Cyrus Mehta

Need to Plan Ahead Before Sponsoring a Senior Parent for a Green Card

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Many US citizens, especially those who have recently naturalized, desire to sponsor their senior parents for lawful permanent residence, also colloquially known as the green card. A US citizen can sponsor a parent for a green card as an immediate relative by  filing Form I-130 under INA 201(b)(2)(A)(i). Immediate relatives are not subject to quotas that can take many years to clear, and thus the process can be completed within a relatively short period of time.  Bringing a parent over to join the US citizen and their family permanently in this country can be a great source of joy and has lots of benefits. In addition to living in close proximity and enjoying emotional bonds, senior parents can be of great help in providing child care thus allowing their US citizen children to work and pursue careers. Some senior parents may have health issues, and having them nearby gives a sense of security in case of emergencies. Other parents can also pursue new careers or hobbies once they immigrate to the US.

Many parents may already have multiple entry visitor visas, or be able to travel on visa waivers, and visit their children once a year or even more frequently. These parents who already have access to the US through visitor visas need to carefully consider whether it is prudent to obtain lawful permanent residency or continue to travel as visitors. It is generally not advisable to use the green card as a tourist visa. A green card holder is required to reside in the US permanently. While travelling once a year on a green card is theoretically permissible, there will come a point in time when the Customs and Border Protection (CBP) officer at a port of entry will question why the green card holder is not permanently residing in the US. The CBP official routinely asks a returning resident how long they have been outside the US since their last departure from the US. If the CBP official determines that the parent has abandoned permanent residence, they could be charged with inadmissibility and placed in removal proceeding. Although the burden of proof is on the government to establish through clear and convincing evidence that the permanent resident has abandoned that status, this burden may be easy to establish if the parent uses the green card to infrequently visit the US rather than reside in the US.

In order to stave off a finding of abandonment, a green card holder must demonstrate that the trip abroad was temporary. Returning back to the US annually may not meet the definition of a temporary trip abroad. Many are under the misimpression that returning to the US within six months would eliminate a finding of abandonment. While a permanent resident is only regarded as seeking admission if the trip abroad has been in excess of 180 days under INA 101(a)(13)(C)(ii), the CBP official can still find abandonment even if the resident departed the US for less than 180 days under 101(a)(13)(C)(i). In any event, in order for the green card to be valid, the resident must return to the US within one year of the prior departure pursuant to 8 CFR 211.1(a)(2).

The term “temporary visit abroad” has been subject to interpretation by a few Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

Since the a trip abroad must be of finite duration, or at  must terminate upon the occurrence of an event likely to occur within a short period of time, many parents who use the green card as a tourist visa frequently face intrusive inspections by CBP officers at ports of entry. Many are warned to apply for a reentry permit if they continue to infrequently return to the US. INA § 223 provides the authority to the Department of Homeland Security to issue a reentry permit for a period not more than two years. See also 8 CFR 8 CFR § 223.2(c)(2).  While the reentry permit can serve as an insurance policy against such an aggressive inspection at a port of entry, this document will not entirely immunize the parent from a finding of abandonment. While length of time may not be used against the green card holder with a valid reentry permit in a finding of abandonment, other activities reflecting abandonment may be considered.

The reentry permit is burdensome to maintain for a senior parent who visits the US a few weeks each year. Form I-131 must be filed only while the parent is physically present in the US, and then the parent must wait a few weeks for the biometrics appointment. If the parent is unable to wait for the biometrics appointment after the filing of the application for the reentry permit, they must return to the US for the biometrics and again risk an aggressive inspection by a CBP official, although the risk may be lessened if it is clear that the parent is returning to pursue a reentry permit.

There are also important tax considerations. Failure to file a resident tax return upon becoming a green card holder, or filing as a nonresident, can have an adverse impact on not just the parent’s green card status but also with respect to the ability to naturalize in the future. See 8 CFR 316.5(c)(2). A green card holder is considered a resident for tax purposes as he or she meets the “green card test” or the “substantial presence test.” Even if the parent does not earn any income in the United States, but has earnings from overseas sources, the parent is generally required to report their worldwide income on a Form 1040 resident US tax return. Moreover, all foreign financial accounts with a value in excess of $10,000  must be reported every year.  It behooves a parent in this situation to consult with a tax advisor to ensure that they are not taxed in both countries.

