Cyrus Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Cyrus Mehta

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

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

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

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

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

Ineffective Assistance Counsel under Matter of Lozada

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

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

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

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

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

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

Crime involving moral turpitude  

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

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

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

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

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

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

Jurisdiction and defective Notice to Appears

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

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

Exceptional and Extremely Unusual Hardship

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

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

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

When Does a Child Stop Being a Child for Cancellation Hardship

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bright Spots

Final Merits Determination in Extraordinary Ability Cases

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

Disregarding the Yajure Hurtado Decision in Detention without Bond Cases

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

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

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

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

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

(Last updated on 2/14/2026)

Cyrus Mehta

DOS Announces Temporary Pause on Certain Visas for Nationals of 75 Countries Based on Unfounded Concerns That They Will Seek Public Benefits

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On January 14, 2026, the Department of State (DOS) announced a temporary pause on the issuance of immigrant visas (green cards from overseas) for nationals of 75 countries, effective January 21, 2026. DOS said this pause is for the government to review how immigrant visa applicants are evaluated under the “public charge” rules. In announcing this review, the government has indicated it wants stricter standards to prevent new immigrants from receiving any public support. 

This policy applies only to immigrant visas (green card processing through a U.S. embassy or consulate) for applicants who are:

  • Nationals of one of the 75 countries identified by DOS, and
  • Applying for an immigrant visa abroad (not adjustment of status in the United States).

The affected countries include Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia and Herzegovina, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Côte d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyz Republic, Laos, Lebanon, Liberia, Libya, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, North Macedonia, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.

Applicants from these countries may attend their visa interviews, but their immigrant visas will not be issued for the time being, unless a limited exception applies. A dual national applying with a valid passport of a country that is not listed above is exempt from this pause. No immigrant visas have been revoked as part of this guidance. 

Cyrus Mehta told Law360 “it boggles the mind” that the administration would ban immigrant visas for nearly half the world based on “mere speculation” that those immigrants would come to rely on public benefits.

“Most new immigrants are not even eligible for benefits, and their admission as immigrants is conditioned by legally binding affidavits of support from their sponsors who have met the income requirements,” Mehta said.

It is also hard to imagine that immigrants from Kuwait, Kazakhstan or Uruguay will be lining up for benefits when they immigrate to the US. Those immigrating through a relative who is a US citizen or permanent resident must also be sponsored through an affidavit of support where the sponsor must be able to demonstrate an income that is 125% over the poverty line based on the size of the family being sponsored. Those immigrating through employment based on a labor certification must be promised a salary that is equal to or greater than the prevailing wage in the occupation through which they have been sponsored or through an investment in the amount of $800,000 to $1,050,000. 

The American Immigration Council has stated in a blog post that after obtaining a green card, eligible immigrants are subject to a five-year waiting period before they may apply for SNAP (food stamps) assistance, with limited exceptions.  

The real reason for the pause is because the Trump administration disfavors immigration to the United States, irrespective of whether it is legal or illegal. Trump’s senior policy advisor in the White House, Stephen Miller,  has demonstrated xenophobic and racist views towards immigrants. He has admired the  National Origins Act of 1924, which provided for an annual limit of 150,000 Europeans, a complete prohibition on Japanese immigration and which preserved the already existing racial and ethnic status quo of the United States. This law rejected George Washington’s view that the United States should ever be “an asylum to the oppressed and the needy of the earth.” 

The State Department’s pause on immigrant visas to nationals of 75 countries under the pretext that they will receive public benefits is a lie. The real reason for the pause, which follows a travel ban on nationals of 39 countries, is to drastically restrict immigration to the US. The Trump administration through Stephen Miller is achieving a ban on immigration without needing to go through legislation similar to the National Origins Act of 1924. It is doing so through executive fiat pursuant to INA 212(f), which allows the president to suspend the entry of noncitizens who he deems would be detrimental to the United States. 

The Trump administration’s blocking of nearly half the world from obtaining immigration visas will be a lost opportunity for the United States. The narrow minded thinking of Trump’s main immigration policy architect,  Stephen Miller,  prevents him from seeing how these immigrants would contribute to the US through their achievements in science, business, arts and many other fields of endeavor as well as through their desire to work hard to better themselves and their families. 

Cyrus Mehta

Police State for Noncitizens in the US?  

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, the Trump administration has taken troubling immigration-related actions that draw the United States ever closer to becoming a police state. Most notably, on January 7, 2025, an ICE agent shot and killed Renee Good, a U.S. citizen who was observing an ICE raid. In a NY Times op ed, Michelle Goldberg aptly points out that, “[a]ll of us, citizens and immigrants alike, are being ruled by people who think life is a privilege bestowed by authority, and death is a fair penalty for disobedience.” The killing of Ms. Good illustrates that the assault on our rights and liberties is no longer confined to noncitizens and has radiated outwards to encompass citizens as well as countries. 

