Cyrus Mehta

How the Major Questions Doctrine Can Undo some of Trump’s  Policies, Including On Birthright Citizenship

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By Cyrus D Mehta and Kaitlyn Box*

Introduced by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022), the major questions doctrine holds 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”. Until now, the doctrine has largely been used by the conservative-majority Supreme Court to thwart Biden-era policies, but a recent New York Times op ed by Aaron Tang highlights the doctrine’s potential to be a tool in challenging Trump’s actions, including those relating to immigration. 

Lawsuits have been filed challenging Trump’s  tariffs questioning whether there is clear authorization as they present a matter of vast economic and political significance. Like his tariffs, Trump’s efforts to freeze federal funding, interfere with the states’ administration of their elections and slash the government using the Department of Government Efficiency “DOGE”) are all areas of major national significant that Congress has not authorized the president to decide, the lawsuits claim.

Even if the immigration arena, lawsuit’s invoking the major  questions doctrine challenging Trump’s modification of birthright citizenship question whether federal law has granted the president authority to revoke birthright citizenship. 

In a previous blog we examined the role of the major questions doctrine in the immigration context in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”) and Texas v. DHS. The dissent in Washtech indicated that the issue of whether DHS’ 2016 Optional Practical Rule for students in F-1 visa status exceeds its statutory authority was a “major question”, and finding that the doctrine applied, directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle. The major questions doctrine arose again in Save Jobs USA v. DHS, which involved a challenge to the regulation providing work authorization to some H-4 spouses.  There, the D.C. Circuit was not compelled by an argument that Washtech  should be disregarded because it did not address the major questions doctrine, holding that because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, it remained good law. The court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. 

Trump may  be hoisted by his own petard through the major questions doctrine in a birthright citizenship case. Santa Clara County California, in a lawsuit aimed at blocking the implementation of the Trump administration’s executive order restricting birthright citizenship, invoked the major questions doctrine. On page 17 of its brief, Santa Clara County states: 

Even if Section 301(a) could be construed to leave any ambiguity about the meaning of the phrase “subject to the jurisdiction thereof,” there is no basis for any argument that in 1952 Congress intended that such an ambiguity serve as a delegation of broad authority to the President to define the parameters of a statute, let alone a constitutional right. It is difficult to imagine any question of greater “economic and political significance” than the scope of a provision that describes what group of people constitutes the American polity and may participate in its sovereignty. See, e.g., West Virginia v. EPA, 597 U.S. 697, 721 (2022) (statutory ambiguities should not lightly be construed to delegate decision making authority on major questions of economic or political importance). Given these stakes, it is untenable to read the INA as granting the President the authority to resolve or disturb the statutory meaning.

As Tang points out, the major questions doctrine was developed by the Supreme Court at a time when Chevron required the court to give broad discretion to agency decisions. As our previous blog discusses, courts may have now have more latitude to strike down agency actions since the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron and instructed courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the Administrative Procedure Act  requires”. 

The major questions doctrine can now serve as yet a further tool for courts to employ in resisting the Trump administration’s efforts to make sweeping and destructive changes to immigration law and policy through executive power. Another example is the Trump administration’s broad interpretation of the Alien Enemy Act beyond an armed conflict, to include migration and drug smuggling as an “invasion”, thus triggering sweeping executive removal power. Would the courts consider whether a matter of such “vast … political significance” ought to be decided by the executive branch absent clearer instruction from Congress under the major questions doctrine? 

 

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

 

Cyrus Mehta

Is Secretary Rubio’s Bare Bone’s Letter Deserving of Deference in Khalil’s Deportation Case?

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By Cyrus D. Mehta and Kaitlyn Box*

On April 11, 2025, Immigration Judge Jamee Comans in Louisiana ruled that Mahmoud Khalil, a Columbia University graduate and pro-Palestine activist, can be deported. Judge Comans stated that “the department has met its burden to establish removability by clear and convincing evidence”, referring to Rubio’s letter. She also declined to address Khalil’s constitutional claims, stating that the immigration court “is without jurisdiction to entertain challenges to the validity of this law under the Constitution”. Khalil can now appeal his case to the Board of Immigration Appeals, and ultimately to a court of appeals.

Our previous blog addressed Khalil’s case and considered how much deference should be afforded to the Secretary of State’s determination in the post-Chevron era. The immigration enforcement against Khalil is based INA 237(a)(4)(C)(i), which provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Pursuant to 212(a)(3)(C)(iii), the government bears the burden of proving “by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” in order to establish that a noncitizen is deportable under this provision. 

A two-page memorandum from Secretary of State Marco Rubio outlining that Khalil’s presence in the U.S. would have seriously adverse consequences on U.S. foreign policy has now been made publicly available. The analysis provided in Rubio’s memorandum is thin, and stately merely that the determination is based on Khalil’s participation in “antisemitic protests and disruptive activities” and “citations for unlawful activity during these protests” which “undermine U.S. policy to combat anti-Semitism around the world and in the United States, in addition to efforts to protect Jewish students from harassment and violence in the United States”. The determination references five attached exhibits, which do not appear to have been made available to the public. It does not appear that Secretary Rubio’s determination has been provided to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate as required by INA 212(a)(3)(C)(iv) as yet.

As discussed at length in our previous blog, the 2024 Supreme Court decision Loper Bright Enterprises v. Raimondo, which abolished Chevron deference, could provide a means of challenging the level of deference given to the Secretary’s determination.  Although a 1999 Board of Immigration Appeals (BIA) case, Matter of Ruiz-Massieu, held that a determination letter from the Secretary of State “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination” is sufficient to satisfy INA 212(a)(3)(C)(iii),  this case was decided pre-Loper Bright. Secretary Rubio’s letter provided no thorough discussion of Khalil’s allegedly threatening or antisemitic activities. The letter of Secretary Christopher Warren in the Ruiz-Massieu case  was far more detailed that Rubio’s bare boned letter.  As such, it is hoped that a court of appeals will not give deference to the determination as proof that Khalil’s presence in the US is contrary to US foreign policy interests.

In a future case, an IJ ought not rubber stamp such a bare bones letter as it does not meet the facially reasonable and bona fide determination that the person’s presence or activities in the United States would have potentially serious adverse foreign policy. If an IJ is not courageous enough to do this, and the Board of Immigration Appeals rubber stamps the IJ,  the courts of appeals would certainly have the authority under Loper Bright to cast aside deference after being presented with such a meagre letter from the Secretary of State. This is in addition to also arguing that INA 237(a)(4)(C)(i) violates a person’s First Amendment rights, is void for vagueness and represents an impermissible delegation of legislative power to the executive

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

 

Cyrus Mehta

After Chevron’s Demise, Should Courts Be Giving Deference to the Trump Administration’s  Foreign Policy Considerations When Deporting a Noncitizen?