There are many other important considerations. The parent will have to adapt to a completely different lifestyle in the US. For instance, in order to be able to get around, being able to drive in many parts of the US outside major metropolitan areas is essential. There is also no free health insurance for a newly minted green card holder.  The parent will have to purchase private health insurance, and can do so on a health exchange under the Affordable Care Act, and there might be subsidies available based on income. As of January 1, 2019, it is no longer mandatory for a lawful permanent resident to have health insurance under the ACA as there is no longer any tax penalty for failure to do so.  Green card holders have to wait for 5 years before they become becomes eligible for Medicare. The parent must be 65 or older and must have worked for 40 quarters. Most new green card holders would not have worked 40 quarters, and they may buy in to Medicare after they become eligible.   The rules regarding Medicaid for low income green card holders are complex and confusing, and depend on a person’s income, age and the rules of each state. The sponsor’s income on the affidavit of support may also be deemed to the parent’s income.  Further information is available here.

All of these factors have to be carefully considered before a parent obtains a green card. Is the parent willing to live in the US permanently and uproot oneself after living a lifetime in the home country? If not, is the parent still prepared to reside in the US at some point in the near future after settling affairs at home, and most likely apply for a reentry permit in the meantime and then maintain it?  Is the parent prepared to file US tax returns and declare foreign bank accounts each year? Has the parent’s health needs been taken into account?  If the parent is not ready, it may still be preferable for the parent to continue visiting the US as a tourist each year. Of course, if the parent was refused a tourist visa in the past, then being sponsored for a green card makes more sense. There is also now a growing sense of urgency to sponsor a parent sooner than later in light of the rhetoric from President Trump to abolish chain migration, which includes the ability of naturalized citizens to sponsor parents. However, for that to happen, Congress will need to change the law and that is not likely to happen anytime soon in a highly polarized Congress.  What is more imminent is a proposed rule that will change the definition of who is likely to become a public charge under INA § 212(a)(4), which might create more obstacles for senior parents to qualify for the green card. Already, the State Department has amended the Foreign Affairs Manual to give consular officers more discretion in making public charge determinations notwithstanding the submission of a Form I-864 affidavit of support.

When everything is considered and an informed decision is made, maintaining the green card will be smoother and not so burdensome. After five years from the issuance of the green card, the parent will be able to apply for US citizenship provided they have been physically present for half the time in the five years preceding the filing of the naturalization application and they have also been continuously residing during this period. Upon being naturalized, a US citizen is no longer subject to residency requirements. If on the other hand, the parent has a change of heart and does not wish to be a permanent resident of the US, it is best that the parent formally abandon that status by filing Form I-407, otherwise IRS will still consider the parent a resident alien for tax purposes.

 

 

 

 

David Isaacson

Expansion of Expedited Removal: Why Pushing to the Limits of the Statute Unconstitutionally Deprives People of Due Process of Law

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The Trump Administration published an announcement in the Federal Register on July 22, 2019 stating that beginning the next day on July 23, it would exercise its full statutory authority to place in expedited removal proceedings essentially all

“aliens determined to be inadmissible under sections 212(a)(6)(C) or (a)(7) of the Immigration and Nationality Act (INA or the Act) who have not been admitted or paroled into the United States, and who have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.”

Designating Aliens for Expedited Removal, 84 Fed. Reg. 35409 at 35409.  This is a major expansion from the regulations previously in effect, which applied expedited removal proceedings only to people who were arriving at a port of entry, had previously arrived by sea, or were found within 100 miles of the border and could not show that they had been present in the United States for 14 days.

There are a number of problems with this sudden expansion, many of which will likely be covered in detail in the lawsuit that the American Immigration Council and the ACLU have said will be forthcoming.  In this blog post, I want to focus on one particular problem that has struck me, with the awareness that the very skilled lawyers at those organizations are soon likely to file papers that go into more depth on this same point and render my post somewhat superfluous.  Even though the INA purports to give the government the authority to expeditiously remove people in this broader class, applying expedited removal to people just because they have not “shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for [a] two-year period,” INA § 235(b)(1)(iii)(II), 8 U.S.C. § 1225(b)(iii)(II), appears inconsistent with the guarantee of the Fifth Amendment to the U.S. Constitution that “no person shall . . . be deprived of life, liberty, or property, without due process of law[.]”

