Cyrus Mehta

Migration in the Time of COVID-19 Ebook – How Much Has the Pandemic Really Shifted the Immigration Landscape?

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By Kaitlyn Box*

Together with my co-author, Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion, the Samuel Weiss Faculty Scholar, and Founder and Director of the Center for Immigrants’ Rights Clinic (CIRC) at Penn State Law, I recently contributed a chapter to the Frontiers in Human Dynamics e-book “Migration in the Time of COVID-19: Comparative Law and Policy Responses”. A PDF can be downloaded from the Frontiers website.  The e-book “aims to provide one of the first comparative analyses of migration law and policy responses to the COVID-19 pandemic”, by bringing together a collection of articles that “examine and assess destination states’ responses to COVID-19 from the perspective of migration law and policy, and consider how they build upon prior exclusionary regimes, offering suggestions for reform of domestic laws in the wake of the pandemic.”

Our article, entitled “COVID-19 and Immigration: Reflections From the Penn State Law Center for Immigrants’ Rights Clinic”, provides a review of significant COVID-19 -related immigration policy changes, and uses CIRC as a case study to demonstrate how the same tools that immigration advocates have developed to respond to the ever-evolving policies of the Trump administration can also be harnessed to address COVID-related immigration policies. In particular, we discuss three of CIRC’s central response tools: short, accessible fact sheets and FAQ sheets, informational “town hall” forums to discuss new immigration laws or policies as they impact the community, and direct representation of individual clients.

One central thread that emerged across the chapters of the ebook, as well as in last week’s book launch panel, was the idea of continuity, both in repressive immigration policies and the responses to them, both before and during the pandemic. Although the Trump administration, marked by its numerous and draconian immigration policy changes, has now been replaced by the Biden administration, many Trump-era policies still live on, situating COVID-related immigration policies within a broader harsh climate for immigration. Recent federal court decisions, for example, illustrate the revival of many of the Trump administration’s policies, as well as its jaundiced view of immigrants. A federal judge in Texas, for example, recently ordered the Biden administration to reinstate the Migrant Protection Protocols, which force asylum seekers to wait in Mexico for adjudication of their cases, often placing them in grave danger. In August, the Supreme Court refused to overturn the lower court order that would revive the program. Similarly, the U.S. District Court for the Southern District of Texas recently held that Biden’s immigration enforcement priorities, which would have focused removal efforts on only those noncitizens who were a national security risk, entered the United States on or after November 1, 2020, or posed a threat to public safety, were a violation of the Administrative Procedure Act, at least as applied to detention cases. However, the Fifth Circuit has issued a partial stay of the S.D. Texas order, allowing the provisions that provide guidance on when enforcement actions should be initiated to go into effect, among others. The Fifth Circuit’s order left in place only a handful of narrow provisions in the injunction that concern detention. The U.S. District Court for the Southern District of Texas has also held that the DACA program violates the APA, which will bar any new applications for the program.

Many of the COVID-related immigration policies outlined in the chapter continue, at least in some form, as well. For the moment, the slew of COVID travel bans continue, with the suspension on entry into the United States of nonimmigrants who have been physically present in India prior to traveling having been added by the Biden administration after publication of the ebook. As discussed in prior blogs, these bans have a disproportionately harsh impact on nonimmigrants, who are no more likely to transmit COVID-19 than the numerous categories of other travelers exempted by the bans. Although the bans are projected to be lifted in November, to be replaced with testing and vaccination requirements, the harm they created, particularly for nonimmigrants who traveled to be with family at the height of the pandemic and became trapped outside the U.S., is unlikely to be immediately resolved, particularly in light of lingering vaccine inequality issues.

Similarly, the suspension of non-essential travel by land and sea between the United States and Mexico and Canada remains in place for a little while longer. This suspension also includes a number of exemptions, including for U.S. citizens and permanent residents, as well as certain categories of essential workers. First implemented in April 2020, the restrictions were recently extended until at least October 21, 2021.

The chapter also discusses the interruptions to visa processing that occurred when U.S. embassies and consulates suspended routine services. When the travel bans are lifted, some consular services may resume. However, consulates are likely to have significant backlogs and operations may still be disrupted by local COVID conditions. Thus, individuals who are waiting for visa interviews and the like are still likely to experience significant delays.

The climate for asylum seekers, too, has improved little since publication of the ebook. Our article discusses the summary removals that resulted from a CDC and U.S. Department of Health and Human Services regulation and notice that suspended the “introduction” into the United States of individuals who arrived at or between ports of entry without valid travel documents or permission. The Trump administration invoked Title 42, a provision of the 1944 Public Health Services Act permitting the federal government to prevent travel into the country in the event of a public health crisis, as the authority for this order. Despite relaxing the restrictions somewhat for unaccompanied minors and parents with children, the Biden administration has largely continued to rely on Title 42 to summarily remove adults who arrive at the border, effectively denying them any meaningful opportunity to seek asylum. This use of Title 42 plainly contradicts with the United States’ legal obligations to asylum seekers, as laid out at 8 U.S.C. § 1158, which states that any individual “who arrives in the United States…may apply for asylum”.

Although many hostile immigration policies linger on, the conclusion need not be an entirely negative one. Many of the pandemic’s most onerous restrictions, such as the travel bans, are soon to expire, which will provide relief to many. Further, one need not reinvent the wheel when responding to COVID-related immigration laws and policies. Immigration lawyers became very skilled at advising their clients about ever-evolving policies and finding creative solutions during the Trump administration. The tools highlighted in our chapter need not apply only to law school clinics. Practitioners of all varieties continue to support and counsel individual clients as the navigate immigration policy changes, COVID-related and otherwise, and community education can take the form of articles, blogs, webinars, or even social media posts that relay the latest policies in an accurate and digestible way. The same skills and tools that have been honed in recent years can still be utilized during the pandemic, however long it may last.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

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

 

 

 

 

Cyrus Mehta

Recent Trends in Requests for Evidence on I-140 Petitions

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By Cyrus D. Mehta,  Sung-Min Baik* and Kaitlyn Box**

Employers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE).  These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India employment-based Second preference (EB-2) date.  Below are some examples of RFEs we have been seeing.  Although the USCIS is required to adjudicate over 100,000 pending I-485 adjustment cases by September 30, it is very likely that the USCIS will not be able to do so, and so we will continue to see these issues in the new 2022  fiscal year with respect to pending I-140 and I-485 cases.

Retention of the Priority Date, Ability to Pay

Under 8 C.F.R. § 204.5(g)(2), an employer filing an I-140 petition must demonstrate its ability to pay the proffered wage “at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.”  According to a policy memo dated May 4, 2004, by William R. Yates, the petitioning employer may receive a positive determination of this ability to pay with initial evidence establishing that its net income or net current assets are equal to or greater than the proffered wage or that it has paid or is paying the proffered wage to the beneficiary.

This seemingly unambiguous burden is often applied erroneously when an employer files an I-140 petition on behalf of a foreign national who is already the beneficiary of a previously approved I-140 petition and seeks to recapture the priority date associated with the earlier I-140.The new employer is required to obtain a new labor certification, but the new I-140 petition would ultimately receive the earlier priority date established by the former employer.

When this retention of the priority date is requested by a new employer under 8 C.F.R. § 204.5(e), the UCSIS interprets 8 C.F.R. § 204.5(g)(2) to insist that the new employer must show its ability to pay from a priority date that it seeks to retain, even though the labor certification establishing the earlier priority date was obtained with a job offer made by a former employer and is not claimed by the new employer as the legal basis for filing a new I-140 petition.

The relevant regulation does not support the USCIS’ interpretation. On ETA Form 9089, an employer attests in the context of a specific job offer that an offered wage “will equal or exceed the prevailing wage” and that it has “enough funds available to pay the wage.”  20 C.F.R. §§ 656.10(c)(1).  Accordingly, determining the employer’s ability to pay should not exceed the scope of the employer’s attestation made with respect to the specific job offer for which certification is sought and obtained.  Subjecting the employer to the conditions of a different job offer made by a former employer would violate 20 C.F.R. § 656.30(c)(2), which provides that “[a] permanent labor certification involving a specific job offer is valid only for the particular job opportunity.”  It would also be impossible for the current employer to obtain the financial documents from a prior employer. Furthermore, the current employer is also not required to provide financial records from the year when the prior employer filed the labor certification. Indeed, the current employer may not have existed when the prior employer filed the labor certification.

It should be argued that the USCIS should not confuse the current employer’s ability to retain a prior pririty date under 8 C.F.R. § 8 C.F.R. § 204.5(e) with its ability to pay pursuant to 8 C.F.R. § 204.5(g)(2). The current employer must be required to establish its ability to pay at the time when it filed the current labor certification based upon which the I-140 petition was filed, and not based on an earlier recaptured priority date.

Beneficiary’s Current Position v. Offered Position

With respect to an I-485 application, the USCIS sometimes questions the validity of a job offer if the beneficiary is currently employed by a petitioning employer but not in the offered position, even when the current position falls within the same SOC code as the offered position in the labor certification, with only minor distinctions such as a differe job title.  In such casse, the USCIS argues that the employer failed to establish that it would permanently employ the beneficiary in the offered position set forth in the labor certification.  But, there is no requirement that the employer must offer the  PERM position to the beneficiary prior to obtaining permanent residence.  8 C.F.R. § 204.5(c) provides only that “[a]ny United States employer desiring and intending to employ an alien may file a petition.”   The Board of Immigration Appeals has noted that “[a]n alien is not required to have been employed by the certified employer prior to adjustment of status.”  Matter of Rajah, 25 I&N Dec. 127, 132–33 (BIA 2009).  As long as the employer provides evidence demonstrating that the beneficiary would be employed as set forth on the labor certification, the employment of the beneficiary in a different capacity or position during the pendency of an I-485 application would not, despite the USCIS’ contention, necessarily be relevant to the validity of a job offer made to the beneficiary.

Determining Ability to Pay When There is a Financial Loss

Because 8 C.F.R. § 204.5(g)(2) requires the employer to be able to demonstrate its ability to pay from the date when the labor certification is filed to the date when the beneficiary obtains permanent residence, the employer must put forth evidence, at the time of filing and/or in response to a request for evidence, establishing its ability to pay for the entire period. However, due to unforeseen intervening factors, the employer may report a loss for some part of this period.  For example, many petitioners may have suffered financially in 2020 due to distruptions caused by the COVID-19 pandemic.  In these instances, the USCIS may argue that the employer has failed to maintain its ability to pay as required by the regulation, but the then Immigration and Naturalization Service took a broad approach and indicated that the important question is whether the loss would preclude the employer from establishing that she [petitioning employer] will be able to meet the conditions of the certification in the ‘Job Offer.’”  Matter of Sonegawa, 12 I&N Dec. 612, 615 (Reg. Comm. 1967).  To answer this question, the Board analyzed the factors that led the employer to report a substantially lower income in one year and accepted evidence indicating that the employer’s business was likely to grow and report profits.  Id. 614-15.  Accordingly, reporting a loss for one year would not automatically prevent an employer from establishing its ability to pay, but attention needs to be devoted to presenting a well-documented and plausible argument that the employer would be able to pay the proffered wage as set forth on the labor certification.

Work Experience

With respect to establishing that the beneficiary has qualifying experience, 8 C.F.R. § 204.5(g)(1) instructs that evidence be provided “in the form of letter(s) from current or former employer(s) … and shall include … a specific description of the duties performed.”  In general, an experience letter is prepared by a supervisor who has direct knowledge of duties performed by the beneficiary, but sometimes a former employer may have a policy of provides letters that include only the start and end date of the employment, the job title, and a very brief description of the duties. When the beneficiary cannot obtain a more detailed letter from the employer itself, a separate affidavit from a supervisor may provide a more complete description of the actual duties performed by the beneficiary that comports more closely with the description of the beneficiary’s experience in Section K of the ETA 9080 labor certifcation.  However, the USCIS sometimes asserts that the petitioning employer must first establish “the non-existence or other unavailability” of an expereince letter from the former employer before submitting an affidavit from a supervisor for consideration.

Because 8 C.F.R. § 204.5(l)(3)(ii)(A) states only that “[a]ny requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien”, one can argue that letters from supervisors are primary, rather than secondary evidence. Letters from trainers or employers must be authored by a person, such as a supervisor or a human resources professional, and are rarely signed by a corporation itself. 8 C.F.R. § 204.5(l)(3)(ii)(A) does not specify who must author an experience letter.  Indeed, the fact that Form ETA-9089 requests the contact information for an employee’s supervisor during the period of experience suggests that a supervisor and not human resources or some other officer within a company may actually be the preferred source of a letter from an employer.

Even if USCIS does not accept that letters from supervisors are primary evidence, a petitioning employer can argue that primary evidence is unavailable because the former employer has a policy of not providing detailed experience letters. When responding to an RFE that question’s the beneficiary’s work experience, the petitioning employer should instruct the beneficiary to reach out the the former empoyer(s) and request a new, detailed experience letter that includes all the necessary components. Ideally, the beneficiary will be able to obtain an updated experience letter that can be included with the RFE response. Even if the employee is unsuccessful, however, and the former employer’s policy prevents it from issuing a more detailed letter, copies of the emails or letter from the former employer can serve as proof that an experience letter is unavailable.