Violence and abductions have long been a hallmark of the Trump administration. Just days before the killing of Ms. Good, on January 3, 2025, the Trump administration led an operation in Venezuela that led to the capture of the country’s leader, Nicolás Maduro, and his wife. In a NY Times op ed, M. Gessen noted that: “When he addressed the public in a news conference on Saturday, President Trump announced that U.S. forces had abducted the president of Venezuela and his wife in the name of democracy, justice, freedom for the Venezuelan people and the safety of Americans. It was a mockery: Despite what the hoodlums running our country may actually believe, abduction — whether on a street in Boston, in an apartment building in New York or Chicago, or in Maduro’s compound in Caracas — never serves the cause of justice”.

Noncitizens in the United States are living in what is becoming increasingly akin to a police state, fearing detention, deportation, or revocation of their visas if they exercise their free speech rights under the first amendment. The State Department boasts that it has revoked 100,000 visas including some 8,000 student visas and 2,500 specialized visas for individuals who had encounters with U.S. law enforcement for criminal activity, which it brands as “thugs”. It is not clear what the State Department visa means by “criminal activity” as we have heard about the revocation of visas based on minor traffic infractions or even if the charges got dismissed.  The Trump administration has weaponized INA 237(a)(4)(c) to initiate detention and removal, and the fear of it, against anyone whose speech is disfavored including anti Americanism, however that is defined, and activities to moderate hate speech on the internet, even if undertaken as part of one’s job. In September 2025, in Vasquez Perdomo v. Noem, the Supreme Court troublingly held that apparent ethnicity is a “relevant factor” for purposes of immigration stops, essentially sanctioning racial profiling by ICE agents. In Minneapolis, ICE is detaining noncitizens who may already be authorized to be in the US based on a status review of their application. Immigration law only permits detention of people who an officer has “reason to believe” are present in violation of law. No law permits detention for a fishing expedition.

In the current climate, it is increasingly important for noncitizens to know what their rights are if approached by ICE or questioned about their immigration status. Noncitizens who are in a lawful immigration status are advised to carry proof of their status, like a lawful permanent resident card or I-94, with them at all times, and to present it if approached by ICE. Undocumented individuals should be aware that they have the right to remain silent if approached by ICE in public or during a traffic stop, and can ask to contact an attorney. Noncitizens are advised not to open the door if ICE comes to their home, and should be familiar with the difference between a warrant signed by a judge and an “ICE warrant”, which is not signed by a judge and does not give ICE the right to enter a home without consent. 

Trump appears to have little regard for whether his actions amount to violations of international law, stating that he is constrained only by his “own morality”. 

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

 

Cyrus Mehta

Evisceration of the H-1B Visa Program Through Executive Action

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By Cyrus D. Mehta

The H-1B visa program has been eviscerated through the promulgation of a final rule that would prioritize the allocation of H-1B visas in the lottery to those who are higher skilled and higher paid and through executive action. Relatedly, President Trump issued an executive order that would impose a $100,000 fee on H-1B petitions filed on behalf of beneficiaries who are outside the US. The $100,000 fee will not apply to H-1B petitions filed on behalf of beneficiaries who are already in the US and will also be requesting a change of status to H-1B from another nonimmigrant  status such as F-1 or J-1.  This executive order was recently upheld by a federal district court.  These combined actions have radically changed the H-1B visa program through the stroke of a pen and without any legislation from Congress. 

DHS Finalizes H-1B ‘Weighted Selection’ Rule 

On December 23, 2025, the Department of Homeland Security (DHS) announced a final rule implementing a weighted selection process that generally favors the allocation of H-1B visas to those who are, in the administration’s view, “higher-skilled and higher-paid.” The rule governs the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). DHS received 17,000 comments and made no changes from the proposed rule. Court challenges are expected to follow.

Under the new process, instead of a random lottery, registrations for unique beneficiaries or petitions will be assigned to the relevant Occupational Employment and Wage Statistics wage level and entered into the selection pool as follows: (1) registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times; (2) those assigned wage level III will be entered into the selection pool three times; (3) those assigned wage level II would be entered into the selection pool two times; and (4) those assigned wage level I will be entered into the selection pool one time. Each unique beneficiary will only be counted once toward the numerical allocation projections regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool, DHS said. The new final rule is expected to make it significantly less likely that companies will hire international students when they graduate from U.S. universities.