To understand why, some brief background on how expedited removal works is helpful.  More comprehensive background is available from the American Immigration Council and from the Congressional Research Service (by way of a reposting of the CRS report by the Federation of American Scientists), but to summarize, persons subjected to expedited removal are provided with very limited review of the decision to remove them.  If they fear persecution, they are given a credible fear interview by a USCIS officer (though there has recently been talk of allowing CBP officers to perform that function), and if they are found not to have a credible fear of persecution or torture that might allow them to qualify for asylum or related relief, there is a review of that finding by an immigration judge.  There can also be review by an immigration judge of a claim that someone is a U.S. citizen, lawful permanent resident, or already granted asylee or refugee status.  But there is otherwise no hearing before an immigration judge, and there is no appeal to the Board of Immigration Appeals.  There is also very limited judicial review according to the statute—although some Court of Appeals cases, such as the Ninth Circuit’s March 2019 decision in Thuraisiggiam v. Department of Homeland Security, have found greater judicial review mandated by the Constitution, and in a recent blog post I wrote about a possible expansion on that case law.  According to the statute, with limited exceptions, the Department of Homeland Security agent issuing the order (usually from Customs and Border Protection, CBP), and his or her supervisor, have the final say over the person’s removal.

It is bad enough to apply this limited review process to the case of someone just arriving at the border, or found near the border and alleged to have been here for less than fourteen days.  Even under those circumstances, errors can be made, or the proper procedures not provided with regard to credible fear determinations, and as Thuraissigiam explains, the Constitution requires under some circumstances that a detainee be allowed to show in court that he or she is being detained because of legal error, whatever Congress may have tried to say about the unavailability of judicial review.  In the context of an arrest near the border allegation of very recent arrival, however, one can at least see the argument for a CBP officer being able to determine somewhat reliably that a person did in fact just come across the border.  It is hard to say as much about the prospect of an officer from Immigration and Customs Enforcement (ICE) encountering someone far away from any border, and determining that they have been here in the United States for less than two years rather than more than two years.

How, exactly, is an undocumented immigrant stopped on the street supposed to prove to the satisfaction of an ICE officer that he or she has been here for more than two years?  Some people may have pay stubs or tax documents or evidence of rent payments, but most would not be carrying such things, leaving them to hope that a family member could provide evidence to the ICE officer’s “satisfaction” in time.  And what if the officer simply chooses not to be “satisfied” by the evidence, or at least pretends not to believe it?

Immigrants who have actually been here even for more than 10 years, and who have U.S. citizen children or other qualifying relatives, such that if placed in regular removal proceedings before an Immigration Judge they could try to show “exceptional and extremely unusual hardship” so as to qualify for cancellation of removal under INA 240A(b)(1), 8 U.S.C. § 1229b(b)(1), could be erroneously subjected to expedited removal instead, under this new rule.  So too might spouses or parents of U.S. citizens who were admitted into the United States through a so-called “wave-through” process not producing obvious documentation, yet qualifying them for adjustment of status as immediate relatives of U.S. citizens under INA § 245(a), 8 U.S.C. § 1255(a), pursuant to the BIA’s decision in Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010).  People in these situations could, it seems, simply be removed on ICE’s word alone despite their legal eligibility to seek lawful permanent residence.

The statute may seem to allow for this, but the Constitution does not permit Congress to have arranged for arbitrary deprivation of liberty or property rights without due process.  Well over a century ago, the Supreme Court recognized that the constitutional right to due process of law applies even to immigrants who have been here less than a year (let alone for longer periods of time) and are alleged to be here illegally.  As explained in the Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903):

[T]his Court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in “due process of law” as understood at the time of the adoption of the Constitution.

One of these principles is that no person shall be deprived of his liberty without opportunity at some time to be heard before such officers in respect of the matters upon which that liberty depends — not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore it is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute, arbitrarily to cause an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.

