Tag Archive for: Chevron deference

Cyrus Mehta & Kaitlyn Box*

Although the Fifth Circuit has Justified Detention Without Bond for Noncitizens who Entered Without Inspection, Courts Outside the Fifth Circuit Are Not Bound and Can Use Independent Judgment Under Loper Bright 

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By Cyrus D. Mehta and Kaitlyn Box*

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

Thus far, Loper Bright’s influence on federal courts’ handling of immigration cases has been relatively subtle under the Immigration and Nationality Act (INA) but it has proved a powerful tool for challenging the Board of Immigration Appeal (BIA)’s reinterpretation of INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A),  and INA 236(a), 8 U.S.C. 1226(a) to hold that noncitizens who entered without inspection (EWI) are not eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A). This BIA decision was a marked reversal of policy, as bond had been permitted for noncitizens who entered without inspection for three decades, since the passage of the Immigration Act of 1996. The decision also disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which notably excludes respondents who have entered without inspection. Addressing this discrepancy, the BIA stated that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”. 

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

However, a string of recent district court rulings have relied on Loper Bright to reject the theory that noncitizens who entered without inspection are ineligible for bond as set out in Matter of Yajure Hurtado. These decisions invoke Loper Bright to emphasize that judges must independently interpret INA §§ 235 and 236, rather than automatically deferring to the BIA’s interpretation, and arguing that EWIs are eligible for § 236(a) detention and, thus, bond hearings. The courts reasoned that DHS’s new policy departs from three decades of consistent practice and lacks clear statutory grounding, thereby maintaining bond eligibility for these individuals. See, for example, Barco Mercado v. Francis, Guerreno Orellana v. Moniz, and Pizarro Reys v. ICE.

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

Nonetheless, most district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. District court cases that have cited Buenrostro to date have primarily done so to point out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for example,  Aroca v. Mason, Pascual Jose-de-Jose v. Noem,  Carlos Roldan Chang v. Noem. In a New Jersey district court case, Judge Padin wrote in her opinion that the court was “unpersuaded” by the Fifth Circuit’s decision in Buenrostro, reasoning that “the majority’s interpretation risks rendering substantial portions of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Department of Homeland Security was not likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who is unlawfully already in the United States as well as those who present themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025).   Only a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g.  D.M.R.D. v. Andrews and Zhuang v. Bondi.  Even the Fifth Circuit’s decision in Buenrostro-Mendez also does not preclude release based on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit did not consider whether a noncitizen detained under 8 U.S.C. § 1225 may be constitutionally entitled to a bond hearing at the outset of proceedings, or even to release on constitutional grounds. It also leaves intact habeas corpus as a key mechanism for challenging unlawful prolonged detention.

The BIA in Yajure Hurtado invoked Loper Bright to conclude that the language under INA 235(b)(2)(A) is clear and explicit to justify the detention of a noncitizen who entered without inspection without bond. Paradoxically, the majority of courts who have also invoked Loper Bright have done so to justify that they need not pay deference to the BIA’s interpretation of INA 235(b)(2)(A) in Yajure Hurtado. An administrative agency like the BIA cannot use Loper Bright to insulate itself from a court’s independent review of the statute. Only a federal court can invoke Loper Bright to justify why it is not deferring to the agency’s erroneous interpretation of a statute. To date, there have been hundreds of federal court decisions that have not paid deference to Yajure Hurtado and are also not deferring to the Fifth Circuit decision in  Buenrostro-Mendez v. Bondi. 

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

Cyrus Mehta

Federal Court Relies on Loper Bright to Overturn EB-1 Denial Based on the Final Merits Determination

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In Mukherji v. Miller, a district court in Nebraska recently set aside the denial of a petition of extraordinary ability on the ground  that the “final merits” determination was unlawful. 

Although the petitioner satisfied five out of the ten criteria for establishing extraordinary under 8 CFR 204.5(h)(3), when only three were needed to be satisfied, the USCIS denied the extraordinary ability petition because the petitioner failed to establish the “high level of expertise required for the E11 immigrant classification through the “final merits determination.” 

As background, an individual can obtain permanent residence in the U.S. under EB-1 by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Olympic Gold Medal). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 C.F.R. § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

The Plaintiff in Mukherjee v. Miller contended that this “final merits” determination is not found in the statute or regulation and is taken from the Ninth Circuit’s decision in Kazarian v. USICS, which the USCIS adopted as a nation-wide policy on December 2, 2020. The Court held that the USCIS did not properly create the two step process. Indeed, the USICS unlawfully adopted the final merits determination without notice and comment rulemaking. The final merits determination had the force of law, and the USCIS ought to have ordinarily abided by the notice and comment procedures prescribed by the Administrative Procedure Act, 7 U.S.C. § 553(b). 

In addition, the agency acted arbitrarily and capriciously for failing to acknowledge and reason that it was changing its policy. Pursuant to Encino Motorcars LLC v. Navarro, agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.  Encino Motorcars requires that the agency must display awareness that it is changing its position and that there are good reasons for the new policy. This did not happen with the final merits determination. 

Perhaps the most significant part of the decision is that the court acknowledged  Loper Bright Enterprises v. Raimundo, wherein the Supreme Court in 2024 diminished the validity of deference to an agency’s interpretation of a statute under Chevron.  With the very limited deference after Loper Bright, all questions of law will be determined by the  Court. The validity of the final merits determination is clearly a question of law, not fact. Accordingly the Court found that the two-tier analysis was not valid at its inception.  

Mukherjee v. Miller did not go against Kazarian in its entirety, it only found that the final merits determination was unlawful. In my prior blog entitled The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications under the Employment-Based First Preference I wrote that when Kazarian was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian had been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary.  

Now Mukherjee v. Miller has relied on Loper Bright to hold that the final merits determination was unlawful although many courts have adopted it.   Even the Fifth Circuit in Amin v. Mayorkas     adopted the final merits determination, based upon which it upheld the denial of Mr. Amin’s extraordinary ability petition even though he met three of the ten criteria. The Fifth Circuit held that the USCIS did not violate the APA by not adopting a formal rule as the final merits determination was an interpretive rather than a legislative rule and do it did not need to go through notice and comment. The Fifth Circuit issued Amin v. Mayorkas in 2022 before the Supreme Court brought about the demise of Chevron deference.  

The Court in Mukherjee v. Miller while reviewing the merits of the USICS’s decision held that it was an arbitrary and capricious decision. The reviewing officer hailed to articulate the required standard and the failure to meet the standard by the plaintiff. It appeared that the plaintiff did not meet the final merits because she failed to indefinitely stay at the top of her field. The Court held that “[I]t is clear that the Plaintiff in this case was at the top of her field. No one argues that is not accurate. The Agency based its decision on whether she continuously received awards recognizing her status or kept up with that level of production. The Court finds nothing in the statutory scheme that would support such a finding.”  

It remains to be seen whether other courts will also be nudged by Loper Bright to disregard the USCIS’s final merits determination. In Scripps College v. Jaddou, a case decided just prior to Loper Bright, the Court did not discard the final merits analysis but still overturned the USCIS by holding that USCIS cannot and should not, under the cover of the second step final merits determination, be allowed to introduce new requirements outside the parameters of the regulatory criteria or reverse its prior acceptance of evidence under the regulatory criteria. Prior to Mukherjee v. Miller, most courts have clung onto the final merits determination even when reversing the USCIS denial (as in Scripps College), but now future courts have Loper Bright on their side to not pay deference to the final merits determination while  still relying on Kazarian to shoot down the circular argument, which is  that one does not need to submit extraordinary evidence under one of the ten criteria to establish extraordinary ability.  

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Cyrus Mehta

No Dramatic Changes in Immigration Cases after Loper Bright? Some Bright Spots Emerge

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

Loper Bright is already reshaping how federal courts handle immigration cases under the INA, but the change is more incremental and nuanced than revolutionary so far. Courts are repeating Loper Bright’s core rule that courts must exercise independent judgment on statutory meaning and may not defer to the BIA or DHS simply because the statute is ambiguous. At the same time, courts are  invoking Loper Bright’s statutory stare decisis language to preserve pre-2024 Chevron-era immigration precedents, rather than discarding them wholesale. Courts are also using their own independent judgment by analyzing the INA provision but are reaching the same outcome. 

However, there are bright spots too. In a recent district court decision, a district court invoked Loper Bright to overturn the denial of an employment-based first preference extraordinary ability case. Courts have also not paid deference to the Board of Immigration Appeal’s reinterpretation of INA 235(2)(A) and INA 236 holding that noncitizens who entered without inspection (EWI) are not eligible for bond.

Below is a summary of  selected cases regarding how courts  are using Loper Bright in immigration-related decisions: 

Ineffective Assistance Counsel under Matter of Lozada

In an Eleventh Circuit case on ineffective assistance in removal proceedings,  Gutierrez-Mikan v. Attorney General (11th Cir. 2026),  the petitioner argued that Loper Bright undermined Matter of Lozada and circuit precedent enforcing Lozada-style requirements such as filing a bar complaint against the prior attorney against whom ineffective assistance was alleged.  The Court rejected that argument and  explained that Loper Bright stops “unthinking” Chevron deference to agency interpretations of ambiguous statutes, but Lozada did not rest on a statutory interpretation of the INA; it was an exercise of the BIA’s authority to regulate practice before the immigration courts, which the circuit had already adopted as binding precedent.