The final rule,  published on December 29, 2025, is effective February 27, 2026, and will be in place for the Fiscal Year 2027 H-1B cap registration season.

District Court Rules Against Plaintiffs in $100,000 H-1B Fee Lawsuit, Plaintiffs Appeal

In Chamber of Commerce v. Department of Homeland Security, a district court has ruled in favor of the Department of Homeland Security (DHS), finding that imposition of a $100,000 fee for new H-1B applications and related actions were legal under a Presidential Proclamation pursuant to INA 212(f). 

“Defendants have the stronger position,” U.S. District Judge Beryl Howell said. “The lawfulness of the Proclamation and its implementation rests on a straightforward reading of congressional statutes giving the President broad authority to regulate entry into the United States for immigrants and nonimmigrants alike.”

Judge Howell noted, “To be clear, this decision in favor of defendants is not to dismiss or discount the past and ongoing contributions of H-1B workers to the American economy that plaintiffs highlight. Important as those contributions may be, the effects of the H-1B program on the American economy or national security, whether positive or negative, are simply not at issue in this case. The Supreme Court has long maintained that matters of economic and foreign policy are generally entrusted to the political branches of government and ‘rarely proper subjects for judicial intervention.’ ”

The plaintiff groups, the US Chamber of Commerce and the Association of American Universities,  have sought expedited review in the DC Circuit Court of Appeals. The groups said in their emergency consent motion to expedite appeal that neither section of the Immigration and Nationality Act that Trump cited in his proclamation that imposed the hefty fee for the H-1B nonimmigrant visa program “contains the clear statement necessary to delegate to the president Congress’s power to impose taxes on U.S. employers.”

“What is more, the proclamation takes a wrecking ball to Congress’s carefully crafted design of the program — in overriding the program in this manner, it exceeds the bounds of the president’s lawful authority,” the groups said.

Furthermore, multiple states joined an amicus brief supporting plaintiffs in Global Nurse Force v. Trump, filed in the Northern District of California. There is hope that the DC Circuit Court of Appeals and another district court will rule differently from Judge Howell’s decision. The brief in Global Nurse Force v. Trump asks the judge to temporarily block a new Trump administration policy to charge new H-1B immigrant visa applicants a $100,000 fee. Among other things, the states and other plaintiffs argue that the fee would exclude from hiring qualified H-1B workers nonprofits and schools that are unable to afford it.

The amicus brief includes the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Impact of the Combination of the Wage Prioritization Rule and the $100,000 Fee

For further insights, watch my interview on CNBC/TV18 with esteemed colleague Steven Brown regarding the H-1B new rule that will give priority to those being offered level 4 wages and the $100,000 H-1B fee that was upheld by a federal district court.

I have opined that with the $100,000 there will be fewer H-1B petitions filed on behalf of beneficiaries outside the US and most of the beneficiaries competing for the limited 85,000 H-1Bs per year will be mainly students in the US in F-1 status. They may have a better chance of selection even if they are not paid the highest-level wage. 

While the $100,000 may help students in F-1 status in the US, it will not benefit employers who need to also hire workers based overseas especially nonprofits, universities and startups. Even those who were previously counted under a prior H-1B lottery but are based overseas, a new petition filed on their behalf will have to be accompanied by the $100,000 fee. 

The two actions from the Executive Branch will not just kill the H-1B visa program but will also stymie innovation and prevent the entry of talented foreign nationals who will ultimately contribute to the US. It is hoped that courts will find both the actions unlawful and contrary to the INA. 

 

Cyrus Mehta

2025 in Perspective Through the Insightful Immigration Blog

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By Cyrus D. Mehta

Upon  President Trump’s inauguration on January 20, 2025, the immigration landscape got radically altered. Immigrants were no longer viewed as assets to the United States. Rather, they were treated as invaders taking away American jobs and engaging in crimes. 

The “alien invasion” needed to be eradicated, and in order to  achieve this dystopian vision, Trump implemented a draconian deportation policy rendering almost all noncitizens as targets. Even if they were legally in the US through humanitarian parole or temporary protected status Trump has sought to eliminate  these programs rendering them  “illegal aliens”, and worse “criminal aliens”  that could be deported. Asylum proceedings got terminated because the US entered into agreements with faraway third countries like Eswatini that  assured to safely take the asylum applicant. 

