Tag Archive for: DACA

Cyrus Mehta

As Texas Has Been Smacked Down Twice for Lack of Standing in Challenges to Federal Immigration Policies, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions

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On March 8, 2024, Judge Tipton in Texas v. DHS dismissed a lawsuit brought by Texas and 20 other states challenging President Biden’s humanitarian parole program. Judge Tipton, who was appointed by Trump,  has otherwise been receptive to challenges to Biden’s immigration policies but not this time. Texas filed the lawsuit in his court thinking that Judge Tipton would again issue a favorable decision but Judge Tipton held that Texas did not have standing to bring the lawsuit.

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukrainian and Venezuelan nationals all0wed 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela (CHNV) to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

In Texas v. DHS  the challengers asserted that the program exceeded the parole authority given to the administration under INA 212(d)(5) as it can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. They also asserted that the program failed to include a notice and comment period and the program was arbitrary and capricious. Judge Tipton’s order did not address the merits because the plaintiffs did not demonstrate they had standing to bring the lawsuit.

Judge Tipton gave short shrift to Texas’s claim that the parole of CHNV nationals  would impose additional health care costs on the state or additional incarceration costs or an increase in education costs since the CHNV program has resulted in the decrease of migrants entering the US irregularly through the southern border. Judge Tipton also found that an increase in CHNV nationals seeking driver’s licenses would not impose additional costs on Texas, in fact the increased applications would result in a profit for Texas.  Prior to the CHNV program DHS released an average of 2,356 CHNV nationals per day but after the implementation of the program there were a total of 1,326 arrivals per day, which was a 44% reduction.

As a result, Texas was unable to show an “injury-in-fact” that the CHNV program increased the   costs on Texas. In fact, to the contrary, the CHNV parole program has reduced the total number of individuals from the four countries and Texas has spent less money after the implementation of the parole program. Texas counter argued that even if there are fewer apprehended CHNV nationals, the court should consider the money Texas would spend on CHNV nationals under the parole program. Judge Tipton emphasized that the court must consider the “actual injury – not the labels put on the injury” as otherwise plaintiffs will engage in “artful pleading” to make an end run around the standing requirement under Article III of the Constitution. To determine whether actual injury exists the raw numbers need to be looked at in context rather than in a vacuum. The CHNV program reduced the overall numbers of CHNV nationals that the United States admitted prior to the implementation of the program.

The CHNV program, which will continue for now,  has been a spectacular success thus far and is built on the US historically using parole to respond to immigration crises.  The CHNV parole program has “redirected many migrants away from risky journeys through Mexico into a lawful framework. By allowing sponsors to financially support beneficiaries, the programs have facilitated safe and orderly migration, reducing the strain on government resources,” according to the Cato report in the link.

Texas and the other states may appeal Judge Tipton’s decision, but this is the second time that Texas’s challenge has been smacked down due to lack of standing. Last June 2023 in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Judge Tipton readily agreed by vacating the Mayorkas Memo. The Fifth Circuit affirmed but the Supreme Court reversed holding  that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.”

As a result of Texas losing twice on standing, the enforcement priorities under the Mayorkas Memo continue to be applied and the CHNV parole program will also allow CHNV nationals to enter the US through parole in an orderly manner and relieve the strain on the Southern border. It remains to be seen whether Texas’s challenge to DACA can also be denied based on standing. Currently, the Fifth Circuit is reviewing Judge Hanen’s ruling in September 2023 holding that DACA is illegal.  Judge Hanen also affirmed that Texas had standing to challenge DACA notwithstanding the Supreme Court decision in United States v. Texas, where Justice Kavanaugh also stated  that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Judge Hanen seized upon this sentence from Justice Kavanaugh’s decision by holding that DACA involved  “non prosecution with benefits” and so it was distinguishable from the enforcement priorities in the Mayorkas Memo. Judge Hanen also seized upon another part in Justice Kavanaugh’s opinion stating that the “standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Judge Hanen thought that DACA was such an example where the administration has abandoned its statutory responsibility to make arrests and bring prosecutions and thus violated the “Take Care Clause” of the Constitution.

Both Texas v. DHS and United States v. Texas should serve as templates for either the Fifth Circuit or the Supreme Court to once again deny Texas standing to challenge DACA and Texas’s other serial challenges to Biden’s immigration programs. Texas lacks standing  because DACA like the CHNV parole program has been widely successful and it can be shown that it has not injured Texas. In his order Judge Tipton contrasted Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised, (Nov. 25, 2015), aff’d by equally divided Court, 597 U.S. 547 (2016), where President Obama’s Deferred Action for Parents of Americans (DAPA) was found to be unlawful, with the CHNV program. The Fifth Circuit held that Texas demonstrated injury in fact because “DAPA would enable at lest 500,000 illegal aliens in Texas” and the extended DACA program  would also cause “pocketbook injuries on the State in the form of healthcare, education, and social service costs.” However, if DACA is viewed independently from DAPA, it can be demonstrated that the benefits from DACA recipients since 2012 in the form of tax contributions to Texas and increased profits from the issuance of driver’s licenses, among other benefits,  have not resulted in injury-in-fact to Texas. Using the comparative analysis of Judge Tipton in Texas v. DHS, it can also be argued that the number of DACA recipients did not increase after the implementation of DACA in 2012 as they were already in the US prior to its implementation.

Moreover, in  Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Although Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would. It is also worth mentioning that In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. As with the Mayorkas Memo, the DACA program also involves prosecutorial discretion and so Texas’s challenge to DACA may suffer the same redressability problem identified by Justice Gorsuch.

As the latest order to Judge Tipton in Texas v. DHS and Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through parole initiatives  and other executive actions without fear of being sued by these states. As a fitting coda, it is worth mentioning that the Judicial Conference of the United States, the policy arm of the judiciary, has  strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit. This new policy would make it more difficult for states like Texas to file a lawsuit in courts where the judge might rule more favorably in a challenge to a Biden federal immigration policy. However, after receiving intense backlash from conservative lawmakers, judges and judicial experts, the Judicial Conference issued a revised policy making clear that the policy is a recommendation and district courts cannot be forced to follow it.  Although Texas’s choice of filing its lawsuit against the CHNV program in the United States District Court Southern District of Texas, Victoria Division, where Judge Tipton presides, backfired, even if this policy is non-binding guidance, it would still make it more difficult for Texas to try this strategy repeatedly in courts where other friendly judges preside like the United States District Court for the Southern District of Texas, Brownsville Division,  where Judge Hanen presides.