Other RFEs question the content, rather than the format, of the experience letters. For example, if the requirements in the labor certification state that candidates must have experience in a certain industry, such as IT or finance, USCIS may reject experience letters that do not specifically mention the field of experience. Petitioners should follow a similar process to respond to these RFEs, and ask the employee to attempt to obtain new experience letters. If more detailed letters are not available, publicly available information about the former employer, such as website printouts, can be submitted with the RFE response to demonstrate that the company operates within a certain industry and so the beneficiary gained the necessary experience.

Many of these RFEs emanate when an EB-3 I-140 petition is upgraded to premium processing, and are issued even when the prior EB-2 was approved based on the same supporting evidence. Therefore, care must be taken to properly address the RFEs, particularly because a denial of an EB-3 I-140 can potentially even jeopardize the underlying EB-2 I-140. Because many employment-based second and third preference green card backlogs, employers should also evaluate whether the job has drastically changed since the filing of the original labor certification before beneficiaries file a downgrade and concurrent adjustment. As outlined in our previous blog, however, employers may still rely on the old labor certification if the job duties remain largely the same and the beneficiary is merely using updated tools or technologies. Cases involving a slight change in the job are thankfully not being questioned by USCIS at this time.

(The information procided in this blog is for information purposes, and should not be viewed as a substitute for legal advice)

*Sung-Min Baik graduated with a JD from George Mason University School of Law in 2014, is an Associate at Cyrus D. Mehta & Partners PLLC.

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

Cyrus Mehta

Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas

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By Cyrus D. Mehta & Isabel Rajabzadeh*

One of the many benefits of filing an Adjustment of Status Application (AOS) is the ability to concurrently apply for work authorization (Form I-765/EAD). In addition, the applicant can remain in the United States while the AOS is pending without maintaining status, although most opt to maintain their dual intent nonimmigrant status for as long as possible. One of the most popular dual intent visas are H-1Bs. By extending their nonimmigrant H-1B status, the individual would not start accruing unlawful presence if the AOS is denied for whatever reason. Extending nonimmigrant status while the AOS is pending is also beneficial in some nonimmigrant visa categories, including the H-1B visa, because it allows the individual to continue to work with the same employer without having to separately apply for an EAD.

As USCIS service centers continue to be severely backlogged, we are required to adjust legal strategy to combat these delays. One of the most affected is the processing of work authorization. Earlier this year, the USCIS updated its expedite request policy. Unfortunately, notwithstanding the broadening of the criteria, the requests seem to be met with high scrutiny and are successful in limited cases. Nonetheless, we recommend filing the request if one meets the criteria. Absent a successful expedite request, EADs based on pending AOS applications are taking 9+ months to process. As explained above, individuals therefore find themselves relying on their nonimmigrant status for work authorization while their AOS EADs are pending in the USCIS limbo.

For many nonimmigrant categories, the beneficiary must not have the intent to permanently immigrate to the U.S. As such, an important requirement for most nonimmigrant visas is having “a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” (INA 101(a)(15)(B)). Although the H-1B visa is a nonimmigrant visa, it allows for dual intent. This means that the H-1B visa holder can have the intention of immigrating to the U.S. while still maintaining his/her H-1B nonimmigrant status. The Immigration and Nationality Act carves out the dual intent doctrine by explicitly excluding H-1B visa beneficiaries from the requirement that “every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” (See INA 214(b)). Therefore, when an H-1B visa holder applies for adjustment of status, he/she is able to maintain both the nonimmigrant status and have the immigrant intent. Other visas permitted to have dual intent also include the L and V visa, under the carve out in INA 214(b). The O, P, and E visas are quasi dual intent visas established by regulations.  While they allow the nonimmigrant to be in the U.S. in that status without needing to have a foreign residence, they still do not permit them to intend to seek permanent residence in the U.S. As an illustration of quasi dual intent, under 8 CFR 214.2(o)(13), an intent to remain temporarily in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon.

As visa holders enjoy the benefits of dual intent, we honor the memory of Dale Schwartz, the late immigration attorney who was highly respected in the field and was a former President of the American Immigration Lawyers’ Association. Mr. Schwartz had faced criminal charges in the 1980s in the wake of federal officials investigating applications submitted on behalf of a British businessman who came to the United States in 1980 to work for an American aerospace company. The government charged Mr. Schwartz with eight counts of mail fraud and false statements and asserted that the British businessman intended to live in the U.S. permanently even though he was seeking a temporary visa. The officials ultimately dropped the criminal charges, and we remember him here as a zealous advocate for nonimmigrant dual intent. It is because Mr. Schwartz took the fall for everyone that Congress enacted the dual intent carve out in INA 214(b) in 1990.

Even before dual intent got recognized in the INA, the Board of Immigration Appeals in Matter of Hosseinpour recognized way back in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. There, the BIA was tasked with reviewing an F-1 visa holder’s eligibility for nonimmigrant status after filing an adjustment of status application. In that case, the BIA explicitly held that the filing of an adjustment of status application “is not necessarily inconsistent with the maintenance of lawful nonimmigrant status,” although F-1 visas are not dual intent visas. In its reasoning, the BIA referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)). Further, the BIA reasoned that the F-1 student who applied for adjustment of status kept his intention to remain a nonimmigrant student even though he had applied for adjustment of status. In that case, the student was willing to return home when his studies were completed if ordered to do so. However, the BIA ultimately dismissed the F-1 visa holder’s appeal because the individual did not timely extend his nonimmigrant stay and remained beyond the authorized length of his stay.

In instances where the beneficiary does not hold a dual intent nonimmigrant visa such as a TN or H-1B1 and applies for AOS, they must wait long months for their work authorization to be processed by the USCIS in order to work. If they apply for an extension of the underlying nonimmigrant status while the adjustment application is pending, they will likely receive push back from the USCIS on the ground that the nonimmigrant visa status does not allow for dual intent notwithstanding Matter of Hosseinpour. These nonimmigrants who face this sort of push back from the USCIS when extending their status should invoke the holding in Hosseinpour, which is still good law, that they should be entitled to the extension of nonimmigrant status even if they have expressed an intention to apply for permanent residence. Indeed, as in Hosseinpour, these nonimmigrants would be willing to depart the U.S. at the end of their nonimmigrant status in the event that their adjustment of status application gets denied.

Moreover, when nonimmigrants enter the U.S. in a B-2 visitor status, they are required to maintain an intention to return home to a foreign residence, although Hosseinpour also allows them to have a desire immigrate to the US. Thus, one who is the beneficiary of an I-130 petition can still legitimately enter the U.S. as a visitor if the objective is to process for the immigrant visa at the U.S. consulate. Furthermore, one with a desire to immigrate is also allowed to change one’s mind after being admitted and apply for adjustment of status in the US. During Covid-19, many nonimmigrants who came with the intention of returning home decided to stay in the U.S. and apply for adjustment of status as immediate relatives of U.S. citizen spouses or children when the Covid situation got exacerbated in their home countries.

The project to carve out dual intent in the INA for H-1B, L, and V visa holders is only half completed. Enshrining dual intent in the law will ensure that noncitizens will not be denied a visa or admission if they are able to extend, change or adjust status legally. They will also be able to maintain nonimmigrant status while their adjustment applications are pending. INA 214(b) should be amended to remove the presumption that every noncitizen is an immigrant unless proven otherwise.  The relevant concern to ensure compliance with a temporary visa should solely be focused on whether the noncitizen will violate status by overstaying or working in an unauthorized capacity, and not whether they will pursue other lawful visa options, including adjustment of status, once they enter the U.S. It is important to enact dual intent for all nonimmigrant visa categories to remove needless contradictions and complications in U.S. immigration law.

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

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

If the US Does Not Eradicate Vaccine Inequality, the Requirement of COVID Vaccinations for Many Green Card Applicants Will Result in a De Facto Ban

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By Cyrus D. Mehta

Effective October 1, 2021, with few exceptions, those applying for permanent residence (green card) must be vaccinated against COVID-19, now classified as a “Class A inadmissible condition,” the Centers for Disease Control and Prevention (CDC) announced. The CDC explained that the COVID-19 vaccination meets the criteria for required vaccinations and is a requirement for applicants eligible for the vaccine regardless of evidence of immunity, a negative COVID-19 test, or prior COVID-19 infection. The new vaccine requirements apply to a foreign national filing an I-485 application for adjustment of status and completing the I-693 medical examination with a designated USCIS civil surgeon or to a foreign national applying for an immigrant visa or refugee status at a US consulate and undergoing a medical examination with a panel physician.

With respect to I-485 adjustment applicants, the CDC  has stated that the applicant “must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before completion of the medical examination.” The COVID-19 vaccination requirement differs from previous requirements in that “the entire vaccine series (1 or 2 doses depending on formulation) must be completed in addition to the other routinely required vaccines. COVID-19 vaccinations can now be given at any time, without regard to the timing of other vaccinations.” Acceptable vaccines include Pfizer-BioNTech, Moderna, and Janssen (Johnson & Johnson).

Panel physicians in countries outside the US may accept vaccines authorized for emergency use or approved by the US Food and Drug Administration  or vaccines listed for emergency use by the World Health Organization. In addition to the three vaccines used in the US, the WHO lists many other vaccines used outside the US such as AstraZeneca, Covishield and Covaxin, Sputnik, Sinopharm and Sinovac, among others. Given that the US vaccines are not widely available in many countries, it is good news that other vaccines will be recognized when intending immigrants overseas must be vaccinated against Covid-19.

Waivers are available for  under both circumstances if the vaccine is not age appropriate, the vaccine is medically contraindicated, or the applicant does not have access to one of the approved vaccines in their home country. Applicants may also apply for an individual waiver on religious or moral grounds.

According to reports, the Biden administration also is developing plans for a COVID-19 vaccine mandate for almost all foreign visitors to the United States, with some exceptions. Note though that proof of the vaccination does not exempt international travelers from the preexisting requirement of presenting proof of a negative Covid-19 test within three days of boarding an international flight to the US.

As there is a great disparity in vaccination programs across the world, the mandating of vaccines for green card applicants and visitors may hinder the ability of people to easily come to the US. According to the NY Times vaccine tracker, https://www.nytimes.com/interactive/2021/world/covid-vaccinations-tracker.html, the UAE has the highest percentage of  fully vaccinated people within its population (76%), while the percentage of fully vaccinated people in countries such as India (10%),  Senegal (3.5%) and Haiti (<0.1%) is abysmally low.

Until now, even if a country was subject to a Covid ban, one applying for an immigrant visa is exempted from the ban.  The lack of vaccine access in a country will surely hinder the immigrant visa process and impose a de facto ban. Those who have won the DV lottery must be processed for the immigrant visa by September 30 each year, and a delay in getting fully vaccinated by the deadline will result in the loss of an immigrant visa under this category. This is not to suggest we should object to the mandatory vaccination of intending immigrants before arriving in the US because of the lack of vaccine availability in many countries, especially in low and lower-middle income countries,  that send many immigrants to the US.  Indeed,  the US needs to ensure in concert with the WHO that there is no vaccine inequality and people from all over the world must have quick and easy access to vaccines. It is a sad state of affairs that vaccine hesitant people in the US refuse to get vaccinated when there is so much  vaccine availability while it is difficult to get a vaccine in other countries.

Finally, we have consistently maintained that the Covid proclamations imposing travel restrictions are ineffective in curbing the spread of the coronavirus as they are riddled with exceptions. US citizens, permanent residents and noncitizens with US citizen or permanent resident children are exempted from the ban. So are those who can obtain national interest exception waivers on a variety of grounds. On the other hand, those subject to the ban have to suffer immeasurable hardships by remaining separated from employers and family members who are in the US. It will make more sense if the US insists that everyone entering the country be fully vaccinated rather than subject countries to Covid Proclamations. However, to make this a worthy goal, the US as a global leader must ensure vaccine equality to everyone in the world. Ensuring equality would be in the interest of the US and the whole world as it would create the best chance to eradicate the coronavirus pandemic once and for all.

 

 

David Isaacson

“The Process By Which Removability Will Be Determined”: How the Recent District Court Decision Ordering the Reinstatement of MPP Contradicts Itself

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On Friday, August 13, U.S. District Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas issued an Opinion and Order ruling in favor of the states of Texas and Missouri in a lawsuit that they had brought against the Biden Administration, seeking to force the Administration to reinstate the so-called “Migrant Protection Protocols” (MPP) created by the Trump Administration.  Human Rights First, among others, had previously observed that MPP was more aptly described as Migrant Persecution Protocols; I will use only the initials from this point on, since they can apply either way.