The Court reasoned that Lozada did not interpret an unambiguous provision under the INA but was part of the Board’s broad discretion in considering motions to reopen deportation orders

The Court then expressly invoked Loper Bright’s stare decisis passage in a footnote:

Loper Bright “did ‘not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful … are still subject to statutory stare decisis despite  change in interpretive methodology.’”

“Mere reliance on Chevron cannot constitute a special justification for overruling such a holding… That is not enough to justify overruling a statutory precedent.”

In ineffective-assistance litigation, Loper Bright is not being treated as a ticket to unwind established Lozada-based requirements. Courts are  instead using Loper Bright to reaffirm that Chevron is dead going forward, but Chevron-era INA precedents still bind under statutory stare decisis. In Gutierrez-Mikan the Court also noted that Loper Bright was not applicable as Lozada was not interpreting an ambiguous statutory provision.

Crime involving moral turpitude  

In Solis-Flores v. Bondi (4th Cir. 2025), the Fourth Circuit held that a Virginia conviction for receipt of stolen property (VA Code § 18.2-108) is a crime involving moral turpitude (CIMT). The court determined that knowingly possessing stolen goods with dishonest intent is inherently base and constitutes a CIMT. 

Even after the Supreme Court’s 2024 ruling in Loper Bright eliminating Chevron deference, the Fourth Circuit found that the statute, which requires knowledge that the property was stolen, aligns with their established, independent definition of a CIMT. The Court reconsidered the question without Chevron deference and again independently concluded that the prior conviction (receipt of stolen property) was a CIMT, reaching the same result as under pre-Loper Bright. It expressly stated that Loper Bright “changes the analysis but does not alter the result.”

Even where the Supreme Court has told circuits to reconsider immigration rulings in light of Loper Bright, courts often reaffirm the same outcomes using their own interpretation of the INA, rather than deferring to the BIA.

In another Fourth Circuit case, Chavez v. Bondi (4th Cir. 2025) the petitioner Chavez  contended that petit  larceny  under a Virginia penal provision isn’t  a  CIMT because it doesn’t require a   sufficiently culpable mental state and doesn’t involve reprehensible conduct.  

The Fourth Circuit explicitly reconciled  Loper Bright with  immigration case law developed by the BIA such as in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016) and gave deference to its finding that a theft offense is a crime involving moral turpitude. 

Similarly, in Lopez v. Garland  (9th Cir. 2024) the  Ninth Circuit considered whether the BIA’s holding in Matter of Diaz-Lizarraga “constitutes a CIMT if it includes an intent to deprive either permanently or under circumstances where the owner’s property rights are substantially eroded” was entitled to deference. The Court gave Skidmore deference to BIA’s interpretation in Matter of Diaz-Lizarraga, finding it “thorough and well-reasoned”, and consistent with judicial precedent. 

Jurisdiction and defective Notice to Appears

In the defective NTA litigation (omission of time/place), the Second Circuit  in Penaranda Arevalo v. Bondi (2d Cir. 2025) addressed Loper Bright but held that Loper Bright did not change its existing precedent in Banegas Gomez v. Barr (2d Cir. 2019), which had already concluded that NTA defects do not strip immigration court jurisdiction because “no ‘statutory glue bonds the Immigration Court’s jurisdiction to § 1229(a)’s requirements.”

The Court emphasized that its jurisdictional holding was its own reading of the statute, not Chevron deference, so Loper Bright did not disturb it. 

Exceptional and Extremely Unusual Hardship

In Moctezuma–Reyes v. Garland  (6th Cir. 2024), the Sixth Circuit addressed the question of how much deference should be given to BIA’s interpretation of the meaning of “exceptional and extremely unusual hardship.”  Even in light of Loper Bright, the Court developed a two part test – courts can still defer to agency interpretations if the statute uses broad language and makes clear that “Congress expressly and explicitly delegated discretion to the agency”. 

The Court affirmed the BIA’s denial of cancellation of removal under this new standard as the petitioner did not meet the stringent “exceptional and extremely unusual hardship” standard under the two part test. 

The case is widely cited as one of the first major tests of how courts handle agency interpretations following Loper Bright.  Rather than automatically deferring to the BIA’s interpretation of “hardship,” the Sixth Circuit conducted its own statutory analysis. It concluded that while courts must now use their own judgment to interpret laws, they can still find agency interpretations “informative” and “persuasive” if they align with the statute’s text.

When Does a Child Stop Being a Child for Cancellation Hardship

Several federal courts have now cited Loper Bright in cases analyzing when a child “ages out” as a qualifying relative for cancellation of removal under INA § 240A(b)(1)(D), 8 USC 1229b(b)(1)(D). The main issues are:

At what time the child must meet the INA § 101(b)(1) “under 21” definition (filing date, IJ merits hearing, or date of final decision), 

How Loper Bright affects deference to the BIA decision in  Matter of Isidro-Zamorano, which that the  held that a qualifying child who turns 21 before the adjudication of her parent’s application for cancellation of removal does not remain a qualifying relative under the hardship requirement of § 1229b(b)(1)(D), and 

Whether Loper Bright allows courts to adopt a more noncitizen-favorable age-fixing rule (e.g., at application filing), especially where agency delay caused aging out.

In the decisions discussed below, courts uniformly acknowledge that Chevron is gone, but most still adopt the final decision/ continuing-application approach, either because the text is “unambiguous” or because the BIA’s reading remains the most persuasive under a non-deferential review.

In Diaz-Arellano v. U.S. Att’y Gen (11th Cir. 2025),  the Eleventh Circuit addressed when a child must be under 21 to qualify for cancellation of removal under § 1229b(b)(1)(D). The Court noted that  Loper Bright “formally overruled Chevron deference.” It stated that, with Chevron “out of the picture,” the court must exercise its “independent judgment” when reviewing the BIA’s decision and “exercise that interpretive authority whether or not the governing statute is ambiguous.”

The panel then held that the text of § 1229b(b)(1)(D) unambiguously requires a qualifying relative at the time the immigration court finalizes its decision on the application. It explained that, if an applicant proceeds based on hardship to a child, “there must be a child—an unmarried person under the age of twenty-one—when the final decision on cancellation of removal is made.”

The Court explicitly cited Loper Bright to reject Chevron deference and to justify its own textual reading of § 1229b(b)(1)(D).

Despite that, it ended up in line with the BIA’s “continuing application” concept, effectively confirming that age is tested at the final IJ decision (or final agency decision), not at filing.

In Yupangui v. Bondi (2d Cir. 2025) the petitioner sought cancellation based on hardship to his U.S.-citizen daughter who turned 21 while his case was pending. He argued that the statute is ambiguous on “aging out” and that, under Loper Bright, no deference is owed to the BIA’s continuing-application reading. He urged the Court to fix his daughter’s age as of the date he filed the cancellation application, or the date of the individual hearing, or the date when the hardship evidence was presented. The panel recognized that Loper Bright overruled the Chevron framework and that the petitioner was asking the court to choose a different, non-deferential interpretation of § 1229b(b)(1)(D).

The government argued that even without Chevron, the BIA’s reading remains the best interpretation: cancellation is a “continuing application,” so a qualifying child’s age is “properly considered at the time an application for cancellation of removal is decided,” citing Matter of Isidro-Zamorano.

The Second Circuit ultimately agreed that a qualifying child must still be under 21 when the application is finally decided. It found that by the time the BIA ruled on the motion to reopen, the daughter had aged out, so “there will be no exceptional hardship to a qualifying relative” going forward. The Court explicitly aligned itself with the Tenth and Eleventh Circuits as the “only other courts of appeals to have considered this issue since Loper Bright,” citing Rangel-Fuentes v. Bondi (10th Cir. 2025) and Diaz-Arellano.

Yupangui squarely addressed the hardship prong—the Court held that because the daughter is no longer a qualifying child at the time of the final decision, the “exceptional and extremely unusual hardship” element cannot be satisfied, regardless of earlier hardship.

In Perez-Perez v. Bondi (6th Cir. 2025), the Sixth Circuit addressed when to measure qualifying-child status under § 1229b(b)(1)(D. 

The BIA denied cancellation solely because the petitioner’s daughter turned 21 while the case was on appeal, i.e., before the BIA decision, and thus was no longer a qualifying child. The Court recognized that, after Loper Bright, it is “no longer obligated to defer to the BIA’s interpretation of the INA,” but also notes the general principle that issues not addressed by the BIA should be remanded. The Court held that the child’s age is determined when the Immigration Court finalizes the decision. The dissenting opinion held that the child’s age is fixed at the time of the  BIA decision rather then the IJ makes the decision.

Bright Spots

Final Merits Determination in Extraordinary Ability Cases

In Anahita Mukherji v. Loren K. Miller, et al the district court in Nebraska, set aside the USCIS’s denial of an extraordinary ability petition under the person of extraordinary ability category pursuant to INA 203(b)(1)(A). The Court  found that the two tier system – where the person who meets three out of ten regulatory criteria under 8 CFR 204.5(h)(3) is also subject to a broad and amorphous “final merits” determination – not deserving of deference after Loper Bright.  This is indeed a bright spot  post Loper Bright. The USCIS had seized on the words “final merits determination” in Kazarian v. USCIS (9th Cir. 2010) to create a two system without going through notice and comment or providing good reasons for the new policy. The Court held that all questions of law will be determined by the Court, and found that the two tier final merits analysis was not valid at its inception. The Court need not have relied on Loper Bright to reach this outcome as the final merits analysis could have been discarded for a number of other reasons,  but it got the nudge from Loper Bright.

