel. Let immigration lawyers stand fearless and proud, knowing that every ethical defense of an asylum seeker vindicates the highest promise of our profession—to ensure that every asylum claim receives the fair and searching consideration the law requires.

Cyrus Mehta & Kaitlyn Box*

The Fourth Circuit Breaks with Pickering: Why Yanez Piedra v. Blanche Matters for Vacated Convictions

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For more than two decades, the Board of Immigration Appeals has treated some vacated criminal convictions as continuing to exist for immigration purposes. Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the critical question was why the criminal court vacated the conviction. A vacatur based on a substantive or procedural defect eliminated the conviction for immigration purposes, while a vacatur granted for rehabilitative reasons or to avoid immigration consequences generally did not.

In Yanez Piedra v. Blanche, No. 25-1258 (4th Cir. Aug. 24, 2026), the Fourth Circuit declined to apply that framework to the inadmissibility provision in INA § 212(a)(2)(A)(i). Invoking Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) to exercise independent judgement, the court held that a person whose conviction has been vacated and whose charge has been dismissed is no longer an “alien convicted of” that offense. The decision is significant not only for noncitizens seeking to eliminate the immigration-related consequences of criminal convictions, but also as an early illustration of how the end of Chevron deference under Loper Bright may unsettle longstanding BIA doctrine.

Lizbeyde Yanez Piedra, a native and citizen of Mexico, came to the United States as a child and subsequently became a lawful permanent resident. She was convicted of two counts of common-law forgery in North Carolina, and, in a separate case, possession of marijuana. After returning to the U.S. from a trip to Mexico, Yanez Piedra was placed in removal proceedings as an applicant for admission. She conceded inadmissibility as an “alien convicted of” a controlled-substance offense and a crime involving moral turpitude, and sought an INA 212(h). The immigration judge (IJ) denied the waiver application on several grounds, including that she had not established that the marijuana offense involved 30 grams or less, had not demonstrated the requisite hardship, and did not merit relief as a matter of discretion. The IJ nevertheless granted voluntary departure.

While her administrative appeal was pending, a North Carolina court vacated the marijuana conviction, and the state dismissed the charge. Yanez Piedra asked the BIA to remand her case in light of that development. Instead, the BIA applied Pickering. Because it concluded that the vacatur was not based on a substantive or procedural defect in the underlying criminal proceeding, the BIA continued to treat the marijuana conviction as operative for immigration purposes and found Yanez Piedra ineligible for the 212(h) waiver.

Yanez Piedra appealed to the Fourth Circuit, which began with an analysis of INA § 212(a)(2)(A)(i), a provision that makes inadmissible “any alien convicted of” a crime involving moral turpitude or a controlled-substance offense. In the court’s view, that language pertains to the noncitizen’s present legal status, not simply to whether a conviction existed at some point in the past.

Once the state court vacated Yanez Piedra’s marijuana conviction and the state dismissed the charge, she no longer stood “convicted of” that offense. The court also emphasized the ordinary legal consequence of vacatur: a vacated judgment no longer has prospective legal effect.

The government relied on INA § 101(a)(48)(A), which defines “conviction” to include a formal judgment of guilt and, in certain withheld-adjudication cases, a plea or finding of guilt coupled with punishment or restraint. However, that definition only identifies the circumstances that establish a conviction; it does not provide that a judgment remains a conviction after a court has vacated it, nor does it direct immigration adjudicators to examine the reason or motivation for a state-court vacatur. The court therefore found no textual basis for Pickering’s distinction between defect-based vacaturs and vacaturs granted for rehabilitative or immigration-related reasons. The relevant question in the Fourth Circuit’s view was whether the person remained “convicted of” the offense, not why the state court had eliminated the conviction.

The opinion is unusually direct about the significance of the Supreme Court’s repudiation of Chevron. The Fourth Circuit characterized the case as one in which a fresh judicial interpretation produces a “sharp break with past practice.” Before Loper Bright, courts often asked whether an agency’s statutory interpretation was reasonable. After Loper Bright, the question is which interpretation is best. An agency’s expertise and considered judgment may still be persuasive, but an agency cannot prevail merely because the statute is ambiguous and its interpretation is reasonable. Applying that independent standard, the Fourth Circuit concluded that Pickering reflected a policy judgment rather than the best reading of the statutory language Congress enacted. Nothing in § 212(a)(2)(A)(i), the court reasoned, instructs adjudicators to distinguish among vacaturs based on the reason they were granted.

