Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply To All Immigration Benefits

Form N-400, Application for Naturalization, asks broadly “Have you EVER committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Another broad question is “Have you EVER been a member of, involved in, or in any way associated with, any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?”  It would be difficult for an applicant to answer this question accurately or remember every instance of membership in his or her life. For instance, does the applicant need to include membership in a school club in 8th grade? Until recently, an inaccurate but immaterial response to these two questions could have resulted in both criminal liability and revocation of naturalization.

On June 22, 2017, in Maslenjak v. United States,  the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship under 18 USC 1425(a). Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

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

What is even more significant is that the Supreme Court sets a higher standard for demonstrating a connection between the violation and naturalization under 18 USC 1425(a) than the earlier standard of determining materiality under 8 USC 1451(a), the civil revocation statute, and elaborated at length in Kungys v. United States.  At issue in Kungys v. United States was whether the failure to indicate the correct date and place of birth was material to justify the revocation of Kugys’s citizenship under the civil provision. Justice Scalia writing for the majority held that the test of whether Kungys’ concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the former Immigration and Naturalization Service. The formulation in Kungys v. United States has been adopted in the State Department’s Foreign Affairs Manual to determine whether a visa applicant made a material misrepresentation that would render him or her ineligible for fraud or misrepresentation under INA 212(a)(6)(C)(i):

The word “tends” as used in “tended to cut off a line of inquiry” means that the misrepresentation must be of such a nature as to be reasonably expected to foreclose certain information from your knowledge. It does not mean that the misrepresentation must have been successful in foreclosing further investigation by you in order to be deemed material; it means only that the misrepresentation must reasonably have had the capacity of foreclosing further investigation.

See 9 FAM 40.63 N6.3-1

In Maslenjak v. United States, the Supreme Court built on the formulation in Kungys to create a heightened standard for the government to prove that a person committed a crime pursuant to 18 U.S.C. 1425(a), which provides: “knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship.” Justice Kagan developed the following standard:

[T]he Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation [citation omitted]. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit.

As to the second link in the casual chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation “would predictably have disclosed” some legal disqualification (citation omitted).   If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think §1425(a) requires.

Justice Kagan’s opinion went on to state that “[e]ven when the Government can make its two-part showing, however, the defendant may be able to overcome it. §1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”

Justice Gorsuch with whom Justice Thomas joined, issued a concurring opinion stating that there was no need for the Supreme Court to create a new formulation, and that the Court of Appeals could do just that.  “This Court often speaks most wisely when it speaks last, ” according to Justice Gorsuch.  In a separate concurring opinion, Justice Alito suggested that the formulation in Kungys v. United States should apply equally to §1425(a).  According to Justice Alito, “§1425(a) does not require proof that a false statement actually had some effect on the naturalization decision.” But this is pivotal to Justice Kagan’s new formulation. The illegal act must have somehow contributed to obtaining citizenship. Take Justice Kagan’s example of John obtaining a painting illegally. This would connote that John stole the painting from the museum or impersonated the true buyer when the auction house delivered it. But if John did something illegal on his way to buy the painting legally, such as excessively violating the speed limit or purchasing an illegal weapon, those acts did not contribute to obtaining the painting illegally. Justice Alito would see it differently. A runner who holds the world record wants to ensure that she gets the gold medal at the Olympics, and takes a performance enhancing drug. She wins the race and is disqualified. The second-place time is slow and sportswriters speculate that she would have come first anyway even without taking the drug. According to Justice Alito, she cannot argue that her illegal act of taking drugs did not make a difference and was not material to her performance in the race.

Justice Kagan’s logic should have more force over Justice Alito’s. A naturalization applicant who stole bread when he was desperately hungry, but was never arrested and does not answer “Yes” to the question of whether he had ever committed a crime for which he was never arrested, should not have his citizenship revoked. First, determining whether a criminal defendant has committed a crime is based on the applicable law where the alleged conduct occurred and whether a prosecutor was able to prove beyond reasonable doubt that the defendant met all the elements of the offense. If the applicable law provides defenses, such as the doctrine of necessity, then no crime would have occurred. This defense too – that the defendant stole bread to avoid death through starvation – also has to be established within the penal system.  It would not be appropriate for an applicant to judge himself guilty on an immigration form – or for his immigration lawyer to condemn him for theft. Even with respect to making an admission, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.  Justice Kagan’s heightened standard to demonstrate materiality should not just apply to 18 USC §1425(a), but ought to also apply to 8 USC §1451(a) cases as well as cases involving willful misrepresentation under INA §212(a)(6)(C)(i). The following words of Justice Kagan’s in Maslenjak v. United States are prescient:

Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen.  That would give prosecutors nearly limitless leverage – and afford newly naturalized American precious little security.

The need for a uniform heightened standard becomes even more urgent in light of questions in immigration forms becoming increasingly broad and ambiguous.   For example, the latest Form I-485 asks whether an applicant intends to “engage in any activity that would endanger the welfare, safety or security of the United States.”  The next question in Form I-485 asks whether the applicant intends to “engage in any other unlawful activity?”  If the applicant answered “No” to the latter question and was later found to have engaged in an unlawful activity that would have no bearing on either the procurement of the green card or on the naturalization, such as participating in a peaceful protest that resulted in an unlawful road blockage, a vindictive prosecutor could still potentially use this to revoke either permanent residence or citizenship. This would not be a just outcome. A lie told out of embarrassment, fear, a desire for privacy or lack of comprehension of the question asked – which is not relevant to naturalization, the green card or a visa –  should never result in revocation.

Analysis of the 60-Day Grace Period for Nonimmigrant Workers

The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. The rule took effect on January 17, 2017. My prior blog analyzed the key provisions of the rule. This blog examines the provision that authorizes a 60-day grace period for workers whose jobs get terminated while employed in nonimmigrant status.

The rule provides two grace periods to nonimmigrant visa holders. 8 CFR 214.1(l)(1) provides for a 10-day grace period at the start and end of the validity period for E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrant workers [note that H-2B, H-3, O and P nonimmigrants already enjoy 10-day grace periods in existing regulations].  8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Several questions have come up relating to when the 60-day grace period will trigger and how often can it be used. It would be useful to reproduce the provisions authorizing grace periods in their entirety for purposes of analyzing these questions.

§214.1 Requirements for admission, extension, and maintenance of status

(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

The answers to the questions I raise are not definitive as all of them involve a case of first impression, although some are based on the DHS’s responses to comments in the preamble, and USCIS may disagree. I do hope, however, that my attempted responses will be helpful for those who need to claim the grace period in situations that are not so clear cut.

How many times can I use the 60-day grace period?

The rule at 214.1(l)(2) states that you are entitled to the 60-day grace period “once during each authorized validity period.” 214.1(l)(1) defines validity period as a nonimmigrant who “may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.”

It thus appears that you are entitled to the 60-day grace period once during each validity period of the petition. Take for example an individual who has been admitted into the US under an H-1B visa petition with a validity period till December 31, 2017. If she gets terminated from her job with Company A, she will be entitled to the 60-day grace period that allows her to maintain H-1B status despite the cessation of employment. She finds a new job with Company B, which files an H-1B petition and extension of status within this 60-day period, resulting in an H-1B petition that is valid from August 1, 2017 to August 1, 2020. She arguably is now within a new validity period. If she gets terminated again by Company B, she should be able to seek another 60-day grace period.

The following extract from the preamble can aid us in this interpretation:

An individual may benefit from the 60-day grace period multiple times during hir or her total time in the United States; however, this grace period may only apply one time per authorized nonimmigrant validity period.

What if the new validity period filed by new employer Company B ends on the same date as the validity period of the petition filed by Company A?

Let’s now assume that December 31, 2017 is the final sixth year of this individual’s time spent in H-1B status. When the new employer, Company B, files the H-1B petition during the 60-day grace period, she is only entitled to H-1B status until December 31, 2017, which is the same validity period as the prior H-1B petition of Company A. If Company B terminates her, will she be entitled to a new 60-day grace period? The preamble to the final rule provides this guidance: “DHS clarifies that, while the grace period may only be used by an individual once during any single authorized validity period, it may apply to each authorized validity period the individual receives.” Although the end date of Company B’s H-1B petition, December 31, 2017, is the same as Company A’s, this is arguably still a new validity period even though it ends on the same day as the prior validity period. Therefore, she can argue that she is entitled to a new 60-day grace period. A new validity period should not be defined as having a different time frame from the older validity period; rather a new validity period resulted because of an extension request through a different petition. However, it is possible that USCIS may reach a different conclusion.