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By Cyrus D. Mehta and Kaitlyn Box*

The Department of State has revoked the visas of hundreds of  students in recent weeks. This disturbing measure comes after the Trump administration has taken numerous actions targeting students involved in pro-Palestine protests for immigration enforcement actions in recent weeks, including the arrest of student activist Mahmoud Khalil, who is a lawful permanent resident, as well as the arrest of a researcher at Tufts University  in F-1 status, Rumeysa Ozturk,  who has been targeted for deportation for merely writing an op-ed in the student newspaper that was critical of Tufts and Israel.

We have discussed in detail the arrest and detention of Columbia University student activist Mahmoud Khalil. The Notice to Appear (NTA) issued to Khalil invokes INA 237(a)(4)(C)(i), which provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Pursuant to 212(a)(3)(C)(iii), the government bears the burden of proving “by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” in order to establish that a noncitizen is deportable under this provision. INA 237(a)(4)(C)(i) has also been invoked in many of the notices allegedly rescinding the status of F-1 students in the SEVIS system. 

Although the government can charge a noncitizen on other grounds including under INA 237(a)(1)(B) based on the revocation of the underlying nonimmigrant visa in the passport, a lawful permanent resident who has otherwise not been convicted of a crime, supported terrorism or made misrepresentations in their green card process can only be charged under INA 237(a)(4)(C)(i), which is so broad that it can be used against just about any noncitizen  whose views may be disfavored by the government and thus have serious adverse foreign policy consequences for the United States. A revised NTA charged Khalil under INA 237(a)(4)(C)(i) and for making material omissions in his green card application under INA 237(a)(1)(A). 

A letter from Secretary of State Marco Rubio asserting that Khalil’s presence in the United States would have seriously adverse consequences on U.S. foreign policy has not yet been made public or provided to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate as required by INA 212(a)(3)(C)(iv). Even at the recent hearing in immigration court, the government has not yet provided government has not any evidence to support the charge under INA 237(a)(4)(C)(i).  Even if a letter from Secretary Rubio is issued and the immigration court rubber stamps the Secretary’s letter, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo could mean that it will be afforded less deference if the case is appealed to a court of appeals. 

A 1999 Board of Immigration Appeals (BIA) case, Matter of Ruiz-Massieu, held that a determination letter from the Secretary of State “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination” is sufficient to meet this high standard. Ruiz-Massieu, however, involved a Mexican official who entered the US as a visitor and was apprehended a day after he arrived based on accusations of corruption. The BIA’s holding in this case is thus readily distinguishable from that of Khalil, who is a lawful permanent resident and engaged in constitutionally protected speech. 

Moreover, Loper Bright abolished the longstanding Chevron doctrine, which required courts to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but clarified that cases decided under the Chevron framework were not automatically overruled. In the absence of Chevron, courts tend to apply the lower Skidmore standard, which asserts that the level of deference an agency’s decision merits depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134 (1944).

Given the demise of Chevron, a respondent like Khalil will have more room to argue that the BIA’s decision in Ruiz-Massieu is not only distinguishable from his own case, as the government is not entitled to the same deference that it had under Chevron. The BIA’s determination in Ruiz-Massieu that a determination from the Secretary of State that a noncitizen’s presence in the U.S. would have adverse foreign policy consequences is, alone, sufficient to meet the “clear and convincing” standard may not be sufficiently well reasoned even to survive a Skidmore analysis. Under Skidmore, factors like the thoroughness of the agency’s analysis and the validity of its reasoning influence the degree of discretion that is warranted. In her dissent in Ruiz-Massieu, Board Member Lory Rosenberg argued that the statutory language of old INA 241(a)(4)(C) is “not clear, and it does not resolve the question…regarding the effect of the letter submitted by the Secretary of State.” Rosenberg pointed to the Congressional Record of the 1990 amendment that created this provision as evidence that Congress’ intent as the amount of discretion  that should be afforded to the Secretary is unclear as it was not “fully debated nor clearly understood in practical terms…” These inconsistencies in the BIA’s interpretation could result in deference not being afforded even under a Skidmore standard. 

In Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024), the Sixth Circuit addressed the question of how much deference should be afforded to the BIA’s interpretation of “exceptional and extremely unusual hardship” at INA  240A(b)(1)(D) post-Chevron. The court laid out a two part test for determining whether an agency’s interpretation should still be given deference after Loper Bright. First, the statute in question must contain “broad, flexible standards like ‘appropriate’ and ‘reasonable’”, and it must “pair that language with words that expressly empower the agency to exercise judgment”. The Sixth Circuit in Moctezuma -Reyes v. Garland held that the BIA’s interpretation of § INA  240A(b)(1)(D) does not warrant deference because it “contains no such language vesting the BIA with discretion to determine the meaning of ‘exceptional and extremely unusual hardship’”. 

INA 237(a)(4)(C)(ii) contains a freedom of speech and association safe harbor incorporated by reference to the inadmissibility provisions at INA 212(a)(3)(C)(iii) prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements or associations, if such beliefs, statements, or associations would be lawful”.  In order to invoke an exception for the safe harbor protection, the Secretary of State must “personally determine[e] that the alien’s presence would compromise a compelling US foreign policy interest.” Although the language of this provision is quite broad, and permits the Secretary of State the authority to make a “personal determination”, the language of INA § 240A(b)(1)(D) is similarly expansive, yet the Sixth Circuit held that it did not afford the BIA sufficient discretion. Under the Moctezuma -Reyes v. Garland test, it is thus possible that the Secretary of State’s determination would be afforded less discretion in the post-Chevron era.  

We have also addressed in the prior blog that there is a strong basis to constitutionally attack INA 237(a)(4)(C)(i) on grounds that it violates a person’s First Amendment rights, is void for vagueness and represents an impermissible delegation of legislative power to the executive. We also believe that under Loper Bright a court should not rubber stamp a letter without more from the Secretary of State to the immigration court that a noncitizen’s presence would compromise a compelling US foreign policy interest.  

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

 

Cyrus Mehta

A Foreign Student Whose Visa Has Been Revoked by Trump Should Still Be Able to Continue to Attend School

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By Cyrus D. Mehta and Kaitlyn Box*

The revocation students’ visas has caused alarm and panic. Our blog advises that the revocation of a visa in the passport does not necessarily result in a violation of nonimmigrant status. The student may still be able to continue their studies at the school.  

On March 27, 2025, Secretary of State Marco Rubio announced at a press conference that the Department of State had revoked the visas of approximately 300 foreign students. This disturbing measure comes after the Trump administration has taken numerous actions targeting students involved in pro-Palestine protests for immigration enforcement actions in recent weeks, including the arrest of student activist Mahmoud Khalil, who is a lawful permanent resident, as well as the arrest of a researcher at Tufts University  in F-1 status, Rumeysa Ozturk,  who has been targeted for deportation for merely writing an op-ed in the student newspaper that was critical of Tufts and Israel.  There have been other cases of Indian students whose visas have been revoked such as  Bader Suri and Ranjana Srinvasan (discussed in this article that quotes Cyrus Mehta). 