The gist of MPP was the return of asylum applicants to Mexico, pursuant to 8 U.S.C. § 1225(b)(2)(C), while their applications were pending. As the American Immigration Council explained, many applicants were placed in grave danger in Mexico, and many were unable to return to the United States for their hearings at the appointed time. Upon taking office, the Biden Administration suspended new enrollments into the program on January 20, 2021, and terminated the program on June 1. Texas and Missouri sued to overturn that decision.

The Opinion and Order, the effect of which was stayed for seven days to allow an emergency appeal, held that the termination of MPP violated the Administrative Procedure Act and 8 U.S.C. § 1225. Judge Kacsmaryk therefore vacated the June 1 memorandum terminating MPP, and ordered the government

to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.

Opinion and Order at p. 52, ¶ 3.

There are a great many problems with the reasoning supporting the Opinion and Order, which I am sure will be elucidated in the coming days by others. Rather than seeking to give a comprehensive account of everything wrong with the Opinion and Order, however, I want to focus here on one particular issue: assuming that it is meant to have significant practical effect, the Opinion and Order is internally contradictory. While it is not completely clear what exactly the government is being ordered to do, the only way for the answer not to be, “almost nothing”, is for various statements in the Opinion and Order to be incorrect.

To see the problem, it is necessary to look at the text and structure of 8 U.S.C. § 1225, one of the two statutes that Judge Kacsmaryk held the government to be violating by terminating MPP.  In particular, the relevant section is 8 U.S.C. § 1225(b), which divides applicants for admission into two groups, those processed under 8 U.S.C. § 1225(b)(1) and those processed under 8 U.S.C. § 1225(b)(2):

(b) Inspection of applicants for admission

(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled

(A) Screening

(i) In general

If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.

(ii) Claims for asylum

If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).

(iii) Application to certain other aliens

(I) In general

The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General. Such designation shall be in the sole and unreviewable discretion of the Attorney General and may be modified at any time.

(II) Aliens described

An alien described in this clause is an alien who is not described in subparagraph (F), who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.

(B) Asylum interviews

(i) Conduct by asylum officers

An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General.

(ii) Referral of certain aliens

If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.

(iii) Removal without further review if no credible fear of persecution

(I) In general

Subject to subclause (III), if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.

(II) Record of determination

The officer shall prepare a written record of a determination under subclause (I). Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer’s analysis of why, in the light of such facts, the alien has not established a credible fear of persecution. A copy of the officer’s interview notes shall be attached to the written summary.

(III) Review of determination

The Attorney General shall provide by regulation and upon the alien’s request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I).

(IV) Mandatory detention

Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.

(iv) Information about interviews

The Attorney General shall provide information concerning the asylum interview described in this subparagraph to aliens who may be eligible. An alien who is eligible for such interview may consult with a person or persons of the alien’s choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.

(v) “Credible fear of persecution” defined

For purposes of this subparagraph, the term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

(C) Limitation on administrative review

Except as provided in subparagraph (B)(iii)(III), a removal order entered in accordance with subparagraph (A)(i) or (B)(iii)(I) is not subject to administrative appeal, except that the Attorney General shall provide by regulation for prompt review of such an order under subparagraph (A)(i) against an alien who claims under oath, or as permitted under penalty of perjury under section 1746 of title 28, after having been warned of the penalties for falsely making such claim under such conditions, to have been lawfully admitted for permanent residence, to have been admitted as a refugee under section 1157 of this title, or to have been granted asylum under section 1158 of this title.

(D) Limit on collateral attacks

In any action brought against an alien under section 1325(a) of this title or section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii).

(E) “Asylum officer” defined

As used in this paragraph, the term “asylum officer” means an immigration officer who-

(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications under section 1158 of this title, and

(ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.

(F) Exception

Subparagraph (A) shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.

(G) Commonwealth of the Northern Mariana Islands

Nothing in this subsection shall be construed to authorize or require any person described in section 1158(e) of this title to be permitted to apply for asylum under section 1158 of this title at any time before January 1, 2014.

(2) Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.

(B) Exception

Subparagraph (A) shall not apply to an alien-

(i) who is a crewman,

(ii) to whom paragraph (1) applies, or

(iii) who is a stowaway.

(C) Treatment of aliens arriving from contiguous territory

In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.

8 U.S.C. § 1225(b).

The process described in 8 U.S.C. § 1225(b)(1), applicable to applicants for admission who are inadmissible under section 1182(a)(6)(C) or 1182(a)(7), is known as expedited removal. Such applicants for admission are given the opportunity to establish that they have a credible fear of persecution, but are otherwise removed without proceedings before an immigration judge.  Applicants for admission under 8 U.S.C. § 1225(b)(2), on the other hand, are, with limited exceptions for crewmen and stowaways, to be placed into removal proceedings before an immigration judge under 8 U.S.C. § 1229a, otherwise known as INA § 240.

The BIA held in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011),  that DHS has prosecutorial discretion to place people into removal proceedings under INA § 240 even if they could also be placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1). For roughly a decade, therefore, and well before MPP was invented, the decision of whether to place an applicant for admission into expedited removal proceedings has been one for DHS to make.

The authority for MPP, as noted above, is 8 U.S.C. § 1225(b)(2)(C). This authority applies only to those who otherwise fall under 8 U.S.C. § 1225(b)(2). It does not apply to anyone subjected to expedited removal under 8 U.S.C. § 1225(b)(1). This is why all those placed in MPP were issued Notices to Appear and put into removal proceedings under INA § 240, otherwise known as 8 U.S.C. § 1229a: such proceedings were necessary in order for them to fall under 8 U.S.C. § 1225(b)(2).  There has been dispute over whether DHS can, under the statute, permissibly treat asylum applicants in this way, but there does not appear to be any dispute that if asylum applicants can be returned to Mexico under 8 U.S.C. § 1225(b)(2)(C), it must be because they have been placed in INA § 240 removal proceedings pursuant to 8 U.S.C. § 1225(b)(2).  (Under current regulations, those applicants who establish credible fear during expedited removal proceedings under 8 U.S.C. § 1225(b)(1) are also ultimately placed into INA § 240 removal proceedings, but the Administration that designed MPP did not think this an inevitable feature of the statutory structure, instead attempting to promulgate a rule that would have placed such applicants in asylum-only proceedings.)

The question, then, is what, if anything, Judge Kacsmaryk’s Opinion and Order has to say about the initial decision whether to place a particular applicant for admission into expedited removal proceedings, under 8 U.S.C. § 1225(b)(1), or directly into 8 U.S.C. § 1229a removal proceedings, under 8 U.S.C. § 1225(b)(2).  Logically, there are two possibilities. Either the Opinion and Order is meant to affect that decision, requiring it to be made “in good faith” under the auspices of the MPP program that the Opinion and Order sought to preserve, or it is not meant to affect that decision at all.

Taking the latter possibility first, if the Opinion and Order is not meant to affect the decision whether to place an applicant for admission into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), then it would seem to have very little practical effect. If the government is just as free to place anyone into expedited removal proceedings under 8 U.S.C. § 1225(b)(1) as it was before the Opinion and Order was issued, then the Opinion and Order will only apply to those applicants whom the government independently decides to place straight into § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2).  Only those people would be properly subject to 8 U.S.C. § 1225(b)(2)(C), the underlying authority for the MPP.  But if the government is not constrained by the Opinion and Order in making the decision whether to follow the § 1225(b)(1) track or the § 1225(b)(2) track, then there may be few people processed under § 1225(b)(2) at all. Perhaps the only applicants who will be so processed are those who cannot be subjected to expedited removal proceedings, such as those who are not inadmissible under 8 U.S.C. § 1182(a)(6)(C) (which covers fraud and false claims to U.S. citizenship), or 8 U.S.C. § 1182(a)(7) (which covers those without proper documents), but are thought to be inadmissible on some other basis—say, Lawful Permanent Residents with certain criminal convictions thought to render them inadmissible under 8 U.S.C. § 1182(a)(2). The effect of the Opinion and Order might then be largely academic, although still problematic in a limited number of cases.

One would think this probably was not what Judge Kacsmaryk had in mind. If so, however, then he must have meant for the Opinion and Order to have some impact on the decision whether or not to place particular applicants for admission into § 1225(b)(1) expedited removal proceedings, as opposed to processing them under § 1225(b)(2).  The problem is that this would contradict several statements made in the Opinion and Order, statements which provided critical underpinnings for Judge Kacsmaryk’s determination that he had the authority to issue the Opinion and Order in the first place.

First, in addressing why the jurisdictional bar of 8 U.S.C. § 1252(b)(9) purportedly does not preclude the exercise of jurisdiction over this suit, the Opinion and Order says:

42. Section 1252(b)(9) states: “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.” (emphasis added). This Section functions as a limit on where aliens can seek judicial review of their immigration proceedings.

43. But the Supreme Court has recently stated: “As we have said before, § 1252(b)(9) does not present a jurisdictional bar where those bringing suit are not asking for review of an order of removal, the decision to seek removal, or the process by which removability will be determined.” [DHS v. ] Regents [of the University of California], 140 S. Ct. [1891,] 1907 [(2019)] (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 841, 875–76 (2018) (plurality opinion) (internal marks omitted)). “And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.” Id.

Opinion and Order at 29.

If the Opinion and Order means to exert control over the determination whether applicants for admission should be placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1) or processed under 8 U.S.C. § 1225(b)(2) so that they can be subjected to MPP, however, then it makes no sense to say that “those bringing suit are not asking for review of . . . the decision to seek removal, or the process by which removability will be determined.” They very much are. The states bringing suit, on this interpretation, are asking for review of the decision to place certain applicants for admission in expedited removal proceedings, where removability will be determined under 8 U.S.C. § 1225(b)(1) and they cannot be returned to Mexico while their cases are pending, as opposed to placing those applicants in immediate § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2), so that the provisions of 8 U.S.C. § 1225(b)(2)(C) can apply and the applicants can be returned to Mexico under MPP. In this respect, the case is not like the challenge to the recission of Deferred Action for Childhood Arrivals (DACA) in Regents, which did not implicate a decision to seek removal or the process by which removability would be determined, given that the DACA recission did not involve commencement of removal proceedings against anyone. A broad interpretation of the Opinion and Order’s mandate that MPP be implemented would necessarily involve the commencement of a specific type of removal proceedings, under § 1225(b)(2) and § 1229a, as opposed to the commencement of proceedings under § 1225(b)(1).

This is not the only such contradiction in the Opinion and Order.  Later, addressing why the decision to terminate MPP is not “committed to agency discretion” and thus unreviewable, the Opinion and Order states:

Moreover, the MPP program is not about enforcement proceedings at all. Any alien eligible for MPP has already been placed into enforcement proceedings under Section 1229a. The only question MPP answers is where the alien will be while the federal government pursues removal — in the United States or in Mexico.

Opinion and Order at 32.  That is true if, and only if, the Opinion and Order does not mean to have any impact on the initial decision whether to place particular applicants for admission into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), as opposed to regular removal proceedings under 8 U.S.C. § 1229a by way of 8 U.S.C. § 1225(b)(2). But in that case, as discussed above, the Opinion and Order would not accomplish what it seems intended to accomplish.

As a crowning touch, the Opinion and Order says near the end: “Nothing in this injunction requires DHS to take any immigration or removal action nor withhold its statutory discretion towards any individual that it would not otherwise take.” Opinion and Order at 53. Again, it is not entirely clear what this means. But if DHS is truly not required to “take any immigration or removal action . . . that it would not otherwise take”, then it cannot be compelled to operate the MPP, because a necessary predicate of the MPP is the action of placing applicants for admission into immediate § 1229a removal proceedings under 8 U.S.C. § 1225(b)(2) rather than placing them into expedited removal under § 1225(b)(1).

At bottom, the problem here may be that like the MPP itself, the Opinion and Order makes background assumptions that are not supportable when examined more closely. Like the MPP, the Opinion and Order seems superficially sensible when examined from a certain perspective.  But like the MPP, the seeming logic of the Opinion and Order does not withstand closer scrutiny.

guestauthor

The Sinking Immigration Court: Change Course, Save the Ship

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By Stacy Caplow*

Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]

No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.

 

I. Changes to the Practices and the Culture of the Immigration Court

 Immigration hearings are adversarial. While the stakes are very high and often punitive—removal, ongoing detention, family separation—the proceedings are civil. Yet this court bears little resemblance to typical civil litigation settings in both the pretrial or trial context. Most of the characteristic judicial tools regulating litigation are absent: pretrial discovery, pretrial settlement or status conferences to resolve or narrow issues, rare stipulations, or enforcement tools to require government lawyers to participate in a meaningful way until shortly before the hearing.

Generally, no Trial Attorney [TA] from the Office of the Principal Legal Advisor [OPLA], a division of Immigration and Customs Enforcement [ICE], the prosecutors in Immigration Court, is assigned to or takes responsibility for a case until a few weeks prior to an individual hearing.[3]  If a case is pending for several years, as so many are these days, except in the rare instance, it is impossible to have any kind of substantive discussion in advance about the conduct of the hearing, possible forms of settlement or alternative relief, narrow issues. Stipulations are rare or unhelpfully last minute. There are no enforcement tools that require government attorneys to participate in a meaningful way until shortly before the hearing. This can and should be changed. The Immigration Court can adopt practices familiar in civil and criminal tribunals around the country. Common litigation management tools could expedite and rationalize Immigration Court proceedings.