Disregarding the Yajure Hurtado Decision in Detention without Bond Cases

On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A) despite allowing bond since the passage of the Immigration Act of 1996.

After almost three decades, the BIA found that the language in INA 235(b)(2)(A) is clear, but completely disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which do not make reference to respondents who have entered without inspection. The BIA addressed this discrepancy but stating that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”.

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

Recent district court decisions have all used Loper Bright to challenge or disregard Matter of Yajure Hurtado’s “no bond for EWIs” theory. These courts rely on Loper Bright to insist on independent judicial interpretation of §§ 1225 and 1226, with no automatic deference to the BIA’s reading. They use  Loper Bright’s endorsement of longstanding government practice as an interpretive aid to favor § 236(a) detention—and thus bond hearings—for EWIs arrested inside the country. They conclude that DHS’s new no‑bond position conflicts with 30 years of practice and lacks statutory support, thereby preserving bond eligibility for these EWIs. See e.g. Barco Mercado v. Francis, Guerreno Orellana v. Moniz; Pizarro Reys v. ICE.

The Fifth Circuit very recently in Buenrostro-Mendez v. Bondi (5th Cir. 2026) agreed with Yajure Hurtado although district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. Even in the Fifth Circuit Buenrostro-Mendez also does not preclude release based on constitutional grounds.

(Last updated on 2/16/2026)

Cyrus Mehta

Court Upholds Regulation Issuing Employment Authorization to H-4 Spouses Even After the Demise of Chevron Deference

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By Cyrus D. Mehta and Kaitlyn Box*

On August 2, 2024, the D.C. Court of Appeals issued its opinion in Save Jobs USA v. DHS, upholding the regulation that provides employment authorization to certain H-4 spouses of H-1B nonimmigrants. Save Jobs USA, an organization aiming to “address the problems American workers face from foreign labor entering the United States job market through visa programs” had challenged this regulatory provision, 8 C.F.R. §§ 214.2, 274a, arguing that it “exceeded the [DHS]’s statutory authority, and that, in adopting it, [DHS] acted arbitrarily and capriciously.”

The DC Circuit found that DHS is authorized to extend employment authorization to H-4 spouses under 8 USC 1184(a)(1), INA 214(a)(1) (stating that “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…”) and 8 USC 1103(a)(3), INA 103(a)(3) (stating that the DHS Secretary “…shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”). Moreover, the court held it had already “interpreted the relevant provisions of the INA to answer a similar question in favor of DHS in Washington Alliance of Technology Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022) (“Washtech”). As discussed in a prior blog, Washtech involved a challenge to the 24 month Optional Practical Training (OPT) extension for STEM graduates by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech further asserted INA § 101(a)(15)(F)(i) authorizes DHS to allow F-1 students to remain in the U.S. only until they have completed degree program, not to pursue post-graduation practical training. The DC Circuit upheld DHS’ STEM OPT rules, reasoning that the STEM OPT extension is a valid exercise of DHS’ authority under INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation, noting that practical training is critical to STEM students’ ability to apply skills learned during their degree programs once they return to their home countries. Judge Pillard, who authored the opinion, noted that the U.S. has long permitted foreign students to remain in the country for practical training, beginning with a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training was authorized even prior to the enactment of the INA in 1952.

Because Save Jobs USA did not meaningfully distinguish its case against H-4 work authorization from the precedent established in Washtech, the DC Circuit affirmed the district court’s grant of summary judgment in favor of DHS. Save Jobs USA argued that Washtech should be disregarded because it did not address the major questions doctrine established by the Supreme Court in West Virginia v. EPA, 597 U.S. 697, 716 (2022), which holds that courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” The DC Circuit gave short shrift to this argument, though, stating that the purpose of the major questions doctrine is a tool of statutory construction “to help courts figure out what a statute means”. Because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, the court found that there was no need to overturn Save Jobs USA v. DHS as Washtech remained good law. Under stare decisis a future court lacks the authority to say a previous court was wrong about how it resolved the actual legal issue before it. As Washtech was decided after the major questions doctrine was established by the Supreme Court in West Virginia v. EPA, it was assumed that Washtech already considered it and there was no need to upset the Court’s holding in Save Jobs USA, which relied on Washtech.

Save Jobs USA v. DHS also represents one of the first instances of a federal court upholding a regulatory provision notwithstanding the demise of Chevron deference. In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine, which held that courts were required to defer to the government agency’s reasonable interpretation of an ambiguous statute. We have discussed Loper Bright at length in a previous blog. In footnote 2 in Save Jobs USA v. DHS, the DC Circuit stated that “Washtech did not depend on Chevron” because Washtech had applied Chevron as a “counter-factual, fallback argument”, but this did not alter Washtech’s holding that INA 214(a)(1) and INA 101(a)(3) were not ambiguous in the first place.

Save Jobs USA v. DHS affirms that courts can rely on direct authorization from DHS to promulgate regulation to issue employment authorization to noncitizens. Despite the evisceration of Chevron deference, courts need not rely on an agency’s interpretation of an INA provision in order to provide noncitizens with work authorization, such as the INA provisions that extend STEM OPT work authorization to F-1 students or provide work authorization to H-4 spouses, because these statutory provisions are not ambiguous in the first instance.

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

Cyrus Mehta

The Potential Impact of SEC v. Jarkesy on Immigration Law and EB-5 Lawyers

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By Cyrus D. Mehta and Kaitlyn Box*

On November 29, 2023, the Supreme Court heard oral argument in Securities and Exchange Commission v. Jarkesy, a case that involves several key questions: whether the statues allowing the Securities and Exchange Commission (SEC) to bring administrative enforcement proceedings that impose civil penalties violate the Seventh Amendment right to a jury trial, whether the statute allowing the SEC to enforce securities laws through agency adjudication rather than in federal court violates the nondelegation doctrine, and whether the Congress’ decision to allow Administrative Law Judges (ALJs) to be removed only for “good cause” violates Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed.” Oral argument focused primarily on whether the SEC’s enforcement system deprives those charged with SEC violations of the right to a jury trial. Jarkesy argued that an SEC adjudication triggers a right to a jury trial because it is more akin to a civil fraud lawsuit imposing monetary penalties than a proceeding involving a “public right”, where agency adjudication is appropriate.

An ALJ found Jarkesy, an investment advisor, guilty of violating securities law by fraudulently overvaluing the investments he oversaw, and making misrepresentations to investors about the management of the funds. He was fined $300,000, barred from securities industry activities, and his firm was ordered to repay investors. Jarkesy challenged the SEC’s enforcement action at the 5th Circuit, arguing that he was deprived of his constitutional right to a jury trial, that “Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power”, and that restrictions on the removal of ALJs violate Article II. The Fifth Circuit agreed, holding that the SEC’s choice of enforcing securities violation through agency adjudication violates the Seventh Amendment, and that Congress’ open-ended grant of authority to the SEC to determine whether to initiate enforcement proceedings for securities fraud is impermissible under the Constitution. Further, the court held that “for-cause” removal protections for ALJs violates the “take care” clause of the Constitution by impermissibly insulating them from removal by the President.

The outcome of Jarkesy could have significant impacts on immigration law. The same arguments that could invalidate the authority of ALJs in Jarkesy could also be applied to Immigration Judges (IJs), potentially depriving them of the ability to hear cases. Because IJs are non-ALJ adjudicators, their authority could be even more vulnerable to the challenges issued by Jarkesy. Additionally, if the Supreme Court’s holding eliminates ALJs at the SEC, lawsuits challenging the authority of ALJs at other agencies are likely to follow, meaning that the Department of Labor, for example, could be hindered from holding hearings to address an employer’s failure to comply with a Labor Condition Application (LCA). During the oral argument, which only focused on the right to a jury trial under the Seventh Amendment, Justices Kagan and Sotomayor expressed concerns that Jarkesy could result in radical changes to the immigration court system. If the Supreme Court’s holding brings about the evisceration of the immigration courts, Congress could be forced to create an independent immigration court system under Article I of the Constitution as a replacement. An Article 1 court would ensure that IJs are independent from political interference as they are currently under the purview of the Attorney General within the Department of Justice.

S. Michael McColloch, counsel for Jarkesy, argued that the court should hold that when the government brings a case with the “same essential function” as a traditional lawsuit for claims such as fraud, it should have to bring the case in federal court, where a jury trial right would apply. However, when pressed further he emphasized that Jarkesy should not apply to adjudicating government benefits and debts and that  the authority of IJs should not be impacted by the outcome of the case.