I got laid off by my employer while in H-1B status because the employer did not have enough business. Within 60 days, the employer got new business and rehired me again. Can I just resume employment with that employer without filing a new extension of status petition or leaving and returning to US again in H-1B status?

The purpose of the rule, especially at 214.1(l)(3), is to allow a worker to change or extend status within the 60-day period or to depart the US. However, if the worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, and the same employer files a new H-1B petition within the 60-day grace period, it could arguably create a new validity period. If the employee is terminated for a second time, it may be possible to argue that he is entitled to a new 60-day grace period.

Can I carry over unused days if I do not use all 60 days of the grace period?

The 60 days must be used consecutively and any unused days may not be used later in the same validity period or carried over into a subsequent validity period.

What if my job gets terminated when there are less than 60 days left of my nonimmigrant status?

The rule clearly states that you are entitled to a grace period of 60 consecutive days or until the end of the authorized validity period, whichever is shorter.

Can I get an additional 10 days grace period beyond the 60-day grace period?

In most cases the answer is “No”. However, there may be an exception where the cessation of employment was within the last 60 days of the validity period, and the worker was provided with a grace period of 10 days upon his last admission to the US. Under this limited case, the DHS will consider the nonimmigrant to have maintained status for 60 days immediately preceding the expiration of the validity period plus an additional 10 days. If the cessation of employment occurred when there were only 30 days left before the end of the validity period, then the individual should conceivably be able to claim a 30-day grace period plus 10 days.

Prior to my validity period ending in L-1A status, the same employer filed an extension of status, which got denied after the end of the prior validity period in L-1A status. Am I entitled to the 60-day grace period?

No. There is no grace period after an approved validity period has ended and when an extension of stay has been denied after that period. The 60-day grace period is intended to apply to individuals whose employment ends prior to the end of their approved validity period.

I ported while in H-1B status from Company A to Company B, and the petition for new employment is denied prior to the expiration of the validity period of the previous petition. Am I entitled to a 60-day grace period?

Yes. In this scenario, and as the preamble to the rule suggests, you will be entitled to a 60-day grace period. However, you will not be entitled to the grace period if the extension request is denied after the expiration of the validity period of the H-1B petition of Company A.

At issue is whether the grace period will be available if the same Company B files the H-1B again or must a new Company C file the new employer and extension petition? Since the grace period is applicable to the worker upon cessation of employment, it should not matter whether Company B or Company C files the new H-1B extension. However, readers should be forewarned that the USCIS still has discretion in determining whether the 60-day grace period is applicable or not. If Company B’s petition was denied for egregious reasons relating to fraud, the USCIS may likely not exercise its discretion favorably with respect to honoring the grace period.

Does it matter whether the employer terminates me or I leave the employer in order to be entitled to the 60-day grace period?

214.1(l)(2) states that the 60-day grace period triggers “on the basis of a cessation of the employment on which the alien’s classification was based.” Therefore, arguably it should not matter whether the termination occurred on the employer’s or the employee’s initiative. Again, the USCIS has discretion to decide whether a grace period will be applicable on a case by case basis.

Can I work during either the 60-day or 10-day grace period?

No. Because the rule was meant to facilitate the ability of nonimmigrants to transition to new employment, seek a change of status or depart the US, the rule clearly prohibits any form of employment.

The preamble to the rule even suggests that a nonimmigrant worker may not use the 60-day or 10-day period to work to start their own businesses too. However, if the activities for starting a business do not constitute work, especially if they would be permissible “non-work” activities under the B-1 visa, then one could argue that the person did not engage in prohibited activity during the grace period. However, this is risky given that the preamble has not made any distinction between work and non-work activities relating to the startup of a business.

Can I travel during either the 60-day or 10-day grace period in case of an emergency?

Although the rule is silent about travel, it is strongly advised that the nonimmigrant worker not travel during any of the grace periods. When the individual returns from the trip abroad, he or she will not be coming to join an employer and CBP will most likely not admit her. One of the purposes of the grace period is to facilitate departure from the US, and so it will be going against the intent of the rule if the individual departs and then tried to seek admission again. In the F-1 context, which provides a 60-day grace period to prepare for departure, see 8 CFR 214.2(f)(5)(iv), travelling back to the US is clearly not contemplated during this period.

Can I port to a new employer who files an H-1B petition during the 60-day grace period after my job was terminated by the old employer?

Yes. You are still considered to be maintain H-1B status during the grace period. If a new employer files the H-1B petition, you can exercise portability pursuant to INA 214(n) by commencing employment for the second employer after the H-1B petition has been filed with USCIS.

Can I request employment authorization in compelling circumstances while within the grace period?

Yes. The rule at 204.5(p) clearly states that the principal beneficiary of an approved petition when the priority date is not current can request a work authorization under compelling circumstances if the individual is in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status, “including the periods authorized by 214.1(l)(1) and (2)…..”

If I am unable to find a new job within the 60-day grace period, and find one after 60 days, and the new employer files the H-1B petition 80 days after the cessation of employment with my first employer, am I still eligible for an extension of H-1B status with the new employer?

The USCIS always has discretion to accept late filings based on extraordinary circumstances pursuant to 8 CFR 214.1(c)(4).

Can the USCIS give me less than 60 or 10 days of the grace period?

As noted, the USCIS can always exercise its discretion and will determine whether the facts and circumstances warrant shortening a grace period on a case by case basis. The following extract from the preamble is worth noting:

At the time a petitioner files a nonimmigrant visa petition requesting an extension of stay or change of status, DHS will determine whether facts and circumstances may warrant shortening or refusing the 60- day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60 days following cessation of employment and grant a discretionary extension of stay or a change of status to another nonimmigrant classification. See 8 CFR 214.1(c)(4) and 248.1(b). Such adjudications require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary’s activities after such cessation. While many cases might result in grants of 60-day grace periods, some cases may present factors that do not support the favorable exercise of this discretion. Circumstances that may lead DHS to make a discretionary determination to shorten or entirely refuse the 60-day grace period may include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, among other reasons.

The same logic would apply to the USCIS’s ability to exercise discretion with respect to the 10-day grace period.

How do I apply for the 60-day grace period?

There is no specific application or form. The USCIS will make an after the fact determination when you apply for an extension of status or change of status upon the cessation of employment. It is advisable to explain that you are using the grace period in a letter or affidavit.

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

Supreme Court May Have Bolstered Rights of Foreign Nationals with Ties to the United States

While disappointing that the Supreme Court allowed the ban to apply on visa applicants with no ties with the US from the banned countries, it may have permanently bolstered the rights of visa applicants who have ties to the US to challenge visa denials, which hitherto was not possible. This is the silver lining from yesterday’s court order.

In Trump v. IRAP, the Supreme Court decided to review the preliminary injunctions of President Trump’s travel ban in its next term. As an interim measure, however, the Court granted the government’s application to stay the injunctions of the Fourth and Ninth Circuits, but created a broad exception. The travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Through this statement, the Court overnight fashioned a new standard for determining against whom the ban would apply or not apply. The following extract from the Court’s order is worth noting:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

What constitutes a “bona fide relationship with a person or entity in the United States” will spawn plenty of litigation over the summer. Justice Thomas’s dissent also predicted this. The broad exception will fortunately still allow many impacted by the ban to still travel to the United States, and so the order is by no means a win for President Trump as he falsely boasts. Still, potential entrants who do not readily have ties with the United States will get impacted, and the image of the United States will take a further bashing as it would attract fewer visitors. For instance, would a tourist who has already made a booking with a hotel in the US with a non-refundable deposit be able to claim to have a bona fide relationship with an entity in the United States? What about an E-2 investor who is the 100% owner of his LLC in the United States, which served the legal basis of her investment to obtain the E-2 visa? An argument can be made that the E-2 visa holder has a bona fide relationship with the LLC, even if he wholly owns it, as a corporation enjoys its own existence separate and apart from its owner. One would hope that a battered spouse who has filed a self-petition from overseas under the Violence Against Women Act would not get affected even though she has severed ties with the US citizen abuser in the United States. Since one has to establish a bona fide relationship with a “person” rather than a US citizen, it can be argued that a nonimmigrant derivative spouse and child would be able to enter the United States to be with the principal nonimmigrant visa holder. Conversely, if the US citizen spouse lives overseas, the I-130 petition that she may have filed for her spouse should still be processed as the US citizen ultimately needs to have an intent to reside in the United States as a sponsor on Form I-864, Affidavit of Support.