As the Supreme Court elaborated fifty years later, even in a case taking a dismally restrictive view of the constitutional rights available to those who were actually applying for admission at the border: “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”  Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

That is not to say that the relevant standards of what constitutes sufficient due process are those of 1903 when the Japanese Immigrant Case was decided, or 1953 when Mezei was decided..  Rather, the relevant standards evolve over time.  As the Supreme Court also held almost 70 years ago: “When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality.”  Wong Yang Sun v. McGrath, 339 U.S. 33, 50 (1950).

Two of the leading modern-era cases regarding procedural due process rights as they relate to the requirement of a hearing are Goldberg v. Kelly, 397 U.S. 254 (1970), and Mathews v. Eldridge, 424 U.S. 319 (1976).  Both acknowledge that decisions potentially resulting in greater deprivation require additional process.   To quote from Mathews, 424 U.S. at 341: “As Goldberg illustrates, the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decisionmaking process.”  Mathews also explained that in addition to “the private interest that will be affected by the official action”, other relevant factors include “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”   Mathews, 424 U.S. at 335.

To leave to “the satisfaction of an immigration officer” with no further hearing or administrative process, the question of whether a particular noncitizen has “been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility”, creates an unacceptably high risk of erroneous deprivation of the statutory right to full removal proceedings for those who have, in fact, been present for more than two years.  And being forcibly removed from one’s long-term home to a country where one may not have been for many years is an extremely substantial deprivation, as the Supreme Court has long recognized: “deportation may result in the loss ‘of all that makes life worth living’.”  Bridges v. Wixon, 326 U.S. 135, 147 (1945) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)).  Thus, a basic due process analysis suggests that the expedited-removal procedure is not appropriate in these contexts not involving recent border crossings.

The purported authority seized by the Trump Administration in its recent announcement has lain dormant in the statute since the late 1990s (having been passed as part of the “Illegal Immigration Reform and Immigrant Responsibility Act” of 1996, IIRIRA for short, which took effect April 1997).  Over 20 years of both Republican and Democratic Administrations, no previous Administration had attempted to stretch its authority to the very limits of the statute, perhaps because it was understood that this would be Constitutionally dubious.  One hopes that the courts, in response to the forthcoming lawsuits, will intervene to confine the Administration’s authority within Constitutional limits.

Anyone who is subjected to expedited removal proceedings under this new rule within 60 days of its implementation may have the option of becoming a party to the lawsuit or lawsuits which will likely be filed in the U.S. District Court for the District of Columbia under 8 U.S.C. § 1252(e)(3), the statutorily accepted means for challenges to validity of expedited removal regulations.  (The statute refers to implementation of the rule, not promulgation of the rule, so presumably DHS could not run out the clock simply by declining to actually implement the new rule for 61 days.)  After that time or if there is some other problem with becoming a party to a 1252(e)(3) action, however, others subjected to expedited removal despite having resided in the United States for a significant period of time should be able to bring Constitutionally-protected habeas corpus petitions under the Suspension Clause of the U.S. Constitution as explained in Boumediene v. Bush, 553 U.S. 723 (2008).  Just as Congress could not deprive inmates at Guantanamo Bay of their habeas rights in Boumediene, the Congress that passed IIRIRA should not be able to deprive immigrants who have lived in the United States for a period of time of their habeas rights.  Even when the Court of Appeals for the Third Circuit denied constitutional habeas rights to recent unlawful entrants in a decision heavily criticized by this author in another post, Castro v. Dep’t of Homeland Security, it conceded that the statutory limitations on habeas corpus might be unconstitutional as applied to, for example, “an alien who has been living continuously for several years in the United States before being ordered removed under [the expedited removal statute].”  So regardless of which Court of Appeals jurisdiction they live in, those detained under the new expansion of authority, who by definition are not the sort of very recent entrants at issue in Castro, should have access to constitutionally protected habeas.  The Trump Administration may want to remove residents of the United States without judicial oversight, but the Constitution will not allow that.

Cyrus Mehta

Save Optional Practical Training for Foreign Students

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DHS promulgated the F-1 STEM optional practical training (OPT) benefit, with the publication of the “24-month STEM OPT Rule” that became effective on May 10, 2016. See 81 FR 13039. This rule has been the subject of contentious litigation.  The Washington Alliance of Technology Workers (WashTech) filed suit against both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule in the U.S. District Court for the District of Columbia. A summary of the progress of the litigation is available on this page on NAFSA’s website.