The State Department has the authority to revoke the underlying visa in the passport under INA 221(i), however, a student can still maintain F-1 visa status while in the US and there is no change in the Student Exchange and Visitor Program.  Until Trump took office on January 20, 2025, the State Department revoked the visa if the student had been arrested in the US for a minor offense, such as driving while intoxicated. The student was still considered to be maintaining F-1 status and could continue to study. Similarly, an individual who was in H-1B status when the underlying H-1B visa got revoked could continue to work for the H-1B employer in the U.S.. If the nonimmigrant in F-1 or H-1B status  departed the US, they would need to apply for a new visa in their passport. 

 ICE has now sneakily usurped the functions of the Designated Student Officer by cancelling F-1 student status in the Student Exchange and Visitor Program (SEVIS) without warning, according to Zeteo. Even  if the visa is revoked and the F-1 status has been terminated in SEVIS, a foreign student can still continue to study and if placed in deportation proceedings should challenge the deportation before an Immigration Judge. According to  a  The Times of India article by Lubna Kably,  hundreds of international students have received emails from the State Department warning them to self-deport or face arrest and deportation. “The crackdown is based on social-media reviews being conducted by DOS (which includes Consulate officials). Thus, even new student applications . . . will also come under such social media scrutiny.” Kably reports that some students have received the emails “for something as innocuous as sharing a social media post.”

In  a prior blog written in 2017 when Trump during his first administration revoked visas based on country bans, we explained that revocation of a visa does not necessarily prevent a noncitizen from maintaining status in the U.S. For example, if a student was issued an F-1 and has already been admitted into the United States in F-1 status when the visa is revoked under a travel ban pursuant to INA 212(f), the revocation of the visa would not impact this student’s ability to maintain F-1 status so long as she is enrolled in the designated school and is complying with all the other terms of her status, such as not engaging in unauthorized employment. If the student leaves the United States, however, she will not be able to come back to the United States without obtaining a new visa. Similarly, an individual whose H-1B visa is revoked may continue to maintain H-1B status but must remain in the employment of the petitioning entity that applied for the H-1B visa classification on his behalf. This individual may also seek an extension of status or change of status while in the United States.  

Note that a nonimmigrant whose visa has been revoked is  subject to removal. INA 237(a)(1)(B) provides:

“Present in violation of law – Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorization admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.”

Even if one is not in violation of the INA, but their nonimmigrant visa has been revoked, they can be placed in removal proceedings. If the sole basis of placing the individual in removal proceedings was due to the revocation, under INA 221(i), the revocation can be challenged in removal proceeding. 

As INA 237(a)(1)(B) makes clear that a nonimmigrant whose visa was revoked but has otherwise been maintaining status is still in status until they are removed, there is no basis for DHS or a university to terminate impacted students’ F-1 status until they are removed. If a student is in proceedings and not detained, they can still attend school and maintain status. This principle applies even if a student’s F-1 status in SEVIS is terminated.

The Trump administration has been detaining students after their visa has been revoked.  If the student is detained after removal proceedings have been initiated, a habeas petition may be filed to obtain release of the student. The student should also challenge the deportation in immigration court on the grounds that the revocation has no basis especially when the student was engaged in lawful protected speech as in Khalil’s case. While the student is contesting the grounds of deportation, they can continue their studies in the school. 

A school, unlike an employer, is not obligated to verify a student on an I-9 form. A foreign student can be enrolled in a school even if they are not in F-1 or H-1B status. A noncitizen who is a DACA recipient or who has a pending I-485 adjustment of status application can be erolled.  Indeed, a foreign student who is not in any status based on violating their status or overstaying a visa can still be enrolled in school. A school need not issue a Form I-20 to enroll a student in F-1 status. There is no benchmark for a school to know the status of a student who is enrolled.  Thus, even if DHS has cancelled the student’s status in SEVIS the student should still be able to continue their studies in school.

If the student has successfully overcome the grounds of deportation, the student’s F-1 status can be restored. If the student has received an e mail, as described in the Times of India article, that the visa has been revoked, then if the student also learns that their SEVIS record has been terminated, the student should challenge the SEVIS termination in federal court through the Administrative Procedure Act on grounds that the action was arbitrary, capricious and the student was not given any warning or notice to respond. The visa revocation itself cannot be challenged in federal court before removal (deportation) proceedings, but if the student is placed in deportation, they can challenge the proceedings in immigration court. If a student is also detained upon the initiation of deportation proceedings, they can file a habeas petition in federal district court to challenge their detention as well as seek a bond hearing before an immigration judge.  And ultimately, at the end of those deportation proceedings, the student could seek review in federal court of the visa revocation.

Although there is a vicious, unprecedented crackdown on foreign students under the Trump administration, with the help of lawyers and legal organizations, they should stand firm and challenge the revocation of their visas, the termination of their status, and their deportation.  A foreign student who has protested, either on social media or through actual participation, against the military action in Gaza does not necessarily become a Hamas supporter. The student is protesting because they have been moved by tens of thousands of deaths of civilians including children. Demonstrating compassion for human suffering should not result in the student’s exile. 

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

 

Cyrus Mehta

Trump and Dick the Butcher Have the Same Impulse: “Let’s Kill All the Lawyers”

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The White House issued a memo on March 22, 2025 ominously titled Preventing Abuses of the Legal System and the Federal Court.

The phrase “The first thing we do, let’s kill all the lawyers” is from William  Shakespeare’s Henry VI said by a character called Dick the Butcher in Act IV, Scene II. This phrase has been seized upon to disparage the legal profession and lawyers as crooked and overpriced. Perhaps Stephen Miller, advisor to President Trump on restricting immigration,  who may have had a hand in authoring the memo, also understands lawyers in this way and worse as “[threatening] our national security, homeland security, public safety, or election integrity.”

But there is another meaning to this phrase. Dick the Butcher is a murderous thug and  Jack Cade’s right hand man who is leading a rebellion against King Henry. They kill anyone who can read and burn all books and documents they encounter as it will be be easier for them to take over an ignorant population  over one where eveyone understands their rights. In order for their rebellion to succeeed  Dick is suggesting that they must eradicate the lawyers, the defenders of justice, who stand in their way. Lawyers are the last defense who stand in the way of tyranny.

Trump, and his henchman Miller, like Dick the Butcher, are now attacking the immigration bar through this memo. Supposedly unethical lawyers are standing in their way to dismantle an immigration system that allows the persecuted to seek protection in the US. The memo suggests ways  to “kill the lawyers” by sanctioning and disciplining them through an assortment of court and disciplinary rules.