A broad Supreme Court ruling in  Jarkesy  affirming all the three aspects of the Fifth Circuit decision could have disastrous consequences for the immigration court system while also providing immigration lawyers charged with SEC violations with an interesting means of challenging the administrative proceedings. The SEC often initiates enforcement actions against immigration lawyers arising from their work with the EB-5 program, which affords noncitizen investors a path to lawful permanent residence. The SEC has initiated these actions against immigration lawyers who it claimed, for example, offered investments without registering as a broker or received commissions from their clients’ investments. As in the enforcement action at issue in Jarkesy, the SEC often imposes monetary sanctions on immigration lawyers found to have committed a securities violation. Jarkesy could provide immigration lawyers accused of securities fraud with a template for challenging the enforcement proceedings brought against them by the SEC on the grounds that they are entitled to a jury trial or asserting a Constitutional challenge to the authority of ALJs. Jarkesy also argued that the statutory provision which allows the SEC to bring agency enforcement actions rather than enforcing securities law in federal court offends the Constitution’s nondelegation doctrine. This argument too could be advanced by immigration lawyers facing an SEC administrative proceeding. The SEC does not always initiate agency enforcement proceedings against immigration lawyers for securities violations, however, sometimes suing in federal court instead (see here and here). Immigration lawyers facing a jury trial in federal court will find it more difficult to make use of the arguments laid out in Jarkesy.

Our blog on Jarkesy is part of a series of blogs analyzing forthcoming Supreme Court cases that may eviscerate Chevron deference,  curb the power of federal government agencies in interpreting statutes and regulations, and broaden the statute of limitations to challenge regulations under the Administrative Procedure Act.  Although these challenges are being made by plaintiffs  before sympathetic conservative justices whose objective it is to dismantle the administrative state, we have tried to also find a silver lining in each of these cases that might benefit immigrants or their attorneys.

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

Cyrus Mehta

How Corner Post Along with the Demise of Chevron Deference  Can Open Up Immigration Regulations to Challenges

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On February 20, 2024,  the Supreme Court  heard oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case could potentially expand the six year statute of limitations to challenge a regulation under the Administrative Procedure Act (APA).   § 702 of the APA provides that “]a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action” may seek judicial review. § 2401(a) of the United States Code generally requires that the complaint to commence such an action must be “filed within six-years after the right of action accrues.”

 In Corner Post, the plaintiffs asserted that the six year statute of limitations under the APA first begins to accrue when the plaintiff has suffered a “legal wrong” or been “adversely affected or aggrieved” rather from when the agency issues a rule. The Board of Governors of the Federal Reserve issued Regulation II in 2011, which capped the interchange fees paid on debit-card transactions.  The North Dakota Retail Association and others challenged this regulation under the APA. The Board moved to dismiss arguing that the statute of limitations had run out.  They added Corner Post, which was incorporated in 2017 and began operating in 2018. The Board again moved to dismiss, and the district court granted the motion holding that the statute of limitations under Section 702 began running when Regulation II was published in 2011. The Eight Circuit affirmed rejecting the argument that the six year statute of limitations began running only when Corner Post opened in 2018. Corner Post sought review by the Supreme Court.

If plaintiffs prevail, Corner Post would open the door to many challenges to government regulations  even beyond the six year date from when they were issued. Moreover, on January 17, 2024,   the Supreme Court also heard oral argument on January 17, 2024 in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo whether to eliminate or restrict the deference that courts give to an agency’s interpretation of an ambiguous statute under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). This is known as Chevron deference, which has insulated the government from challenges to its interpretation of a statutory provision.

 One can see how the evisceration of Chevron deference in Loper Bright and Relentless,  along with Corner Post relaxing the six year deadline for APA challenges,  can result in challenges to immigration regulations even though they were promulgated more than six years ago. For instance, in  Wash Tech v. DHS the F-1 Optional Practical Training (OPT) and STEM OPT rule promulgate in 2016 were both upheld by the First Circuit under Chevron deference. If Corner Post broadens the six year limitation to challenge a rule, and if Chevron deference is eliminated, plaintiffs who claim they were aggrieved because they may have lost their job to an F-1 nonimmigrant under the OPT rule, can again try to challenge the rule even though more than 6 years have passed.

As background, the Washington Alliance of Technology Workers (Wash Tech) challenged the Optional Practical Training (OPT) and the STEM Optional Practical Training (OPT). DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. The 2016 Rule restarted the clock to challenge the statutory authority for the OPT program as a whole along with the new, STEM-specific extension.

Wash Tech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Wash Tech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In addition, the court paid deference under Chevron  to the agency’s interpretation of 101(a)(15)(F)(i)  by asserting that “OPT’s nexus to an F-1 student’s course of study, together with the student’s application to the school for approval and the school’s reporting responsibilities to DHS, ensure that the additional time and practical training opportunities available through the program help F-1 students to cement the knowledge acquired in their coursework consistent with legal limits.”

If  the Supreme Court in Loper Bright and Relentless eliminate Chevron deference, and if Corner Post broadens the six year statute of limitations, a different  plaintiff can again challenge the OPT rule all over again. The rule may most likely withstand attack because it is not entirely based on Chevron deference as it was also upheld under Lorillard v. Pons. So even if Chevron deference is eliminated, under  the doctrine established in Lorillard it can be presumed that Congress was aware of the government’s interpretation of F-1 status as encompassing practical training each time it has amended the INA. It can also be argued that the DC Circuit’s reliance on Chevron was either an alternate holding or dicta. The following extract from the decision indicates that the DC Circuit relied on the plain meaning of INA 214(a)(1); 8 USC 1184(a)(1) rather than paying Chevron deference to the DHS’s interpretation of those provisions:

The 2016 Rule is within DHS’s statutory authority. Section 1184(a)(1)’s time-and-conditions provision is the source of that authority, and the F-1 visa class definition guides its use. Because the 2016 Rule regulates the “time” and “conditions” of admission for F-1 visa-holders, and because it is reasonably related to the distinct composition and purpose of that visa class, as defined in the F-1 provision, the Secretary had authority to promulgate it.

50 F.4th at 177.

The most straightforward reading of the INA is that it authorizes DHS to apply to admitted F-1 students the additional “time” and “conditions” that enable them to remain here while participating in OPT recommended and overseen by their respective academic institutions. But at a minimum, even if it is ambiguous on the point, the statute may reasonably be understood as the Department has read it in support of the 2016 OPT Rule. That interpretation thus merits our deference. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

 

Id. at 192.

At oral argument in Corner Post the justices questioned what impact it may have if parties were allowed to bring facial challenges more than six years after a final agency action. Justice Jackson asked whether this could risk destabilizing industry and noted that “we have settled rules that govern all sorts of industries, the healthcare industry, the finance industry, and people have adjusted themselves around them.” It appears that  the justices know that Chevron deference is on the chopping block, and perhaps there is already a draft opinion circulating among them suggesting that Chevron deference may be no more. In an exchange with counsel for Corner Post, Justice Jackson raised the potential impact of the rulings in Corner Post, Relentless, and Loper Bright.  Justice Elena Kagan also raised the risk of retroactive impacts scrambling long-established law.   If plaintiffs prevail in Corner Post, it would open up challenges to well settled immigration rules such as the F-1 OPT and STEM OPT rule, as well as the H-4 employment authorization rule,  which  can destabilize and upend the lives of real people rather than just industries.

While we have addressed how the F-1 OPT rule might be vulnerable, it may be possible for noncitizen plaintiffs to attack other rules more than six years after they were issued. For instance, 8 CFR  245.1(d)(2)(i) implements the technical exception under INA 245(c)(2), which precludes one to file an I-485 application for adjustment of status who has failed to maintain lawful status  “other than through no fault of his own or for technical reasons.” 8 CFR 245.1(d)(2)(i) provides a very narrow reading of the exception under INA 245(c)(2) by only allowing one whose status was jeopardized due to inaction by the government or by an organization or individual authorized to act on behalf of he individual such as a designated student officer in a school.  The Ninth Circuit in Peters v. Barr recently held that the regulation should cover situations where the applicant fell out of status due to ineffective assistance of counsel but did not invalidate the regulation.  Although the rule was promulgated in 1989, Corner Post could allow one who got injured through the denial of an I-485 application to challenge the rule even today, and the elimination of Chevron deference may allow a court to hold that the regulation does not faithfully interpret the exception in INA 245(c) without regard to whether the government’s interpretation of the statute is reasonable or not. One caveat is that the plaintiff may have to get over the jurisdictional bar as set forth in Patel v. Garland when seeking judicial review of a denied I-485 application.

Corner Post along with the elimination of Chevron deference can open up other possibilities. It may be possible for a plaintiff to challenge the regulation implementing the foreign labor certification program at 20 CFR 656. Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there is a lack of U.S. workers who are qualified and willing at the time of the application. Although the PERM rule was promulgated in 2005, Corner Post can extend the 6 year limitation if an employer was subject to injury in the last six years. Moreover, if Chevron has been eliminated a court may not give deference to the DOL’s interpretation of INA § 212(a)(5) as set forth in 20 CFR 656, which requires onerous recruitment steps including two Sunday print ads and  which requires employers to justify supposedly restrictive requirements through business necessity among many other burdens that have no bearing with an employer’s real world recruitment practices.

There will  be  both winners and losers in a post Chevron world if the plaintiffs are victorious in Corner Post, Loper Bright and Relentless.

 

 

 

 

 

 

 

 

 

Cyrus Mehta

Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government

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By Cyrus D. Mehta and Kaitlyn Box*

On January 31, 2024, the Board of Immigration Appeals (BIA) issued a decision in Matter of Aguilar Hernandez.