Cyrus Mehta

How Prosecutorial Discretion Saved Our Client

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By Cyrus Mehta and Jessica Paszko*

This is the story of our client Nadia Habib who was in immigration proceedings from 18 months till 31 years until an Immigration Judge granted her adjustment of status on November 21, 2023!

Nadia Habib came to the US in 1993 from Bangladesh when she was less than 2 years old with her mother Nazmin Habib. They were paroled into the US at JFK airport.  Some years later in June 1997 they were placed in removal proceedings in New York, and ordered deported in absentia on April 26, 2000 by an Immigration Judge. They did not show up in court on the day of their hearing due to an unfortunate misunderstanding as a result of Nazmin being seriously ill the day before.  Several efforts were made to reopen the in absenstia deportation order but to no avail. However, they continued to live their lives normally as a tightly knit family. Nazmin and her husband Jawad, who had a green card, had three more children in the US who were automatically citizens. Jawad supported the entire family as a yellow taxi driver in New York. Nadia continued to be vulnerable to deportation unlike her citizen siblings, although she showed great promise by doing well in school and getting admitted into the elite Bronx High School of Science in New York.

On September 10, 2011, Nazmin and Nadia, then 19 years old, received a bag and baggage letter from Immigration and Customs Enforcement (ICE) ordering that they surrender for deportation on September 29, 2011. This letter brought their lives and the lives of their family and loved ones to a shocking halt. Nadia’s friends and other immigrant students quickly sprung to action, launching campaigns on Facebook and Twitter, in the hope that Nadia and her mother would be allowed to remain in the US with her father and her three US citizen siblings. On the fateful day she had to appear for deportation on September 29, members of the Youth Leadership Council gathered thousands of petition signatures and turned out over 100 people to rally in support of Nadia and Nazmin and to try to halt the deportation scheduled for that day at 11 am.  The community’s fervent efforts to keep Nadia and Nazmin from returning to Bangladesh that was entirely foreign to Nadia paid off. ICE halted the deportation order and decided to review their case. Though September 29, 2011 was marked with victory for Nadia and her mom, their immigration woes were far from over.

At that time when Nadia was about to get deported, President Obama began to be known as the Deporter-in-Chief. Although Obama was sympathetic towards immigrants, he wanted to also show that he was strict on enforcing the law as a way to get his Republican opponents in Congress to pass a comprehensive immigration reform bill.  As the deportations under Obama spiked in 2011 and 2012, until they reached a record high by 2013, the then ICE Director John Morton issued a landmark memo in 2011 providing detailed guidelines on how ICE officers should exercise prosecutorial discretion.

On September 30, 2011, which also happened to be Nadia’s 20th birthday, ICE issued a Stay of Removal Order for Nadia and Nazmin. This was the first exercise of prosecutorial discretion that would benefit Nadia and Nazmin and a birthday present that Nadia would never forget. Nadia and Nazmin approached our firm to seek representation. The case was so sympathetic and meritorious that we decided to take on the case pro bono. The goal was to find a pathway for Nazmin and Nadia to reopen their deportation orders and adjust status while keeping them in the US in the interim in an authorized capacity as long as possible.

On February 23, 2012, ICE also issued an order of supervision to both Nadia and Nazmin which required them to report in person to ICE on specified dates, usually once or twice a year. On June 15, 2012, the Secretary of Department of Homeland Security (DHS) Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”, officially establishing what would later be known as the Deferred Action for Childhood Arrivals (DACA) program. DACA came to be the second form of prosecutorial discretion that benefitted Nadia who clearly qualified as she came to the US well before the age of 16. After graduating from the Bronx High School of Science, Nadia pursued undergraduate studies at Stony Brook University and later obtained her master’s degree in architecture from The City College of New York. On the basis of DACA, Nadia was able to apply for an Employment Authorization Document (EAD) in September 2012. Since then, our firm helped Nazmin and Nadia comply with their annual appointments with ICE and apply for DACA extensions along with the EAD. Nadia had to report each year for her appointment with ICE even though she was authorized to remain in the US under DACA. Every time Nadia wanted to travel outside New York for a trip to another state, even over a long weekend, she had to ask for and receive permission from ICE.

In the meantime, Nadia’s US citizen brother filed Form I-130 on behalf of his mother Nazmin which was approved in early 2016. Jawad had not yet naturalized as his application had been erroneously denied and our appeal challenging the denial was pending. This I-130 served as the basis of our request to DHS to join our motion to reopen Nazmin’s removal so that Nazmin could apply for adjustment of status based on the approved I-130 petition filed by her US citizen child. A removal order can be reopened at any time if the government joins in a motion to reopen even though prior efforts to reopen the removal were unsuccessful. The ability of the government joining in a motion to reopen depends on the policies of the administration at any given time. We requested the government to join in the motion in September 2016, during the final year of the Obama administration based on Morton’s prosecutorial discretion policy. Donald Trump became president in 2017 and our request was pending, but the ICE attorney who got our request to join in the motion fortunately agreed to join in the motion to reopen Nazmin’s removal proceedings to the Board of Immigration Appeals (BIA) even though by then prosecutorial discretion became non-existent under Trump’s new enforcement oriented immigration focus. In July 2017, the BIA granted our motion based on the government’s consent and remanded for further proceedings. After a nearly five year wait (since the I-485 application could not be tracked in the USICS bureaucracy until there was Congressional intervention), Nazmin was scheduled for an adjustment interview in March 2022 at a USCIS field office in Long Island where her adjustment of status application was finally granted.