Obviously, there is no truth to this assertion. The immigration bar and  lawyers in Big Law doing immigration pro bono are ethical. Otherwise, they would have been sanctioned and disbarred by vigilant disciplinary authorities.  Trump is engaging in delirious fantasy.  Lawyers must stand firm together notwithstanding this nonsensical bluster and continue to ethically represent noncitizens in asylum and other immigration cases. If lawyers fall and capitulate,  like Paul Weiss did, who will defend the defenders of the Constitution?

The entirety of this absurd memo that at first brush seems like comical satire is real and reproduced here:

SUBJECT:      Preventing Abuses of the Legal System and the Federal Court

Lawyers and law firms that engage in actions that violate the laws of the United States or rules governing attorney conduct must be efficiently and effectively held accountable.  Accountability is especially important when misconduct by lawyers and law firms threatens our national security, homeland security, public safety, or election integrity.

Recent examples of grossly unethical misconduct are far too common.  For instance, in 2016, Marc Elias, founder and chair of Elias Law Group LLP, was deeply involved in the creation of a false “dossier” by a foreign national designed to provide a fraudulent basis for Federal law enforcement to investigate a Presidential candidate in order to alter the outcome of the Presidential election.  Elias also intentionally sought to conceal the role of his client — failed Presidential candidate Hillary Clinton — in the dossier.

The immigration system — where rampant fraud and meritless claims have supplanted the constitutional and lawful bases upon which the President exercises core powers under Article II of the United States Constitution — is likewise replete with examples of unscrupulous behavior by attorneys and law firms.  For instance, the immigration bar, and powerful Big Law pro bono practices, frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims, all in an attempt to circumvent immigration policies enacted to protect our national security and deceive the immigration authorities and courts into granting them undeserved relief.  Gathering the necessary information to refute these fraudulent claims imposes an enormous burden on the Federal Government.  And this fraud in turn undermines the integrity of our immigration laws and the legal profession more broadly — to say nothing of the undeniable, tragic consequences of the resulting mass illegal immigration, whether in terms of heinous crimes against innocent victims like Laken Riley, Jocelyn Nungaray, or Rachel Morin, or the enormous drain on taxpayer resources intended for Americans.

Federal Rule of Civil Procedure 11 prohibits attorneys from engaging in certain unethical conduct in Federal courts.  Attorneys must not present legal filings “for improper purpose[s],” including “to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”  FRCP 11(b)(1).  Attorneys must ensure that legal arguments are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”  FRCP 11(b)(2).  And attorneys must ensure that their statements about facts are “reasonably based” on evidentiary support, or a belief that such evidence actually exists.  FRCP 11(b)(3)-(b)(4).  When these commands are violated, opposing parties are authorized to file a motion for sanctions.  FRCP 11(c).  The text of the rule specifically addresses and provides for sanctions for attorneys and their firms as well as for recalcitrant parties given the solemn obligation that attorneys have to respect the rule of law and uphold our Nation’s legal system with integrity.  Furthermore, Rule 3.1 of the Model Rules of Professional Conduct provides that, “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.”

Unfortunately, far too many attorneys and law firms have long ignored these requirements when litigating against the Federal Government or in pursuing baseless partisan attacks.  To address these concerns, I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.

I further direct the Attorney General and the Secretary of Homeland Security to prioritize enforcement of their respective regulations governing attorney conduct and discipline.  See, e.g., 8 C.F.R. 292.1 et seq.; 8 C.F.R. 1003.101 et seq.; 8 C.F.R. 1292.19.

I further direct the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.  In complying with this directive, the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.

I further direct the Attorney General, in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.  If the Attorney General identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices, the Attorney General is directed to recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney, termination of any contract for which the relevant attorney or law firm has been hired to perform services, or any other appropriate actions.

Law firms and individual attorneys have a great power, and obligation, to serve the rule of law, justice, and order.  The Attorney General, alongside the Counsel to the President, shall report to the President periodically on improvements by firms to capture this hopeful vision.

 

Cyrus Mehta

Challenging the Foreign Policy Ground of Removability in Defense of  Free Speech and the Rights of Green Card Holders

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By Cyrus D. Mehta and Kaitlyn Box*

On March 8, 2025, DHS arrested Mahmoud Khalil, a Columbia University graduate and Palestinian activist, and purportedly revoked his green card. Khalil was detained under INA 237(a)(4)(C)(i) that provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. The Notice to Appear (NTA) issued to Khalil was sloppily drafted; clause 3 is particularly disjointed and includes a reference to a noncitizen who “was admitted to the United States at unknown place on or about unknown date as a unknown manner”, language wholly inapplicable to Khalil. Moreover clause 3 also states that he adjusted his status to permanent residence under INA 212(a)(3)(C), which makes no sense. There is no basis to adjust status to permanent residence under  INA 212(a)(3)(C). 

Clause 4 of the NTA invokes INA 237(a)(4)(C)(i) that provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Facially, INA 237(a)(4)(C)(i) renders it difficult for a respondent to challenge a negative determination. Although the government must prove through clear and convincing evidence that a green card holder is deportable, the Secretary’s determination meets that heavy burden based on a 1999 BIA precedent, Matter of Ruiz-Massieu. 

The statute may nonetheless provide Khalil some hope for challenging his detention and removal. INA 237(a)(4)(C)(ii) contains a freedom of speech and association safe harbor incorporated by reference to the inadmissibility provisions at INA 212(a)(3)(C)(iii) prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements or associations, if such beliefs, statements, or associations would be lawful”.  In order to invoke an exception for the safe harbor protection, the Secretary of State must “personally determine[e] that the alien’s presence would compromise a compelling US foreign policy interest.” According to an AILA Advisory, in drafting this provision, Congress replaced the phrase “seriously adverse” with “compelling”, and required the government to prove an actual compromise to U.S. foreign policy rather than merely “potential” compromise, thereby establishing a stricter standard. In a conference report issued at the law was passed, Congress explained how this standard should be applied to protected speech: 

“It is the intent of the conference committee that this authority would be used sparingly and not merely because there is a likelihood that an alien will make critical remarks about the United States or its policies. … Furthermore, the conferees intend that the “compelling foreign policy interest” standard be interpreted as a significantly higher standard than the general “potentially serious adverse foreign policy consequences standard.”

Congress considered examples that might meet the “compelling” standard, such as when a noncitizen’s presence would violate a treaty or international agreement that the United States is a party to or the admission of the former Shah of Iran into the U.S. for medical treatment in 1979, which sparked the Iranian Hostage Crisis, according to the AILA Advisory. 

As yet, Khalil does not stand accused of having engaged in unlawful activities (See Arulanantham and Cox, March 12, 2025, Justsecurity.org). There is thus a chance that he could avail of the safe harbor provision. However, Secretary Rubio’s letter asserting that Khalil’s presence would compromise a compelling US foreign policy interest has not yet been made public (if at all there is such a letter) as of the date of this blog, and there is similarly no evidence that Rubio notified his determination to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate under INA 212(a)(3)(C)(iv). If Rubio issued this letter after March 9, the date when the NTA was served, this oversight could potentially provide a basis for termination of the removal proceedings with prejudice, along with the sloppily drafted clause #3 in the NTA.  Moreover, letter of the Secretary of State in Matter of Ruiz-Massieu was quite detailed. If there is a letter from Rubio that was hastily written and flimsy, this too could be the basis of a challenge that it does not meet the “compelling” standard. 