Mr. Aguilar Hernandez, a noncitizen from Mexico, had been served a Notice to Appear (NTA) in 2019 that did not list the date and time of his individual hearing. He objected that this NTA was defective at both his individual hearing and moved to terminate the removal proceedings against him, but the Immigration Judge denied his motion. In October 2022, Mr. Aguilar Hernandez again moved to terminate the removal proceedings due to the defective NTA. The Department of Homeland Security objected, arguing that the IJ had the discretion to allow it to cure the defective NTA rather than terminating removal proceedings. DHS filed a Form I-261 containing the date and time of the next hearing, and also listing the date and time of the original hearing, and served this form on Mr. Aguilar Hernandez. Over Mr. Aguilar Hernandez’s objections, the IJ denied his motion to terminate once again, without issuing a decision concerning DHS’ submission of the Form I-261. Mr. Aguilar Hernandez then appealed to the BIA.

The BIA held that “DHS cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez.” In Niz-Chavez v. Garland, 593 U.S. 155, 160-62 (2021), the Supreme Court held that DHS cannot cure a defective NTA by issuing a hearing notice that contains the date and time of the initial hearing in removal proceedings. The BIA also cited to Pereira v. Sessions, 138 S. Ct. 2015 (2018), in which the Supreme Court held that the “stop-time rule” at INA 240A(d)(1) is not triggered by an NTA that does not contain the time and place of a hearing in removal proceedings. The BIA reasoned that “The plain text of 8 C.F.R. § 1003.30 does not support DHS’ argument, because it does not allow amendment of the date and time on the notice to appear by using a Form I-261. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (requiring agencies to follow the plain language of a regulation).” The BIA noted that the Supreme Court had held that INA 239(a)(1) requires one “single document” in Niz-Chavez, and rejected the idea that DHS could provide adequate notice by issuing multiple successive documents containing the relevant information. See Niz-Chavez, 593 U.S. at 160-61.

Matter of Aguilar Hernandez is a victory for noncitizens seeking to terminate removal proceedings on the basis of a defective NTA, but it is interesting for another reason, as well – it represents one of the rare instances in which the BIA has cited Kisor v. Wilkie. As prior blogs have noted (here, here, and here) Kisor v. Wilkie laid out a three-step test for how it would view an agency’s interpretation of its own  genuinely ambiguous regulation.. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.” In Kisor, the Supreme Court narrowed the previous standard set forth in Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation.  In Aguilar Hernandez it does not appear that the BIA thought that 8 C.F.R. § 1003.30 was ambiguous, and so it did not even need to defer to the government’s interpretation of this regulation even under the narrower standard as set forth in Kisor v. Wilkie. The plain language of 8 C.F.R. § 1003.30 did not support an expansive reading that would allow the government to cure a defective NTA by amending it through the submission of an I-261. An I-261 under 8 C.F.R. § 1003.30 only allows the government to add or substitute charges in an NTA or to add or substitute factual allegations.

The requirement that the government interprets the plain meaning of the regulation is part of a trend. The “Auer deference” standard as modified by Kisor v. Wilkie is quite similar to “Chevron deference”, which holds that courts will give deference to a federal agency’s interpretation of an ambiguous federal statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). However, when a statute is not ambiguous, the court does not need to even rely on Chevron deference and can side step the analysis all together.  While requiring an agency to adhere to the plain meaning of a statute or regulation helped the respondent in Aguilar Hernandez, it may not always come to the aid of plaintiffs. For instance,  the DC Circuit Court of Appeals in Wang v. Blinken  held that it was clear that INA 203(d) required the counting of both the principal and derivative beneficiaries in the employment-based fifth preference. Indeed, the Court in Wang v. Blinken also rejected the government’s argument that it was entitled to Chevron deference in interpreting INA 203(d) by counting derivatives as INA 203(d) was not ambiguous in the first place.

Two upcoming Supreme Court cases –  Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo –  may narrow Chevron or even eviscerate it altogether. If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, it may result in both good and bad outcomes in the immigration context. According to the Think Immigration Blog: “For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.”

At present, courts also rely on the “major questions” doctrine in West Virginia v. EPA, 142 S. Ct. 2587 (2022) to side step Chevron deference even if a statute is ambiguous. Here the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance. The dissent in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), for example, argued that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority was a “major question”. Similarly, in a footnote, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. The standard articulated in West Virginia v. EPA requires agencies to assert clear Congressional authorization when implementing a new policy of major significance, while Chevron imposes an almost opposite standard by saying that if the court cannot identify clear congressional authority disapproving what the agency proposes to do, the court should uphold the agency action if it is reasonable.  The Supreme Court’s decisions in Relentless and Loper Bright could help to resolve this discrepancy. If Chevron deference is eliminated, courts need not even need to go into the “major questions” doctrine.

Matter of Aguilar Hernandez gives us a taste of how courts will interpret INA provisions and regulations in a post Chevron world although it remains to be seen whether the end result will always be beneficial.

 

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

 

 

Cyrus Mehta

Musings On Brand X As a Force for Good Ahead of the Supreme Court’s Ruling on Chevron Deference

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By Cyrus D. Mehta and Kaitlyn Box

The Supreme Court on January 17, 2024 heard arguments in two cases – Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo  – that may determine whether courts will continue to give deference to a federal agency’s interpretation of an ambiguous federal statute as held in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Chevron deference also applies to ambiguous provisions under the INA. It is currently disfavored by  the conservative majority in the Supreme Court because it gives too much power to a federal agency to decide what the law is. It is also disfavored because deciding whether a statute is ambiguous, and thus becomes subject to deference,  is also a subjective determination based on the administration’s political ideology at any given moment in time. There is thus a great likelihood that Chevron will either be overturned or narrowed. As Brian Green and Stephen Yale-Loehr have astutely observed in their blog on Think Immigration:

Not all immigration practitioners and their clients will feel the impact if Chevron is narrowed or overruled. There will be winners and losers, and some unintended consequences may occur in limiting previously afforded deference to federal agency decision making. For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.

If the Supreme Court retains but limits Chevron, efforts will be made to argue that Chevron deference should not apply in BIA adjudications. Many case decisions have held that BIA adjudications receive Chevron deference, but there may be room to argue for a reversal of that precedent, depending on how the Court rules in Relentless and Loper.

If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, other precedent beyond Chevron could be eviscerated as well. In National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the Supreme Court held that an agency’s interpretation of an ambiguous statute may still be afforded deference even if a circuit court has interpreted the statute in a conflicting way. The Court’s holding in Brand X is a double edged sword – it can empower agencies to interpret statutes in a way that will be detrimental to immigrants, or in a beneficial way, even in light of problematic circuit court precedent. One example of an agency using Brand X to the benefit of an immigrant may be found in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), discussed at length by David Isaacson in a prior blog. Matter of Douglas involved an individual, Mr. Douglas, who was born in Jamaica and seeking to establish citizenship under former INA §321(a). His mother had naturalized in 1988, and subsequently gained legal custody of Mr. Douglas when his parents divorced.

Case law in the Third Circuit required that an applicant under former INA §321(a)(3) demonstrate that his custodial parent naturalized after legal separation from the other parent. See Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)). The BIA, however, had previously held that one may demonstrate citizenship under former INA §321(a) regardless of whether his parent gained legal custody before or after naturalizing. See Matter of Baires, 24 I&N Dec. 467 (BIA 2008). Relying on Brand X, the Board of Immigration Appeals chose to follow its own precedent and hold that Mr. Douglas was a U.S. citizen, circuit court case law notwithstanding.

Isaacson’s blog also points to other instances where the BIA previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach but not as explicitly as in Matter of Douglas. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock). Isaacson also astutely points to a  footnote in the BIA’s acclaimed decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6.

Brand X can also provide hope when even the Supreme Court may have ostensibly shut the door. If a court’s decision is based on deference to an agency’s interpretation of a statute, a subsequent administration may interpret the statute differently notwithstanding the court’s decision. In Scialabba v. Cuellar de Osorio, the Supreme Court ruled that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope. When a statue is ambiguous in that way, Brand X makes clear that the BIA could reverse its position. So too could the Attorney General go against Matter of Wang and adopt a broader interpretation of INA §203(h)(3). If Brand X falls by the wayside like Chevron, there will be no room for a future administration to reinterpret this CSPA provision that could provide ameliorative relief for hundreds of thousands of children.

The demise of Brand X would deprive a future administration that might be bolder and kinder on immigration, a potentially important tool to implement immigration reform in the face of Congressional polarization and inaction. As we have noted in prior blogs, Brand X could be used by that administration to, for example, count derivative family members together with the principal applicant in both the employment-based (EB) and family based (FB) visa preference categories under INA § 203(d). There is nothing in §203(d) that requires the separate counting of derivatives even though the administration has been separately counting them since the enactment of this provision.  Although the Court of Appeals for the D.C. Circuit held that derivative family members must be counted separately in the EB-5 context in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), Brand X could provide the Biden administration with a way to nonetheless change this interpretation by deeming INA 203(d) ambiguous and issuing a rule or  policy memo overruling Wang v. Blinken everywhere in the country except in the D.C. Circuit. Other Court of Appeals decisions have similarly limited the Biden administration’s ability to use Brand X to the advantage of immigrants.