Even beyond the travel ban, the Court’s new standard has overnight bolstered the chances of visa applicants to seek judicial review who have been refused a visa or admission if they have ties with the United States. In Kerry v. Din, both the opinions of the plurality and the concurrence gave short shrift to the fact that the beneficiary of an I-130 petition filed by his US citizen spouse could not claim a due process liberty interest because of his significant familial ties with a US citizen spouse. Instead, the long-held standard in Kleindienst v. Mandel was invoked, which is that so long as the visa refusal was facially legitimate and bona fide, the courts would not look behind the consular officer’s decision. Of course, if the refusal, while legitimate, suffers from a constitutional infirmity amounting to bad faith, as the Fourth Circuit analyzed in Trump’s travel ban, then the refusal may still not be bona fide. However, this is still a high burden to meet.

But when a plaintiff can show ties as the Court fashioned – through a bona fide relationship with a person or entity in the United States – it raises the specter of more meaningful liberty interests that deserve greater due process protections than the broad “facially legitimate and bona fide standard” in Kleindienst v. Mandel. The plaintiff with sufficient US ties can request for the factual basis behind a denial so that it can be addressed more effectively. Justice Breyer’s dissent in Kerry v. Din may have more force after yesterday:

Rather, here, the Government makes individualized visa determinations through the application of a legal rule to particular facts. Individualized adjudication normally calls for the ordinary application of Due Process Clause procedures. Londoner v. City and County of Denver, 210 U.S. 373, 385-386, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). And those procedures normally include notice of an adverse action, an opportunity to present relevant proofs and arguments, before a neutral decisionmaker, and reasoned decision making. See Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); see also Friendly, Some Kind of a Hearing, 123 U. Pa. L. Rev. 1267, 1278-1281 (1975). These procedural protections help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through the reasoned application of a rule of law. It is that rule of law, stretching back at least 800 years to Magna Carta, which in major part the Due Process Clause seeks to protect. Hurtado v. California, 110 U.S. 516, 527, 4 S.Ct. 292, 28 L.Ed. 232 (1884).

Moreover, when liberty interests are implicated, a plaintiff can claim that being denied access to counsel deprived her of her ability to properly challenge the denial. Presently, foreign nationals do not have access to counsel, leave alone the right to counsel, at consular interviews and ports of entry. AILA and AIC have filed a petition for rulemaking to allow access to counsel precisely based on one’s ties with the United States.

While the outcome of the case in the Supreme Court is unclear, the interim order has for the time being bolstered the rights of foreign nationals with ties to the United States even outside the context of Trump’s travel ban. This is clearly a positive development in the long run.

Sessions v. Morales-Santana: The Problems of Leveling Down

On June 12, 2017, the Supreme Court issued its decision in Sessions v. Morales-Santana, holding that the different treatment of unmarried mothers in INA §309(c), 8 U.S.C. §1409(c), was unconstitutional as a violation of equal protection.  Unfortunately, while the Court agreed with the Court of Appeals for the Second Circuit that there had been such a violation, the Court selected a different remedy for this violation that appears not to have helped Mr. Morales-Santana himself or, at least from a concrete perspective, anyone else.  This decision creates a number of problems, some obvious and some less so.

Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to a Dominican mother, Yrma Santana Morilla, and a U.S. citizen father, José Morales, who had been born in Puerto Rico in 1900.  “After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday,” as the Supreme Court explained, in order to work “for a U.S. company in the then-U.S.-occupied Dominican Republic.”  José and Yrma were married in 1970, and Luis Ramon Morales-Santana moved to Puerto Rico when he was 13 and then to the Bronx later in his childhood.

Mr. Morales-Santana was placed in removal proceedings in 2000 based on several criminal convictions, and his claim to U.S. citizenship was rejected by an immigration judge on the basis that his father did not have sufficient physical presence in the United States prior to Morales-Santana’s birth to transmit U.S. citizenship to him.  Under INA §301, 8 U.S.C. §1401, and specifically the provision of that statute which was formerly INA §301(a)(7) and now appears at INA §301(g), an unmarried U.S. citizen father, or a married U.S. citizen parent of either gender, must have accrued a relatively lengthy period of physical presence in the United States (or constructive physical presence based on certain qualifying employment by them or by their parent) in order to transmit citizenship to a child whose other parent is not a U.S. citizen or national.  The version of INA §301(a)(7) in effect when Morales-Santana was born in 1962 required that the father have been present for ten years, five of which had to have been after the age of fourteen, and so José Morales was held to have fallen short by 20 days, having left the United States 20 days before his nineteenth birthday.  The current version of INA §301(g) requires only five years of physical presence by the U.S. citizen parent, two of which must be after the age of fourteen, but it does not operate retroactively and so was no help to Morales-Santana.

If Morales-Santana had been born to an unmarried U.S. citizen mother rather than an unmarried U.S. citizen father, however, the applicable rule under the statute would have been different.  Under INA §309(c), as it existed at the time of Morales-Santana’s birth and as it exists (at least in the statute books) today, a U.S. citizen mother need only have one continuous year of physical presence in the United States in order to transmit citizenship to her out-of-wedlock child.  José Morales would easily have satisfied this requirement.

Before the Second Circuit, Morales-Santana argued first that he was actually entitled to U.S. citizenship under the statute as written, because his father’s time working for a U.S. company in the U.S.-occupied Dominican Republic should count towards the physical-presence requirement, and second that the distinction between the §301(a)(7) requirement for unmarried fathers and the shorter §309(c) requirement for unmarried mothers was unconstitutional gender discrimination.  The Second Circuit rejected the former argument, holding that José Morales’s employment with the South Porto Rico Sugar Company was not the sort of employment with the U.S. government or a public international organization that would qualify as constructive physical presence under §301(a)(7), and that the Dominican Republic was not a U.S. possession for these purposes in 1919 even though it was occupied by the U.S. military.  It accepted the latter argument, however, and held that to remedy the gender discrimination inherent in the statute, Morales-Santana should receive the benefit of §309(c) and be deemed a U.S. citizen as of his birth.

The Supreme Court in Morales-Santana agreed that the different treatment of unmarried fathers and unmarried mothers with regard to the required length of physical presence was an equal-protection violation, but disagreed with the Second Circuit on the appropriate remedy for this violation.  Rather than choosing to extend the benefits of INA §309(c) / 8 U.S.C. §1409(c) to Mr. Morales-Santana and others disadvantaged by the equal-protection violation, what commentator Michael Dorf referred to as “levelling up”, the Court determined that “levelling down”  and withdrawing the benefits of §309(c) from those to whom it applied was more consistent with Congressional intent, because §309(c) was merely an exception to the broader and stricter rule of INA §301(a)(7) / 8 U.S.C. §1401(a)(7).  “Going forward,” the Court said, “Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.”  Until Congress does so, however, the Court held that “[i]n the interim . . . §1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U.S.-citizen mothers.”  It seems very likely, although the decision did not make this explicit, that prospective application in this context refers to children born after the date of the Court’s decision, since those born before the decision to whom §309(c) applied would already have acquired citizenship at birth as a matter of law, whether this citizenship had yet been recognized by any administrative agency or not.

The Court’s choice of remedy, which Professor Ian Samuel described as “the mean remedy”, has attracted a great deal of commentary, much of it critical. This commentary is worth the reader’s time, but it is my hope that I may have some additional observations which have not previously been addressed by other commentators.

One problem caused by the Court’s choice of remedy in Morales-Santana, which has been hinted at in some other commentaries but not fully explored, is that the specific equal-protection violation at issue in the case has not actually been remedied by the Court’s decision.  If Mr. Morales-Santana had been the out-of-wedlock child of a woman named Josephine Morales rather than a man named José Morales, but every other fact of his case had remained the same, then he would be a citizen today.  Sons and daughters born in 1962 to unmarried women who met the one-year physical presence requirement are now citizens, under existing law.  But Mr. Morales-Santana is not a citizen.  He, or his father, has in a very real sense been denied the equal protection of the laws, and nothing about the Court’s decision changes this.

The difficulty is that true leveling down was not feasible in Morales-Santana as a matter of practicality or justice.  The Court could not reasonably have declared that every person who gained U.S. citizenship under §309(c), or even every person who did so after Morales-Santana himself was born, was no longer a citizen.  The U.S. citizenship of such people has already engendered truly immense reliance interests in many cases, and taking it away, after those people have structured their lives for decades based on the knowledge that they are U.S. citizens, would be a travesty.  The resulting chaos and disruption would be horrific.  This is presumably why the Court declared that its revision of the statute would operate only prospectively.  As a result, however, Mr. Morales-Santana, or perhaps more precisely his father, continues to suffer from gender-based discrimination relative to children born to unmarried women before 2017 and their mothers.   Other similarly-situated people continue to suffer from this gender-based discrimination as well.