Because Khalil is a green card holder, he also has a strong basis to distinguish his case from Matter of Ruiz-Massieu. Ruiz-Massieu, a Mexican official, entered the US as a temporary visitor and was apprehended a day after he arrived based on accusations of corruption. Khalil, meanwhile, is a lawful permanent resident who engaged in constitutionally protected speech. Perhaps, a courageous Immigration Judge (IJ) will be persuaded by this argument distinguishing Khalil’s case from Ruiz-Massieu and terminate the removal proceedings. Even if the IJ denies, Khalil can appeal to the Board of Immigration Appeals, where he will probably also lose, and then to the Court of Appeals. If his hearing is in Louisiana, the 5th Circuit will not be as friendly as the Second Circuit, assuming he can successfully transfer to New York if his habeas petition in the Southern District of New York prevails.

Khalil has a very good chance of constitutionally attacking INA 237(a)(4)(C) in a court of appeals on grounds that it violates his First Amendment rights as an LPR as established by the Supreme Court in Bridges v. Wixon, and is also void for vagueness. A federal district court has also found the statute unconstitutional (the judge Maryanne Trump Barry who made the ruling was none other than Trump’s late sister) in 1996 in Ruiz Massieu v. Reno. The court held that the statute was unconstitutional because it impermissibly vague, deprives noncitizens of a meaningful opportunity to be heard, and represents an impermissible delegation of legislative power to the executive, stating that the provision: “represents a breathtaking departure both from well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States, and from well established precedent with respect to extradition which commands extradition based on adjudications of probable cause to believe that the alien has engaged in defined impermissible conduct elsewhere.” The court’s holding was later reversed by the Third Circuit Court of Appeals on other grounds.  If the Trump administration prevails, who is to stop them from using it, for example, against a noncitizen who promotes green technology because if undermines the policy objective of promoting fossil fuels of this administration? 

While Khalil has an uphill climb, he does have opportunities for challenging his deportation in Immigration Court first, the Court of Appeals, and even in the Supreme Court. The robust dissent of BIA members Rosenberg and Schmidt will also provide ammunition to attack the statute in the Court of Appeals. The dissent disagreed with the majority’s position that the Secretary of State’s letter alone “was conclusive and dispositive on the issue of deportability, and that the Immigration Judge erred in requiring the Service to provide something more than the Secretary’s letter to satisfy its burden of proving, according to the language of the statute, that ‘the Secretary of State has reasonable ground to believe [that the respondent’s presence] would have potentially serious adverse policy consequences.’” Board Members Rosenberg and Schmidt instead argue in the dissent that the decision of the IJ should be adopted, which held that “the plain language of section 241(a)(4)(C)(i) [predecessor to INA 237(a)(4)(C)] requires that the Service prove (1) the Secretary’s belief; (2) the Secretary’s concern regarding the respondent’s presence in this country; and (3) the ‘reasonable ground to believe’ that the respondent’s presence would have serious adverse foreign policy consequences.”

It is important that Khalil  successfully challenges the deportation ground against him in order to uphold the right to free speech and the rights of green card holders to express them without fear. Even if one does not agree with the speech, and finds it repugnant, so long as the speech is lawful,  the government should not have the power to retaliate by detaining and deporting a noncitizen. If the government has the power to retaliate against noncitizizen green card holders, even US citizens will no longer be immune from similar retaliation. 

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

A version of this post was published on LinkedIn at https://www.linkedin.com/pulse/lets-fight-uphold-our-rights-free-speech-green-card-holders-mehta-ngede/?trackingId=RzyvcsXtR6C56C5VSuOWMw%3D%3D

 

Cyrus Mehta

Trump’s Cruel Immigration Policies Have No Rational Justification Except to Harass and Intimidate Immigrants such as the Alien Registration Requirement 

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump administration recently announced that it would enforce INA § 262, which requires noncitizens aged 14 years or older to register with the government if they were not already registered and fingerprinted when applying for a U.S. visa. Children are required to reregister within 30 days of their 14th birthday. The following categories of noncitizens have already registered by virtue of their manner of entry into the U.S., or through an application later filed with USCIS: 

  • Lawful permanent residents;
  • Noncitizens paroled into the United States under INA 212(d)(5), even if the period of parole has expired;
  • Noncitizens admitted to the United States as nonimmigrants who were issued Form I-94 or I-94W (paper or electronic), even if the period of admission has expired;
  • All noncitizens present in the United States who were issued immigrant or nonimmigrant visas prior to arrival;
  • Noncitizens whom DHS has placed into removal proceedings;
  • Noncitizens issued an employment authorization document;
  • Noncitizens who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700, even if the applications were denied; and
  • Noncitizens issued Border Crossing Cards. 

Many other categories of noncitizens may be required to comply with the registration requirement, including those who “are present in the United States without inspection and admission or inspection and parole; Canadian visitors who entered the United States at land ports of entry and were not issued evidence of registration; and,[noncitizens] who submitted one or more benefit requests to USCIS not listed in 8 CFR 264.1(a), including applications for Deferred Action for Childhood Arrivals or Temporary Protected Status, who were not issued evidence of registration.” As of the date of publication of this blog, DHS has yet to officially promulgate a registration form or further instructions. 

Although the provision referencing registration at INA § 262 existed, it was rarely enforced and the new announcement either literally interprets a 1952 statutes or reinterprets it in a way that highlights this administration’s animus towards immigrants. These include Canadian visitors, DACA recipients, and children who received visa stamps, including H-4 visas, before their 14th birthday to register upon turning 14. Failure to comply may result in “criminal and civil penalties, up to and including misdemeanor prosecution and the payment of fines”. The planned registration system has a predecessor in the National Security Entry-Exit Registration System (NSEERS), which, unlike the Trump administration’s policy, was created in response to a pressing national security concern – the September 11 terrorist attacks. NSEERS resulted in widespread confusion and discriminatory enforcement, particularly towards Muslim noncitizens. The Trump administration’s registration system is likely to have similar consequences. 

USCIS also recently gave notice of the planned promulgation of a new form to designed to “establish enhanced screening and vetting standards and procedures to enable USCIS to assess an alien’s eligibility to receive an immigration-related benefit.” The form would apply to numerous immigration applications, including applications for asylum, adjustment of status, naturalization, and travel documents. It would collect a total of 24 items of information about applicants, including the names, addresses, and telephone numbers of family members such as parents, spouses, siblings, and children. Requiring applicants for immigration benefits to disclose this information could deter some from filing altogether, particularly if they fear exposing undocumented family members to immigration enforcement. 