Trump also issued an executive order to radically alter  birthright citizenship guaranteed under the Fourteenth Amendment. . A child  born to parents who were not lawfully present or were temporarily in the United States would no longer be automatically born a US citizen.  Towards the end of 2025 Trump has shut down legal immigration by imposing travel bans on 39 countries and even imposing a pause on benefits application of nationals of these banned countries through  INA 212(f), which gives the  President broad power to restrict the entry of aliens if they are deemed “detrimental to the interests of the United States”.  The H-1B program got decimated through the imposition of a $100,000 fee, which was upheld by a federal court as part of the president’s authority under INA 212(f). A new rule will give priority to H-1B lottery applicants who are offered the highest wages in their occupational category. 

Instead of creating more pathways for skilled people to come to the US, Trump launched his Gold Card through executive action by scaffolding it onto the existing employment-based first and second preference categories, which are already backlogged for people born in India.  

For noncitizens even permanently residing in the US on a green card, America became a police state through the vetting of their social media accounts, which could result in the denial of an immigration benefit, detention and deportation. Even naturalized citizens will no longer be immune as DHS has ordered USCIS offices to denaturalize at least 100-200 cases per month. 

Trump’s immigration hellscape continues with no brakes into 2026 although Zohran  Mamdani, who will be New York’s next mayor on January 1, 2026,  proves that immigrants have power, and no matter what this administration claims to the contrary, America has been and will continue to be a nation of immigrants. 

As 2025 comes to a close, I extend my heartfelt appreciation to my co-author, Kaitlyn Box, whose invaluable insights and unwavering support have been crucial in producing a wealth of timely blog posts on the latest developments. I am also thankful to Manjeeta Chowdhury and David Isaacson whose blogs  are included among our most-read pieces.

Top 10 Most-Read Blogs of 2025

  1. A Foreign Student Whose Visa Has Been Revoked by Trump Should Still Be Able to Continue to Attend School
  2. Challenging the Foreign Policy Ground of Removability in Defense of Free Speech and the Rights of Green Card Holders
  3. CSPA Disharmony Is More Beautiful Than Monotony: Notwithstanding a Discrepancy Between USCIS and DOS Policy in Protecting the Age of the Child
  4. Resolving Conflicts of Interest When an H-1B Worker Is Terminated
  5. AC21 Trap for H-1B Workers Caught in the Green Card Backlogs and Who Have Changed Jobs
  6. Trump’s Executive Order Restricting Birthright Citizenship Is So Unconstitutional That Even the Supreme Court May Reject It
  7. The Exception That Disproves the Rule: How Matter of K-E-S-G’s FGM Exception Exposes Its Incoherence
  8. Neighborhood Snooping: USCIS’s New Roadblock to Citizenship
  9. Trump and Dick the Butcher Have the Same Impulse: Let’s Kill All the Lawyers
  10. One Big Ugly Bill on Immigration

These blogs have sparked conversations and provided insights on crucial topics throughout the year, and we are grateful for our readers’ engagement and support.

 

Cyrus Mehta

Another Round of Country Bans Driven by Presidential Animus

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump administration recently announced two new policies that create additional hurdles to lawful immigration. 

The first policy, announced on December 16, 2025, is an expansion of the earlier Presidential Proclamation which restricted the entry of nationals of Afghanistan, Burma, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen into the United States under INA 212(f), which authorizes the President to restrict the entry of aliens if they are deemed “detrimental to the interests of the United States”. It also restricts nationals of Burundi, Cuba, Togo, Venezuela, and Turkmenistan from entering the US on immigrant, tourist (B-1, B-2, B-1/B-2), student (F and M), or exchange visitor (J) visas. Nationals of Turkmenistan remain prohibited from entering the United States on immigrant visas. 

The new proclamation fully bans nationals of Burkina Faso, Laos, Mali, Niger, Sierra Leone, South Sudan, and Syria, as well as individuals holding Palestinian Authority-issued or endorsed travel documents from entry into the United States. It also introduces partial restrictions for Angola, Antigua and Barbuda, Benin, Cote d’Ivoire, Dominica, Gabon, The Gambia, Malawi, Mauritania, Nigeria, Senegal, Tanzania, Tonga, Zambia, and Zimbabwe. 

Lawful permanent residents, current visa holders, dual national of a designated country traveling on a passport of a non-designated country, asylees, diplomats holding A, G, or NATO visas,  ethnic and religious minorities in Iran and some athletes traveling for a major sporting event are exempt from the travel restrictions. Special Immigrant Visa (SIV) holder are also exempt from the travel restrictions, although Afghans who qualify for the SIV program are no longer exempt. The latest proclamation also removes exceptions previously outlined in the June proclamation for individuals with family-based immigrant visas and adoption visas. Individuals whose entry is determined to be in the national interest as determined by the Department of Justice, Secretary of State, or Secretary of Homeland Security may also be eligible for exemptions. 