 

1. Assign Trial Attorneys to Cases Promptly

A TA should be assigned to review a case at the earliest possible time following the initial Master Calendar appearance where pleadings are entered. At a minimum, a TA should be assigned at the request any Respondent who wants to discuss a case regardless of when the hearing is scheduled. The government lawyers in Immigration Court, like prosecutors in any busy court, can handle a caseload without waiting until the last minute to review the claim. In order to foster meaningful discussions, these TA assignments should occur as soon as the respondent has completed her evidentiary filings.

The positive impact of a prompt TA assignment system will benefit everyone—Respondents, TAs, and the IJs. For example, although many cases require a credibility finding based on in-person testimony, some claims simply do not. If there is no basis for doubting credibility in light of the evidence, and the law is clear, a one, two or three-year wait for a decision is unconscionable. Under the current system, the TA does not review the submissions until shortly before the hearing. Faced with cases in which credibility is not an issue, more often than not, the TA does not seriously contest the facts or the eligibility for relief once she has reviewed the submissions. This results in half-hearted cross-examination, if there is any at all, and a quick grant of relief without opposition. Unfortunately, this happens only after years of delay and anxiety as well as extensive preparation often requiring logistical headaches and inconveniences to witnesses. Earlier, thorough case assessment could avoid the stress to Respondents of a life on hold, could result in fewer or more focused hearings, and could accomplish timeliness and efficiency goals of EOIR.

2. Require Pre-Hearing Conferences

The EOIR Practice Manual provides for a Pre-Hearing Conference.[4] This tool, commonplace in other kinds of courts, is rarely used. Neither Immigration Judges nor TAs routinely invite or encourage pre-hearing conferences. Following the lead of many civil and criminal courts, there should be a regularly scheduled status conference in every case upon a simple request from either party, conducted as expeditiously as possible after the pleadings at the Master Calendar. This could achieve great efficiencies and fairer outcomes.

A mandatory pre-hearing conference would necessitate assigning an individual ICE Trial Attorney to a case well in advance of the hearing. For an effective conference, a Respondent’s lawyer would generally need to submit evidence and even a memorandum of law. A process similar to a summary judgment motion might result. If the Trial Attorney concedes that there are no factual disputes or lack of credibility, the judge could decide the legal basis for relief. This procedure might require an abbreviated hearing, an oral argument, or could be decided on written submissions.

A few prototypical cases illustrate how this might work. Imagine an asylum seeker who has suffered or who has a well-founded fear of persecution on account of sexual orientation who comes from a country whose homophobic laws and oppression of people who are LGBTQ are undisputed. If the asylum seeker is credible, well settled law would surely warrant a granted of asylum. Or suppose a woman who was subjected to genital circumcision has medical records confirming this condition. Again, under well-settled law she is likely to be granted asylum. Or a one-year filing deadline bar could be resolved without the need for testimony based on written submissions. These issues could be resolved at a pre-hearing conference. Another set of cases might involve requests for Cancellation of Removal. The pre-hearing conference could conclude that objective evidence satisfies most of the statutory factors. This could narrow the case so that the Immigration Judge would only hear evidence relevant to the hardship determination. If the Trial Attorney reviewed the evidence and conceded that the hardship standard had been satisfied, this could eliminate the need for a hearing altogether.

Immigrants and their advocates shoulder the burden of multi-year delays and suffer from the resulting uncertainty and angst. Meanwhile, they build lives despite their unpredictable future, increasing the harsh impact of eventual deportation. During the interval, immigration advocates’ caseloads multiply. Years later, when a hearing is finally held, the consequences of delay are substantial. Court submissions need updating. Legal claims may be affected by changes in the law. Witnesses may be unavailable. Memories may fade. The is particularly harsh for asylum seekers whose credibility is at the heart of any immigration hearing[5] but whose trauma may have affected their ability to recall events, particularly the persecution they would prefer to forget. Accelerating resolution through pre-hearing processes following a full presentation of the claim by the Respondent and a full review of the evidence by the government would divert cases from the court’s hearing dockets.

A serious and sincere discussion of the claims and the evidence might resolve cases more expeditiously. Relief could be granted without a hearing. In some instances, TAs could choose to terminate the proceedings through an exercise of prosecutorial discretion. Good case management, effective communication, and open-mindedness are imperative to making the system work more smoothly and more quickly.

3. Enforce the Practice Manual Equably

After years without any standardized practices, the EOIR published a Practice Manual.[6]  This guidance was a welcome development. On its face, it appears to govern all aspects of practice neutrally. A closer reading of the Manuel, however, reveals how one-sided these rules and the practice they govern really are. The everyday reality is even more blatantly lopsided because only Respondents’ attorneys actually do the work that the Manual regulates. The power imbalance between the parties and the close relations between the immigration bench and the prosecutors is embedded in the contents, language and impact of the Manual

In most cases before IJs the burden of proof to secure relief is on the Respondent, once removability is established.[7]  This means that Respondents, represented in only about 60% of all cases,[8] submit all of the evidence to support their application for relief. In the Manual, there are detailed rules relating to filings, motions and the conduct of hearings down to the types of tabs, cover sheets, identifiers for motions, cover pages, tables of contents, proof of service, witness lists and hole-punching. Submissions must be filed and served at least 30 days in advance of the hearing (up from 15 in a prior version of the Manual)

Since government lawyers rarely submit any evidence other than proof of removability if the Respondent does not concede, none of these rules affect their workload. On the rare occasion that the ICE lawyers do file a proposed exhibit, they often do so on the day of the hearing—with impunity since the IJs permit this. In a typical court, flagrant disobedience of the rules would be sanctioned without prejudice to the other party. More typically a Hobson’s choice is given to the Respondent:  accept the poor service or postpone the case. These days, postponement can mean years. The Respondent, anxious and prepared for that day’s testimony, is likely to opt for the former letting the government ignore the rules with the IJs permission.

This is an example of how IJs could behave more forcefully—preclude the evidence. Or cite the government for contempt in egregious cases. Instead, a tolerance of  lazy lawyering only inspires even less compliance with the rules

4. Encourage Prosecutorial Discretion as a Case Management Tool

Resolving a case through an exercise of prosecutorial discretion [PD] is another tool available to, but rarely employed by, the government. IJs cannot force Trial Attorneys to take certain actions relating to the merits of a case, but they can review the evidence in a pre-trial conference and make a strong suggestion about the best resolution.

The May 2021 Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities is a vehicle for re-evaluating prosecutorial discretion [PD] as part of the holistic case management reforms that will benefit the TAs. the Immigration Court and the Respondents.[9]  The Interim Guidance reestablishes priorities and encourages a resuscitation of vigorous prosecutorial discretion. The guidance gives express permission to the Trial Attorneys to consider prosecutorial discretion even in the absence of a request.[10] Its reference to “mutual interest” strives to break down the adversarial barriers that obstruct judiciously exercised discretion and encourages shared problem-solving.

Some OPLA offices have established protocols for submitting requests for prosecutorial discretion. It is too early to tell whether this change in policy will result in a change in culture in the field. In the past, requests were not very successful despite encouraging guidelines and priorities.[11] But even if the Trial Attorneys do not take initiative, at the very least, there is a structure in which to engage in serious discussions about the direction of a case on the court’s docket. While the ultimate exercise of discretion belongs exclusively to the TAs, IJs could and should identify and encourage active consideration of appropriate cases for PD at a Pre-Hearing Conference.

 5. Apply Disciplinary Rules to Government Lawyers as well as Immigration Advocates

Lawyer disciplinary rules must be applied equally to ICE attorneys as well as attorneys for Respondents. This recommendation may seem obvious. Yet, the 2018 Policy Guidance promulgated by the EOIR raised serious concerns.[12] It established policies and procedures for reporting ineffective assistance of counsel or other violations of rules of professional conduct identified by the EOIR itself. Of course, protecting immigrants against unscrupulous or incompetent lawyers is a worthy goal. But these disciplinary rules apply only to immigrant advocates and not government lawyers.[13] EOIR should promptly issue equivalent guidance that applies to ICE attorneys who might commit ethical violations. In the absence of attempts by EOIR to be evenhanded, the 2018 policy guidance is a troubling example of bias within the court system.

6. Be Attentive to Professional Standards in the Courtroom

All of these practical manifestations of the imbalance of power—the reluctance to regulate, sanction or discipline—and the very environment of the courtroom expose the cozy connection between the immigration bench and the prosecution and destroy any fiction of independence. IJs preside in courts in which former colleagues (perhaps friends) appear. They chitchat with the government lawyers while Respondents sit in the room, often in a cone of incomprehension. The appearance if not the reality of this relationship is visible to any observer. The integrity and objectivity of the court is seriously undermined by these everyday departures from appropriate courtroom conduct. The obvious and easy remedy for this appearance of partiality inferred from the comradery between the prosecutor and the judge would be a change in atmosphere to elevate the inside of these courtrooms to the same degree of dignity and seriousness that all courtrooms should possess.

 

II. Changes to the Selection Process of Immigration Court Judges

 

To transform the present obstacles to effective judicial performance, remove the damaging management directives of the former administration. As so many commentators already have suggested, roll back the heavy-handed Attorney General imposed operating guidelines relating to case management to restore a system of logical adjudication priorities[14] and remove the Damoclesean sword of quantitative performance metrics or quotas which only encourage hasty outcomes that devalue the stakes involved in most hearings. These steps require only will, not legislation or rule making. While a return to the old normal will not fully address the structural capture of this court by the Department of Justice [DOJ] and the widely divergent outcomes between courts,[15] restoring decision making to IJs will improve morale and incentivize judges to be independent thinkers without fear of interference or reprisals.[16]

The Attorney General recently took significant steps to reverse many of the more controversial and harmful administrative policies inflicted by the prior administration that limit the ability of Immigration Judges to decide their cases carefully and fairly.[17]  But more can be done.

Changes to the eligibility criteria and the selection process for Immigration Judges also would make a difference both to how the Court operates and how its integrity is perceived by the people appearing before it and by the public.

 

1. The Past Decade of Immigration Court Growth

Injecting new resources into the Immigration Courts is a common prescription for a system that is overloaded, backlogged, and inefficient. This approach seems sensible, and it has indeed been tried but without much success. Between 2017 and the end of 2020 more than 330 judges were added to the ranks in an effort to reduce the enormous backlog. The table below shows the exponential growth in judges.

Executive Office for Immigration Review Adjudication Statistics

Executive Office for Immigration Review Adjudication Statistics[18]

 

Over that same four-year period, almost 100 courtrooms were added, totaling 474 at the end of 2020.[19] Now, approximately 535 immigration judges preside over 68 immigration courts and three adjudications centers.[20]

Despite the infusion of resources, waiting times have grown to an average of 54 months.[21]  Although the Executive Office of Immigration Review asserts that, “The timely and efficient conclusion of cases serves the national interest,”[22] today many hearings are adjourned for as long as two or three years. Swift and certain justice after a full and fair removal proceeding eludes most people.

While some of this eye-popping number of pending matters is attributable to the influx of asylum-seekers at the southern border,[23] Immigration and Customs Enforcement [ICE] also has been filing new removal cases.[24] In addition, the pandemic shut most of the courts for more than a year. These external forces have been intensified pressures, but they are not the root causes of the Court’s dysfunction. Adding more judges will not solve the well-recognized structural defects of the court itself.

An immigration  bench that has been populated to serve political goals lacks genuine independence and is subject to political branch dictates.[25]  The Trump Department of Justice only further diminished judicial independence by imposing performance metrics,[26] limiting the exercise of discretion,[27] litigating to decertify the judges’ union,[28] muzzling individual judges,[29] and radically changing longstanding legal principles.[30] On its own website, the stature of this tribunal is degraded to “quasi-judicial,” dropping the pretense of independence and reducing its stature.[31]

The breakdown of the court is also attributable to recent mismanagement decisions and its almost total departure from normal litigation practices that prevents judges from supervising their caseloads and promptly presiding over life-altering deportation proceedings. Administrative inefficiencies that have longed plagued this court only worsened under the policies adopted by the four-year, multi-faceted Trump assault on immigration. Old cases languished while new cases poured in.

In light of this grim reality, the time has come to rethink of some embedded assumptions and practices, particularly those that do not have to wait for structural court reform.

2. Surveying the Newly Appointed Immigration Judges

The job of Immigration Judge, as one IJ famously said, consists of hearing “death penalty cases in a traffic court setting.[32] Immigration Court needs to be staffed by experienced judges committed to applying the law with both rigor and compassion. Immigration Judges need to be able to use the tools that judges normally employ in other settings to administer their courts effectively. Knowledgeable, fair-minded, even-tempered, confident and courageous judges should be the norm.