The government also relied on Phan v. Holder, 667 F.3d 448 (4th Cir. 2012), in which the Fourth Circuit had applied Pickering in the naturalization context. Phan concerned INA § 316(a), which requires an applicant for naturalization to establish good moral character, together with INA § 101(f)(8), which bars a finding of good moral character for a person convicted of an aggravated felony, and the general definition of “conviction” in INA § 101(a)(48)(A). USCIS had concluded that Phan’s cocaine-distribution conviction remained an aggravated felony even though it had been set aside for rehabilitative purposes under the District of Columbia Youth Rehabilitation Act. Yanez Piedra presented a different statutory question. It directly concerned INA § 212(a)(2)(A)(i), which makes inadmissible “any alien convicted of” specified offenses. The panel emphasized the significance of that present-tense formulation. Unlike the provisions at issue in Phan, § 212(a)(2)(A)(i) required the court to determine whether the individual presently stood “convicted of” the relevant offense.

Loper Bright also cautioned that overruling Chevron does not, by itself, unsettle prior decisions upholding particular agency actions. Those decisions remain subject to ordinary principles of statutory stare decisis, and reliance on Chevron alone is not a “special justification” for overruling them. The Fourth Circuit, though, concluded that it did not need to decide how that principle would apply to a prior decision that actually resolved the same statutory question. Phan did not do so. The parties in Phan had assumed that Pickering supplied the governing framework, and the court had not considered—much less decided—whether the distinct phrase “any alien convicted of” in INA § 212(a)(2)(A)(i) permitted the BIA’s reason-for-vacatur distinction. Because an issue that merely “lurks” in the record is not resolved by precedent, Phan created no statutory holding to which stare decisis could attach on the question presented in Yanez Piedra. 

The court also rejected the government’s argument that Yanez Piedra had failed to exhaust her challenge to Pickering under INA § 242(d)(1). The BIA was bound by Pickering, and the Attorney General had endorsed the same framework. Although the BIA could theoretically refer a case to the Attorney General, such referral was discretionary. It was not an administrative remedy available to the petitioner as of right .INA 242(d)(1), the court reasoned, does not require a noncitizen to pursue a discretionary referral mechanism before obtaining judicial review. Requiring such a step would effectively turn exhaustion into a demand that a petitioner pursue a discretionary and potentially futile procedural maneuver.

Within the Fourth Circuit, Yanez Piedra gives practitioners a significant argument that a fully vacated conviction cannot support inadmissibility under INA § 212(a)(2)(A)(i), regardless of why the state court granted the vacatur. That can be particularly consequential where state post-conviction relief is available but the record does not establish a constitutional or procedural defect of the type contemplated by Pickering. A noncitizen may be able to obtain a state-court vacatur and dismissal without being able to satisfy Pickering’s reason-for-vacatur test. Yanez Piedra suggests that, at least under § 212(a)(2)(A)(i) in the Fourth Circuit, that distinction is beside the point.

The decision also offers a broader litigation strategy in the post-Loper Bright era: identify the precise statutory language at issue, determine whether existing circuit precedent actually construed that language, and insist on independent judicial interpretation rather than reflexive reliance on pre-Loper Bright agency doctrine. At the same time, the holding should not be read more broadly than the opinion permits. The court interpreted the inadmissibility language in INA § 212(a)(2)(A)(i); it did not purport to resolve every INA provision that turns on a conviction. Other provisions may use different language or implicate circuit precedent that cannot be distinguished as Phan was here.

The government may also argue outside the Fourth Circuit that existing precedent adopting Pickering remains binding unless and until reconsidered by the relevant court sitting en banc or by the Supreme Court. And a state-court order must actually vacate the conviction. A pardon, expungement, deferred disposition, etc. may not suffice.

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

 

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.