A more subtle problem is that it is not completely clear when, exactly, the new rule displacing INA §309(c) is supposed to take effect.  Does it apply to all children born to unmarried women after June 12, 2017?  To all children born after the precise time that day that the Supreme Court announced its decision from the bench and handed out copies of the slip opinion to the press, if that time was even tracked by the Court or any other government agency?  (There is precedent for looking to time of birth to determine whether citizenship has been acquired: see Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010).)  To all children born after the Supreme Court issues its mandate in the case, which will occur after the disposition of any timely-filed petition for rehearing?  To all children born after the final version of the opinion is published in the U.S. Reports?

Also, whenever the new rule takes effect, how exactly are pregnant unwed U.S. citizens supposed to learn of it?  The statute itself still contains INA §309(c).  The State Department’s Foreign Affairs Manual (FAM), specifically 7 FAM 1133.4-3, still describes it as applicable.  Anyone who has not themselves been reading Supreme Court slip opinions, and is not being advised by a lawyer who has done so, will not know that the rule has changed.  This is significant because a pregnant U.S. citizen might in many cases have the option of traveling to the United States to give birth, making her child a U.S. citizen under INA §301(a) and Section 1 of the Fourteenth Amendment to the U.S. Constitution.  One who relies on the statute to say what it means, or even checks the FAM or speaks to a consular officer who checks the FAM, will not know of the necessity of giving birth in the United States, and may give up the opportunity to bestow U.S. citizenship on her child because she is unaware that such citizenship will not pass automatically.

The Court justified its choice of remedy in Morales-Santana partly by indicating that, if §309(c) were extended to unmarried fathers, that would still leave possibly unconstitutional discrimination, in that instance against all married parents as compared to all unmarried parents.  But there would be a relatively straightforward solution to that problem: the Court could remedy that unconstitutional discrimination by holding §309(c) to be an option available to all parents, married or unmarried, unless and until the statute were changed by Congress.  Going forward, Congress would still be free to choose a different requirement applicable to all genders and all marital statuses.

As this author has previously explained, the text of INA §301 and §309 and the administrative interpretations of those statutes that existed before the Supreme Court’s decision give rise to many potential serious anomalies.  There is a good argument to be made that the text should be revised, going forward, to fix these anomalies.  The Supreme Court’s choice of judicial alteration to the statute in the interim, however, creates more problems than it solves.

The “politically correct version”: What Donald Trump’s Recent Tweet and Previous Use of the Term “Politically Correct” Tell Us About His Revised Executive Order

Donald Trump weighed in earlier today via Twitter regarding the litigation about his travel-ban executive orders, tweeting among other things that “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”  It is, as others have pointed out, a bit odd that Mr. Trump, to whom the Justice Department ultimately reports given his current status as President of the United States, is expressing his disagreement with them via Twitter.  These tweets also, as the media has noted, undermine the Administration’s court defenses of the ban.

One point that does not yet seem to have been made is that Mr. Trump’s reference to the current version of the travel ban being “politically correct” has special significance in light of his past usage of that term. ACLU attorney Omar Jadwat, quoted by the LA Times, did observe that the reference to political correctness undercuts the government’s arguments:

Lawyers for the government “have made a diligent effort to demonstrate that this was not about religious animus,” he said, no[r] was it an effort to fulfill Trump’s campaign pledge to enact a “Muslim ban.” But Trump’s tweets show the president’s belief that scaling back the travel order reflected “political correctness,” and not his true intent.

The New York Times, as well, has observed that “in calling the revised order ‘politically correct,’ Mr. Trump suggested that his goal was still to make distinctions based on religion.” This usage of the term “politically correct” would indeed be indicative of religious animus even if Trump had not used the term previously, but it is especially telling in context.

In the usage of those at Donald Trump’s end of the American political spectrum, to say that something is “politically correct” is generally to say that it is unnecessarily or inappropriately tailored to avoid speaking of a minority group in a way that liberals would consider offensive. Donald Trump himself has indicated this understanding of the term “politically correct” in at least one of his own past tweets, and has done so specifically in the context of Islam. As he tweeted on July 4, 2016, :

With Hillary and Obama, the terrorist attacks will only get worse. Politically correct fools, won’t even call it what it is – RADICAL ISLAM!

That is, to Donald Trump, it is “politically correct” to avoid using the term “RADICAL ISLAM” in reference to terrorist attacks. It would appear to follow that the revised travel ban Donald Trump criticizes for being “politically correct” has, in his view, refrained from using those terms to avoid being offensive.  His Justice Department and revised executive order will not, to use his words, “call it what it is”—and what it is, in reality, is his attempt to act against Islam.

This is, to say the least, problematic for the government’s position in the travel ban litigation. The Court of Appeals for the Fourth Circuit upheld an injunction against the ban in IRAP v. Trump on the basis that even the revised ban “in context drips with religious intolerance, animus, and discrimination.” The President’s position, as evidenced by his latest tweets read in the context of his earlier tweets, appears to be that the revised ban has not made its religious animus clear enough.

Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States

The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against  President Trump’s travel ban, on the ground that it violated the Establishment Clause of the US Constitution, holds out hope for other similar challenges that have otherwise faced a high bar to overcome the Executive branch’s unbridled discretion to keep out non-citizens of the United States.

In a lengthy majority opinion, Chief Judge Roger Gregory asked whether the Constitution “protects Plaintiffs’ right to challenge an Executive Order that in the text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the EO was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security.

The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always give deference to the government’s national security justification. The following extract from the majority opinion is worth noting:

The Government argues that we should simply defer to the executive and presume that the President’s actions are lawful so long as he utters the magic words “national security.” But our system of checks and balances established by the Framers makes clear that such unquestioning deference is not the way our democracy is to operate. Although the executive branch may have authority over national security affairs, see Munaf v. Geren, 553 U.S. 674, 689 (2008) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)), it may only exercise that authority within the confines of the law, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645–46, 654–55 (1952) (Jackson, J., concurring); and, of equal importance, it has always been the duty of the judiciary to declare “what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

To what extent can IRAP v. Trump be extended to other situations where a visa may be denied in bad faith and thus not meet the “facially legitimate and bona fide” test of Mandel? In Kerry v. Din, the Supreme Court upheld the visa refusal of the beneficiary of an I-130 petition filed by his US citizen spouse under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(b). According to the concurrence by Justice Kennedy, the beneficiary, an Afghan national, who once worked for the Taliban government in Afghanistan, received sufficient notice by being provided the section number of the INA under which he was found inadmissible, and thus the government met the “facially legitimate and bona fide test” of Mandel. However, Justice Kennedy did indeed emphasize, “Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.”

In IRAP v. Trump, the plaintiffs successfully showed bad faith by President Trump who violated the Establishment Clause of the US Constitution. What other sorts of bad faith may a plaintiff show to convince a court to look behind the “facially legitimate and bona fide” test? Perhaps, if the facts in Kerry v. Din showed that the beneficiary was unlawfully detained for hours in the US Consulate during his visa interview and forced to admit that he was involved in terrorist activities on condition of being released, even though he was not, that could arguably be tantamount to bad faith? In this hypothetical situation, the constitutional violation which gives rise to bad faith would be the violation of the beneficiary’s due process rights rather than the violation of the Establishment Clause. The beneficiary, in this situation, could potentially cite to landmark cases such as Zadvdas v. Davis (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), Boumediene v. Bush, (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”).

Finally, the plaintiff would also need to demonstrate standing in order to bring the claim. To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In IRAP v. Trump, the government in an effort to object to standing to the plaintiffs asserted that in  Saavedra Bruno v. Albright, a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise. However, the court noted that Saavedra also stands for the proposition that when cases are brought by U.S. citizens, or when statutory claims are combined with constitutional ones, judicial review is permitted.