The following collective profile of the newest IJs has been noted widely but some aspects deserve a bit more detailed attention because they call into question whether this goal can be achieved if past practices are simply replicated as more IJs are appointed.

a. Government Enforcement Background

From 2017 to 2020, the Department of Justice hired 166 judges who were drawn predominantly from current or former employees of one or more government-side immigration prosecution, enforcement or related agencies.[33] Filling the bench with lawyers from this career path is not new, or particularly surprising, since these are candidates who actually do have a deep knowledge of the law and a familiarity with the court. But a career in enforcement risks distorting objectivity and impartiality.

Prior Government Immigration Enforcement Experience

There is, however, a striking imbalance among the IJs with considerable immigration practice backgrounds. A review of their biographies reveals that only a handful—about 10 or 11—worked in either private practice or public interest organizations representing immigrants. Thus, one of the two obvious source of experienced immigration attorneys—immigrant advocates—is barely represented.

Another conclusion that these numbers forcefully imply is that not only are government-side lawyers overly represented but, even when the few former immigrant advocates are added to this group, close to half of new IJs appear to have no discernable knowledge of immigration law or experience in immigration practice.[34]

Lawyers with government immigration careers are not the only former law enforcement employees sitting on the Immigration Court bench.

 

  • Fifty-four percent of new IJs’ credentials include past positions as either federal and/or state prosecutors, or both.

Prior Prosecutorial Experience

  • Many have military records (often in combination with prosecutorial pasts), an advantage in the selection process. But they report no immigration law experience.

Military Legal Experience (Including JAG)

Many individual biographies include a combination of these experiences—e.g., government enforcement jobs, prior prosecutorial positions and military service. At the risk of overgeneralizing, there are many common characteristics in these backgrounds that could discourage independence, critical or creative thinking, as well as produce intolerance for inefficiency, aggressive advocacy or other challenges to authority.

 

b. Judicial Experience

Prior judicial experience would seem to be a plus but only a handful of the new IJs, 46, have sat on any bench, all of which are state-level tribunals or courts with no obvious immigration jurisdiction.

Prior Judicial Experience

The haste to seat these judges and put them to work with minimal training[35] and little opportunity for ongoing mentorship by experienced judges, only incentivizes them to rush through hearings, and predisposes them to deny applications accompanied by incomplete or sloppy reasoning.[36] Just as more judges are being added, veteran judges are leaving the bench, some in reaction to the new pressures to perform.[37]  As witnesses to the degrading of the court, the increasingly active and expanding Round Table of Former Immigration Judges has been a vocal critics both before Congress and as amicus curiae.[38]

 

c. Legal Experience

Generally, ascent to the judiciary occurs after a lawyer acquires expertise in a legal field, and demonstrates maturity, judgment and capacity. Knowledge of the law, an even temperament, impartiality and the ability to make reasoned decisions are the basic qualities associated with judging. Lawyers usually requires years of legal experience to gain and deepen these qualities. The requirement of seven years post-bar admission seems quite minimal.

Years of General Legal Experience

The survey showed that most new IJs do have more than the minimum amount of

experience. But, when their years in practice is seen are measured by the kind of experience the majority of these seasoned lawyers have—government enforcement—it is fair to conclude that their often extensive and formative careers opposing or obstructing relief and challenging credibility have shaped their judicial outlook.

d. Bias in Results

The opaque selection process seems to yield judges with questionable qualifications and possible biases.  The data tends to confirm the prediction that the newly appointed IJs with these credentials are granting fewer requests for asylum relief.[39] According to EOIR’s own statistics, the denial rate since 2018 increased from a range of 20-32%) to continuously increasing ranges of 31.75% to 54.53% by 2020.[40]

Looking at the list of individual IJs the change is even more obvious. Between 2013 and 2018, 58 judges denied asylum more than 90% of the time, and 69 judges denied asylum between 80-90% of the time.[41] Over the five-year period 2015-2020, the number of IJs who denied asylum more than 90% of the time rose to 109 and the number denying asylum between 80-90% of the time rose to 111.[42] While some toughening of legal standards imposed by the prior administration might account for a portion of this upsurge in denials,[43] the coincidence between these dramatic numbers and the infusion of new IJs appointed by the Trump Department of Justice is hard to ignore.

 

e. A Better Judicial Selection Process

 

An infusion of new personnel in the near future provides an opportunity to look closely at and reform the appointment process of Immigration Judges to make it less vulnerable to political influences. By many accounts, it was intensely politicized over the past four years. Appointment to the court is governed by the Department of Justice, allowing the country’s chief prosecutor to unilaterally advance a frequently biased agenda.[44] This undeniable conflict is nothing new but it demeans the integrity of the bench. Even worse, the opaqueness of the selection process shields an agenda that is suspect, based on the profile of the IJs appointed over the past four years.[45]

A cleaner, more transparent merit selection process, typical of most judicial systems, would enhance the reputation of the Court and might attract a more diverse applicant pool through a recruitment process that is attractive to a wider range of applicants. The work is very demanding, but it pays well.[46]

In addition, the criteria for the job, are now absurdly undemanding.  Aside from a law degree and licensure in any U.S. jurisdiction, an applicant must have

[A] full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level. Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority. Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body.[47]

Knowledge of or experience in immigration law is not an expressed job qualification although it may be an advantage.

Without the need for legislative reform, the Department of Justice and the EOIR could improve the perception and reality of the Immigration Court selection process. Simple improvements include the following steps:  1) elevating the selection standards to require more than 7 years’ experience and more direct knowledge of immigration law; 2) assuring a neutral merit selection process that incentivizes. applications from immigrant advocates; 3) opening the selection process for more public input; 5) improving training and oversight that emphasizes competence more than productivity; 6) restoring morale by recognizing and respecting the responsibility placed on IJs and treating them not as employees but as judicial officers; and 7) overseeing and questioning the basis for abnormally high denial rates.

 

III. Conclusion

 

Is there a life preserver on this sinking ship?  Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]

Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.

Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.


Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.

 

Footnotes

[1] President Biden’s proposal is part of his overall budget planning, See Letter from Executive Office of the President, Apr. 9, 2021, at 22:

Supports Efforts to Reduce the Immigration Court Backlog. In order to address the nearly     1.3 million outstanding cases before the immigration courts, the discretionary request makes   an investment of $891 million, an increase of $157 million or 21 percent over the 2021             enacted level, in the Executive Office for Immigration Review. This funding supports 100       new immigration judges, including support personnel, as well as other efficiency measures to        reduce the backlog.

available at https://www.whitehouse.gov/wp-content/uploads/2021/04/FY2022-Discretionary-Request.pdf.  See also Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System, Jan. 20, 2021, available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.

 

[2] TRAC Immigration, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, available at https://trac.syr.edu/immigration/reports/637// (last visited July 28, 2021). This statistic is complicated and does not fully account for all matters since some have been “inactive” thereby excluded from the final figure. Id. at n. 1. The Executive Office of Immigration Review reports 1,277,152 pending cases as of the first quarter of FY2021 i.e. Dec. 31, 2020. See https://trac.syr.edu/immigration/reports/637/ (last visited July 28, 2021).

 

[3] “The Office of the Principal Legal Advisor (OPLA) is the largest legal program in DHS, with over 1,250 attorneys and 290 support personnel. By statute, OPLA serves as the exclusive representative of DHS in immigration removal proceedings before the Executive Office for Immigration Review, litigating all removal cases including those against criminal aliens, terrorists, and human rights abusers.” See https://www.ice.gov/about-ice/opla.

 

[4] “Pre-hearing conferences are held between the parties and the Immigration Judge to narrow issues, obtain stipulations between the parties, exchange information voluntarily, and otherwise simplify and organize the proceeding.” OCIJ Practice Manual, Sec. 4.18, available at, https://www.justice.gov/eoir/eoir-policy-manual/4/18.

[6] Office of the Chief Immigration Judge, Practice Manuel, available at https://www.justice.gov/eoir/eoir-policy-manual/part-ii-ocij-practice-manual (updated March 24, 2021).

 

[7] INA § 240 (c)(4).

 

[8] Interestingly, while there is general consensus that representation makes a huge difference to positive outcomes, the denial rate for asylum increased12% between 2108 and 2020 notwithstanding representation. Executive Office for Immigration Review Adjudication Statistics Current Representation Rates, available at

https://www.justice.gov/eoir/page/file/1062991/download(Date generated April 2021).

 

[9]  John D. Trasivina, U.S. Immigration & Customs and Enforcement, Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities INA § 240 (c)(4)(C), May 27, 2021, available at , https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf.

 

[10] Id. at 7-8.

 

[11]  An example of the policies for the exercise of prosecutorial discretion during the Obama administration is the Policy Memorandum Number: 10075.1 issued by John Morton, then Director of ICE entitled Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, June 17, 2011, available at https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

 

[12] Internal Reporting of Suspected Ineffective Assistance of Counsel and Professional Misconduct, PM 19-06, Dec. 18, 2018.

 

[13] AILA Letter to Director James McHenry, February 15, 2019 (AILA Doc. No. 192159 (on file with author).

 

[14] See, e.g., Recommendations for DOJ and EOIR Leadership To Systematically Remove Non-Priority Cases from the Immigration Court Backlog, AILA Doc. No. 21050301

(posted 5/3/2021), available at file:///Users/stacycaplow/Downloads/21050301.pdf.

 

[15] Philip G. Schrag, Andrew I. Schoenholtz and Jaya Ramji-Nogales, Refugee Roulette. (2011). NEED FULL CITE For example, in the Atlanta Immigration Court, every judge’s denial rate exceeds 90% in contrast to the New York Immigration Court where 29 judges deny in less than 30% of cases. TRAC Immigration, Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2015-2020, available at https://trac.syr.edu/immigration/reports/judge2020/denialrates.html.

 

[16] This essay does not address the longstanding arguments advanced for an independent Article I Court.  For a selection of perspectives on that see, e.g., Dana Leigh Marks, An Urgent Priority: Why Congress Should Establish an Article I Immigration Court, 13-1 Bender’s Immig. Bull. 3, 5 (2008) (the author is an Immigration Judge); Maurice Roberts, Proposed: A Specialized Statutory Immigration Court, 18 San Diego L. Rev. 1, 18 (1980) (the author was the retired Chair of the Board of Immigration Appeals); American Bar Association Commission on Immigration, Reforming the Immigration System: Proposals to Create independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases, Feb. 2010 and Update 2019, available at. https://www.americanbar.org/news/abanews/aba-news-archives/2019/03/aba-commission-to-recommend-immigration-reform/(containing more than 100 specific recommendations); AILA, Featured Issue: Immigration Courts, available at, https://www.aila.org/advo-media/issues/all/immigration-courts; Hearing before House Committee on the Judiciary, Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts, Jan. 29.2020, available at, https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=2757; New York City Bar Association, Report on the Independence of the Immigration Courts, Oct. 21, 2020, available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/independence-of-us-immigration-courts. Statement of Immigration Judge A. Ashley Tabbador on behalf of National Association of Immigration Judges before House Committee on the Judiciary, Jan. 29, 2020, available at https://docs.house.gov/meetings/JU/JU01/20200129/110402/HHRG-116-JU01-Wstate-TabaddorA-20200129.pdf. https://www.fedbar.org/wp-content/uploads/2019/10/19070802-pdf-1.pdf. Other voices include the Roundtable of Former Immigration Judges, law professors (see, e.g., Letter to Attorney General Merrick Garlard, available at, https://www.aila.org/File/Related/21050334a.pdf) and the Marshall Project, Is It Time to Remove Immigration Courts From Presidential Control?, Aug. 28, 2019, available at https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control; Federal Bar Ass’n, Congress Should Establish an Article I Immigration Court, https://www.fedbar.org/government-relations/policy-priorities/article-i-immigration-court/ (last visited May 17, 2021; Mimi Tsankov, Human Rights Are at Risk, ABA Human Rts. Mag., Apr. 20, 2020, available at https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/immigration/human-rights-at-risk/.

 

[17] Attorney General Garland has been actively withdrawing decisions issues by his predecessors. See, e.g., Matter of A-C-A-A, 28 I&N Dec. 351 (A.G. 2021), vacating in its entirety Matter of A-C-A-A, I&N Dec. 84 (A.G. 2020) and restoring discretion to IJs in case management; Matter of Cruz Valdez, 28 I&N Dec. 326(A.G. 2021), overruling Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) and restoring ability of IJs to administratively close cases. These decisions also free up Trial Attorneys to exercise PD.

 

[18] Executive Office for Immigration Review Adjudication Statistics, available at, https://www.justice.gov/eoir/page/file/1242156/download (last visited June 1, 2021).

 

[19] Executive Office for Immigration Review Adjudication Statistics Number of Courtrooms, available at  https://www.justice.gov/eoir/page/file/1248526/download Data collected as of April 2021).

 

[20] Executive Office of Immigration Review, Workload and Adjudication Statistics, Tables 25 and 25A, available at https://www.justice.gov/eoir/workload-and-adjudication-statistics (data collected as of April 21, 2021).