Matter of Castro-Tum, a Trump era decision holding that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases was rejected by several Circuit Court decisions and ultimately overturned it its entirely by Attorney General Garland’s 2021 decision in Matter of Cruz-Valdez. Nevertheless, the Second Circuit upheld the BIA’s decision not to grant administrative closure under Matter of Castro-Tum in Garcia v. Garland, a 2023 decision, despite the fact that the Biden administration had already, through Garland’s decision, reinstated the prior rule under Matter of Avetisyan, which permitted IJs and the BIA to administratively close removal proceedings, even if a party opposes. Although the Second Circuit’s decision was disappointing,  the case leaves open some interesting possibilities. In Garcia v. Garland the Second Circuit held that that agency’s interpretation on administrative closure was valid because Matter of Castro-Tum was valid and applicable at the time of the agency’s decision. Thus, if an IJ or the BIA grant administrative closure in reliance on Matter of Cruz-Valdez, that decision should be upheld even if a less immigrant-friendly administration overrules the decision in future. The same logic could apply to other Biden administration policies should they be challenged in future. Further, the decision in Garcia v. Garland asserts that principle that different administrations may reinterpret ambiguous statutory provisions.

Of course, if Loper Bright Enterprises and Relentless overrule Chevron, Brand X too will fall along with its potential for be a force for good for immigrants. There is a possibility that Chevron may be narrowed rather than completely overruled. Green and Steve Yale Loehr suggest that the Supreme Court may cabin Chevron as it did for Auer deference. The Supreme Court in Kisor v. Wilkie provided no new radical test of how it would view an agency’s interpretation of its own regulation. It essentially “cabined the scope” of Auer deference, and set forth a three-step approach under Kisor. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

If the Supreme Court similarly narrows Chevron as it did with Auer deference, then Brand X will also be narrowed and survive.  But if Chevron falls, so will Brand X rendering it harder for a future immigrant friendly administration to implement broad based immigration reform.

Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC

 

Cyrus Mehta

A Tale of Two Cases – Washtech v. DHS and Texas v. USA: To What Extent can the Executive Branch Allow Noncitizens to Remain and Work in the US

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By Cyrus D. Mehta and Kaitlyn Box*

To what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. One court found authority while the other court did not. The D.C. Circuit addressed the question of F-1 students and whether they could remain in the U.S. after graduation for practical training. Citing DHS’ authority under INA § 214(a)(1) and the long history of post-graduation practical training, the court upheld OPT. The Fifth Circuit confronted a different issue – that of young people who came to the U.S. and whether they could remain in the country through deferred action. Finding that DACA exceeds DHS’ inherent authority to exercise prosecutorial discretion, the court struck down the program, though deferred action is a well-established practice like OPT.

On October 4, 2022, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”). The case involved a challenge to the STEM Optional Practical Training (OPT) rules by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In Texas v. U.S., decided on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful, upholding an earlier decision by Judge Andrew Hanen of the United States District Court for the Southern District of Texas. Although the practice of deferred action, of which the DACA program is a form, has also existed for decades, the Fifth Circuit’s decision was much less favorable than that of the D.C. Circuit. The court reasoned that the DACA program exceeds DHS’ inherent authority to exercise prosecutorial discretion, as “declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change”. Further, the court found that there is no “clear congressional authorization” for DACA. In light of a recent regulation promulgated by the Biden administration to “preserve and fortify” DACA, the case was remanded to the U.S. District Court for the Southern District of Texas. Although DACA lives for now, it remains on the respirator as both the district court and the Fifth Circuit have consistently held that DACA is not authorized by the INA, and notwithstanding the new regulation, may still be held to be unlawful.

Though the courts in these cases arrived at few different outcomes, the two decisions share at least one commonality – both made reference to the “major question” doctrine recently introduced in West Virginia v. EPA, 142 S. Ct. 2587 (2022). There the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance.  Interestingly, the dissent in Washtech indicated that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority is a “major question”. Finding that the major questions doctrine applied, the dissent in Washtech directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle.

In footnote 206, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement DACA. The court also held that DACA did not pass the first step of the Chevron test, which asks “whether Congress has ‘directly addressed the precise question at issue.’” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The court in Washtech analyzed the OPT rule under the lens of Chevron also, but gave DHS’ interpretation of INA § 214(a)(1) deference.

If the major questions doctrine is implemented in this way, it could result in fewer agency actions receiving Chevron deference. Chevron gives the Biden administration the ability to interpret the INA by implementing OPT and DACA programs, so it is hoped that the major questions doctrine does not impede the application of this longstanding precedent. Moreover, immigration decisions unlike environmental cases ought not to be cases involving vast economic and political significance.  The majority decision in Washtech involved challenges to the INA provisions that provide the authority for noncitizens to remain in the U.S. The court gave due deference under Chevron to the executive’s interpretation of INA § 214(a)(1) and upheld OPT. The majority did not reference the “major questions” doctrine in Virginia v. EPA.  The Fifth Circuit, on the other hand, held that  DHS cannot rely on INA § 103(a)(3) as a basis for implementing DACA, and cited Virginia v. EPA. This provision states that the DHS Secretary “shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of the Act.” This provision is comparable to INA § 214(a)(1), which the First Circuit held provided the basis for F-1 OPT. INA § 214(a)(1) provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…….”

Although the Washtech case dealt with students, the D.C. Circuit’s decision can serve as a template for the Supreme Court to uphold the authority for other categories of noncitizens to remain in the U.S., including DACA recipients. The same deference that the D.C. Circuit afforded to the executive’s authorization of OPT ought to also be given to the government’s interpretation of INA § 103(a)(3) and 6 USC § 202(5) so that the DACA program is upheld.

Another interesting issue discussed in both cases is whether the Executive Branch can issue work authorization to noncitizens. The court in Washtech upheld the authority of the executive to grant employment authorization documents (EADs) under INA § 274(a)(h)(3), which has long provided authority for the Executive Branch to provide employment authorization to broad categories of noncitizens. The executive’s authority to grant EADs under this provision had been soundly rejected by the Fifth Circuit in the earlier DAPA decision and Judge Hanen’s lower court decision in Texas v. U.S. In footnote 37, Hanen’s decision makes reference to INA §274a(h)(3) as a definitional miscellaneous provision, which cannot provide the basis for DACA and the grant of EADs, while the First Circuit relied on the same provision as a statutory basis for OPT EAD.

Charles Dickens opened his A Tale of Two Cities with the following famous line: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” Like London and Paris in Dickens’ novel, Washtech and Texas are comparable in some respects and very different in others. Though Texas may represent the worst of times and the age of foolishness, Washtech ushers in an age of wisdom and the best of times for foreign students hoping to gain practical training in the U.S.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Beneficial Impact of the Supreme Court’s Decision in Kisor v. Wilkie on H-1B Denials

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By Cyrus D. Mehta and Sonal Sharma*

In June 2019, when the Supreme Court handed down a decision in Kisor v Wilkie, it was yet to be seen what impact this decision would have on federal court challenges to H-1B denials. Prior to Kisor, federal courts adopted a deferential standard of the government’s interpretation of its own regulations. This deferential standard was governed by an earlier Supreme Court decision, Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation. The Auer standard was similar to the standard set forth in Chevron USA v. Natural Resources Defense Council regarding how a federal court would give deference to an agency’s interpretation of a statute. Under Chevron deference, if a statute is ambiguous, a court will give deference to the agency’s interpretation, even if it does not agree with the outcome, so long as it is based on a permissible construction of the statute.

The Supreme Court in Kisor provided no new radical test of how it would view an agency’s interpretation of its own regulation. It essentially “cabined the scope” of Auer deference, and set forth a three-step approach under Kisor. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

In our prior blog in December 2019, there were few decided cases involving challenges over H-1B visa denials that had applied the Kisor standard. We analyzed how the courts ought to apply the new Auer deference standard set forth in Kisor. Most H-1B visa adjudications are guided by regulations and policies rather than by the statute, and prior to Kisor courts have mostly been paying deference to the USCIS’s interpretation of its regulations.   Since December 2019,  courts have applied the  Kisor standard in challenges to denials of H-1B petitions, and have overturned denials as well as burdensome  H-1B policy. This is indeed a welcome change!

H-1B denials resulted from the implementation of recent policy memos shifting the USCIS’s position that was not aligned with its prior statements, memos, and opinions. One example of such a shift is the memo issued in February 2018 relating to contracts and itineraries with third-party clients.  This new policy has enabled USCIS to play havoc to H-1B petitions filed by employers who place H-1B workers at third party client sites. If the third party client is unable to or refuses to provide documentation explaining the length of the assignment, and even if the employer provides evidence of its ability to employ the H-1B worker for the duration of the validity period, the USCIS has either denied the petition or shortened the validity period.  The USCIS issued this memo to be read as supplementary guidance to the employer-employee memo of 2010. Even this 2010 memo has been used to trouble employers of H-1B workers. While 8 CFR 214.2(h)(4)(ii) defines an employer-employee relationship as including “hire, pay, fire, supervise, or otherwise control the work of any such employee”, the USCIS has  focused only on the employer’s ability to control the H-1B worker and disregarded the other indicia of the employer-employee relationship.

In this blog, we analyze recent court decisions that have applied the Kisor standard or been influenced by it, and not paid deference to the USCIS’s interpretation of its regulations or of policy memos stemming from these regulations.