In a fact pattern similar to Kerry v. Din, the I-130 petitioner, a US citizen, would have standing to bring the action. What about an H-1B visa holder, with three months remaining on that visa, applies for a renewal of that visa at the US consulate? The consular officer, animated by the new rhetoric flowing from the administration that H-1B workers steal jobs of US workers, badgers the H-1B applicant, under threat of many years of imprisonment, to falsely admit she is not performing the duties indicated in the perfectly bona fide H-1B petition and revokes the existing visa as well as refuses to issue a new H-1B visa. Would the H-1B worker have standing to allege bad faith on the part of the consular officer? The H-1B plaintiff can potentially assert that she is residing in the US, and also enjoys “dual intent” under the H-1B visa. [Under INA 214(b), an H-1B beneficiary is allowed to harbor an intent to remain in the US permanently even though the H-1B visa is temporary].  If the H-1B holder has also been sponsored for a green card through the employer, this would further bolster her standing, as she had not just harbored an intent to reside permanently but has taken concrete steps to do so. Finally, the US employer can also file an action as the petitioner of the H-1B who will be affected if she is unable to resume employment in the US. Still, being overaggressive, coercive, and sloppy, even to an extent that would violate due process rights assuming the targets of one’s over-aggressiveness had standing to assert such rights, may not necessarily imply bad faith, such as having a hidden agenda like Trump’s travel ban. Nevertheless, the evolving jurisprudence in IRAP v. Trump does give other plaintiffs food for thought to blow a hole through the “facially legitimate and bona fide” wall set forth in Mandel.

The government may have maximum power to deny non-citizens admission into the US, but that power is not absolute. IRAP v. Trump, and  many other successful challenges to Trump’s travel ban, may provide a pathway for a plaintiff to seek judicial review of governmental actions that have been conducted in bad faith.

EB-5 Green Card, Ethics and Trump

The EB-5 green card program for foreign investors is very much in the news due to its connection with President Trump!

A series of news reports have highlighted the Kushner family’s attempt to raise funds through the EB-5 green card program from Chinese investors by suggesting Trump’s connection to one of its real estate projects through his son in law, Jared Kushner. Qiaowai  is a Chinese agency that acts as an intermediary between Chinese EB-5 investors and EB-5 projects, including the Kushner EB-5 project called One Journal Square in Jersey City. Qiaowai has touted this project’s close links to President Trump.  When Qiaowai did a road show in China recently, Nicole Kushner Meyer, Jared Kushner’s sister, was promoted as the event’s “heavyweight honored guest”.  According to the New York Times, Ms. Meyer told prospective investors that the Journal Square development project “means a lot to me and my entire family,” and that her brother served as chief executive of Kushner Companies before leaving the company to work for the president. Qiaowai’s founder, Ding Ying, has boasted about being close to Trump. Its website stated, “The fact that Ms. Ding has once again been invited to attend a presidential inauguration shows that the U.S. Congress values and approves of the Qiaowai group.” The US Immigration Fund, is the Regional Center promoting this project in the United States.

This close connection between an EB-5 project, the foreign migration agency, the Regional Center and Trump has resulted in a barrage of criticism as it once again brings up the specter of conflicts of interest. There has already been widespread concern about Trump’s businesses violating the Emolument Clause of the Constitution. At the same time, there has been scant commentary on the dilemma that such conflicts involving Trump and his family members pose for the immigration lawyer who represent EB-5 investors. Must the immigration lawyer, when providing a list of viable EB-5 projects that have resulted in green cards for the investor, now also recommend projects of the Kushner family because of their close proximity to President Trump? While an immigration lawyer should not be acting as an investment advisor, unless licensed, an immigration lawyer may still conduct “immigration due diligence” on behalf of the client. The immigration due diligence assesses the viability of the project, not with regard to whether it will deliver a rate of return, but from the perspective of whether the investor has a reasonable chance of getting the green card. Such diligence includes evaluating the past I-526 approvals through the project and whether the project will create the requisite 10 indirect jobs per investor to satisfy the EB-5 statutory requirement. It also includes whether the project is in a targeted area that qualifies for the $500,000 investment, whether the investment capital is at risk, the investor’s place in the queue regarding job allocations and a host of other considerations that are unrelated to investment advice. Conducting such immigration diligence is part of the immigration attorney’s ethical obligation to be competent under ABA Model Rule 1.1, which provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

The immigration lawyer must also consider other ethical rules, besides the duty of competence, when representing EB-5 investors:

Rule 1.2 addresses the scope of representation and the allocation of decision-making authority. According to this allocation, the client establishes the objectives, and the lawyer controls the means to pursue them.

Rule 1.4 on communication overlaps with 1.2: “A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.”

Rule 1.0 defines informed consent: “The agreement by a person to the proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Rule 1.3 on diligence emphasizes the lawyer’s commitment to the client. “A lawyer shall act with reasonable diligence and promptness in representing a client.” The first comment to Rule 1.3 expands on this statement. “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

As part of the lawyer’s competent representation and other ethical considerations on behalf of a prospective EB-5 investor client, must the ethical lawyer factor into consideration the EB-5 project run by the Kushner company due to its close relationship to President Trump? This is especially true when an intermediary such as a foreign migration agency in China has enticed the client to invest in a project that is close to the president. The lawyer may need to consider whether there is a likelihood of such an EB-5 project being treated more favorably, for example, by receiving less scrutiny with respect to its job creation plan, thus increasing the chances of a green card for the client? Hopefully, the answer should be “No,” but in the age of Trump, expectations have been defied and turned upside down many times over. In the not too distant past, then USCIS Director Mayorkas was investigated for appearing to show favoritism for EB-5 projects that had connections to Hillary Clinton’s brother and Senator Reid. Although Director Mayorkas did not face any sanction at the conclusion of the investigation, in an ideal world, an EB-5 project’s connection to Trump or his family ought not to matter. Both the financial advisor and immigration attorney should independently evaluate the project without regard to any political connections. By the same token, even the USCIS should independently evaluate the project, without regard to whether it is connected to a close family member of the president. It is also worth noting that the success or failure of an EB-5 application depends, not so much on the project, but on whether the investor can demonstrate the source of funds. In other words, is the investor able to demonstrate he or she was the owner of the funds from the very beginning? If the investor cannot demonstrate that he owned the funds, as opposed to an uncle depositing the money in the investor’s bank account, the EB-5 application will fail regardless of the strength of the EB-5 project. Therefore, the immigration lawyer can ethically advise that the success or failure of an investor’s EB-5 application may have nothing to do with how connected it is to the president.

Still, Flaubert said, “There is no truth. There is only perception.” If an investor hears that someone who invested in an EB-5 project connected to the Trump name got approved before she did in another EB-5 project, there will always be this lingering doubt in the mind of that investor. While Trump and his family members may yet be unaffected by their conflicts of interest, immigration attorneys have been left scratching their heads when representing EB-5 investors whether to ask clients to consider EB-5 projects close to Trump. Of course, while we are all witnessing a breathtaking compromise of ethics at the presidential level, it still behooves a lawyer to comply with the ethical rules when representing EB-5 investor clients. It is quite often the case that a foreign migration agent in China, such as Qiaowai, will hire the immigration lawyer to prepare and file EB-5 applications on behalf of its clients. Foreign migration agents play a crucial role in assisting the investor in assembling the documentation to demonstrate lawful source of funds, assisting in communications and translations and monitoring the statuses of all processes and filings of the investor. Still, as New York State Bar Ethics Opinion 1116 recently stated, it is imperative that the lawyer maintain her independence from the migration agent and that the lawyer’s judgment not be compromised. Therefore, if the migration agent has steered the investor into an EB-5 project with a close connection to Trump, it is incumbent on the lawyer to still maintain professional independence and to ensure that the lawyer’s judgment has not been compromised. The lawyer may wish to advise the client that the foreign migration agencies’ claims may be mere puffery.  If the lawyer accepts referrals from a foreign migration agent knowing that the investment selected by the agent will not be in the client’s best interest, the lawyer may be conflicted and must get informed consent from the EB-5 client under Rule 1.7(b). The client must acknowledge that the lawyer has a relationship with a foreign migration agent who may be steering the client to a project that may ultimately not be in the client’s best interest. Under no circumstances may a lawyer pay a referral fee to the foreign migration agent. If the foreign migration agent insists that the referral fee is for payment for expenses for services it provides, those services and expenses have to be identified and disclosed to the EB-5 investor client and should not cost more than services that could be found elsewhere.

Trump can remain in office for four years, and if he wins reelection, for a maximum of eight years, unless he is impeached before that! While Trump and his family members may disregard conflicts of interest and the truth, a lawyer cannot and should not follow suit. The lawyer must stay within the ethical rules – which includes not lying, not being compromised by conflicts and being competent – in order to outlast Trump by many decades.