The expanded set of restrictions applies to individuals who are outside of the United States as of January 1, 2026, and do not have a valid visa. The list of impacted countries will be reviewed by the administration every 180 days to determine if any changes are needed. 

Although INA 212(f) authorizes the entry of aliens into the US, see Trump v. Hawaii,  the Trump administration has expanded its authority under INA 212(f) to also order a pause on the adjudication of immigration benefits within the US under the original 19 countries and the countries banned under the expanded proclamation. It remains to be seen whether the courts will allow the Trump administration to expand 212(f) to pause benefits in the US when INA 212(f) speaks only to the entry of aliens into the US and not to the banning of benefits of noncitizens already in the United States. Nationals of 39 countries are now banned under Trump’s proclamations. 

The Trump administration has also taken aim at the Diversity Visa Program, suspending the program effective January 1, 2026 at 12:01 AM EST. All current, pending applications under the DV program are subject to a USCIS processing hold pending a “comprehensive review”. The impetus for this suspension appears to be the shooting at Brown University and killing of an MIT professor carried out by an individual who initially entered the U.S. pursuant to the DV program.  

In a post on X, DHS Secretary Kristi Noem said that: “At President Trump’s direction, I am immediately directing [U.S. Citizenship and Immigration Services] to pause the DV1 program to ensure no more Americans are harmed by this disastrous program”. 

Cyrus Mehta, in a post on X, said: “One person’s bad actions should not be used to shut down the entire Diversity Visa program that is mandated by Congress. The Brown University shootings were not as a result of the visa program but based on the motivations of an individual. The President has in the past unfortunately  attacked the DV program because it brings people from “shithole” countries to the US. The alleged killer in this case is from Portugal, which hardly qualifies from among the countries that Trump has denigrated.  The administration should not be using these unfortunate killings as a pretext to shut down immigration programs it disfavors.” 

It should be noted that the Diversity Visa Program was established by Congress and the President cannot suspend the program, only Congress can. Stephen Yale-Loehr, of Miller Mayer, LLP, was quoted by the New York Times in Trump Administration Pauses Diversity Immigration Program After Brown Shooting. He noted that the program was created by Congress and presidents “cannot unilaterally negate or terminate an immigration program.” He said that although the Trump administration was likely to argue that the president could bar the entry of any foreign national who posed a national security risk, the courts would have to decide whether that authority allowed the president to suspend the diversity visa program entirely. “This is another example of the Trump administration acting first and letting the courts figure out the legality later,” he said.

According to an AILA statement, “the Trump Administration continues to weaponize tragedies as a pretext to advance anti-immigrant policies that are unjust and un-American. According to data from the Cato Institute, ‘over the next three years 400,000 legal immigrants and nearly 1 million tourists, business travelers, international students, foreign workers, and other temporary visitors will face’ bans. We need a system that invests in credible intelligence and security measures that will actually make America safer, rather than these kinds of blanket prohibitions. There are rational, lawful reforms that could address the challenges we face while also upholding our country’s commitment to our Constitution and values. That’s what we need now, not kneejerk reactions that will not make us safer.”

The American Immigration Council, in a December 19, 2025 report, noted that: “Allegations of racism against African and Muslim immigrants continue to linger over  the rationales offered in the latest ban, which came just days after President Trump declared that Somalians were ‘garbage’ and that he wanted to ban all immigration from ‘third world countries.’ Following the ban being issued, the Department of Homeland Security even described its restrictions on legal immigration as ‘slamming the door shut on the foreign invaders who have undermined our national security.’ This rhetoric may provide opportunities for challengers seeking to block the bans in court.”

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

Cyrus Mehta

Buyers Beware: Trump’s Gold Card is an Amazing Feat in Executive Legerdemain

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By Cyrus Mehta

U.S. Citizenship and Immigration Services (USCIS) has posted a new form for the “Trump Gold Card” immigrant visa program, Form I-140G, Immigrant Petition for the Gold Card Program. The program requires a minimum “contribution” of $1 million along with a hefty application fee. Applicants may only file the form after they have registered their information on trumpcard.gov and received confirmation that their submission was accepted. USCIS will contact the applicant when it is time to create or log in to their USCIS online account to file the form.

The form, dated 11/19/2025, was created under “The Gold Card,” Executive Order 14351. The fee for Form I-140G is $15,000 per person (principal beneficiary, spouse, or child(ren), as applicable). Additional Department of State (DOS) “small fees” may apply “depending on the applicant.” For a corporation or similar entity filing on behalf of an individual, the required “gift” to the United States is $2 million for the principal beneficiary, and $1 million per person for any accompanying spouse or children listed on the petition, in addition to the fee(s).