Nadia was still not eligible to adjust status, so we could not request the government to join in the motion to reopen. Although Nadia’s father eventually naturalized, she was unable to adjust status through him as she was over 21 years old. Despite this, Nadia continued to be able to remain in the US thanks to DACA. When Nadia married her US citizen husband in 2020, he filed Form
I-130 on her behalf which was approved the following year. Following a similar path as her mother case, in January 2022, our firm submitted a request to DHS to join our motion to reopen Nadia’s removal order so that Nadia could apply for adjustment of status based on the approved I-130 petition filed by her husband. By then Joe Biden was President and he once again instructed ICE to exercise prosecutorial discretion. In November 2022, DHS consented to joining in the motion to reopen for the sole purpose of dismissal of removal proceedings. The following month, in December 2022, we submitted our joint motion to reopen Nadia’s removal proceedings to the BIA. In February 2023, the BIA granted our motion and reopened and remanded to the Immigration Court for further proceedings. In September 2023, we learned that Nadia had been scheduled for a merits hearing on November 1, 2023 by happenstance as neither Nadia nor our firm received the notice – imagine if the Immigration Judge would have again deported Nadia in absentia at the hearing. Our request to adjust Nadia’s status on the basis of her I-130 was unopposed by DHS, though the Immigration Judge could not grant the adjustment as the sealed medical report that we had delivered to the Immigration Court in advance of the November 1st hearing had not made its way to him. The Immigration Judge continued the hearing to November 17, 2023 where finally, after many trials and tribulations, Nadia was adjusted to lawful permanent resident status. Nadia’s order of supervision dissolved on that day too relieving her from reporting to ICE each year.

Nadia was 32 years old on the day she was granted adjustment of status, and before then she had been in some form of immigration proceeding since she was 17 months old. Today Nadia is a successful architect and her siblings are also equally successful. Through this period, Nadia benefited from prosecutorial discretion, but the path was never smooth. DACA was declared unlawful by a federal judge and its fate hangs in the balance till this day. Even after Biden became president, courts enjoined his prosecutorial discretion policies that were set forth in the memo of DHS Secretary Mayorkas, but we advocated, when requesting the government to join in the motion to reopen, that the government could still exercise discretion outside the priorities set forth in the Mayorkas memo. Despite the court block of the Mayorkas memo, the DHS retained the ability to exercise discretion and join in a motion to reopen. Imagine if Nadia did not receive the stay of removal in 2011 and was deported to Bangladesh after she had spent her whole life in the US. But for the prosecutorial discretion policies in place, Nadia would have been deported because of an in absentia deportation order that she received, over which she had no control and for no fault of her own. Nadia and Nazmin were also fortunate that ICE attorneys agreed to join in the motions to reopen despite the zigzagging prosecutorial discretion policies over three presidential administrations.

We are proud to have represented Nadia and Nazmin tenaciously and doggedly for well over 10 years in a pro bono capacity!

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State

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By Cyrus D. Mehta and Kaitlyn Box*

On July 7, 2023, DHS announced a new family reunification parole initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades.

Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, in his discretion, to parole noncitizens into the United States temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The parole authority has long been used to establish family reunification parole (FRP) processes administered by U.S. Citizenship and Immigration Services, including the Cuban Family Reunification Parole Program, which was established in 2007, and the Haitian Family Reunification Parole Program, which was established in 2014.

The processes begin, according to the DHS announcement, with the Department of State issuing an invitation to the petitioning U.S. citizen or lawful permanent resident family member whose Form I-130 on behalf of a Colombian, Salvadoran, Guatemalan, or Honduran beneficiary has been approved. Beneficiaries awaiting an immigrant visa could include certain children and siblings of U.S. citizens and certain spouses and children of permanent residents. The invited petitioner can then initiate the process by filing a request on behalf of the beneficiary and eligible family members to be considered for advance travel authorization and parole.

The new processes allow for parole only on a discretionary, case-by-case, and temporary basis upon a demonstration of urgent humanitarian reasons or significant public benefit, as well as a demonstration that the beneficiary warrants a favorable exercise of discretion. Individuals paroled into the United States under these processes will generally be considered for parole for up to three years and will be eligible to request employment authorization while they wait for their immigrant visa to become available. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

The Federal Register Notices for Colombia, El Salvador, Guatemala, and Honduras provide more information on the FRP process and eligibility criteria.

According to the federal register notices, the justification for the new FRP initiative is part of a broader, multi-pronged, and regional strategy to address the challenges posed by irregular migration through the Southwest border. Consideration of noncitizens for parole on a case-by-case basis will meaningfully contribute to the broader strategy of the United States government (USG) to expand access to lawful pathways for individuals who may otherwise undertake an irregular migration journey to the United States. The case-by-case parole of noncitizens with approved family-based immigrant visa petitions under this process will, in general, provide a significant public benefit by furthering the USG’s holistic migration management strategy, specifically by: (1) promoting family unity; (2) furthering important foreign policy objectives; (3) providing a lawful and timely alternative to irregular migration; (4) reducing strain on limited U.S. resources; and (5) addressing root causes of migration through economic stability and development supported by increased remittances.

It remains to be seen whether states like Texas will attack this program in federal court. A similar humanitarian parole program has been the subject of a lawsuit by Texas and nineteen other states, and  allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. The new FRP initiative is more narrowly tailored as it applies only to spouse, children and sibling beneficiaries of  approved I-130 petitions. Also, in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Although that case dealt with whether a state could challenge the federal government’s ability to exercise prosecutorial discretion, it can also potentially deter a state’s ability to demonstrate standing when it challenges other federal immigration policies.

In Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Still, Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. Note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would.

Florida has already challenged the Biden administration’s “Parole Plus Alternatives to Detention” (Parole+ATD) and “Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document” (PWC) policies in Florida v. Mayorkas  that is currently pending before the Eleventh Circuit Court of Appeals. In a brief filed on July 5, 2023, the government argued that the “special solicitude” doctrine proffered by states in United States v. Texas. should not apply in the humanitarian parole context. Florida asserted that it was entitled to special solicitude for the same reasons articulated by Texas in United States v. Texas – “a challenge to its sovereignty and indirect fiscal costs flowing from the presence of more noncitizens in its state.” Because the Supreme Court rejected an almost identical argument for the application of special solicitude in United States v. Texas, the government argued that Florida is similarly not entitled to avail of the doctrine.