Hazards of Various Forms of Leave At the Point of Termination of H-1B Employment

In most cases, termination of H-1B employment by either the at-will employer or employee is fairly straightforward. Once termination takes place, the employer in most cases is required to offer to pay the reasonable costs of the H-1B worker’s return transportation abroad, and the employer also should inform USCIS of the termination in order to withdraw the H-1B. For further details about the employer’s obligations at the point of termination, see Employer Not Always Obligation To Pay Return Transportation Costs Of An H-1B Worker.  Since USCIS published its Final Rule “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” in January 2017, workers in H-1B status can now benefit from a 60-day grace period during which they may try to get employment at another company or prepare to leave for their home countries. See 8 CFR 214.1(2).

And then there are the unique situations that require a more nuanced look at the rules and laws around various forms of leave. What happens when there is a contract for a garden leave, non-compete, or long-term notice period?  How do various forms of employment contracts affect this?  How does the recent USCIS announcement of increased fraud investigations affect how employers and workers alike prepare for potential site visits?  These are questions that H-1B employers and employees alike should explore.

USCIS has long recognized leaves of absences for H-1B employees to be valid, and these employees would still maintain status even during a lengthy leave of absence. Legacy INS policy is that an alien employed by the H-1B employer may take an extended leave and still be considered to maintain status ( See Letter of Efren Hernandez II, Director, then Business and Trade Services Branch of the Office of Adjudications, to Wendi S. Lazar, Esq. (March 27, 2001), reprinted, 78 INTERREL 616, Appx. II (Apr. 2, 2001)).  So long as the employer-employee relationship exists, the employee will maintain in status, and “the employer-employee relationship continues to exist when there is an identifiable tie between the employer and the alien.”  Thus, paid or unpaid leaves of absence, such as maternity or paternity leave, or for health or other personal reasons, would be recognized and the H-1B worker can maintain status throughout the leave so long as the employer-employee relationship continues.

As a policy memo or advisory letter does not have the same effect as a statute or regulation, USCIS could still decide that even an employee who is fully compensated while in non-productive status has failed to maintain lawful nonimmigrant status. In fact, in a 1999 advisory opinion concerning reductions in force, USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status” (See Letter of Thomas W. Simmons, Brach Chief, Business and Trade Branch to Harry J. Joe, HQ 70/6.2.8, HQ 70/6.2.12, reprinted in 76 NO. 9 Interpreter Releases 378 (March 8, 1999)). However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.

Non-compete clauses or restrictive covenants are common in highly competitive industries where intellectual property is extremely valuable. They are sometimes also called garden leaves when the employee, usually highly compensated, is paid throughout the non-compete period.  Non-compete agreements restrict employees from directly or indirectly engaging in employment with any competitor during a certain agreed-upon time period. Although non-compete arrangements are frowned upon when they apply to lesser compensated employees who are not paid during the restricted period, thus preventing them from taking new jobs, these garden leave arrangements are distinguishable as they apply to highly compensated employees who are fully paid during the restricted period and who possess valuable knowledge of the company.  They are often enforced after termination of employment, meaning they can adversely affect nonimmigrant workers who cannot start employment at a competing firm for upwards of 12 months in some cases.  Although an H-1B employee subject to a 12-month non-compete might be able to stay in the U.S. during the 60-day grace period, after that time, he would no longer have status in the U.S. because H-1B employment has been terminated and he could not violate the non-compete agreement by starting work at a competing firm.  That H-1B employee would have to leave the U.S., upend his life, and move himself and perhaps family members abroad to wait out the non-compete period.  This can cause tremendous chaos and uncertainty.  And it matters not whether the employee is being paid by the employer during the non-compete period: if it is taking place after termination of the H-1B employment, the employee has no choice but to leave the U.S. or else risk being in violation of status and even accrue unlawful presence once the 60-day period lapses.  Ideally, non-competes enforced after termination of employment should last 60 days so that the grace period can cover it.  If at all possible, H-1B employees should negotiate down the non-compete periods if they wish to avoid having to leave the U.S. for an extended amount of time to wait out the non-compete.

In some cases, the non-compete period takes place before formal termination of employment. In essence, the H-1B worker is in the U.S. not permitted to work for her employer, yet also not permitted to seek employment at a competing firm.  Usually the employee is also paid the H-1B wage throughout this period.  In such a situation, even if the leave is in connection with an eventual termination of employment, it is nonetheless arguably permissible so long as the H-1B worker is treated as an employee and receives the regular paychecks.  In the event the worker is terminated before the H-1B petition expires, the 60-day grace period begins and the worker maintains H-1B status in that time. The employer at that point should effectuate a bona fide termination by offering the return transportation, if applicable, and sending notification to the USCIS regarding the termination.

Further, this unique situation begs the question: must the employer pay the H-1B worker throughout this pre-termination non-compete period? The answer is “yes’, according to this author. The DOL “no benching rule” requires employers to pay the H-1B worker who is not working due to a nonproductive status brought about at the direction of the employer (benching because of lack of work or a lack of permit/license).  See 20 C.F.R. §655.731(c)(7)(i); INA §212(n)(2)(B)(vii).  But if the nonproductive period is due to conditions unrelated to employment at the employee’s voluntary request and convenience, such as to take care of a sick relative, or maternity leave, employers do not have to pay a salary.  Id.  Non-competes may not necessarily fit neatly into either category since this was not a period requested voluntarily by the employee and it is also not similar to a stop in the employment for lack of work.  However, since the employer considers the H-1B worker to still be employed and is the party imposing the non-compete, the employer should be paying the salary in order to avoid being held liable for back wages during the non-compete period.  Is it also problematic that someone is being paid an H-1B salary for effectively not working for many months?  It seems counterintuitive to allow this to occur because much of the H-1B’s regulations are meant to ensure that foreign workers do not displace or hurt the wages or working conditions of U.S. workers.  However, under the LCA regulations, there is no violation so long as the H-1B worker continues to be paid the required H-1B wage as listed on the LCA, whether or not the individual is performing the tasks of the position.

Recently the USCIS announced that it would increase site visits to find H-1B visa fraud and abuse. The approach involves targeting H-1B dependent employers and instances where employers have placed their H-1B workers at customer or client worksites.  Increased site visits will likely mean that sometimes they will involve the H-1Bs of workers who might be spending time in a non-compete or garden leave period.  During such a site visit, the employer must be prepared to answer questions about all of its nonimmigrant employees, including those who may be away from the office due to an enforced non-compete.  If possible, the employer should present copies of the non-compete agreement in writing, whether it was a clause in the employment agreement or a separately negotiated contract.  The employer should also monitor the date the non-compete period started, and also have ready access (if possible) to pay statements in order to demonstrate that the H-1B worker is still paid the required LCA wage and remains employed.

Lastly, it should be noted that the H-1B worker who is subject to a non-compete should be very careful about travel. Even with a valid visa and ongoing salary payments, it would be difficult for an H-1B worker to explain upon reentering the U.S. that he or she is not going to be performing work, even if employed at the H-1B employer.  On the other hand, if the still employed H-1B worker can justify that he or she is maintaining H-1B status even under the non-compete, then the H-1B worker has a good argument to being admitted into the United States in H-1B status.  While the law relating to H-1B status at the point of termination is grey, this blog points out situations that allow nonimmigrant workers to compete with US workers for highly compensated jobs, and thus participate in its rewards and risks, including being able to maintain status during paid garden leave. The same logic can apply to highly compensated nonimmigrant workers in other statuses such as L-1, TN, O-1, E-3 or H-1B1.

(This blog is for informational purposes only and should not be viewed as a substitute for legal advice)

Cross Currents In Federal Preemption of State and Local Immigration Law Under Trump

Preemption of federal immigration law over punitive state immigration laws was a hot topic until very recently, especially when Arizona enacted a tough enforcement law known as SB1070. The Obama administration fiercely challenged the law under the preemption doctrine, which ended up in the Supreme Court in Arizona v. USA. Although the majority opinion found most of the provisions of SB1070 preempted, the Supreme Court nevertheless upheld Section 2B, popularly referred to as the “show me your papers law.” The Court’s logic of upholding Section 2B was that it did not create a new state immigration law, but merely allowed state enforcement personnel to obtain a federal determination as to whether a person they had lawfully apprehended was lawfully present in the United States. Many other states introduced copycat “show me your papers laws.”

Texas just passed a law SB 4 that includes not only “show me your papers” provisions, but also imposes sanctions on sheriffs, local police and even campus police departments if they do not share information with federal immigration authorities, do not honor a detainer or prevent a state enforcement officer from seeking a determination of immigration status of a person under a lawful detention or arrest. The sanctions include civil penalties and criminal penalties, as well as removal of persons holding elective or appointed positions who violate the law.