The Trump administration’s pattern of enacting inhumane immigration is further evidenced by its decision to end the Biden-era parole program for Cubans, Haitians, Nicaraguans, and Venezuelans, termination of the Uniting for Ukraine program, and its termination of the Temporary Protected Status (TPS) designation for Venezuela. Trump further plans to pause the adjudication of any applications for immigration benefits, which could include asylum or family-based adjustment of status applications, submitted by noncitizens who entered the United States pursuant to a parole program. These people played by the rules and were paroled into the US following the instructions of the Biden administration, and now the Trump administration has pulled the rug from under their feet.  Another example of a viciously inhumane policy is the restriction of birthright citizenship to only children born in the US to at least one parent who is a citizen or a permanent resident, see our blogs here and here, via an executive order. Fortunately, the courts have blocked the Trump’s unconstitutional reinterpretation of the 14th Amendment to the US Constitution for now, but if this policy took effect, it would render children undocumented, stateless or as temporary nonimmigrants, from the moment they are born. It would also create a permanent underclass. 

Among Trump’s cruelest immigration policies to date has been the transfer of a group of primarily Venezuelan nationals with final orders of removal to Guantanamo Bay, a detention facility known for abusive conditions that was set up to detain alleged terrorists after 9/11. The administration has also removed asylum seekers to Panama and Costa Rica, where some were held in hotels for days on end and afforded no opportunity to seek legal relief. Caleb Vitello, formerly acting director of ICE, was required by the Trump administration to personally sign off on releases of any noncitizens from detention, before being summarily dismissed from his position, allegedly for being too pro-immigrant and not removing enough people.  

Taken together, these policies, and many more cruel policies that we have not addressed here,  illustrate a pattern of harassment and cruelty towards immigrants. Noncitizens who are intimidated and do not register may incur penalties and difficulty applying for immigration benefits in the future, while those who fear providing information about family members may forego filing applications with USCIS. The termination of parole programs and Venezuelan TPS will result in recipients losing work authorization and potentially needing to leave the U.S. These policies will not only be detrimental to immigrants, but also to their American family members and employers. 

There has been a dark history in the US resulting in the scapegoating of immigrants in times of crisis.  A recent example was the restrictions imposed on noncitizens after the September 11, 2001 attack, which included the NSEERS program that resulted in religious, racial and ethnic profiling (see Have We Learned the Lessons of History? World War II Japanese Internment and Today’s Secret Detentions by Stanley Mark, Suzette Brooks Masters and Cyrus D. Mehta).  The delicate balance we strive to achieve as a nation between liberty and security inevitably tips towards security, and civil liberties tend to be compromised. While there can never be a justification to go after immigrants in a time of genuine crisis, Trump has manufactured a crisis to justify his administration’s wantonly cruel attacks on immigrants. The supposed justification for unleashing such cruel policies is based on the ‘Protecting the American People Against Invasion” executive order. The executive order falsely claims that millions of illegal immigrants were invited to the US by the prior administration even though most were paroled into the US under INA 212(d)(5) or sought to apply for asylum under INA. The executive order then makes the exaggerated claim without foundation that “many of these aliens unlawfully within the United States present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans. Others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities.” While some immigrants may commit crimes, as would US citizens, in any random sampling of a population,  they can be dealt with on an individualized basis through the criminal justice system. Whether the crisis is real or manufatured, there is absolutely no justification for this sort of hate towards immigrants. 

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

The authors thank David Isaacson for suggesting additional cruelest policies of the Trump administration towards immigrants. 

 

Cyrus Mehta

EOIR Policy Memorandum on Inferior Officers Opens Up Claims to Invalidate Proceedings  

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By Cyrus D Mehta and Kaitlyn Box*

Acting Director Sirce Owen of the Executive Office for Immigration Review (EOIR) issued Policy Memorandum (PM) 25-23 stating that, in the context of any future personnel actions and after additional review, EOIR may decline to recognize the multiple layers of for-cause removal restrictions for all of EOIR’s inferior officers if they are determined to be unconstitutional.

The EOIR Policy Memorandum followed shortly after the Department of Justice (DOJ) notified Congress of its conclusion that the multiple layers of removal restrictions for Administrative Law Judges (ALJs) are unconstitutional and that it will no longer defend those restrictions in litigation. The DOJ  press release states:

Today the Department of Justice determined that multiple layers of removal restrictions shielding administrative law judges (ALJs) are unconstitutional.

Unelected and constitutionally unaccountable ALJs have exercised immense power for far too long. In accordance with Supreme Court precedent, the Department is restoring constitutional accountability so that Executive Branch officials answer to the President and to the people.

The Policy Memorandum applies this policy not just to EOIR’s ALJs within the Office of the Chief Administrative Hearing Offer but to all of EOIR’s inferior officers which includes all Immigration Judges, members of the Board of Immigration Appeals , all ALJs, the Chief Administrative Hearing Officer, the General Counsel and the Assistant Director of Policy. Inferior officers are recognized in  Article II of  the US Constitution as officers who are directed  by a principal officer, who in turn is appointed by the President with the advice and consent of the Senate.

The Policy Memorandum is striking because it recognizes that all inferior officers in the EOIR may be constitutionally infirm because they cannot be easily removed by the President. Would this open up challenges to the validity of ALJs and the Immigration Court system?

In Walmart v. Jean King, which we have commented on in a prior blog, a federal court granted Walmart’s motion for summary judgment to halt an administrative proceeding against the company for violations of immigration-related recordkeeping requirements because they were  conducted by an administrative law judge (“ALJ”) who was unconstitutionally shielded from the President’s supervision. ALJs can be removed from their position only for “good cause” as determined by the Merits System Protection Board (MSPB) and by the president “only for inefficiency, neglect of duty, or malfeasance in office”. See 5 U.S.C. sections 1202(d) and 7513(a), 7543(a).  Walmart alleged that this system violated the Constitution by insulating ALJs “from presidential control by two levels of removal protection”. Walmart argued that Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed”, requires him to have the power to remove executive officers.

If Walmart was successful in blocking an ALJ from ruling against it for I-9 violations, can a similar argument be made that IJs are also subject to for-cause removal restrictions and render them and the Immigration Court system invalid?  In Fortunato de Jesus Amador Duenas v. Garland, the Ninth Circuit rejected an argument that the removal process for IJs violates Article II. The Court reasoned that the Attorney General (AG), who supervises IJs, enjoys the unrestricted authority to remove them at his discretion.