On July 1, 2019, the federal district court in DC in Washington Alliance of Technology Workers v. DHS issued an important decision holding that the 12-month Optional Practical Training program regulation finalized in 1992 had been reopened by the 24-month STEM OPT Rule, which raises the issue of whether DHS has authority to administer a practical training program after an F-1 student completes the underlying degree. The court found that the 24-month STEM OPT rulemaking also had the legal effect of reopening the legacy INS 12-month post-completion OPT regulation that had been finalized in 1992. This means that the court no longer considers a challenge to DHS’s statutory authority to implement standard post-completion OPT to be outside the statute of limitations, and that the WashTech plaintiffs can challenge DHS’s underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well. There will be briefing and an ultimate court decision on whether DHS has authority to administer both the 12-month OPT and STEM OPT extension programs.

In the same July 1, 2019 decision, the federal district court further held  that organizations seeking to be intervenors had standing to do so, despite opposition by both plaintiffs WashTech and defendant DHS. This means that the Information Technology Industry Council (ITI), National Association of Manufacturers (NAM), and US Chamber of Commerce will be carrying the important load of making the key arguments defending DHS’s authority, which is made most critical because it is not clear that DHS under the Trump administration, presently beholden to Buy American Hire American,  will zealously argue and defend its own authority.

If WashTech prevails, and OPT is eliminated, the result would be catastrophic.  After foreign students graduate from a US school, they can apply for one year of OPT. Those who graduate in STEM fields can pursue an additional 24 months of OPT.  The lawsuit claims that DHS has no authority under the Immigration and Nationality Act to issue employment authorization to foreign students. The ability to pursue practical training following graduation is one of the main attractions for foreign students seeking to study in the US.

Although the DHS formally opposes WashTech, there are forces in the administration that would probably want the plaintiffs to prevail. Hence, the role of the intervenor organizations is crucial to ensure that OPT remains available for foreign students. Otherwise, foreign students would have to immediately leave the US upon graduation. A victory for the plaintiffs here would virtually eliminate the ability for foreign graduates to easily seek employment, which they can now do during the OPT period, and then apply for H-1B visas and other employment-based immigration options.

The provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is admittedly ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after they have completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i).  DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute.

The court in the WashTech litigation ought to uphold the ability of DHS to grant OPT to foreign students under Step 2 of the Chevron analysis. The DHS’s interpretation of INA 101(a)(15)(F)(i) should be given deference. Even if there is a judicial decision interpreting 101(a)(15)(F)(i) differently, the DHS’s interpretation ought to prevail under Brand X. In addition to Chevron deference, there is yet another doctrine that can uphold OPT. In Lorillard v. Pons, 434 U.S. 575, 580 (1978), the Supreme Court held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has existed even prior to 1952, and since the enactment of the INA in 1952, and during the overhaul in 1990, Congress and has not enacted any provision that would eliminate student practical training. There are old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

There are many good arguments that can be made to preserve OPT in the WashTech litigation. In addition to the legal arguments addressed above, imagine the damage that would befall US schools if they were not able to attract foreign students. US schools would suffer both financially and in terms of reputation to academic institutions in other countries. Those who come to the US to study also understand America more deeply, and would be able to promote American values when they return and assume important positions in their own countries. Hence, every effort should be made to uphold OPT that has been an integral part of the US immigration system for over 50 years. One effective way to do this is for employers, business organizations, foreign student associations, think tanks, bar associations and other interested organizations to file amicus briefs in the court case. Outside the courtroom, there is also need to convince the American people about the benefits that foreign students bring to the US, and that the elimination of OPT will encourage foreign students to pursue their newly acquired skills in other countries that will compete against America. The OPT program ought not to be viewed as a source for cheap labor, as some critics contend, as the program is temporary and allows a foreign student educated in the US to gain meaningful experience, and preventing that would harm the US economy. Another study states that the OPT allows employers to hire STEM graduates who are in short supply, and provides a bridge for students with badly needed skills to ultimately secure a chance under the H-1B visa lottery.    In the unlikely event that the courts agree with the plaintiffs, Congress would need to step in to enact provisions in the INA that uphold the OPT programs for foreign students as presently enshrined in the regulations. There is too much at stake for America to allow OPT to die just like that.