ITServe Aliance v. Cissna

In ITServe Alliance v. Cissna, the U.S. District Court of the District of Columbia on March 10, 2020 invalidated the USCIS policy defining an employer-employee relationship for employers of H-1B workers  as well as the 2018 policy and 1991 regulation requiring that IT firms provide a detailed itinerary and contracts for potential H-1B workers for the entire three years of their visa stay. Judge Collyer held that the current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced. Moreover, the USCIS requirements that employers (i) provide proof of non-speculative work assignments (ii) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced. Finally, the court held USCIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.

Although the court did not cite Kisor, it did not pay deference to USCIS’s interpretation of its regulations even under the traditional Auer standard. Judge Collyer conducted an independent inquiry to determine if the USCIS 2018 memo is a legislative rule or a mere interpretive rule. We provide a detailed analysis of the ITServe Alliance decision.

While noting USCIS’s effort to mask the memo as mere guidance to its adjudicators, Judge Collyer concluded that the 2018 memo is indeed a legislative rule with an attempt to impose legally binding obligations on regulated parties. The court also noted that the 2018 memo in essence (i) adopted a new definition of an employer; (ii) added substantive requirements to prove the employer-employee relationship; (iii) added additional requirements to describe the work with evidence that it will be available for the duration of the visa; and (iv) burdens petitioners to provide detailed itineraries on the risk of denial on failure to comply with the new requirements.

The 2010 employer-employee memo is based on the definition of an employer pursuant to  8 C.F.R. §214.2(h)(4)(ii), but the memo still indicates that the regulation does not provide enough guidance on the definition of the employer-employee relationship. The employer-employee memo invoked the common-law as touch stone of employer’s control. Judge Collyer hollered at the USCIS from deviating from 8 C.F.R. §214.2(h)(4)(ii) specifically noting that it adopted the definition of employer under this rule which was identical to the one crafted by the Department of Labor in 1991, and to this date no amendments have been made to that definition by the USCIS. The court noted that USCIS’s sole focus on “control” over everything else, if evaluated under Auer deference, is in clear conflict with the regulations itself and hence warrants no deference. The court pointed out that the USCIS has been claiming that the term “employer-employee relationship” is not defined in the regulations, but noted that 8 C.F.R. 214.2(h)(4)(ii) clearly defines the term as:

(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee

Given this, Judge Collyer noted that the USCIS’s reliance on the common-law doctrine of “control” is contradictory to the clear definition provided under the regulations. It also noted that “[t]he common law may be a useful touchstone but cannot contradict or limit a clear regulation that has been applied with no objection or correction for almost three decades” and hence is not worthy of any deference.

The court steered a remarkable analysis of the plain text of the regulations specifically the wordings may hire, pay, fire, supervise, or otherwise control the work of [the] employee. In its analysis, the court noted that “[t]he use of “or” distinctly informs regulated employers that a single listed factor can establish the requisite “control” to demonstrate an employer-employee relationship. This formulation makes evident that there are multiple ways to demonstrate employer control, that is, by hiring or paying or firing or supervising or “otherwise” showing control. In context, “otherwise” anticipates additional, not fewer, examples of employer control.”

Judge Collyer further observed that through the 2018 memo, the USCIS attempted to substitute the unambiguous text of the regulations.

The court also analyzed if through the 2018 memo, that USCIS fundamentally conflated the requirement of employment in a specialty occupation with requiring evidence of non-speculative work assignments for the duration of the visa. To assess the legitimacy of requiring such evidence as a requirement of establishing a specialty occupation under the regulations, the court made a noteworthy distinction between “occupation” and “jobs”. It affirmed that Congress enacted a definition of occupation and an occupation consists of various levels requiring varied job duties. Hence, as long as the employment is in the specialty occupation, there is no requirement in the definition to prove that the daily assignments will be part of the specialty occupation.

The USCIS argued that the requirement is based on its interpretation of its own regulation, i.e the fourth prong of the specialty occupation definition  at 8 CFR  214.2(h)(4)(ii)(4) which justifies their new requirement to satisfy that the day to day assignments qualify as specialty occupation rather than satisfying that the occupation qualifies as a specialty occupation:

(4) The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Judge Collyer noted that first, all the four prongs are in alternative to each other, and secondly, the wording “nature of specific duties” in the fourth prong does not in any way change the requirement of a bachelor’s degree in other three prongs. Hence, the court noted that the fourth prong provides a situation where despite the foreign worker not having a bachelor’s degree, the position can qualify as a specialty occupation. It also noted that the USCIS cannot extend it as a policy to all H-1B visa holders requiring the description of the assignments for the whole duration and such interpretation of the fourth prong of the specialty occupation of its own regulation is “plainly erroneous”.

As to itineraries in case of placement at more than one location, 8 C.F.R. §214.2(h)(2)(i)(B) reads as follows:

Service or training in more than one location. A petition which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with the Service office which has jurisdiction over I-129H petitions in the area where the petitioner is located. The address which the petitioner specifies as its location on the I-129H petition shall be where the petitioner is located for purposes of this paragraph.

While interpreting the above-mentioned regulation, the itinerary memo of 1995 was issued which clearly stated that “the regulation does not require that the employer provide the Service with the exact dates and places of employment” and that the “[t]he itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States”.

The former Immigration and Naturalization Service  followed this interpretation of the regulation for more than two decades. Precipitously, in February 2018, the USCIS issued the above-mentioned new policy memorandum superseding the 1995 memo. Interestingly, the new February 2018 memo also interprets the same regulations quoted above and notes that “[t]here is no exemption from this regulatory requirement. An itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services”. (Emphasis added)

Plaintiffs in IT Serve Alliance v. Cissna raised the itinerary question and the court agreed with plaintiffs’ contention that the concern regarding non-availability of the work for the duration of the visa has already been addressed by the Congress through ACWIA 1998 which authorizes employers to place H-1B holders in the paid non-productive state. While referring to §212(n)(2)(C)(vii)(III), the Court concluded, “therefore, the itinerary requirement in the INS 1991 Regulation, as adopted by INS and now enforced by CIS pursuant to its 2018 Policy Memorandum, has been superseded by statute and may not be applied to H-1B visa applicants.”

As to the USCIS’s authority to issue approvals for less than three years, the court in ITServe Alliance v. Cissna  interpreted the plain text of the regulation to mean that the regulations (i) do not require USCIS to deny or grant the petition in its entirety; (ii) “up to three years” allows USCIS to approve petitions for a lesser duration. However, the court noted that USCIS has been following a practice to issue approvals for full three years and now if it will grant the approval for less period, it has to be supported with a “legitimate reason”.

More recently, a settlement was reached between the USCIS and plaintiffs of ITServe Alliance which invalidates the 2018 policy. Under this settlement, firstly, USCIS is required to rescind “in its entirety within 90 days” the 2018 Contract and Itinerary Memorandum. Secondly, USCIS agreed to “re-open and adjudicate” individual agency decisions on H-1B adjudications that were the subject of the ITServe Alliance lawsuit against USCIS (i.e., primarily the cases of its members). Thirdly, in deciding the cases again, “USCIS agrees that it will not apply the interpretation of the current regulatory language . . . defining ‘United States employer’ to require an analysis of employer-employee relationship under common law, and USCIS agrees to comply with Judge Collyer’s March 10, 2020, decision in ITServe Alliance, Inc. v. Cissna.” Fourthly, in adjudicating the cases again, “USCIS will not issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner, unless such decisions include or are accompanied by a brief explanation as to why the validity period has been limited and in compliance with Judge Collyer’s March 10, 2020, decision in ITServe Alliance, Inc. v. Cissna.”

Serenity Info Tech, Inc. v. USCIS

Serenity Info Tech, Inc. v USCIS is the most recent case, where the court specifically deployed Kisor analysis. The plaintiffs in this case are information technology consulting services companies. The USCIS denied the H-1B petition filed by Serenity Info Tech on two grounds:  (i) that the plaintiff failed to meet the definition of the “employer” under the regulations, and (ii) that the plaintiff failed to show specific and non-speculative qualifying assignments in a specialty occupation for the entire time requested on the petition. The issues in this case, similar to ITServe Alliance, hinged upon the USCIS’s interpretation of the term “employer-employee relationship” and the term “itinerary” as provided in the regulations and as applied by the USCIS.

The court analyzed the litany of policy memo issued by the USCIS since 1995 including the 2010 employer-employee memo up until the 2018 contracts and itinerary memorandum. The court noted that the 2010 memo listed numerous documents that could be used to demonstrate the employer-employee relationship. However, the memo also specifically clarified that while requesting additional evidence, the adjudicator should not request a specific type of evidence unless required by the regulations. As discussed earlier, the 2018 memo did not rescind the Employer-Employee memo but was intended to be read together with it.

The plaintiffs argued that the 2018 memo essentially departed from the 2010 employer-employee memo as it insists on a demonstration of not just “right to control” but “actual and exclusive control” over the day to day activities which is ultra vires the regulations. The suit also challenged the detailed itineraries requirement established under the 2018 memo.