The Supreme Court’s decision in United States v. Texas could have interesting implications for challenges to DACA, as well, and DACA recipients as intervenors have filed additional briefing to the US District Court for the Southern District of Texas in US v. Texas, Case No. 1:18-CV-68. In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. Although an injunction would prevent the implementation of the Biden administration’s enforcement guidelines, Justice Gorsuch argued that this remedy was unavailable to the states because of 8 U. S. C. § 1252(f )(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” certain immigration laws, including the provisions that the states want to see enforced. The district court attempted to avoid offending this provision by “vacating” the Biden administrations guidelines instead of issuing an injunction, but Judge Gorsuch argued in part that a vacatur order nullifying the guidelines does nothing to redress the states’ supposed injuries because the “federal officials possess the same underlying prosecutorial discretion”, even in the absence of the guidelines. DACA recipients argued that this program also represents an exercise of inherent prosecutorial discretion, and states’ challenge of the program therefore suffers from the same redressability problem identified by Judge Gorsuch. Similarly, the states challenging the DACA program have alleged indistinct injuries similar to those articulated by Texas in United States v. Texas. Because the Supreme Court found that Texas lacked standing to challenge the Biden administration’s guidelines, DACA recipients have argued that states do not have stating to challenge the DACA program based on similar theories.

DOJ attorneys and intervenor defendants filed a joint motion on July 7, 2023, asking Judge Tipton of the United States District Court for the Southern District of Texas to delay a bench trial in the earlier lawsuit filed by Texas to challenge the Biden administration’s parole program for Cubans, Haitians, Nicaraguans, and Venezuelans. Although the motion argued that the outcome of United States v.  Texas would determine whether Texas had standing in the federal suit, Judge Tipton predictably declined to push back the trial date. Texas had previously argued that the parole program is distinguishable from the Biden administration’s enforcement guidelines because “[w]hatever discretion [the administration] might have in choosing which aliens to arrest or otherwise take into custody, [it has] no discretion to parole into the country aliens who do not meet the statutory criteria for parole.” At this point, states like Texas are arguing that their legal challenges to Biden’s earlier humanitarian parole or DACA program can be distinguished from United States v. Texas, which involved enforcement priorities, while the Biden administration and intervenors such as DACA recipients are arguing that Texas should not have standing to challenge even other immigration programs.

Returning to the idea of how this initiative can be broadened, parole can potentially be expanded to all beneficiaries of approved I-130, I-140, and I-526 petitions who are waiting overseas in the green card backlogs. Even if parole is expanded, the administration can still remain faithful to INA § 212(d)(5) by approving parole on a discretionary and case-by-case basis for urgent humanitarian reasons or a significant public benefit. For instance, it may be possible to justify the parole of certain beneficiaries of I-526 petitions who have made a minimum investment of  $500,000 in a US business prior to May 15, 2022 or $800,000 after this date,  and created 10 jobs as that could be considered a significant public benefit. The same justification can be made for certain beneficiaries of approved I-140 petitions in the EB-1, EB-2, and EB-3 preference categories whose presence in the US can benefit US employers who have sponsored them through the labor certification process or who have demonstrated that they are either persons of extraordinary ability or are well situated to advance the national interest of the United States. Beneficiaries of approved I-130 petitions who are caught in backlogs can make a justification for parole for urgent humanitarian reasons to unite with family members in the US.

Out of the four proposals Cyrus Mehta made to the Biden administration in May 2021 for reforming the legal immigration system without waiting for Congress to act, we are happy to see that two have come to fruition- parole for beneficiaries of I-130 petitions and using the Dates for Filing (DFF) for protecting the age of the child under the Child Status Protection Act. Cyrus Mehta has also proposed that the administration has the authority to advance the DFF in the State Department Visa Bulletin to current to maximize the number of people who can file for adjustment of status in the US. Cyrus Mehta has also proposed that there is nothing in INA § 203(d) that requires the counting of derivatives in  the family and employment green card preferences, although since the submission of this proposal, the DC Circuit Court of Appeals in Wang v. Blinken ruled that INA § 203(d) requires the counting of derivative. Hence, any hope of administrative reform with regards to the unitary counting of family members has been shelved for the time being unless Congress is able to provide clarification on §203(d). Even if the administration issues a new interpretation to INA § 203(d) and abandons the position it took in Wang v. Blinken, the DC Circuit Court of Appeal’s interpretation will still prevail within the jurisdiction.

As Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through executive actions without fear of being sued by these states. It may be no coincidence that the latest family reunification parole initiative was unveiled within two weeks of the favorable ruling for the Biden administration in Texas v. United States!

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

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

Cyrus Mehta

While Supreme Court Holds That States Have No Standing to Challenge Federal Immigration Enforcement Priorities in United States v. Texas, How Does This Bode for  DACA and Other Immigration Policies?

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By Cyrus D. Mehta

In United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Trump appointed Judge Tipton readily agreed by vacating the Mayorkas Memo.

Justice Kavanaugh held that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.” In Linda R.S. v. Richard D., 410 U.S. 614 (1973), cited in the majority opinion, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Similarly, a state government like the private citizen in this case cannot bring such a lawsuit. In another case Heckler v. Chaney, 470 US 821 (1983), the Court recognized that the government has to balance several factors such as resource constraints and changing public safety and public welfare needs, and that such a complicated balancing process leaves the courts without meaningful standards for assessing those policies.

The Court recognized that the Executive Branch exercises absolute discretion to prosecute a case, and this discretion extends to the immigration context. The Court previously in Arizona v. United States, 567 U.S. 387 (2012) declared that the Executive Branch retains discretion over whether to remove a noncitizen from the United States. Indeed, prosecutorial discretion is so inevitable in immigration enforcement that even after the Mayorkas Memo was set aside, ICE has continued to exercise discretion by moving to dismiss thousands of removal cases in immigration courts  but without referring to the priorities in the Mayorkas Memo.

This decision bodes well for the other cases where Texas and other states have challenged federal immigration policy, although with respect to the Deferred Action for Childhood Arrivals (DACA) program, Kavanaugh’s opinion states that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” One wonders whether this would give Judge Hanen some leeway in distinguishing this case from United States v. Texas. Still, DACA is also part of enforcement priorities as the administration has decided to defer the removal of youths who fell out of status for no fault of their own. The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for employment authorization, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status should put DACA in the same category of cases where the DHS has exercised  prosecutorial discretion, and should in turn preclude Texas and other states from getting standing to challenge the program.