Now Ms.  Owen’s Policy Memorandum clearly acknowledges that IJs, ALJs and other inferior officers are subject to removal restrictions, and as their positions may be unconstitutional,  can a plaintiff like Walmart invalidate the Immigration Court?  On the other hand, the Policy Memorandum cites Collins v. Yellen,  which held that actions taken by  properly appointed constitutional officers are not void absent a showing of harm, even if those officers are subject to unconstitutional removal restrictions. Ms. Owens, relying on Collins v. Yellen, states accordingly that “even if an inferior officer’s removal restrictions are determined to be invalid, EOIR will generally continue to recommend defending that officer’s official actions absent a showing of harm connected to the restriction themselves.” This raises the possibility that  if it can be shown that there was a notorious IJ or BIA member, a plaintiff  could demonstrate that the president (more than likely President Biden) could have fired him or her. But in Collins v. Yellen, the plaintiff sought to invalidate an action of the agency director because he was unconstitutionally subject to removal restrictions,  and the Supreme Court  held the action to be valid because the director was still properly appointed. However, in Walmart v. Jean King the court held that the ALJ proceeding was invalid as the ALJ was subject to unconstitutional removal restrictions, as has now been affirmed in the Policy Memorandum. Walmart was broadly attacking the legitimacy of the ALJ to impose a fine and succeeded.

Collins v. Yellen also suggests a possible opening for invalidating a decision:

That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from the moment of the provision’s enactment), it is still possible for an unconstitutional provision to inflict compensable harm. And the possibility that the unconstitutional restriction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled out. Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have “cause” for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm.

Can a future plaintiff thus claim that all EOIR officers identified by Ms. Owens in the Policy Memorandum are constitutionally infirm?  Notably, the district court in in Walmart did not cite Collins. Attempting to utilize the Policy Memorandum to challenge removal proceedings or the immigration court system more broadly could be challenging in light of 8 USC 1252(b)(9):

“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.”

A challenge to removal proceedings would thus have to go through the petition for review process, and would be limited by Collins unless one can show harm was suffered through the removal restriction itself. Walmart involved administrative proceedings against a company for alleged I-9 violations, not removal proceedings, and so this issue was averted. Thus, the Policy Memorandum may not provide a viable pathway for attacking the entire immigration court system. However, a removal decision can still be challenged through a petition for review. The policy memorandum may also provide an enhanced basis for challenging administrative proceedings against employers decided by ALJs, like those at issue in Walmart.

By acknowledging that there are unconstitutional removal restrictions for all inferior officers within the EOIR, the Policy Memorandum may pave the way for more claims to invalidate proceedings against ALJs and also against IJs in limited circumstances. At the same time, officers within the EOIR will have less job security as EOIR may decline to recognize removal restrictions if they are determined to be unconstitutional.

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

The authors thank David Isaacson for his assistance and insights for this blog.

 

 

 

Cyrus Mehta

The False Distinction Between Legal and Undocumented Immigrants in the Debate on Birthright Citizenship

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By Cyrus D. Mehta and Kaitlyn Box*

Donald Trump’s executive order restricting birthright citizenship, which we analyzed in a previous blog, has now been temporarily enjoined and is the subject of multiple lawsuits. The executive order has also brought to light the false dichotomy between “legal” and “undocumented” immigrants, obscuring the nuance of U.S. immigration laws. [Although the Trump administration has replaced references to undocumented individuals with the term “illegal”, we use “undocumented” here to refer to individuals who currently have no legal immigration status in the U.S.]

“Legal” and “undocumented” immigrants alike are subject to the jurisdiction of the United States pursuant to the 14th Amendment. The concept of jus soli, enshrined in the 14th Amendment, has long guaranteed children born in the U.S. the right to U.S. citizenship, regardless of the immigration status of their parents. The Trump administration is incorrectly asserting in its executive order that the 14th Amendment was never intended to confer birthright citizenship to parents who are not lawfully in the US or to parents who may be lawfully in the US but on temporary visas. Many people participating  in the debate on social media feel that birthright citizenship should only be conferred by parents who are legally in the US, and if a tweak has to be made in Trump’s executive order, it should only remove the restrictions on parents who are legally in the US but on temporary visas. The executive order is unconstitutional in its entirety and should be struck down.

This distinction between “legal” and “undocumented” immigrants is an overly simplistic, and often false, one.  A noncitizen who entered the U.S. with a valid visa can easily fall out of status, while a path to U.S. citizenship may eventually become available to an individual who was previously undocumented. Indeed,   legal and “undocumented” immigration are points on a continuum rather than discrete concepts. An entirely undocumented individual who is placed in removal proceedings can seek cancellation of removal and become a permanent resident. Similarly, an individual who entered the U.S. on a nonimmigrant visa and overstayed it for many years could meet and marry a U.S. citizen spouse, thus becoming eligible to apply for permanent residence. At times, Congress bestows such permanent residency to previously-undocumented individuals through section 245(i) or the LIFE Act.

Moreover, one thinks of an undocumented immigrant as a person who entered the United States without inspection or who came to the US legally on a visa and overstayed. However, the term is broader to encompass persons who were previously unauthorized and who have been authorized to stay such as recipients of the Deferred Action of Childhood Arrivals (DACA) program, applicants for Temporary Protected Status (TPS),  those who have pending asylum applications and applications for other relief such as under the Violence Against Women Act (VAWA) or crime victim U visas. There are also those who are on supervised release or who have obtained stays of removal and eligible for employment authorization year after year.

In 1982 in Plyler v. Doe, 457 US 202 (1982), a landmark Supreme Court case which held children could not be deprived of a public education on the basis of their immigration status, the Court eloquently explained that an individual’s undocumented status is often temporary, stating:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

The Court affirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982).

Moreover, some individuals who do currently have a lawful status may nonetheless be authorized to remain in the U.S., as we highlighted in another prior blog. An asylum applicant is authorized to remain in the U.S. and apply for employment authorization 150 days after filing the asylum application even though he has not yet been granted asylum and would not qualify as an asylee under 8 CFR 245.1(d)(1)(iii). Similarly, an individual who has filed an I-485 application to adjust status is authorized to remain in the U.S. even if she does not have a valid, underlying nonimmigrant status. An individual in removal proceedings is authorized to remain in the U.S. and seek relief until the conclusion of the proceedings. Even a noncitizen who has been ordered removed but filed petition for review in circuit court can apply for work authorization and continue to reside in the U.S. during the pendency of the appeal.

In Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court emphasized the importance of discretion in removal proceedings, explaining that it is not always appropriate to place even an entirely undocumented individual in removal proceedings:

Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227…A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…

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

Drawing a distinction between those on temporary visas and those who are lawful permanent residents also ignores the practical reality that many nonimmigrants are “Americans in waiting”. A nonimmigrant in H-1B status has a clear path to becoming a permanent resident, and eventually a U.S. citizen, through sponsorship by an employer but has to wait for many decades due to backlogs in their green card category. DACA recipients who have lived almost their entire lives in the U.S. may have few ties to any other country and could become lawful permanent residents through marriage to a U.S. citizen or LPR spouse, or through an employment-based category.

On the other hand, a noncitizen who comes to the United States with a valid visa may not could later overstay their visa, thus becoming “undocumented”. Violations of a nonimmigrant visa also render a noncitizen’s immigration status ambiguous. An H-1B worker who works from home and moves across the country before an amended H-1B petition is filed, for example, could technically be in violation of his status.