While deciding if the 2018 memo is a legislative rule or mere interpretative rule, the court distinguished from Judge Collyer’s reasoning in ITServe v Cissna. Judge Collyer in ITServe ruled that the 2018 memo indeed is a legislative rule as “it attempted to impose legally binding obligations on regulated entities”. The Serenity court held that the 2018 memo is only an interpretive rule as it rescinded the 1995 memo which was an interpretive rule.

The court condensed the issue to a narrower ground of agency’s interpretation of “employer” and “itinerary” provided under the regulation and as applied by the USCIS in the cases before the court and if it warrants any deference under Auer.

The court applied Kisor to decide if the agency’s interpretation of the regulations deserves any deference and delved into an independent inquiry starting with if the regulations are ambiguous. Since the court in Serenity InfoTech held that the 2018 policy was an interpretive rather than a legislative rule, Kisor analysis was needed to determine whether the 2018 policy deserved deference or not.  The court discarded  USCIS’s argument that even though the term “employer” is defined in the regulations, the terms “employee”, “employed”, “employment” or “employer-employee relationship” are not defined. Rather, the court clarified that the absence of definition does not amount to ambiguity. The regulations provide “ample guidance” to determine if the employer-employee relationship exists.

The court pointed out that the fundamental flaw with the USCIS’s interpretation is that it obliterates all the other criteria mentioned in the regulations to establish an employer-employee relationship and focuses only on the “control” criteria. The court stated that USCIS’s focus on “control” elevates that one factor above other factors. Doing so goes against the rule of construction “ejusdem generis” which requires that the following words in a statutory formation should be defined by reference to the preceding words. Thus, the court noted that the interpretation that emphasizes one criterion to the derogation of others is in contradiction of plain language of the regulations and therefore is “not worthy of deference”.

The court further noted that even though the 2010 employer- employee memo incorporates common law, it specified that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive”. In fact, the 2010 employer- employee memo provides guidance to evaluate the factors enumerated using a totality-of-the-circumstances test while determining if the employer established the “right to control” over beneficiary’s employment. Therefore, the agency’s fixation with the “ability to control manner and means in which the work product of the beneficiary is accomplished” is just one factor even under the 2010 employer-employee memo.

The USCIS in Serenity Info Tech argued that the detailed itinerary requirement under the 2018 memo is more in alliance with the plain language of the regulation than the guidance under the 1995 memo which interpreted that the plain language of the regulation allows accepting a general statement regarding proposed employment. The court ruled that as the regulations unambiguously list what the itinerary must include, the agency’s itinerary interpretation also fails at the first step of Kisor analysis because there is nothing to interpret.

Further, the USCIS contended that the agency gets the regulatory basis to request a detailed itinerary from the fact that this information is imperative to demonstrate (i) non-speculative employment; and (ii) that the employees will be serving in a “specialty occupation”.

The court noted that by requesting day to day activities, the agency is conflating “non-speculative employment with non-speculative work assignments” and there is no such requirement in the statute or the regulations to request day to day assignments. And as to the USCIS’s reliance on the fourth prong as the regulatory basis to require detailed itinerary as evidence of specialty occupation, the court agreed in essence with Judge Collyer’s decision in ITServe Alliance specifically noting the distinction drawn between “occupation” and “job”.

It further noted that even though it is the “agency’s prerogative to ascertain generally whether the beneficiary will actually be serving in the purported specialty occupation but does not extend to micro-managing every aspect of the occupation’s duties.” The court also acknowledged the impracticability of expecting US employers to be able to “identify and prove daily assignments for the future three years for professionals in specialty occupation.”

In conclusion, the court decided that the regulations are clear and there is no basis in the statute or the regulations to submit day to day specific work requirements for the duration of the visa requested. Hence, the agency’s interpretation of the unambiguous regulations owed no deference.

We now analyze court cases that have relied on Kisor  to overturn “specialty occupation” denials.

Inspectionexpert Corporation v. USCIS

Inspectionxpert Corporation v. USCIS is a fine example of how Kisor has limited the scope of Auer deference. At issue was the interpretation of the provision 8 C.F.R §214.2(h)(4)(iii)(A) (referred to as “the Provision” in the decision). This provision states the four criteria under which an employer can establish that the occupation qualifies as a specialty occupation for H-1B purposes. The key question was whether the USCIS’s requirements of a degree in one singular subspecialty warranted deference. In this case, the petitioner challenged the denial of the H-1B petition based on the education requirements of the petition for the proffered position of a Quality Engineer. The requirements for the position were “a bachelor’s degree in Mechanical Engineering, Computer Science or a related technical or engineering field”. The USCIS denied the petition noting that:

the field of engineering is a broad category that covers numerous and various specialties, some of which are only related through the basic principles of science and mathematics, e.g nuclear engineering and aerospace engineering. Thus, a general degree in engineering or one of its other subspecialties, such as civil engineering or industrial engineering, is not closely related to mechanical engineering.

The issue at hand was USCIS’s reliance on the interpretation of the Provision to conclude that “a general degree in engineering or one of its subspecialties” as required by the position does not qualify as a specialty occupation under the Provision. The court relied on the Kisor test to decide if the USCIS interpretation requires deference. The petitioner argued that the plain language of the Provision suggests that reference to the bachelor’s degree implies a generic degree requirement. The court delved into the legislative history of the immigration statutes spanning over thirteen (13) pages before making an analysis on the issue and concluding why the USCIS’s interpretation does not warrant deference. The court disagreed with petitioner’s argument noting that it is in contravention of the “history and structure of the H-1B regulations” and affirmed that the “statutory and regulatory framework compels USCIS’s reading under which ‘the position at issue must require the attainment of a bachelor’s or higher degree in a specific specialty”.

However, the court still ruled in favor of the petitioner, and  specifically pointed to the 1990 Rule where the former INS specifically mentioned that:

The Service’s interpretation over the years has been that the common denominator for determining that an occupation is a profession is the requirement of at least a baccalaureate degree awarded for academic study in a specific discipline or narrow range of disciplines.

Citing to the above, the court noted that the historical administrative practice of the agency clearly shows that the interpretation followed by the USCIS in this decision does not reflect its “authoritative” or “official position”. The USCIS tried to backtrack its position on which the denial was based by emphasizing that the USCIS does not impose the one-degree rule. It only maintains that it cannot be a general degree. The court noted that concluding an engineering degree requirement as a generalized degree confirms the unreasonableness of the interpretation relied upon by the USCIS in the decision. The court noted that the INA defines professions (later substituted for specialty occupation) at a categorical level such as lawyers. It does not specify the specialty occupation as a “tax lawyer”. More importantly, it specifically includes “engineers”. The court also emphasized on the USCIS’s reasoning of not including “liberal arts degree” as its broadness whereas engineering was specifically noted and included as a profession/specialty occupation.

The court concluded that a denial on the basis that an engineering degree is a generalized requirement is tenacious and “contrary to the statute and the Agency’s past practices”.

Besides, there have been multiple other recent decisions that reflect a trend of successfully challenging USCIS’s denials of specialty occupation in broad violation of the statutory and regulatory text and also in contradiction of its own practice even if Kisor has not been specifically invoked. Below are two examples.

India House Inc. v. USCIS

In  India House v. USCIS, the court held that a General Operations Manager position requiring a bachelor’s degree in Hospitality Management or a directly related field qualifies as a specialty occupation. The court distinguished this case from Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir. 2007) which established that a general-purpose degree such as a business administration degree is not a specific degree. The court noted that the requirement of a degree in Hospitality Management is a specific degree as the curriculum is dedicated specifically to food services and hospitality management which unlike a generic business administration degree cannot be used for any other institutional management The court also emphasized that even though the USCIS is not bound by its prior approvals, it is worth noting that it approved the petition twice in the past for the same position for the same petitioner and the beneficiary. Hence, as there is no change in the law or regulations and the USCIS has not accepted that the issuance of the prior H-1B visas was erroneous, there is no explanation as to how a position that was a specialty occupation in the past suddenly does not qualify to be so now and would constitute abuse of discretion.

Taylor Made Software Inc. v. USCIS

Taylor Made Software Inc v. USCIS  involved a position of Computer Systems Analyst where the USCIS denied the petition relying on OOH that many Computer Systems Analysts have a liberal arts degree and hence the occupation does not require a bachelor’s level training in a specific specialty. The court disagreed and noted that the regulatory criterion is not that a bachelor’s degree or its equivalent in a specific field is “always” required rather it states that bachelor’s degree or its equivalent is “normally” the minimum requirement for entry into the occupation. Therefore, the OOH language that “most” computer systems analysts have a bachelor’s degree in a specific field is the typical baseline.

In conclusion, the Supreme Court’s decision in Kisor has proved to be more potent than originally envisaged, where the courts are no longer paying traditional Auer deference and are instead reversing H-1B denials based on the USCIS’s erroneous interpretation of its own regulations. In addition to Kisor, the authors also acknowledge the brilliance and perseverance of ace litigators Jonathan Wasden and Bradley Banias who tenaciously fought many of these cases that brought down the house of cards that the government has stealthily built on shaky foundations with the sole purpose of obstructing meritorious and legitimate H-1B cases.

 *Guest author Sonal Sharma is a Senior Attorney at Jethmalani & Nallaseth PLLC in New York. Her practice involves both temporary nonimmigrant visa and permanent employment cases. She represents and advises clients – medium to large multinational corporate entities – from a wide variety of industries on intricate and comprehensive immigration matters.