There is also this fear whether this ruling would preclude an immigrant friendly state like New York, Hawaii, Washington or California to challenge an anti-immigrant policy of a future president. Would Hawaii be able to challenge a future travel ban based on discriminatory grounds like it did in Trump v. Hawaii? Or would a state like New York be able get standing to sue a future administration if it again restricted the public charge parameters?  Assuming that United States v. Texas precludes standing for these states in the future, there will also be plaintiffs who have been actually injured such as noncitizens whose travel has been blocked to the US or who have been denied permanent residence as they could not meet the new restrictive public charge grounds. United States v. Texas serves as a shield against plaintiffs who wants to play offense but does not come in the way of an injured plaintiff who needs to play defense. It also remains to be seen whether the standing analysis in the ruling is limited to challenging the government regarding non-prosecutions or exercising prosecutorial discretion or whether it would apply to other matters.

If the standing analysis applies to other matters, then the Biden administration should consider boldly providing relief to backlogged skilled immigrants by radically advancing the dates for filing in the State Department Visa Bulletin so that thousands of beneficiaries of approved I-140 employment petitions may file for adjustment of status in the US and obtain benefits such as interim work authorization, travel permission and the ability to exercise job portability. The administration can also consider  providing parole to beneficiaries of approved I-130 family,  I-140 employment  and I-526 investor petitions who are waiting overseas to immigrated until their priority dates becomes current. These are just a few examples where the Biden administration can tread more boldly without fear of being sued by Texas, Louisiana or Missouri.

In the immediate aftermath of the decision where Justice Alito was the only dissenter, DHS Secretary Alejandro Mayorkas said that the DHS would reinstate the guidelines, which were paused last summer by the Supreme Court. He said this would “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.” Texas Gov. Greg Abbott said that Texas would “continue to deploy the National Guard to repel [and] turn back illegal immigrants trying to enter Texas illegally.”

 

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 Legal Basis for DACA as Expressed in the Final Rule

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By Cyrus D. Mehta and Kaitlyn Box*

On August 24, 2022, the Department of Homeland Security (DHS) issued a final rule aimed at “preserving and fortifying” the Deferred Action for Childhood Arrivals (DACA) program. The DACA program was initiated by a 2012 memo from then-DHS secretary Janet Napolitano (“Napolitano Memo”) and has been subjected to numerous legal challenges since. Many of our previous blogs discuss the DACA program. The Napolitano Memo stated that DHS would consider deferred action for individuals who met the following criteria pursuant to the DACA program: 1) came to the United States under the age of 16; 2) continuously resided in the United States for at least 5 years preceding June 15, 2012, and were present in the United States on that date; 3) are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 4) have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and 5) were not above the age of 30 on June 15, 2012.

The new final rule takes effect on October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It retains the same criteria for DACA eligibility that were laid out in the Napolitano Memo and preserves the existing process for DACA recipients to request work authorization. The final rule also affirms USCIS’ longstanding policy that DACA recipient are considered “lawfully present”.

It is plain that the new final rule is aimed at insulating the DACA program from being invalidated by future litigation. In a July 16, 2021 decision, Judge Hanen of the U.S. District Court for the Southern District of Texas held that the DHS violated the Administrative Procedure Act (APA) as it was not established through notice and comment rulemaking.. Judge Hanen further reasoned that DHS did not have the inherent authority to enact the program, and held that DACA conflicts with sections of the INA that describe which individuals are removable and lay out a statutory scheme for work authorization. Because Congress had already clearly articulated rules surrounding removal, lawful presence, and work authorization, Judge Hanen held that DACA failed the first step of the Chevron test and violates the APA.  Prosecutorial discretion, of which DACA is a variant, is an established doctrine that does not need to be codified. Promulgating a regulation may protect DACA from some legal challenges, but not all. If litigation asserts that the program is not authorized under the INA, the fact that it was established through notice and comment rulemaking will not provide a defense.

The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for EADs, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status could potentially nudge a court to uphold DACA rather than find it unlawful.

It remains to be seen how DACA fares in the ongoing litigation, particularly in light of the current composition of the Supreme Court. While the U.S. Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California in 2020, the majority’s opinion was based on the improper procedure used by the Trump administration in its attempt to rescind DACA in 2017 in violation of the APA.  The Court in Regents did not reach the question of whether DACA itself was legal. The Supreme Court in Regents also faulted the then Trump administration for not factoring in reliance interests under Encino Motorcars, LLC v. Navarro, 579 U. S. ___ (2016) when rescinding DACA. Justice Roberts writing for the majority observed that DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae, which estimated that hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Unfortunately, notwithstanding the benefits of the DACA program to the US, the reliance interest doctrine may not be relevant if the Court rules that DACA was not authorized under the INA.

In any case, the new final rule is a good step forward and will give the program firmer legal footing. Unless the Supreme Court rules that DACA is not authorized under the INA, the final rule would render it very difficult, if not impossible, for a future administration not friendly towards immigrants to rescind DACA. It is hoped that the judges in the Fifth Circuit, and if not the Fifth Circuit, the Supreme Court removes any ideological lens and is able to see DACA as being lawful and authorized under the INA. If prior rulings have indicated that the government can exercise prosecutorial discretion  on a case by case basis, there is not much difference if the government exercises prosecutorial discretion in an orderly way through the DACA rule. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. A prior 2012 blog by Gary Endelman and Cyrus Mehta, Yes He Can: A Reply to Professors Delahunty and Yoo,  provided an impassioned defense of  DACA. The arguments we made then are still relevant notwithstanding Judge Hanen’s decision that found DACA to be unlawful.  The court reviewing Judge Hanen’s decision need look no further than the newly promulgated provision at 8 CFR §236.21(c)(1) which sums up why DACA is lawful:

Deferred action is an exercise of the Secretary’s broad authority to establish national immigration and enforcement priorities under 6 U.S.C. 205(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on high priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.

While it is hoped that the court will uphold DACA, DACA recipients deserve better than the uncertainty of renewing  DACA  along with work authorizations every two years, and urgently need Congress to regularize their status and place them on a  pathway to citizenship.