Will the Trump administration challenge similar state encroachments on federal immigration law like President Obama did? Or do we need to be writing the obituary of the preemption doctrine when it relates to federal immigration law? Even if the Texas law goes unchallenged by the federal government which it likely will, will private plaintiffs be able to challenge the law under the preemption doctrine? Preemption stems from the Supremacy Clause of the United States Constitution (Article VI, Clause 2), which establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. While there are notable exceptions when a state immigration law is not preempted, a state law that conflicts with federal immigration law stands a good chance of being preempted under the Supremacy Clause.

A good test of how preemption will play out in the future is Arizona’s appeal of the Ninth Circuit decision in Arizona Dream Act Coalition v. Brewer. The Ninth Circuit held that Arizona was precluded from discriminating against an employment authorization document (EAD) issued to a recipient under President Obama’s Deferred Action for Childhood Arrival (DACA) program as valid proof of eligibility for an Arizona driver’s license. Under DACA, young people who came to the United States before the age of 16 and fell out status could apply for deferred action and an EAD.

On August 15, 2012, when DACA took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an EAD issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus toward DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Coalition found that these arbitrary classifications defining authorized status were preempted under federal law and put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Since the Ninth Circuit’s ruling in Arizona Dream Act Coalition, there has been a dramatic shift in the way unauthorized immigrants are viewed since Trump’s presidency. As part of his election campaign against unauthorized immigrants, Trump railed against DACA as a vivid example of President Obama’s unconstitutional usurpation of powers from Congress. But after his inauguration, Trump did a volte face stating that he would not immediately rescind DACA and would deal with these kids “with heart.” DACA’s fate tenuously hangs in balance, and completely subject to the whims of a tempestuous president. Still, unauthorized immigrants who crossed the border are conflated with criminals, and any crimes that may have been perpetrated by such a noncitizen is viewed as preventable if the individual was either deported before the crime occurred or was not let in at all. The Trump administration issued an Executive Order that beefs up enforcement, essentially reverses carefully calibrated enforcement priorities of the Obama administration and threatens to sanction sanctuary jurisdictions by cutting off federal funds.

Arizona, perhaps emboldened after Trump’s presidency, recently challenged the Ninth Circuit ruling in the Supreme Court. In its March 29, 2017 petition for a writ of certiorari, Arizona contended that the Ninth Circuit erred by assuming that President Obama’s DACA program that granted deferred action to young adults brought to the U.S. illegally as minors was a valid “federal law” that can trump state police power. The granting of licenses is a state concern and cannot be preempted by an unlawful exercise by Obama, Arizona further argued.  Fourteen states have joined Arizona’s bid to overturn the Ninth Circuit ruling by filing an amicus brief. Texas Attorney General Ken Paxton affirmed when unveiling the amicus brief, “We stand with Arizona against illegal federal overreach by the former president, who bypassed Congress to enact an immigration program he did not have the authority to create.” It is unlikely that the Trump administration will come in the way of these states in their challenge.

Still, despite the Trump’s administration’s reluctance to defend preemption and DACA, the rule of law ought to trump presidential caprice. Although Texas v. USA challenging President Obama’s Deferred Action for Parental Accountability (DAPA) ended up as a 4-4 draw in an 8-member Supreme Court after Justice Scalia’s death, there are other robust decisions that uphold preemption by virtue of the fact that the federal government has the ability to exercise discretion regarding immigration enforcement.  In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), the conservative Fifth Circuit struck down a Farmers Branch, TX, ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government’s ability to exercise discretion relating to removal of non-citizens is a key reason for a state or local regulation of immigration being preempted under the Supremacy Clause of the US Constitution:

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a   person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.

However, the lower Fifth Circuit decision in Texas v. USA upholding the preliminary injunction still provides ammunition to those who wish to bolster state immigration laws. The states’ amicus brief in support of Arizona’s challenge in Arizona Dream Coalition draws heavily from the Fifth Circuit decision in asserting that DACA, like DAPA which conferred deferred action on undocumented parents of citizen or resident children, was viewed as unlawful. The states amicus argues that President Obama created a category that gave lawful presence to aliens who were otherwise not authorized to remain in the United States. Like DAPA, which was successfully challenged, DACA, according to the amicus brief, also cannot bestow lawful presence by the Executive, and thus DACA cannot preempt Arizona state law in not recognizing an EAD of a DACA recipient. If the Supreme Court decides to hear Arizona Dream Coalition, it will be pitted against Arizona v. United States.

Till then, notwithstanding the Trump administration disavowing prosecutorial discretion to broad classes of people, the federal government’s discretionary authority as a basis for preemption still stands, as poignantly articulated by the Supreme Court in Arizona v. United States:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their   families,  for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Given strong precedents in favor of preemption, there is hope that state immigration enforcement laws can still be successfully challenged. On the other hand, it is not clear whether the broad discretion in federal immigration enforcement as recognized in Arizona v. USA be applicable to a federal program like DAPA or even DACA, and if DAPA or DACA is viewed as overstepping executive authority, whether they could be used as a basis for preempting a state law that does not accord recognition to recipients of such programs for state benefits such as driver’s licenses. Now that Justice Gorsuch is the ninth nominee, it remains to be seen whether the Supreme Court’s majority will uphold the reasoning of the Fifth Circuit in Texas v. USA or continue to uphold the federal government’s broad discretion, as recognized in Arizona v. USA. Clearly, the current Trump administration would have no interest in again pursuing Texas v. USA on its merits even though it has not rescinded President Obama’s DAPA memorandum of November 20, 2014. The current decision in Texas v. USA is a preliminary injunction and not a decision on the merits.

There is yet another emerging trend that is worthy of observation. In the Trump era, immigration friendly states and localities, known as sanctuary jurisdictions, have decided not to cooperate with federal immigration authorities with respect to routinely sharing information of foreign nationals who may be arrested in the state penal system or honoring a federal immigration detainer. In San Francisco v. Trump, San Francisco and Santa Clara Country successfully challenged  Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which, in addition to outlining a number of immigration enforcement policies, purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law” and to establish a procedure whereby “sanctuary jurisdictions” shall be ineligible to receive federal grants.” In the preliminary injunction order, the court in San Francisco v. Trump, among other things, held (citing Printz v. United States, 521 U.S. 898 (1997)) that the federal government cannot compel the states to enact or administer a federal regulatory program under the Tenth Amendment. The new Texas law SB 4 was enacted by the state, and so it will be difficult to argue under Printz v. US that the federal government cannot compel a state to do its bidding. It is uncertain whether the show me your papers part of SB 4 can be preempted in light of Arizona v. USA upholding s similar show me your papers provision, Section 2B of SB 1070. A challenge will have to be brought by a private plaintiff that the Texas SB 4 law is preempted as it forces state entities to get into the business federal immigration enforcement, which is a purely federal matter. It also makes the state’s compliance with a detainer mandatory, when federal courts have held that such compliance is not mandatory. See e.g. Galazara v. Szalezyj. At the same time, because Section 2B was upheld in Arizona v. USA, it may be difficult to challenge the similar show me your paper provision in SB 4. Still, a way to challenge this is to demonstrate that it penalizes an entity for preventing an officer from making such a determination, and so challenging the penalty rather than the ability of a local enforcement authority to make the determination of the immigration status may be a way to thread the needle. Moreover, Arizona’s 2B was upheld as a preliminary injunction before the law took effect. If there are instances of egregious violations, 2B and other similar provisions can be challenged again.