Cyrus Mehta

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

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

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

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

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

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

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

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

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

Cyrus Mehta

Illogical Situation for Family-Sponsored Second Preference Spouses and Children under the July 2019 Visa Bulletin

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The Department of State Visa Bulletin is eagerly anticipated each month. It tells aspiring immigrants their place in the green card queue, and whether one has moved ahead, remained static or gone backwards. There are many people stuck in the green card backlogs, some stretching to several decades, hoping each month to move ahead in the queue. The person who sets the dates each month is Mr. Charles (“Charlie”) Oppenheim, Chief of the U.S. Department of State (DOS) Visa Control and Reporting Division based on projected demand and the fixed supply of visas within each category.

The July 2019 Visa Bulletin to the pleasant surprise of many indicates that the Family-Sponsored Second Preference,  F2A,   will become current for all countries of the world on July 1, 2019. This category applies to spouses and minor children of lawful permanent residents. The wait in this category has been nearly three years till now. In the current June 2019 Visa Bulletin, the Final Action Date for the F2A preference is July 15, 2017. This means that those whose I-130 petitions were filed on or before June 15, 2017 by the spouse or parent are today eligible for an immigrant visa or to file an I-485 application for adjustment of status.  On July 1, 2019, the Final Action Date under F2A becomes current, which means that a visa number is immediately available regardless of when the I-130 petition was filed, subject obviously to processing times for the adjudication of the I-130. Spouses and children who are in the US can potentially apply for an I-485 adjustment of status concurrently with an I-130 petition. Those who are overseas will be scheduled for an immigrant visa interview, provided that they have become documentarily qualified, and be eligible for an immigrant visa.

The Visa Bulletin has two charts – Chart A, the Final Action Date, and Chart B, the Filing Date. Although the Final Action Date for the F2A is current in the July 2019 Visa Bulletin, the Filing Date is March 8, 2019. Surprisingly, with respect to family sponsored filings, the USCIS has indicated in the Adjustment of Status Filing Charts from the Visa Bulletin that applicants in the US can only use the Filing Date and not the Final Action Date to file an I-485 application. This makes no sense as the Filing Date should always be ahead of the Final Action Date. In the case of the F2A for July 2019, it is the other way around. The Final Action Date is ahead, by virtue of being current, while the Filing Date is behind at March 8, 2019.

The DOS introduced the two charts in the monthly visa bulletin for the very first time on October 1, 2015.  The Filing Date in the Visa Bulletin potentially allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The Final Action Date is the date when permanent residency (the green card) can be granted.  The Filing Date, if the USCIS so determines, allows for the early submission of an I-485 application prior to the date when the green card actually become available. Similarly, for those who are outside the United States and processing for an immigrant visa overseas, the Filing Date allows applicants to submit the DS-260 immigrant visa application and become documentarily qualified prior to the issuance of the immigrant visa when the Final Date becomes available. The DOS had historically issued a qualifying date prior to the visa becoming available so that applicants could begin processing their visas. This informal qualifying date system morphed into a more formal Filing Date in the Visa Bulletin from October 1, 2015 onwards. As a result, the USCIS also got involved in the administering of the Visa Bulletin with respect to the filing of I-485 adjustment applications. Even if the Filing Date becomes available, it is the USCIS that determines whether applicants can file an I-485 application or not each month.

For July 2019, the USCIS has absurdly indicated that the Filing Date of March 2019 must be used for filing I-485 adjustment applications under the F2A category rather than the Final Action Date, which is current. It is unclear whether this is intentional or a mistake. If it is a mistake, it is hoped that the USCIS will correct itself and allow the filing of an I-485 under the F2A on July 1, 2019 under the Final Action Date rather than the Filing Date.

If this is intentional, then the USCIS is plain wrong. It must allow applicants to file I-485 applications under the Final Action Date and not the Filing Date.  Alternatively, Mr. Oppenheim should move the Filing Date to Current like the Final Action Date. The Filing Date must always be equal to the Final Action Date or ahead of it. If the DOS corrects the Filing Date, it can prevent the USCIS from authorizing the filing of I-485 adjustment of status applications under the Filing Date rather than the Final Action Date.