 

[20]  Dept. of Justice, EOIR, Office of the Chief Immigration Judge, available at https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios  (last visited May 29, 2021).

[21] TRAC, The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts, available at, https://trac.syr.edu/immigration/reports/637/.

[22] Memorandum from the Attorney General for the Executive Office of Immigration Review, Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest, Dec. 5, 2017, available at, https://www.justice.gov/eoir/file/1041196/download.

[23] The total number of pending cases from El Salvador, Guatemala and Honduras is 715,557. An additional 212, 859 cases from Mexico raise the total to 928,416. Id. at Appendix Table 3. Backlogged Immigration Court Cases and Wait Times by Nationality.

[24] Austin Kocher, ICE Filed Over 100,000 New Cases and Clogged the Courts at the Peak of the Pandemic, Documented, Sept 16, 2020, available at, https://documentedny.com/2020/09/16/ice-filed-over-100000-new-cases-and-clogged-the-courts-in-the-peak-of-the-pandemic/ (last visited May 18, 2021).

[25] Patt Morrison, How the Trump administration is turning judges into ‘prosecutors in a judge’s robe.’ L.A. Times, Aug. 29, 2018., available at, https://www.latimes.com/opinion/op-ed/la-ol-patt-morrison-judge-ashley-tabaddor-20180829-htmlstory.html/

[26] Memorandum of James McHenry, Director, Executive Office of Immigration Review, Case Priorities and Performance Metrics, Jan. 17, 2018, available at, https://www.justice.gov/eoir/page/file/1026721/download.

 

[27] Matter of Castro-Tum, 27 I. & N. Dec. 271, 272 (A.G. 2018).

 

[28] U.S. Department of Justice, Executive Office for Immigration Review (Agency) and National Association of Immigration Judges International Federation of Professional and Technical Engineers, Judicial Council 2, 71 FLRA No. 207 (2020).

 

[29] Amiena Khan & Dorothy Harbeck (IJs), DOJ Tries to Silence the Voice of the Immigration Judges—Again! The Federal Lawyer, Mar.Apr. 2020; available at https://immigrationcourtside.com/wp-content/uploads/2020/04/Immigration-TFL_Mar-Apr2020.pdf; Laila Hlass et al., Let Immigration Judges Speak, Slate, oct. 24, 2019, available at, https://slate.com/news-and-politics/2019/10/immigration-judges-gag-rule.html.

[30] Matter of A-B-, 27 I&N Dec. 316 (A.G.2018) (virtually disqualifying victims of domestic violence and gang violence for asylum). See also, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, effective date, Jan. 11, available at 2021https://www.federalregister.gov/documents/2020/12/11/2020-26875/procedures-for-asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review.

[31] Executive Office of Immigration Review, Immigration Judge, available at

https://www.justice.gov/legal-careers/job/immigration-judge-16 (last visited May 15, 2021).

[32] IJ Dana Marks provided this unforgettable description on Immigration Courts: Last Week Tonight with John Oliver (HBO), Apr. 2, 2018, available at  https://www.youtube.com/watch?v=9fB0GBwJ2QA&t=11s (last visited May 20, 2021).

[33] These charts were prepared from the biographical information contained in EOIR announcements of new IJs appointed by an Attorney General serving in the Trump administration between May 2017 and April 2021. The government agencies include The Office of Principal Legal Advisor [OPLA] is the prosecution branch of Immigration and Customs Enforcement [ICE] which in turn is a branch of Department of Homeland Security [DHS]. The Office of Immigration Litigation [OIL], a division of the Department of Justice [DOJ] that represents the government in federal court.

 

[34] In a picture of the newly installed judges sitting in the New York Immigration Court, 8 of the judges previously worked for immigration enforcement agencies, 3 had represented immigrants and 3 had no prior immigration practice experience. Beth Fertig, Presiding Under Pressure, NY Public Radio, May 29, 2019, available at, https://www.wnyc.org/story/presiding-under-pressure.

 

[35] Training now is only a few weeks rather than months. Reade Levinson, Kristina Cooke & Mica Rosenberg, Special Report: How Trump administration left indelible mark on U.S. immigration courts, Mar. 8, 2021 (describing inter alia) the selection and abbreviated training processes), available at, https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179.

 

[36] This is not necessarily a new criticism. For example, more than 15 years ago, Judge Richard A. Posner decried “the systematic failure by the judicial officers of the immigration service to provide reasoned analysis for the denial of applications for asylum.”  Guchshenkov v. Ashcroft, 366 F. 3d 554, 560 (7th Cir. 2004).

[37] Eighty-two experienced Immigration Judges have resigned since 2017. TRAC Immigration, More Immigration Judges Leaving the Bench, https://trac.syr.edu/immigration/reports/617/. See also Outgoing SF Immigration Judge Blasts. Immigration Court as ‘Soul Crushing,’ Too Close to ICE, S.F. Chronicle, May 19 2021, available at https://www.sfchronicle.com/politics/article/Exclusive-Outgoing-SF-immigration-judge-blasts-16183235.php;  Immigration Judges are quitting or retiring early because of Trump, L.A. Times, Jan. 27, 2020, available at, https://www.latimes.com/world-nation/story/2020-01-27/immigration-judges-are-quitting-or-retiring-early-because-of-trump; Why This Burned-Out Immigration Judge Quit Her Job, The Immigration Post, Feb. 27, 2020, available at, https://www.theimmigrationpost.com/why-this-burned-out-immigration-judge-quit-her-job/; Katie Benner, Top Immigration Judge Departs Amid Broader Discontent Over Trump Policies, NY Times, Sept. 13, 2019, available at https://www.nytimes.com/2019/09/13/us/politics/immigration-courts-judge.html; Hamed Aleaziz, Being An Immigration Judge Was Their Dream. Under Trump, It Became Untenable, BuzzFeed News, Feb. 13,2019, available at, https://www.buzzfeednews.com/article/hamedaleaziz/immigration-policy-judge-resign-trump; Ilyce Shugall, Op-Ed, Why I Resigned as an Immigration Judge, L.A.Times, Aug. 4, 2019, available at, https://www.latimes.com/opinion/story/2019-08-03/immigration-court-judge-asylum-trump-policies.

[38] See, e.g., Statement to the House Judiciary Committee on Immigration Court Reform, Jan. 29, 2020 (36 signers) available at, https://docs.house.gov/meetings/JU/JU01/20200129/110402/HHRG-116-JU01-20200129-SD022.pdf; Brief for Amici Curiae Former Immigration Judges in Support of Petitioner, Barton v. Barr, 140 U.S. 1142 (2020).

 

[39] In FY 2020, the denial rate for asylum, withholding or removal or CAT relief increased to 71.6 percent, up from 54.6 percent in FY 2016. 73.7 percent of immigration judge decisions denied asylum. TRAC Immigration, Asylum Denial Rates Continue to Climb, available at https://trac.syr.edu/immigration/reports/630/ (last visited May 116, 2021); see also, Paul Moses & Tim Healy, Here’s Why the Rejection Rate for Asylum Seekers Has Exploded in America’s Largest Immigration Court in NYC, Dec. 2, 2019, available at, https://www.thedailybeast.com/heres-why-the-rejection-rate-for-asylum-seekers-has-exploded-in-americas-largest-immigration-court-in-nyc.

 

[40] Executive Office for Immigration Review Adjudication Statistics, Asylum Statistics, Data Generated: April 19, 202, available at  https://www.justice.gov/eoir/page/file/1248491/download

 

[41] TRAC Immigration, Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2013-2018, available at https://trac.syr.edu/immigration/reports/judge2018/denialrates.html.

 

[42] TRAC Immigration, Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2015-2020, available at https://trac.syr.edu/immigration/reports/judge2020/denialrates.html

 

[43] Matter of A-B-, 27 I&N Dec. 316 (A.G.2018).

 

[44] The Attorney General has the power to certify matters for their review. 8 C.F.R. § 1003.1 (h).

 

[45] Tanvi Misra, DOJ hiring changes may help Trump’s plan to curb immigration, Roll Call, May 4, 2020, available at, https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration; Tanvi Misra, DOJ changed hiring to promote restrictive immigration judges, Roll Call, Oct. 29, 2019, available at, https://www.rollcall.com/2019/10/29/doj-changed-hiring-to-promote-restrictive-immigration-judges/; see James R. McHenry III, Director EOIR, Memorandum for the Attorney General, Immigration Judge and Appellate Immigration Judge Hiring Process , Feb. 19, 2019, available at, https://www.justice.gov/oip/foia-library/general_topics/eoir_hiring_procedures_for_aij/download. The DOJ has been called out in the past for making political appointments during the last Republican administration, see Monica Goodling, et al., Office of the Inspector General, Attorney General, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the, Chapt. 6, Evidence and Analysis: Immigration Judge and Board of Immigration Appeals Member Hiring Decisions, July 2008.

 

[46] As of January 2020, the lowest starting salary is $138, 630 and ultimately caps at $181,500. Executive Office for Immigration Review, 2020 Immigration Judge Pay Rates, available at,

https://www.justice.gov/eoir/page/file/1236526/download.

 

[47] EOIR, Immigration Judge, https://www.justice.gov/legal-careers/job/immigration-judge-7. This website refers to a section called “How You Will Be Evaluated” which appears nowhere. Military service assures a strong preference.

 

[48] Jean King, Acting Director, Policy Memo 21-25 Provides EOIR policies regarding the effect of Department of Homeland Security enforcement priorities and initiatives, June 11, 2021.

 

 

 

Cyrus Mehta

The Fight for Immigration Justice Is Not Over: SCOTUS Rules Mandatory Detention of Certain Immigrants Seeking Safety in the United States

/0 Comments/in /by

By: Sophia Genovese*

In Johnson v. Guzman Chavez, 594 U.S. __ (2021), the Supreme Court held that noncitizens in withholding-only proceedings are not entitled to a custody redetermination, or bond, hearing before the Immigration Court. This holding effectively leaves thousands of asylum seekers at risk of prolonged and indefinite detention.

By way of background, individuals who return to the United States after having previously been removed are subject to reinstatement of removal. 8 U.S.C. § 1231(a)(5); 8 C.F.R. 241.8(a). However, if someone with a prior removal order expresses a fear of persecution, they are referred for a Reasonable Fear Interview (RFI) where they must demonstrate “a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” 8 C.F.R. §§ 241.8(e), 208.31(c). If an Asylum Officer determines that there is a reasonable possibility that the noncitizen will face persecution or torture, the noncitizen will be placed into withholding-only proceedings where they are only permitted to apply for withholding of removal or protection under the Convention Against Torture (CAT). 8 C.F.R. § 208.31(e). Neither withholding of removal nor protection under CAT grant lawful permanent residence, but both allow for the noncitizen to obtain work authorization and reside in the United States. An individual granted withholding of removal or protection under CAT can be removed to a third county (see 8 C.F.R. § 1208.16(f)); however, this rarely occurs.

Prior to Johnson v. Guzman Chavez, most individuals in withholding-only proceedings were held in immigration detention unless they resided in a jurisdiction where they were eligible for release on bond. Prior to June 29, 2021, according to the Second and Fourth Circuits, the detention of noncitizens in withholding-only proceedings is governed by 8 U.S.C. § 1226(a) and are thus entitled to a bond hearing before an immigration judge pursuant to 8 C.F.R. § 1236.1(d). Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016); Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. 2019). According to the Third, Sixth, and Ninth Circuits, the detention of noncitizens in withholding-only proceedings is governed by 8 U.S.C. § 1231(a) and are thus not entitled to a bond hearing under the §1226(a) provisions. Martinez v. LaRose, 968 F.3d 555 (6th Cir. 2020); Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018); Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2017).

The Second Circuit was the first court of appeals to directly address the issue of whether individuals in withholding-only proceedings were entitled to a bond hearing. In Guerra, the Second Circuit explained that there are two statutory sections which authorize the detention of noncitizens:  8 U.S.C. § 1226(a), which governs detention “pending a decision on whether the [noncitizen] is to be removed from the United States,” and 8 U.S.C. § 1231(a), which governs detention of noncitizens subject to a final order of removal. 831 F.3d at 62. Under § 1226(a), noncitizens are eligible for a custody redetermination, or a bond, hearing before the immigration court, so long as they are not classified as arriving noncitizens on their Notices to Appear, nor subject to mandatory detention under §1226(c). Under §1231(a), detention is mandatory for the 90-day “removal period” after a removal order becomes “administratively final,” and thereafter, noncitizens are entitled to periodic review of their detention by ICE; however, ICE is permitted to continue detaining the individual and extend the removal period. The Second Circuit reasoned that §1226(a) does not contemplate whether the noncitizen is “theoretically removable but rather whether the [noncitizen] will actually be removed.” Guerra, 831 F.3d at 62. It follows that a noncitizen subject to reinstatement of removal is removable, “but the purpose of withholding only proceedings is to determine precisely whether ‘the [noncitizen] is to be removed from the United States.’” Id. The Second Circuit reasoned that §1226(a) contemplates detention of removal proceedings which are ongoing, whereas §1231(a) is primarily concerned with defining the 90-day removal period during which a noncitizen “shall” be removed, and thus, §1226(a) governed the detention of noncitizens in withholding-only proceedings. Id. In addressing finality of the reinstated removal order, the Second Circuit explained that the decision to remove the noncitizen from the country is not made until the proceedings are complete, and accordingly, the reinstated removal order cannot be administratively final. Id. at 64.

In Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. 2019), the Fourth Circuit reasoned along similar lines. The Court concluded that §1226 and §1231 “fit together to form a workable statutory framework,” where the §1226 applies “before the government has the actual authority to remove a noncitizen from the country,” and that §1231 applies “once the government has that authority.” 940 F.3d at 876. And thus, “because the government lacks the authority to actually execute orders of removal while withholding-only proceedings are ongoing the petitioners are detained under § 1226.” Id. (internal citations omitted).

The Ninth Circuit disagreed with the Second Circuit and held that noncitizens in withholding-only proceedings are detained pursuant to §1231(a). Padilla-Ramirez v. Bible, 882 F. 3d 826 (9th Cir. 2017). The noncitizen in this case, Mr. Raul Padilla-Ramirez, had previously been deported after his application for asylum was denied. Id. at 829. He re-entered the United States a few years later undetected and was transferred to ICE custody after dismissal of unrelated criminal charges in 2015. While in ICE custody, Mr. Padilla-Ramirez expressed a fear of return to his native El Salvador, passed his RFI, and was placed into withholding-only proceedings. Id. After being denied the opportunity to seek bond before the immigration court, Mr. Padilla-Ramirez filed a petition for writ of habeas corpus, which was dismissed by the district court, and he appealed to the Ninth Circuit.

The Ninth Circuit upheld the decision of the lower court, concluding that §1231(a) governed Mr. Padilla-Ramirez’s detention, and ruled that he was not entitled a bond hearing under §1226(a). But see Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (holding that prolonged detention under §1231(a)(6) is prohibited without an individualized hearing to determine whether the person is a flight risk or a danger to the community). In reaching their decision, the Ninth Circuit first analyzed the removal period and assessed whether Mr. Padilla-Ramirez’s reinstated removal order was “administratively final.” The Court concluded that under a plain reading of §1231(a)(5), a reinstated removal order is administratively final. Id. at 831. The Court reasoned that the removal order was final when it was first executed, and if reinstated, it is reinstated from its original date and thus retains the same administrative finality. Id. The Court also reasoned that since the reinstatement provision is in the same section in the Act entitled “Detention and removal of [noncitizen] ordered removed,” Congress intended for the detention of noncitizens subject to reinstatement to be governed by that section, which require that the order be administratively final. Id. The Court concluded that withholding-only proceedings do not affect the administrative finality of the removal order; but rather, only determine whether a noncitizen ought to be removed to a particular country, and thus §1231(a) governs their detention. Id. at 832.

The Third Circuit in Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018) agreed with the Ninth Circuit. Mr. Rafael Guerrero-Sanchez had reentered the United States after having previously been ordered removed, passed his RFI, and was placed into withholding-only proceedings. Having been denied a bond hearing, Mr. Guerrero-Sanchez filed a petition for writ of habeas corpus. The district court held that his detention was governed by §1226(a) and ordered his release after nearly two years in ICE custody. 905 F.3d at 210. On appeal, the government argued that Mr. Guerrero-Sanchez was detained pursuant to §1231(a), and not entitled to a bond hearing. In response, Mr. Guerrero-Sanchez argued that he was detained pursuant to §1226(a) and was entitled to a bond hearing; and also, even if detained pursuant to §1231(a), he was still entitled to a bond hearing given his prolonged detention. Id. at 211. The Court ultimately held that §1231(a) governed Mr. Guerrero-Sanchez’s detention, that his reinstated removal order was administratively final, and “that §1231(a)(6) affords a bond hearing after prolonged detention [after six months] to any [noncitizen] who falls within the ambit of that provision.” Id.

The Sixth Circuit in Martinez v. LaRose, similarly held that noncitizens in withholding-only proceedings are detained pursuant to §1231(a). 968 F. 3d at 557. The petitioner in this case, Mr. Walter Martinez, had been previously deported in 2008. Upon return to El Salvador, he was brutally beaten by the MS-13 gang and the police who worked with the gang. He fled to the United States again, passed his RFI, and was held in immigration detention for two years. Mr. Martinez filed a petition for writ of habeas corpus, arguing that his prolonged detention had violated his due process rights and requesting that he be given an individualized bond hearing. Id. His habeas petition was dismissed, where the district court held that §1226(a) does not apply to his detention, and under § 1231(a), “his due process claims fail because his removal is reasonably foreseeable.” Id. at 558. The Sixth Circuit upheld the decision and declined to adopt a similar six-month test as had been done in Guerrero-Sanchez v. Warden York County Prison.

Johnson v. Guzman Chavez

The Supreme Court in Johnson v. Guzman Chavez addressed the circuit split and examined whether noncitizens in withholding-only proceedings are entitled to a bond hearing before the immigration court.

Justice Alito writing on behalf of the conservative majority ultimately agreed with the Third, Sixth, and Ninth Circuits, holding that the detention of noncitizens in withholding-only proceedings is governed by 8 U.S.C. § 1231(a), noncitizens in withholding-only proceedings are not entitled to a bond hearing, and that the reinstated removal orders are administratively final. Notably, the Court refers to noncitizens as “aliens” an astonishing 214 times in its decision, despite recent efforts to abolish the use of the dehumanizing term. The Court, in rejecting the arguments of counsel for the noncitizens, found that withholding-only proceedings only address whether the noncitizen is to be removed to a particular country, and not from the United States, concluding that the reinstated removal order remains final throughout these proceedings. Guzman Chavez, 594 U.S. at 11. The Court acknowledges that although very few individuals are ever removed to a third country, this reality does not negate the fact that withholding-only proceedings are country specific. Id.

The majority cites to §1231(a) in rendering its decision. The Court explained that the 90-day removal period in §1231(a)(1)(A) begins on the latest of three dates (1) the date the order of removal becomes “administratively final,” (2) the date of the final order of any court that entered a stay of removal, or (3) the date on which the alien is released from non-immigration detention or confinement. §1231(a)(1)(B). During the removal period, detention is mandatory. §1231(a)(2). The removal period may be extended in certain conditions, including: if the noncitizen takes actions which prevent their removal; if DHS stays the removal if it is not practicable or proper; or if the noncitizen is inadmissible, removable as a result of certain violations, or is a risk to the community. §§ 1231(a)(1)(C), 1231(c)(2)(A), 1231(a)(6). By taking a plain reading of the statute, the Court states, the reinstated removal orders have long been final, and “there is nothing left for the BIA to do with respect to the removal order other than to execute it.” 594 U.S. at 10. The majority sidesteps any analysis under Chevron or Auer, and resorts to a pseudo-textual interpretation of the INA, continuing a trend also observed in Sanchez v. Mayorkas, 593 U.S. ___ (2021), where the Supreme Court similarly refused to engage in a Chevron analysis. The majority seeks to justify its holding and prohibition of bond hearings for noncitizens in withholding-only proceedings by commenting “[noncitizens] who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order.” Id. at 20.

Agreeing with the Fourth and Second Circuits, the dissent argues that §1226(a) governs the detention of noncitizens in withholding-only proceedings where there is a pending decision on whether the noncitizen is to be removed from the United States. The dissent also finds that the reinstated removal order is not final while withholding-only proceedings are pending. The dissent remarks that withholding-only proceedings involve a full hearing before the immigration court, may be appealed to the Board of Immigration Appeals (BIA) and seek judicial review thereafter, which can take well over two years before the case is resolved. Guzman Chavez, 594 U.S. at 5 (Breyer, J., dissenting). The dissent questions whether Congress intended to deny bond hearings “to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years.” Id. at 6.

The dissent also finds that §1231(a)(1)(A)’s language, “except as otherwise provided in this section,” and the later restriction-on-removal provision indicate that §1231(a) is not the appropriate governing statute for the detention of withholding-only applicants. Id. The dissent reasons that the removal period for withholding-only applicants cannot begin until their proceedings have concluded – that is, “the order is not ‘final’ until the immigration judge and the BIA finally determine whether the restriction on removal applies and prohibits removal.” Id. at 7. By adopting the majority’s rationale that the reinstated removal order is final as of the date it was originally executed, it creates uncertainty around how, if it all, the removal period can apply to withholding-only applicants.

Who Is Affected By This Decision?

As examined in our previous articles (here, here, and here), the Trump administration eviscerated asylum protections in the United States. Under this and other flawed case law and policies, thousands of asylum seekers were deported despite having very real fears of violence in their countries of origin. Upon returning to their home countries, and facing the exact violence they anticipated, noncitizens return to the United States again seeking safety.

Although the Biden administration has taken important steps to undo some of the most egregious Trump-era policies (such as restoring asylum eligibility for survivors of domestic violence and family units, and empowering judges to manage their own dockets), the administration continues to follow the unlawful practice of expelling migrants and asylum seekers under the supposed authority of Title 42, resulting in thousands of asylum seekers being forcibly denied entry into the United States. Because asylum seekers still face the same dangers they fled, they are forced to seek irregular entry into the United States; and, depending on their individual situation and whether they have a prior removal order, may be subjected to withholding-only proceedings.

Now in the United States a second or third time after previously being unfairly removed, these individuals are only eligible for withholding of removal or protection under CAT, which do not lead to permanent lawful status. Withholding of removal and protection under CAT are also both extremely difficult protections to achieve – far more difficult than winning asylum. And in light of Johnson v. Guzman Chavez, noncitizens in withholding-only proceedings will have to fight for these narrow protections from the confines of immigration detention, where they are at high risk of contracting COVID-19, likely to experience difficulties in accessing evidence they need for their cases, as well as less likely to find competent counsel.

Strategies for Noncitizens in Withholding-Only Proceedings Seeking Release From Immigration Detention

Although Guzman Chavez prevents noncitizens in withholding-only proceedings from seeking bond under §1226(a) authority, there remain several avenues to advocate for release:

Advocates and attorneys may request that ICE exercise prosecutorial discretion in vacating reinstatement orders and issuing notices to appear, which will allow noncitizens to pursue all relief in ordinary removal proceedings. 8 U.S.C. § 1229(a); Villa-Anguiano v. Holder, 727 F.3d 873, 878-79 (9th Cir. 2013) (“ICE agents, to whom § 1231(a)(5) delegates the decision to reinstate a prior removal order, may exercise their discretion not to pursue streamlined reinstatement procedures.”)  It follows that the noncitizen would then be detained pursuant to §1226(a) and thus entitled to a bond hearing.

Individuals may also seek release from ICE custody as a matter of prosecutorial discretion. Noncitizens may be released on parole or on their own recognizance. In seeking release, noncitizens must establish that they are not a danger to the community nor a flight risk, and should submit evidence of strong equities which would convince ICE to exercise its discretion in releasing the noncitizen from ICE custody. (See CLINIC’s Guide to Obtaining Release From Immigration Detention for helpful tips on preparing these requests for release).

Noncitizens may also continue seeking bond hearings in the Third and Ninth Circuits, where these jurisdictions have ruled that noncitizens in withholding-only proceedings are permitted to seek custody review after their detention has become prolonged (usually at six months). Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208 (3d Cir. 2018); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). In other jurisdictions, noncitizens can seek release via a petition for writ of habeas corpus, arguing that their indefinite detention violates their due process rights. Zadvydas v. Davis, 533 U.S. 678 (2001). (See the American Bar Association’s Guide for Seeking Release from Indefinite Detention After Receiving A Final Order of Deportation for tips and sample petitions).

Johnson v. Guzman Chavez significantly restricts the ability to obtain release from ICE custody for noncitizens in withholding-only proceedings. Although practitioners have many other tools at their disposal to advocate for the release of their clients, what is ultimately needed are concrete legislative changes that make clear noncitizens in withholding-only proceedings are bond eligible, or more broadly, legislation which challenges the existence of immigration detention for all noncitizens.

*Guest author Sophia Genovese is a Pro Bono Supervising Attorney at Catholic Charities Community Services, Archdiocese of New York. Sophia trains and mentors pro bono volunteer attorneys in their representation of immigrants in removal proceedings. Sophia also represents detained and non-detained immigrants in seeking release and relief before the immigration courts. Sophia previously worked as an Associate at Cyrus D. Mehta & Partners PLLC, where she gained critical insights into immigration law.

Cyrus Mehta

No Longer in Use: How Changes in SOC Systems Affect Employment-based Immigration

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Cyrus D. Mehta and Isabel Rajabzadeh*

The Standard Occupation Classification (SOC) is a federal statistical standard used by federal agencies to classify workers into occupational categories. The Office of Management and Budget (OMB) coordinates the Federal statistical system, including the SOC. The SOC Policy Committee assists the OMB in the SOC revision process, and is comprised of Federal agencies including the Bureau of Labor Statistics, Department of Labor. Most notably, SOC codes are used to categorize nonimmigrant and immigrant workers on the Permanent Employment Certification (“PERM” or Form ETA 9089, used to file most I-140s),  the Labor Condition Application (“LCA”, necessary to file H-1Bs and other visas) and the ETA 9142B for H-2B workers. The SOC system was created in order to facilitate job classification. It therefore collects occupational data and enables comparison of occupations across data sets.