 

(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

Can the Arbitrary and Capricious Standard Under the Administrative Procedure Act Save DACA?

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The Supreme Court announced on June 28, 2019 that it would consider the legality of President Trump’s ending of the Deferred Action for Childhood Arrivals Program.  Although federal courts in New York, California and Washington DC have blocked Trump’s efforts to block DACA, the Supreme Court decided to take up the matter striking fear in the hearts of Dreamers. The Supreme Court had previously declined to take up DACA, and so it needn’t have prematurely considered the ongoing challenges in the lower courts to Trump’s rescission of the program, which have benefitted 800,000 Dreamers.  Given the Supreme Court’s new conservative majority, there is a chance that the Court could uphold Trump’s action. It is indeed paradoxical that the nation’s highest court is viewed with fear by many vulnerable immigrants rather than as a protector of their rights.

Still, even though DACA was initiated by President Obama as an executive action, it cannot be arbitrarily and capriciously rescinded by the next president.

In one of the lower court decisions in April 2018, NAACP v. Trump, Judge Bates invoked 5 U.S.C. §706(2)(A) of the Administrative Procedure Act to stay President Trump’s decision to rescind DACA.  The APA provides that a court “shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Judge Bates ruled that the Trump administration provided scant legal reasoning to support its justification that DACA was unlawful. “A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do,” Judge Bates opined in a further ruling in August 2018.

The ability for a court to set aside a decision by the administration under the Administrative Procedure Act if it is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law” is a powerful tool. It can be invoked by a foreign national who may no longer be able to remain in the United States based on the government’s unlawful actions. §706(2)(A) has also been successfully invoked in recent challenges to denials of H-1B requests by employers and foreign nationals.

Will the Supreme Court rely on §706(2)(A) to hold that Trump’s justification was arbitrary and capricious? One can find a clue in the Supreme Court’s recent decision in Department of Commerce v. New York where it questioned the Commerce Secretary’s insertion of a citizenship question in the 2020 census form. Plaintiffs challenged the insertion of the citizenship question on the ground that it would result in a chilling effect. Census Bureau experts had warned that adding the citizenship question would result in a significant undercount of households with at least one noncitizen member. The Supreme Court, in this case, examined whether the Commerce Secretary’s action was arbitrary and capricious under 706(2)(A) of the APA. Mr. Ross’s reason for adding the citizenship question was “solely” because the Justice Department “initiated the request” for the purpose of enforcing the Voting Rights Act, which relies on  data collected by the Census Bureau.  However, Chief Justice Roberts, writing for the majority along with the four liberal justice, indicated that “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” The chief justice further opined that the voting rights rationale offered by Mr. Ross depended on an “incongruent” explanation that was not supported by proper evidence. “It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be,” Chief Justice Roberts wrote. “But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.” The Supreme Court remanded the matter to the lower court so that the Commerce Department could provide a better explanation.

The Supreme Court’s decision in Department of Commerce v. New York may provide a sliver of hope on how the Supreme Court may rule, if Justice Roberts and the four liberal justices again reach agreement that the administration’s justification in rescinding DACA was arbitrary and capricious under the APA. The key issue is whether the post hoc rationalization by the Trump administration for rescinding the DACA program by DHS Secretary Nielsen  was arbitrary and capricious in light of an earlier 2014 Department of Justice memo justifying its legibility.

The Trump administration’s animus against immigrants is no secret, and all its actions, whether it was the imposition of the travel ban against nationals of mainly Muslim countries or the repeal of DACA are driven by this animus. It is thus heartening that the Supreme Court did not make the same mistake as it made in Trump v. Hawaii by taking at face value Commerce Secretary’s “contrived” explanation for adding the citizenship question. It is hoped that the Supreme Court will continue on the same trajectory when it rules on  President Trump’s rescission of DACA, and emphasize that although President Trump has broad powers relating to immigration, his actions must be held against the arbitrary and capricious standard under §706(2)(A) of the APA. Since most of the Trump administration’s actions have been executive rather than legislative, challenging them under the APA appears to be the most viable and effective path. Justice Robert’s invocation of Justice Friendly in the census decision is especially relevant as the Supreme Court continues to review Trump’s executive actions relating to immigrants:

Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Cyrus Mehta

The American Dream Is For Everyone

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By Cyrus D. Mehta & Sophia Genovese

The Trump Administration has announced an immigration proposal that pits the lives of Dreamers against other immigrant populations. Dreamers are young people who came to the United States prior to the age of 16, and fell out of status of status through no fault of their own. They were granted authorization to remain in the United States under an Obama-era program known as Consideration of Deferred Action for Childhood Arrivals (DACA). The Trump White House has stated that they are willing to provide a pathway to citizenship for Dreamers in exchange for fewer family-based immigration categories, the elimination of the Diversity Visa Program, and $25 million in funding for the infamous wall. President Trump had previously cancelled DACA on September 5, 2017.

DACA recipients have strongly opposed the White House’s proposal, arguing that they refuse to benefit from a bill that will disrupt the lives of millions. A pathway to citizenship for Dreamers is desperately needed, but even Dreamers realize that they’re not the only ones whose lives remain in the balance. H-4 spouses are set to lose their ability to work, and H-4 dependents could age out if their parent continues to be stuck in the employment-based backlogs. TPS recipients are being forced to return to countries where poverty and violence remain the norm. Foreign nationals of banned countries anxiously await the ability to come to the US and join their families or begin working in their fields. Foreign students nearing graduation fear the H-1B lottery cap and USCIS’s increased scrutiny of level one wages and IT-related positions. Skilled workers from India and China stuck in the backlogs recently feared being sent back home while they await their green cards. Although this proposal has been pulled back, the fact that it was made heightens the fragility of an immigration system that keeps skilled workers waiting for decades on end because of the unavailability of immigrant visas. Undocumented populations are increasingly fearful of the lack of ICE enforcement priorities and the increased number of non-criminal immigrants being arrested on buses, at schools, or courthouses. Although Dreamers stand to gain from the White House proposal, they do not, in good conscience, accept the trade-offs. At the same time, it would be perfectly understandable if a DACA recipient wanted to accept the Trump Administration’s deal so long as it would benefit her. It is natural for each group of immigrants to want to get their own benefit without regards to whether the enactment of legislation would improve the immigration system as a whole. However tempting this might be, it would clearly be in the interest of all immigrants, including Dreamers, if they united and steadfastly demand an immigration deal that fixes the immigration system to help everyone, which in turn benefits the national interest. Otherwise, what may seem to benefit you but hurt others, will come back to also ultimately hurt you.