The Trump administration also announced a “Trump Platinum Card,” coming soon, for which foreign nationals can join a waiting list. When launched, and upon receipt of a $15,000 processing fee and a $5 million contribution, applicants will have the ability to spend up to 270 days in the United States without being subject to U.S. taxes on non-U.S. income. Additional DOS “small fees” may apply “depending on the applicant.” Those “who have ever been subject to U.S. tax on non-U.S. income (e.g., U.S. citizens and resident aliens) are not eligible to apply for the Trump Platinum Card.”

It is unclear how long processing will take. The website states, “Once an applicant’s processing fee and application are received, the process should take weeks. The applicant will need to attend a visa interview and submit any additional documents in a timely manner.” However, practitioners expressed concerns that it could take years in some cases.

Trump’s Gold Card is an amazing feat in executive legerdemain. Although Congress has not explicitly authorized it, the Gold Card has been cleverly appended to the employment-based first preference (EB-1) and second preferences (EB-2) through executive order. The $1 million and more is considered a gift to the United States under 15 USC 1522, and would demonstrate through the filing of an I-140G petition the applicant’s eligibility under the person of extraordinary category under INA 203(b)(1)(A) or under the persons of exceptional ability and national interest waiver category under INA 203(b)(2). If you are born in India beware of Trump’s Gold Card as you will be stuck in the India EB-1or EB-2 backlog for years and even decades after you have shelled out $1 million or more and won’t see your green card for a very long time or never. 

We have always advocated for immigration benefits through executive actions for years. While we are supportive of the Gold Card as another innovative benefit through executive action, it is also hypocritical that this administration has been eliminating other executive actions of prior presidential administrations  such as humanitarian parole and deferred action for childhood arrivals and special immigrant juveniles. If the Trump administration has launched the Gold Card through executive action, why not go further to benefit many more immigrants in the green card backlogs. The administration can advance the filing dates in the State Department Visa Bulletin to current, or close to current, so many people in the backlogs with approved I-140 petitions can file for adjustment of status including beneficiaries  of the I-140 petition for the Gold Card. 

As with other executive actions, the Gold Card will not be immune to challenges in federal court that it was issued without Congressional authorization and even without a regulation under the Administration Procedure Act. If a court blocks the Gold Card applicants may not get their money back. Moreover,  another president can rescind the Gold Card too. Still, as has been the case with the Trump administration rescinding DACA or SIJ deferred action, plaintiffs may be able to get a court to keep the Gold Card program intact for many years if the recission did not factor in the reliance interests of the stakeholders.   Buyers of Trump’s Gold Card should take the plunge with their eyes wide open – that is if they can afford spending and even throwing away $1 million and more. 

 

Cyrus Mehta

Deferred Action for Special Immigrant Juveniles Survives Trump’s Attempts to Eliminate It

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By Cyrus D. Mehta and Kaitlyn Box*

On June 6, 2025, USCIS issued a policy alert stating that it would eliminate the automatic consideration of deferred action for Special Immigrant Juveniles (SIJs) who are not yet able to apply for adjustment of status due to visa unavailability. SIJ is a classification that provides a pathway to lawful permanent residence for minors who have been abused, abandoned, or neglected by a parent, and requires a finding by a juvenile court judge that the child cannot be reunified with his or her parent(s). This policy alert represented a marked departure from previous USCIS policy, pursuant to which USCIS automatically conducted deferred action determinations for juveniles with SIJ classification who could not yet adjust status because of immigrant visa number unavailability. If USCIS determined that a noncitizen with SIJ classification warranted a favorable exercise of discretion, deferred action was granted for a period of four years. Noncitizens with SIJ classification who had been granted deferred action were also eligible to apply for work authorization for this period.

Deferred action was necessary as a stop gap -solution due to the retrogression in the employment-based fourth preference category, which prevented SIJ applicants from filing I-485 applications. Without the benefit of deferred action, SIJ applicants are subject to removal from the US even though they have approved SIJ petitions unless the priority date becomes current. Deferred action allows the executive branch to provide ameliorative relief when there are gaps that would otherwise render the noncitizen vulnerable to removal. Congress laid out a clear path to lawful permanent residency for SIJS beneficiaries, but visa backlogs cause years-long delays before they can apply for their green cards.