There is some irony that those who disfavor Arizona style immigration enforcement laws, including yours truly, cheered when the federal district court ruled in favor of San Francisco and Santa Clara County. Upon careful reflection, this is not a case of double standards. From a policy perspective, state immigration enforcement laws ought to be preempted as they can lead to discrimination and uneven enforcement when untrained state police mistakenly detain people, including potentially US citizens, who may be here lawfully. Even state laws that “indirectly” enforce immigration law through landlord-tenant ordinances or by penalizing employers who hire unauthorized immigrants, state enforcers are more likely to make errors in determining who is authorized to remain in the United States and who is not. In Chamber of Commerce v. Whiting, the Supreme Court upheld Arizona’s employment sanction law as it fell under a savings clause of a federal statutory provision, 8 U.S.C. § 1324a(h)(2), that otherwise preempted state law. Even in Whiting, Chief Justice Roberts assumed that there would be no errors in verifying the status of employees as the state would check with a federal database pursuant to 8 USC 1373(c). If the federal determination revealed the person was a US citizen, that would make it obvious that the person was authorized to work. Conversely, if the federal determination revealed that the person has been removed, the Chief Justice erroneously assumed that this would reveal that the person is not authorized to work. However, even those with removal orders can obtain work authorization in many instances, a prime example being one who is under an order of supervision pursuant to 8 CFR 274a.12(c)(18).  David Isaacson astutely points out, “The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable.” On the other hand, the federal government should not be compelling states to share information as it would undermine trust in local the local policy who may need to work with local communities, including undocumented immigrants, in preventing crime. Even if there are a few cases of undocumented immigrants who have perpetrated crimes, using the immigration system as a pretext for preventing crimes is not the solution. Crimes are committed in every community, and even by Americans.  Immigrants do not have a propensity to commit more crimes. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. There is a role for immigration enforcement under the INA by the federal government and states should not be in the same business.

There is a lot of turbulence in preemption doctrine, with some states passing immigrant unfriendly laws and others passing immigrant friendly laws. The prior Obama administration directed its ire at immigrant unfriendly states while the Trump administration is directing its ire at immigrant friendly states. Now is certainly not the time to close the book on the tumultuous story of preemption as a new chapter is being written.

You Ask a Silly Question, and You Get a Silly Answer: Speeding, Terrorist Babies, and Why DHS Should Consider Revising or Eliminating Certain Form Questions

During the recent Supreme Court oral argument in Maslenjak v. United States, Chief Justice John Roberts pointed out that the government’s interpretation of the statute at issue there implies that a naturalization applicant who has driven 60 miles per hour in a 55-mile-per-hour zone, and does not reveal this on the application form, could be subject to prosecution and denaturalization years later. The government argued in Maslenjak that even an immaterial misstatement on a naturalization application, if proven to have been intentional, is a basis for criminal conviction under 18 U.S.C. § 1425, which automatically results in revocation of naturalization under INA § 340(e). As Chief Justice Roberts pointed out, Question 22 on the Form N-400, Application for Naturalization, asks whether the applicant has “EVER committed, assisted in committing, or attempted to commit a crime or offense for which you were NOT arrested?”  This is, as even the government admitted at oral argument, an extremely broad question.  (A wonderful amicus brief filed by Professor Nancy Morawetz and Mitchell Kane of Washington Square Legal Services, on behalf of the Immigrant Defense Project and several immigrant-rights organizations, highlighted the existence of this and several other questions that are extremely expansive, unclear, or both.)

In what may at first seem to be unrelated news, Britain’s The Telegraph recently reported on an incident in which “[a] three month old baby was summoned to the US embassy in London after his grandfather accidentally ticked a box claiming the youngster was a terrorist.”  Harvey Kenyon-Cairns evidently had to go to a visa interview, and missed his scheduled flight, when his grandfather accidently selected the “yes” answer on the ESTA application for travel under the Visa Waiver Program to the question: “Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage, or genocide?”.  It is, of course, highly unlikely that a three-month old baby would have such a history or such intentions.  Nonetheless, this electronic selection apparently caused CBP to deny young Mr. Kenyon-Cairns authorization to travel under the Visa Waiver Program, meaning that he instead needed to apply for a visa at a U.S. consular post.

The briefs and oral argument in Maslenjak discuss many reasons why immaterial misrepresentations should not be considered a ground for criminal conviction or denaturalization.  For one thing, the statute speaks of procuring naturalization contrary to law, and as Justice Ginsburg asked in oral argument: “how can an immaterial statement procure naturalization?” Based on the oral argument, several commentators have suggested that the Supreme Court is likely to reject the government’s broad position.   Moreover, it does not seem likely that Harvey Kenyon-Cairns will be subject to any consequence of similar magnitude to denaturalization owing to his grandfather’s error, though he may face difficulty in seeking to use the Visa Waiver Program in the future.  Even if neither the government’s position in Maslenjak nor the Kenyon-Cairns incident prove to have lasting serious consequences, however, they do raise a different concern in this author’s mind: why are questions like these being asked in the first place?

It would be a rather unusual combination of evil intent and scrupulous honesty that would result in someone answering “yes” to a question like the one on the ESTA form that inquires whether they “seek to engage in . . . terrorist activities, espionage, or genocide?”  Perhaps the backward-looking portion of the ESTA question might gather more affirmative responses from honest and repentant former terrorists, although it still seems unlikely that this scenario arises often.  Even if the government does want to screen out that small population of honest former terrorists, spies, or mass murderers, however, the portion of the question referring to future intentions seems superfluous.  It might also be worth configuring the ESTA system so that it does not act on answers purporting to show terrorism by children under a certain age—a record which shows an infant as a terrorist is obviously the result of some kind of error.

It also seems unlikely that very many people answer Question 22 on the Form N-400 in the affirmative, and then disclose something which the government would actually find useful in adjudicating their citizenship application. To start with, most non-lawyers, unlike the learned Chief Justice of the United States, may not be in a position to determine whether they have committed a “crime or offense” for which they have not been arrested.  Of the people who do understand the question and are able to make such a determination, some very honest applicants might then disclose the sort of list of speeding incidents of which Chief Justice Roberts spoke in his hypothetical—incidents which should not bear on their naturalization in any event.  Only a rare combination of legal acumen, past bad behavior, and current honesty would result in an applicant disclosing, in response to Question 22, a past crime which could potentially preclude their naturalization.

Nor are these the only questions on DHS application forms to which useful affirmative answers are likely quite rare. For example, Question 7 of Part 3 of the Form I-485, Application to Register Permanent Residence or Adjust Status, asks whether the applicant, “during the period from March 23, 1933 to May 8, 1945, in association with either the Nazi government of Germany, or any organization or government associated with the Nazi government of Germany, ever order, incite, assist, or otherwise participate in the persecution of any person because of race, religion, national origin political opinion?” Nearly 72 years after the end of the period mentioned, the number of initial applicants for immigration benefits old enough to have culpably engaged in such activity is likely vanishingly small, although it is possible that some teenage persecutors now in their 80s, or people who were in their 20s during the 1940s and are now in their 90s, might apply for adjustment.  Question 5 of Part 3 of that same Form I-485 asks whether the applicant “intend[s] to engage in the United States in: a. Espionage?  b. Any activity a purpose of which is opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unlawful means?  c. Any activity to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information?”  It seems unlikely that anyone with such malevolent intent would be so forthright as to admit it in the application.  There are many other examples as well.

It may be that DHS includes these questions not so much in the hope of eliciting an affirmative response, but in the hope of being able to charge those who answer “no” with fraud or misrepresentation in the event that the answer ought to have been “yes”. Given the sorts of circumstances in which this would come up, however, it does not seem worth the hassle and potential for error that the inclusion of such questions imposes on the rest of the applicant population (and, for that matter, on the adjudicating officers who must review the answers).  The underlying substantive points being asked about would generally, if proven, suffice to justify later adverse action; trying to get a terrorist, Nazi, or criminal on the record lying about their terrorism, Nazism or criminality is in some sense redundant.

Someone who committed acts of terrorism or Nazi persecution in the past, or does so in the future, is inadmissible and deportable on that basis alone, pursuant to INA §212(a)(3)(B), §212(a)(3)(E), §237(a)(4)(B) and §237(a)(4)(D). One who engages in attempts to overthrow the government by unlawful means, or espionage, sabotage or violation of export-control laws, as asked about on Question 5 of Part 3 of the I-485, would be deportable under INA §237(a)(4)(A) even if an immigration officer had not previously detected their intent and declared them inadmissible under INA §212(a)(3)(A). With respect to the infamous Question 22 at issue in Maslenjak, one who is naturalized despite having committed crimes which they did not reveal has either concealed a crime which would be material and grounds for denial of naturalization on the basis of lack of good moral character, in which case the broad request that they admit to it is beside the point, because their later conviction will show that they lacked good moral character; or has concealed only minor crimes or offenses which would not be a basis for denial of naturalization, in which case trying to denaturalize them for that concealment is problematic for the reasons explored at length in the Maslenjak oral argument.

DHS should reconsider whether what is gained by asking these sorts of questions outweighs what is lost in terms of time and opportunity for farcical error (as with young Mr. Kenyon-Cairns the infant terrorist). If the answer to a question on a form is a foregone conclusion in all but a vanishingly small percentage of cases involving improbable combinations of malfeasance and honesty, the question probably should not be on the form in the first place.