The Trump Administration’s proposal is cruel and nothing short of xenophobic. While fixing DACA is urgently needed, such a fix will not resolve all the other problems in the immigration system. It is not worth getting a fix for DACA, without other urgently needed fixes, in exchange for immigration restrictions that would fulfill the wish list of a nativist. America has nothing to gain, and much to lose, from such a limited immigration policy. We have repeatedly argued that immigration is a net positive for the economy and society. Immigrants keep America competitive in STEM fields and other industries. Closing the doors to talented immigrants will undoubtedly make the US less competitive globally.

In stark contrast to the Trump Administration’s xenophobic wish-list is the Immigration Innovation (“I-Squared”) Act of 2018, introduced by two Republican Senators, Orrin Hatch (R-UT) and Jeff Flake (R-AZ). The bill would increase the H-1B visas from 65,000 to 85,000 a year and proposes lifting the existing cap of 20,000 additional H-1B visas reserved for those with master’s degrees if their employers agree to sponsor their green cards. The bill includes a “market-based escalator” so the supply can meet increased demand. That means granting up to 110,000 additional visas (a total of 195,000), and prioritizing visas for those with master’s degrees, foreign Ph.D.’s or U.S. STEM bachelor degrees. The bill would also eliminate per-country caps on employment-based green cards and allow H-4 visa holders the ability to work. It will also not count derivative family members, which if implemented upon enactment, will quickly drain the decades long backlogs in the employment-based preferences. The bill does not address Dreamers, but rather focuses on employment-based visas. Although imperfect, the bill serves as a proper starting point when discussing sensible immigration policy. Specifically, the bill acknowledges the utility and benefit of foreign skilled workers, especially in the IT field. Hatch and Flake have both realized that these workers not only benefit US industries, but also help create jobs for American workers. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The people who run immigration policy in the Trump administration care about American workers but do not effectively express such concern. Instead, they have created policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. I-Squared does provide the opening salvo. This bill has all the right ingredients – elimination of per country limits, not counting derivative family members that have till now clogged up the employment-based preferences and increasing the H-1B visa cap. We need I-Squared as much as a fix for DACA recipients.

Congresswomen and men need to similarly create a comprehensive bill that provides a pathway to citizenship for Dreamers without throwing other immigrant populations under the bus. Even requiring Dreamers – who only know America as their country – to wait 10-12 years on a probationary basis before they can apply for permanent residence and citizenship is unnecessary and cruel. Although Dreamers are under no obligation to prove their worth, as their humanity alone entitles them to respect, we nevertheless see DACA recipients thriving in the respective fields and substantially benefiting the United States. The proposed legislation should also not undermine family immigration since family unification has been the cornerstone of US immigration policy since its inception. Family members of the principal immigrant support each other, and thus create more stability and bring about more prosperity. It is also not necessarily the case that a skilled immigrant in a STEM field will only benefit the United States. The nation’s immigration history is replete with examples of immigrants from all walks of life succeeding in the country through their hard work, grit and determination. Objecting to family-based migration, including cutting off the ability of a US citizen to sponsor a parent, means that you are advocating a total shut-down of immigration and the cruel separation of families. It is also immoral to do so.

With the exception of descendants of indigenous peoples, every American is a descendant of immigrants. Everyone’s mother, grandmother, great-grandmother, etc. came to the United States from a foreign land in the hopes of creating a better life. The American Dream is for everyone, whether your family has been here for generations or if your family just arrived yesterday. It is senseless to close the doors to immigrants seeking opportunity in a nation whose identity is intimately intertwined with migration.

Cyrus Mehta

Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform

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On July 19, 2017, the Trump administration increased the H-2B cap from 66,000 to 81,000 by promulgating a final rule. H-2B visas are annually capped at 66,000 under the law. Due to an increase in demand of essential workers to serve landscapers, hotels, restaurants and seafood processors each year, the H-2B cap gets hit earlier each year.

Congress provided for a one time increase in FY 2017 through section 543 of the Consolidated Appropriations Act of 2017, signed by President Trump,  which allows the Department of Homeland Security and the Department of Labor to increase H-2B visas this fiscal year based on a complex formula. As a result, the DHS and DOL increased the H-2B cap by 15,000 on July 19. The long sought for increase is too little and is also too late as the 2017 year will be ending by September 30, 2017. The temporary rule also places an onerous standard. Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request for this fiscal year may file under this one-time increase in the H-2B cap.

A day later, on Thursday, July 20, President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. Contrary to media reports, Trump’s businesses sought these H-2B visas for the next fiscal year quota and not under the temporary additional 15,000 H-2B increase for the remainder of 2017. Still, it is quite a coincidence that his businesses sought additional H-2B visas when his own administration issued a rule temporarily increasing H-2B visas a day earlier

The DOL that will process and approve these applications reports to Trump. Once the DOL has issued labor certifications, H-2B visa petitions will need to be filed with United States Citizenship and Immigration Services of the DHS. The DHS reports to Trump. Once the USCIS approves the H-2B visa petitions, the foreign workers will apply for H-2B visas at US consulates in their home countries. The US consulates, who will say yea or nay, are under the purview of the Department of State, which also reports to Trump.

If Trump’s business files for H-2B visas under the temporary 15,000 H-2B quota for the 2017 year, they will have to demonstrate “irreparable harm (that is permanent and severe financial loss), if [they] cannot employ H-2B nonimmigrant workers in fiscal year 2017.” It remains to be seen whether Trump’s businesses can credibly make such a case. Will Mar-a-Lago, promoted as the “winter White House”, which is frequently used by Trump to conduct business on behalf of the United States, and to also entertain visiting dignitaries, suffer irreparable harm including permanent and severe financial loss if it cannot bring in cooks and housekeepers on H-2B visas? If the DOL approved the case for Mar-a-Lago under this heightened standard, it would be hard to pass the laugh test. The heightened standard may even be ultra vires the statute, and it may be interesting to see Trump consider challenging a rule made by his own administration!