Pursuant to the June 6, 2025 policy under the Trump administration, “USCIS will no longer consider granting deferred action on a case-by case basis to aliens classified as SIJs who are ineligible to apply for adjustment of status solely due to unavailable immigrant visas”, though individuals who have already been granted deferred action and employment authorization based on a SIJ classification will generally retain it. As a justification for this policy change, USCIS stated that:

“While Congress likely did not envision that SIJ petitioners would have to wait years before a visa became available, Congress also did not expressly permit deferred action and related employment authorization for this population. Neither an alien having an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without an immediately available immigrant visa available nor a juvenile court determination relating to the best interest of the SIJ are sufficiently compelling reasons, supported by any existing statute or regulation, to continue to provide a deferred action process for this immigrant category.”

This policy change was quickly challenged by a group of youth and legal services organizations in the U.S. District Court for the Eastern District of New York in A.C.R. et al. v. Noem et al., No.1:25-cv-3962. In their complaint, these organizations argued that USCIS’ abrupt recission of deferred action for noncitizens with SIJ classification was arbitrary and capricious in violation of the Administrative Procedure Act (APA) because USCIS failed to assert a reasonable explanation for its reversal of the prior policy, causing irreparable harm to juveniles with SIJ classification who are now at risk for deportation.

On November 19, 2025, the court granted a stay of the recission of SIJ deferred action. The court found that the plaintiffs are likely to succeed on the merits of their claim that the policy reversal was unlawful for several reasons, including because the government did not consider reliance interests or alternatives to rescinding the policy. The court also ruled that, absent the stay, the plaintiffs were likely to face irreparable harm because of the heightened risk of removal they would face without the protection of deferred action.  The court deferred a ruling on class certification and chose not to grant relief in the form of a preliminary injunction.  The court followed the logic advanced by the Supreme Court in Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), a case involving a challenge to DHS’ 2017 termination of the Deferred Action for Childhood Arrivals (DACA) program. In Regents, the Court criticized the first Trump administration for not factoring in reliance interests when terminating the DACA program. In reliance on the DACA program, DACA recipients had enrolled in educational programs, started careers and businesses, purchased homes, and married and had children in the United States. In the majority opinion, Chief Justice John Roberts noted consequences of the termination would also “radiate outward” to impact DACA recipients’ families, including their U.S. citizen children, and to their educational institutions and employers.

 Citing Regents, the court in A-C-R-, found that “USCIS failed to consider reliance interests and reasonably obvious alternatives here, likely rendering its decision to rescind SIJS-DA arbitrary and capricious”. USCIS had advanced two justifications for not taking reliance interests into consideration, first that “the requirement to consider reliance interests does not apply when an agency ‘credibly believes that the prior policy is a violation of the separation of powers doctrine’”, and, second, that the reliance interests implicated in SIJ deferred action were not serious. The court did not find either compelling. In response to USCIS’ first justification, the court noted that “an agency must always consider serious reliance interests, even when it concludes an earlier policy was unlawful”. In response to the second contention, the court noted that juveniles with SIJ classification, like DACA recipients, may have enrolled in educational programs or begun careers in reliance on the program, and that the consequences of the recission would similarly “radiate outwards” to impact families, schools, and employers. The court also noted that even state governments could be impacted by the recission, as SIJ recipients could become more reliant on state child welfare programs and benefits.

A-C-R provides some hope that deferred action programs can stay in place if the administration does not take into consideration the reliance interests of the stakeholders. In addition to DACA and SIJ deferred action, another program grants deferred action to noncitizen workers who witness or experience labor rights violations.  Although the Fifth Circuit has also ruled that DACA  may not have been authorized under the INA, a final decision has yet to be made on the lawfulness of DACA or other deferred action programs. Even the court in A-C-R-  order referenced the DACA decision, and expressed openness to the government’s claim that its “questionable legality was likely reason enough for USCIS to seek to rescind the policy.”

The executive branch has always been able to grant deferred action, and Congress has never explicitly precluded the grant of deferred action. It is hoped that the executive branch’s ability to grant deferred action is preserved as such a remedy is vital to fill gaps under the immigration system that would otherwise leave vulnerable noncitizens subject to removal. Even if the current Trump administration is averse to deferred action, it should be preserved for more enlightened, immigrant- friendly administrations to provide ameliorative relief to vulnerable noncitizens in an imperfect immigration system.

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

 

 

 

Cyrus Mehta

Trump’s Escalating Extreme Immigration Measures Towards Noncitizens in the Wake of the National Guard Member Shootings Will Not Make America Any Safer

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In the wake of the tragic shooting of two National Guard members  on November 26, 2025, one of whom has succumbed, Trump uses her death as a pretext to go after millions  who had nothing to do with this attack. The alleged suspect, Rahmanullah Lakanwal,  was paroled into the US  from Afghanistan as part of Operation Allies Welcome. This program evacuated and resettled tens of thousands of vulnerable Afghans following the US military withdrawal and the Taliban takeover of the country.  Lakanwal applied for political asylum in 2024 and was granted asylum in 2025.  