According to Professor Gerald Neuman, “[T]he framers of the Fourteenth Amendment had strong reason from desiring a constitutional settlement of the issue of birthright citizenship. They had just overthrown a system founded on denial of political membership in the country to a hereditary category of inhabitants. The Citizenship Clause was designed to prevent the situation from happening again…[T]he supporters of the Citizenship Clause expressly confirmed their intent to protect the children of Chinese parents by recognizing them as citizens.” See Statement of Prof. Gerald E. Neuman, Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents: Joint Hearing Before the Subcomm. on Immigration & Claims and the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1995).

The only exceptions were children born to diplomats of foreign nations who were not subject to the jurisdiction of the United States as well as children born to parents accompanying an invading army that temporarily ousted the operation of local law. The framers also excluded children born within Native American tribes  because they owed allegiance to their tribal nations rather than the United States, but this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924.

On the other hand, undocumented parents are clearly subject to prosecution in the United States as well as temporary noncitizens. They can also hardly be considered to be part of an invading army that has ousted the local operation of law. Even the argument that undocumented parents and nonimmigrants owe their allegiance to a foreign government rather than to the U.S. government is spurious. Temporary residents in nonimmigrant status can remain in the U.S. for many years as they wait for permanent residence. They could owe allegiance to the U.S. government and so could an undocumented immigrant just as a U.S. citizen would. Lawful permanent residents, who are not U.S. citizens,  could owe their allegiance to the U.S. government but also to a foreign government without risking losing that status.   U.S. citizens may also be citizens of other countries and may owe their allegiance to a foreign government, the U.S. government, or both, but both U.S. citizens and lawful permanent residents  qualify under Trump’s executive order to confer birthright citizenship to their children born in the U.S.

In  United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws. The principle established in Wong Kim Ark applies with equal vigor today. Excluding an allegedly undocumented parent who has been a DACA recipient since 2012  from conferring birthright citizenship to their child would make no sense. It would also make no sense to deem a parent who was in technical violation of their H-1B status as undocumented at the time of the birth to her child. It would also be unfair to deprive a parent in lawful H-1B status who has been waiting for their green card for over a decade from conferring birthright citizenship to their child. The Supreme Court’s hallowed ruling on birthright citizenship established well over 125 years back  a fundamental American value that all people born in the United States are equal at birth, regardless of their race, religion, or the immigration or financial status of their parents.

 

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

 

 

Cyrus Mehta

Should Trump’s Lawyers Implementing Policies That Hurt Immigrants be Concerned About Violating Their Ethical Obligations? 

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By Cyrus D. Mehta and Kaitlyn Box*

On January 23, 2025, Acting Secretary of the Department of Homeland Security, Benjamine C. Huffman issued a memorandum entitled “Guidance Regarding How to Exercise Enforcement Discretion”, which directs ICE to take the following action: 

(1) For any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been applied:

     a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether to apply expedited removal. This may include steps to terminate any ongoing removal proceeding and/or any active parole status.

(2) For any alien DHS is aware of who does not meet the conditions described in (1) but has been granted parole under a policy that may be paused, modified, or terminated immediately under the January 20 memorandum:

a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether any such alien should be placed in removal proceedings; and

b. Review the alien’s parole status to determine, in exercising your enforcement discretion, whether parole remains appropriate in light of any changed legal or factual circumstances.

On January 6, 2023, the Biden Administration instituted a humanitarian parole program allowing certain nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to apply for entry to  the U.S. for a temporary stay of up to two years. All individuals admitted through the CHNV program must have a U.S.-based supporter, pass security vetting, and meet other criteria. Parole is not an immigration status. During the two-year parole period, individuals may seek humanitarian relief or other immigration benefits, if they are eligible, and work during that time. See our blog for further details on the CHNV program. 

The Biden Administration committed to accepting 30,000 beneficiaries a month from across the four countries. Within the first six months of launching the program, over 35,000 Cubans, 50,000 Haitians, 21,500 Nicaraguans, and 48,500 Venezuelans came to the U.S. through the program. As of August 2024, almost 530,000 people have been granted parole through the CHNV program, according to U.S. Customs and Border Protection (CBP). 

On January 20, 2025, President Trump issued an executive order terminating the CHNV program. The Huffman memorandum now allows  recipients of the CHNV program  who had been paroled into the United States to be expeditiously removed. It also includes nationals of Ukraine, Afghanistan  and Colombia who have been paroled under separate programs.  These individuals followed the rules established under the Biden administration in order to be paroled into the US in a safe, orderly and legitimate manner. They have now been blindsided and betrayed by the Trump administration. 

The devastating impact that this policy stands to have calls into question the conduct of the Trump administration lawyers involved in its development. We credit our colleague Michele Carney in providing input on ethical issues on the part of government lawyers in the Trump administration. ABA Model Rule 8.4 (c)-(d), (g) prohibits lawyers from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation”, that is “prejudicial to the administration of justice”, or that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law”. By directing DHS officials to expeditiously remove some parolees, the memorandum could run afoul of ABA Model Rule 8.4(d) by depriving these individuals of due process. Termination of parole for some individuals could also be viewed as discrimination on the basis of national origin in violation of ABA Model Rule 8.4(g). If DHS’ implementation of the program results in a misrepresentation, a violation of ABA Model Rule 8.4(c) could also occur. The memorandum in itself may not be indicative of unethical conduct, but its implementation carries significant risk of violation of ethical rules by government lawyers in the Trump administration. 

In a previous blog, we discussed Trump’s executive order restricting birthright citizenship to only a child born in the US has one parent who is either a US citizen or a permanent resident. The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” In United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

 On January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction blocking the implementation of the executive order. During the hearing, Judge Coughenhour called the order “blatantly unconstitutional”, stating “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’”. Judge Coughenour’s comments call into question ABA Model Rule 3.1, which states that 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”. The  Trump administration’s restriction of birthright citizenship  could be viewed as a violation of Rule 3.1 if found to be unconstitutional. Rule 3.1 allows for good faith arguments for the “extension, modification, or reversal of existing law”, however, and it is likely that Trump administration lawyers would argue that the policy laid out in the new executive order falls within this exception. 

Experts will disagree and take the position that Trump’s lawyers may be committing ethical violations in supporting policies that may be cruel and harmful to immigrants. Supporting blatantly unconstitutional actions may be cause for concern according to our colleague, Craig Dobson. Independent of the specific rules governing lawyer conduct, Trump’s lawyers should ensure that their actions align with the ideals of the profession, which prioritize fairness, justice, and upholding the rights of individuals. While Trump holds the office of President of the United States, he is not a lawyer, and is not beholden to the same ethical standards. Lawyers, by contrast, are called to uphold the laws of the United States and avoid perpetuating harm and injustice. 

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