In assigning the correct SOC code for employment-based petitions, one must compare the proffered position’s job duties and its requirements against the system. In addition, the requirement to pay prevailing wages as a minimum salary is mandatory for some employment-based visas. In order to determine the prevailing wage of a geographic area, one must look up the SOC code in the Foreign Labor Certification Data Center Online Wage Library (“OWL”) which is run by the U.S. Department of Labor.

According to the Department of Labor, the SOC serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET database includes detailed information on tasks, skills, tools used, credentials, and other information associated with the occupations. Much like the OWL, the information found on O*NET is listed by the occupation’s SOC codes.

Many may not realize the SOC codes exist, however, its use is integral to some employment-based visas and therefore, can result in a denial if not used properly. These codes are based on statistics, however, what happens when the system is updated? The SOC has been revised four times: 1980, 2000, and then again ten years later in 2010. The most recent update is the 2018 SOC system, which was deemed to be a “multi-year process” by the U.S. Bureau of Labor Statistics. In November 2020, the O*NET 25.1 Database incorporated the O*NET-SOC 2019 Taxonomy, which aligned with the 2018 SOC system. It stated, “updates and added new and emerging occupations ensure that the O*NET-SOC taxonomy not only represents the SOC structure, but reflects changes occurring in the world of work due to advancing technologies, innovative business practices, and the new organization of work.” However, the OWL still has not caught up with all of the SOC codes listed in the 2018 SOC system. Although the OWL states it integrated O*NET 25.3 on July 1, 2021, (which is later than version 25.1) it still does not reflect all of the changed SOC codes in the 2018 SOC system.

The Problem

In an effort to transition between the different SOC systems and SOC codes, “crosswalks” were developed to portray the changes of that year’s update. The crosswalks show which SOC code was replaced by a different title and/or SOC code number. The crosswalk from the 2000 SOC to the 2010 SOC can be found here. The crosswalk from the 2010 SOC to the 2018 SOC can be found here. As stated above, the OWL fails to keep up with the changes in the SOC codes. This causes huge discrepancies. Although not always detrimental to a case, it may cause unnecessary delays such a Request For Evidence (“RFE”).

For instance, “15-1031, Computer Software Engineers, Applications” is no longer in use and it was replaced by “15-1132 Software Developers, Applications” in the 2010 SOC system. Then, the 2018 SOC system changed the SOC code again to, “15-1252, Software Developers.” But what happens when a PERM was filed in 2011 which used the SOC code based on the 2010 SOC system? Then, 10 years later, the foreign national wants to downgrade their I-140 to take advantage of EB-3 priority dates? Which SOC code should be used on the I-140 form? Use of the 15-1031 SOC code would patch the previously filed PERM, however, it is no longer in use so that may raise flags. Use of the new SOC code may be effective, however, it may trigger a Request for Evidence. Even if there is an RFE, it could be overcome by explaining that 15-1132 (Software Developers, Applications) has replaced 15-1031 (Computer Software Engineers), which in turn has most recently been replaced by 15-1252 (Software Developers).

Not only are immigrant visas affected by this but the H-1B system also relies heavily on SOC codes. What happens when an SOC code like 15-1132 is used on an LCA because the new SOC code 15-1252 is not reflected in the OWL and thus, one cannot reference the most relevant information to determine the position? Although usage of the “older” SOC codes on LCAs seem to be permitted by the USCIS, there is significantly less detailed information on the OWL for each SOC code than O*NET. While the O*NET provides detailed explanations for each SOC code based on the 2018 SOC System, we are left using the 2010 SOC system to determine prevailing wage information. In responding to specialty occupation RFE’s, this system forces individuals to not only argue the specialized nature of the position, but that the O*NET also sees it as a specialty occupation in order to strengthen the argument. In some cases, this requires one to dig into the O*NET archives to find the older 2010 SOCs.

In an occupation like technology it is understandable that SOC codes require changes. However, the impact of these changes on petitions filed by employers for immigrant and nonimmigrant visa classifications are not formally addressed, and therefore, require us to connect the SOC code dots.

Finally, it should be noted that the Office of Foreign Labor Certification Data Center (“OFLC) has delayed the implementation of the 2018 SOCs to July 1, 2022. While O*NET has updated its system to the 2018 SOCs, the 2010 SOCs are archived in O*NET. Stakeholders can only use the 2010 SOCs until July 1, 2022, when the OFLC makes them go live in the Foreign Labor Application Gateway (FLAG), OWL, and in the PERM portal.

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

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps

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By Cyrus D. Mehta and Kaitlyn Box*

On July 9, 2021, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap. The Plaintiffs in the case are a group of EB-5 investors who would have been able to adjust status long ago if not for the lengthy backlogs in the EB-5 China, and subsequently Vietnam, categories caused by counting derivative family members against the EB-5 cap.

In a previous blog, we discussed the case at the District Court Level, where Plaintiffs’ primary argument was that nothing in the language of INA § 203(d), which states that “[v]isas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers, requires derivative family members to be counted against the cap. Instead, spouses and children, under INA 203(d) are “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Plaintiffs also argued that Congress intended to exempt derivative family members from the numerical caps when it changed the relevant regulatory language in the Immigration Act of 1990. Prior to 1990, the “same status, and the same order of consideration” language as it pertains to derivative family members appeared in a section describing which immigrants “are subject to the numerical limitations”, but in 1990 this provision was shifted to a new section entitled “Treatment of Family Members”. Plaintiffs argued that this change indicated an intent on the part of Congress to subject only EB-5 investors, and not their spouses and children, to the numerical cap.

The Court, however, disagreed with this reasoning. Judge Walker, who authored the opinion, interpreted the key phrase “same status” to mean that because an EB-5 investor’s family members get the same type of visa as the principal, they must also be counted against the cap, and reasoned that “same order of consideration provided in the respective subsection,” which refers to the worldwide cap on employment-based visas, further indicates that spouses and children of EB-5 investors are subject to the cap.

The Court’s decision in Wang v. Blinken comes as a deep disappointment to the many immigration attorneys who had hoped that the Biden administration could reinterpret INA § 203(d) to support either not count derivatives at all or counting family units as one. We have long taken the position that not counting derivatives under the preference quotas would be consistent with INA § 203(d). See, for example, our blogs on The Tyranny of Priority Dates in 2010, How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, and The Way We Count in 2013. The Biden administration solicited recommendations on how to remove barriers and obstacles to legal immigration, and unitary counting of derivatives, an idea which our firm proposed,  would have done much to serve this goal by relieving the decade-long backlogs. If the Biden administration wanted to reform the immigration system through executive actions, reinterpreting the law to not count derivatives in the green card categories would have been a good first step, along with not opposing the plaintiffs in Wang v. Blinken. Sadly, though, the administration did not choose to go in this direction, and the Court’s decision in Wang v. Blinken is likely a death knell for other, future lawsuits that would make similar arguments under other employment or family-based visa categories.

While the Court’s decision in Wang v. Blinken can still be appealed to the Supreme Court, a positive outcome is not likely given the conservative majority on the Supreme Court, which has adopted a pseudo textualist approach to interpreting immigration statutes. For instance, the Supreme Court in Sanchez v. Mayorkas also recently strictly interpreted INA § 244(f)(4) to hold that the grant of Temporary Protected Status did not constitute an admission thus allowing recipients to adjust status in the US.   Even if different plaintiffs could get a favorable decision in another circuit, the Supreme Court would likely rule on the circuit split anyway. Particularly as it has Chevron deference on its side, the government is likely to prevail in any litigation scenario. And even if the Biden administration later changes its mind and decides to adopt a nationwide policy to not count derivatives, it would be precluded from implementing this policy for people living within the jurisdiction of the D.C Circuit.  Perhaps a better way forward would be convincing Congress to explicitly state that derivative family members will not be counted against the cap under INA § 203(d). Passing such an amendment would be extremely difficult in a divided Senate, but one idea is to pass a measure through the reconciliation procedure that requires only a simple majority, rather than a filibuster-proof majority in the Senate.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Requesting Premium Processing on a Downgraded I-140 Petition  

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By Cyrus D. Mehta and Kaitlyn Box*

In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card backlogs for years to file I-485 adjustment of status applications. Since the EB-3 Filing Date for India significantly overtook the EB-2 Filing Date, some beneficiaries approved EB-2 petition opted to “downgrade” by filing a new I-140 under EB-3. Generally, beneficiaries may still rely on the original Labor Certification when filing a downgraded I-140 and retain the priority date of the EB-2 petition, unless the job has drastically changed.

In previous blogs, we have discussed the nuances of filing a downgrade petition, and addressed some common questions that arise in this situation. One frequent source of questions is whether Premium Processing is available for downgrade petitions given that these I-140 petitions filed since October 2020 are still pending and have yet to be approved. Generally, USCIS will  not accept a case for Premium Processing unless it is filed with an original Labor Certification. Thus, beneficiaries whose Labor Certifications were filed with the original EB-2 petition likely cannot file a downgrade I-140 together with a Premium Processing request. Although USCIS might, in rare instances, accept a Premium Processing request made with an I-140 downgrade petition, it is more likely that the Premium request, or even the entire petition, will be rejected.

A strategy more likely to meet with success is filing the downgrade I-140 via regular processing, waiting USCIS to issue a receipt notice, and then request Premium Processing of the pending I-140. USCIS may still reject the Premium Processing request if it cannot match the pending I-140 to the previous file or retrieve the original Labor Certification. Even in the case of a rejection, however, the pending I-140 will be safe and subsequent Premium Processing requests can be filed, if desired. There are an increased number of Premium Processing requests from beneficiaries of downgraded I-140 petitions given that the EB-3 India Final Action Date has rapidly advanced. Under the July 2021 State Department Visa Bulletin, the EB-3 India Final Action Date is January 1, 2013. If the I-140 petition is approved when the Final Action Date is current for the I-140 petition, the beneficiary and family members can hope to have their I-485 applications approved although the USCIS has been approving them at a snail’s pace and may alarmingly not be able to use up all EB visas for this fiscal year. It should also be noted that the swifter approval of the I-140 petition does not speed up the processing of the applications for employment authorization or advance parole when the I-485 application remains pending.

Recently, however, we have seen some requests to upgrade I-140s to Premium Processing being repeatedly rejected on the ground that an original Labor Certification was no provided, despite other, similar Premium Processing requests being accepted. In an email inquiry placed to the USCIS Premium Processing address in response to one such case, our firm received a helpful response. An Immigration Services Officer  advised that Petitioners resubmit rejected Premium Processing requests and indicate on a brightly colored sheet of paper that USCIS has the original labor certification.  A more guaranteed method, according to the USCIS response, is to submit a copy of the original Labor Certification. Submissions lacking at least one of these documents are vulnerable to immediate rejection since the reviewing officer will not see a Labor Certification included. Although this was not part of the guidance we received, it would also be advisable to indicate the receipt number of the prior approved EB-2 petition which contains the original Labor Certification, and direct the USCIS to look for it in that petition.

Even if the Premium Processing request is accepted, there is always a risk that the USCIS might issue a Request for Evidence (RFE) even if the prior I-140 under EB-2 was approved. Note, though, that such an RFE could also be issued even if there is no request for Premium Processing, although there might be an incentive to issue the RFE if the officer cannot complete the processing within the mandated 15 days. Although RFEs have been seldom, the most common reason for an RFE is to request submission of evidence that the employer still has the ability to pay the proffered wage from the establishment of the priority date until the present, and up to the point of time that the beneficiary receives permanent residency.  If the employer’s current tax returns show losses and the beneficiary is not being paid the proffered wage,  Premium Processing should not be considered, and the I-140 can continue to remain pending,  until the employer is able to potentially overcome such an RFE.  Another reason for an RFE is that the prior SOC code that was designated at the time of the granting of the Labor Certification does not match with the SOC code that was indicated in the downgrade I-140 petition. This is not a valid basis for the USCIS to issue an RFE as the SOC code available for the occupation at that time has become obsolete. For instance, SOC Code 15-1031 for Computer Software Engineers, Applications is no longer in existence. It has now changed to SOC Code 15-1132 for Software Developers, which has again most recently changed to SOC Code 15-1252. This sort of RFE can be more easily overcome.

All of these issues should be carefully considered when requesting Premium Processing of a downgrade I-140 petition. Despite the issues that can arise when making a Premium Processing request of this kind, petitioners can help prevent rejections by following USCIS’ guidance and including a highly visible reference to the original Labor Certification, or a copy of the Labor Certification itself with the request. Submitting timely and thorough responses to any RFEs too helps to ensure that the petition will ultimately be successful.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.