Trump has now cast a shadow on not just Afghans who have come to the US, but on all immigrants including  lawful permanent residents and even people who have naturalized. One person’s actions do not at all justify the suspension of immigration benefits for all Afghan nationals and the imposition of draconian immigration restrictions. We should refrain from scapegoating and tainting an entire immigrant community even if Trump is indulging in it. This sort of racial profiling creates uncertainty and fear to Afghans who helped the US military at great risk to their lives. It also does a disservice to noncitizens who have immigrated and are  contributing to the US. 

Trump posted this on X in a late night screed on the eve of Thanksgiving:

Image

Trump’s escalating immigration policies in the wake of the shooting include:

  • Pausing all asylum decisions
  • Stopped issuing visas to people from Afghanistan
  • Reviewing green cards issued to people from countries of concern
  • Threatening to end migration from third world countries and revoke citizenship from some naturalized citizens

The USCIS is using the countries that were included in the Presidential Proclamation of 6/10/2025 banning their nationals as negative factors when adjudicating benefits. The Proclamation was issued under INA 212(f) which speaks to the entry of aliens that would be detrimental to the interests of the United States. If USCIS relies on INA 212(f) to deny benefits to nationals of these countries who are already in the US, as opposed to those seeking entry into the US, it should not apply as these noncitizens are already in the US. The USCIS’s denial based on one’s country of nationality under the Proclamation could be challenged in court as an inappropriate reliance of INA 212(f). Although the USCIS has broad discretion in adjudicating immigration benefits such as adjustment of status applications, even a blatantly discriminatory policy as denying benefits solely based on one’s nationality might withstand a court challenge.  Unfortunately,  Congress has precluded challenges to denials of discretionary relief under INA 242(a)(2)(B). So, it may be difficult but not impossible  to challenge the USCIS policy as even discretionary denials cannot be blatantly discriminatory. 

We have pointed out in early March 2025 that Trump’s policies towards noncitizens were cruel and had no rational justification except to harass and intimidate noncitizens. Just prior to the shootings too,  the policy of  detaining spouses of US citizens who appear for their adjustment of status interviews at USCIS offices was the unkindest cut of them all. This has been happening at the USICS office in San Diego, and we hope it does not spread to other USCIS offices. The law allows the spouse of a US citizen, along with other immediate relatives of US citizens such as minor children and parents to adjust status in the US under INA 245(a). They are eligible for adjustment of status even if the underlying visitor status has expired. Most of the times the visitor status expires after the adjustment of status application has been filed and is processed at a glacial pace. This is beyond the applicant’s control. Now Trump’s  ICE agents with masks appear at an adjustment of status interview to detain the unsuspecting spouse who is all set to adjust status and become a permanent resident. The spouse would still become a permanent resident while in removal proceedings before an Immigration Judge, but what a colossal waste of taxpayer money and needless trauma for the family and kids. The only rationale behind this policy is to inflict cruelty, designed and implemented by either xenophobic or sadistic officials under Trump, or a combination of both, who have no sympathy or compassion towards people who are immigrating to the US legally under the INA and to unite with US citizens they love.

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 and now will use the shootings of the National Guard members to further restrict immigration.

The need of the hour is to advocate that one person’s bad acts should not taint all immigrants. Indeed, Lakanwal went through extreme vetting measures when they came to the US and applied for political asylum. Before his arrival, Lakanwal worked with the US government, including the CIA as a member of a partner force in Kandahar, Afghanistan, from 2011 until shortly after the US evacuation. Notwithstanding the extreme vetting measures he was subjected to, Lakanwal still shot at the National Guar members, which resulted in the senseless death of Sarah Beckstrom. It appears that Lakanwal got radicalized in the US and no amount of vetting may have prevented his entry into the US. The next shooter may well  be a homegrown American who probably has never stepped foot outside the US.  It is also worth pointing out that there was no need for Trump to place members of the National Guard in DC and other cities in the first place. 

Contrary to Trump’s unhinged post, we must remember that immigrants have played a crucial role in making America great, and restricting immigration based on isolated incidents will only rob the nation of their talents and contributions.

In conclusion, it is imperative that we resist the temptation to respond to tragedy with fear-driven policies. Instead, we should strive for solutions that uphold the values of liberty and justice, ensuring that America – a nation of immigrants – remains a beacon of hope and opportunity for all.