Trump’s businesses clearly rely on the H-2B visa. His administration temporarily increased the H-2B visa by 15,000 (even though Trump’s businesses have not yet applied for visas under this increase). The government agencies that will more likely approve rather than deny H-2B visa applications all report to Trump. The move to file H-2B visa petitions for foreign workers also defies Trump’s America First rhetoric that intends to provide jobs to Americans over foreign workers. Indeed, these H-2B visas were filed in Trump’s much publicized “Made in America” week. Just as in every other case where Trump has retained his businesses while serving as president, here too there is a clear conflict of interest if his businesses utilize the H-2B visa program. The conflict will be even more staggering if Trump’s businesses use one of the 15,000 H-2B visas under the temporary increase.

Looking at the bright side, Trump realizes the need for foreign workers on H-2B visas to run his businesses. Although H-2B visas are essential, they only represent a narrow slice of the pie. If Trump does not want this to appear as a conflict of interest, and he is already being accused of being the most conflicted president in modern history, he should view immigration in the same way that he views the H-2B visa program for his businesses. Just as his businesses benefit from foreign workers, so would other businesses as well as the US economy through an expansion of visas. If his businesses cannot hire foreign cooks and housekeepers, the business will not run as profitably and other American workers cannot be hired to manage the H-2B workers. Therefore, the hiring of foreign H-2B workers can create more jobs for Americans. Foreign workers, rather than replacing domestic workers, compliment them. It is this complementariness between American and foreign workers that keeps businesses ticking and profitable.

There are many businesses that are crying out for higher skilled professional H-1B workers. The H-1B visa program is also annually capped at 65,000, with an additional 20,000 H-1B visas for those who have graduated with advanced degrees from US institutions. There is no flexibility to add another 15,000 H-1B visa numbers as with the H-2B visa program. Only Congress can raise the limit, but Trump can persuade Congress to do so. It makes no sense for our universities to educate and graduate top notch foreign students, who then cannot work in the United States because of an arbitrary H-1B cap. If they are forced to return to other countries, they will compete with the United States instead of contributing to it.  US based global corporations must also be given access to tap into pools of global talent so that they can remain competitive, which in turn will benefit consumers in the United States – and ultimately create more jobs for Americans.

There are also entrepreneurs who would love to start up innovative companies in the United States, but there is no startup visa. Instead, the Trump administration just shelved the entrepreneur parole rule that was promulgated by the prior Obama administration. In a podcast where Professor David Hsu of Wharton and I were the guests, we both wondered why Trump really needed to put this rule on ice. It would have benefitted a small group of entrepreneurs, as the threshold of receiving a $250,000 investment was high, but the upsides to the United States could have been tremendous. If one of these foreign entrepreneurs succeeded and his or her startup became a Google, it would result in a paradigm shift in terms of job creation and benefitting US competitiveness. A lot of immigrants have dreams and they want to start their own business and make it big in the U.S. The rule provided one pathway for immigrants to do so, and by not having it and freezing it, we are being less competitive. America needs to realize that it is not the only game in town. There are other countries that want to compete, and we need to be up there — and we are not, unfortunately, by freezing this rule.

In the podcast, now posted on Knowledge@Wharton, Professor Hsu noted that countries like Canada, France and Argentina have provisions that lower the barriers for immigrant entrepreneurs. Immigrants make up about 12% of the U.S. working population, he added. Among STEM (science, technology, engineering and math) workers, immigrants make up 24% of bachelors and 47% of doctorates, he continued. “So [immigrant entrepreneurs] are punching above their weight in the talent pool for the workforce that we desire in the U.S.,” he said. He pointed to one much-cited statistic: foreign-born entrepreneurs make up about half the founders in the so-called “billion dollar club” of startups that are worth at least a billion dollars each.

President Trump ought to also pay attention to the plight of skilled workers who are caught in the employment-based immigrant visa backlogs, mainly those born in India and China. Eliminating the per country limits or not counting derivative family members would go a long way in alleviating their plight, some of whom are trapped in decades long backlogs. Once they get their green cards, they too will be able to unleash far more dynamism in the US economy.

Finally, even undocumented workers are contributing to the United States. Let’s first start with Dreamers who have received work authorization under the Deferred Action for Childhood Arrivals (DACA) program. I have personally seen my own clients embark on successful professional careers after they received DACA authorization, and thus contribute to their fields and the US economy. At this time, DACA seems to be imperiled. It would be a tragedy if young people with a bright future are deported. Other undocumented workers also aspire to do well for themselves and their families. Deporting DACA recipients could result in a loss of $433.4 billion to our GDP besides being politically unpopular. Trump should lend his support to the bipartisan DREAM Act of 2017. One simple way for the US economy to achieve a 4% growth rate, as President Trump desires, is to take in more immigrants. Adam Ozimek and Mark Zandi at Moody’s Analytics, an independent economics firm, estimated for ProPublica that for every 1 percent increase in U.S. population made of immigrants, GDP rises 1.15 percent. Therefore, a simple way to get to Trump’s 4 percent GDP bump is to take in about 8 million net immigrants per year.

All this might be wishful thinking in the age of Trump, who got an electoral college victory largely because of his rhetoric against immigrants as job stealers and criminals. Trump desires to erect a big wall. He has also imposed a travel ban against countries with mainly Muslim populations. At the same time, Trump has realized the need for the H-2B visa so that his businesses can run more profitably. He obtained the forbidden fruit by raising the H-2B limit from 66,000 to 81,000, which he could do as president of the United States. He also wishes to create more jobs in the United States. What better way to do that is for Trump to realize that more immigration is consistent with his goal for creating more American jobs. Trump changes his mind all the time. At one point, he was against NATO and China, but he is not so today. He should also change his mind about immigrants and immigration, especially now that he has felt the need for H-2B visa workers to benefit his own businesses.

Cyrus Mehta

The Ethical Role of a Lawyer Under a Trump Administration

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Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it  contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.