The USCIS also contradicts itself with respect to the position it has taken on the date that freezes the age of a minor child under the Child Status Protection Act. On August 24, 2018,  the USCIS Policy Manual  definitively confirmed that the Final Action Date protects the age of the child rather than the Filing Date. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B). While the USCIS considers a child’s age to be frozen on the first day of the month when the Final Action Date becomes current rather than the Filing Date, under the July 2019 Visa Bulletin, the USCIS is preventing a child from seeking to acquire permanent residency within one year of visa availability provided the I-130 petition was filed after March 8, 2019. Under the Final Action Date, the visa number becomes available on July 1, 2019, but the USCIS is saying that only those who are beneficiaries of I-130 petitions filed on or before March 8, 2019 can file I-485 adjustment of status application. Thus, one who has filed an I-130 petition after March 8, 2019 cannot file an I-485 application, and is prevented from seeking to acquire permanent residency by filing an I-485 application.

In the event that the F2A retrogresses in the coming months, and the USCIS sticks to its position that only the Fling Date can be used to file an I-485 application, then children who will age out,  but protected under the CSPA, would be deprived of the benefit of seeking to apply for permanent residency within one year of visa availability on July 1, 2019. Although under the CSPA the child’s age is frozen only when both the visa becomes available and the I-130 petition is approved, an I-130 and I-485 filed concurrently (or an I-485 filed while an I-130 is pending), may serve to protect the age of the child even if the I-130 gets approved after the date retrogresses.  This happened during the July 2017 Visa Bulletin, which suddenly became current, for EB-2 and EB-3 beneficiaries. A concurrently filed I-140 and I-485 served to protect the age of the child even upon the retrogression of cut-off dates after August 17, 2007 so long as the I-140 petition got approved.  Thus, if there is retrogression in the F2A after July 2019, the USCIS would have deprived the ability of children who will age out from the F2A if they could not file the I-485 application concurrently with the I-130 petition.

There may be ways to still seek CSPA protection notwithstanding USCIS’s illogical position. For those who already have independently filed I-130 petitions after March 8. 2019, an attempt should be make to file an I-485 application,  and even if it gets rejected, it  would demonstrate that the applicant sought to acquire permanent residency within one year of visa availability. Those who already have approved I-130 petitions may file Form I-824, and even though the filing of this form triggers consular action, it demonstrates that the child sought to acquire permanent residency within one year of July 1, 2019. On the other hand, a child who will age out on August 1, 2019 and is not yet the beneficiary of an I-130 petition, will not be able to file a concurrent I-130 and I-148 in July 2019 and will never be able to seek the protection of the CSPA.  Such a child may wish to seek review of the USCIS’s action in federal court.

Rather than agonizing about how illogical all this is, it is hoped that the USCIS will allow the filing of I-485 applications based on the Final Action Date by July 1, 2018, or that Mr. Oppenheim moves the Filing Date to current like the Final Action Date.

Update June 27, 2019: USCIS has fixed the issue. The Adjustment of Status Filing Charts from the Visa Bulletin now says:

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  This means that applicants in the F2A category may file using the Final Action Dates chart for July 2019.

For all the other family-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for July 2019.

Hopefully, my blog raised awareness about the inconsistency.  I thank USCIS for realizing its error and fixing its chart prior to July 1, 2019.

 

 

 

Cyrus Mehta

Fallout from Trump’s Muslim Ban: Requiring Use of Social Media on Visa Application Forms

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On May 31, 2019, the State Department added new questions to visa application forms, DS-160/DS-156 Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Application. Visa applicants now have to disclose the social media platforms that they have used within the previous five years and provide their user names or handle for each platform. This information needs to be provided through a drop down list of common social media platforms, although some of the platforms listed are defunct. Applicants are instructed to not provide the passwords for these accounts.  Additional questions requesting the applicant’s current e mail and phone number, as well as a list of additional e mail addresses and phone numbers used in the past five years also now appear on the forms. If applicants are unable to provide the precise details, they can insert “unknown”, but this could result in additional screening or delays during the visa process.

The new policy has caused worldwide concern as it is expected to affect 710,000 immigrant visa applicants and 14 million nonimmigrant visa applicants.

This policy has its genesis in President Trump’s travel ban of January 27, 2017 executive order 13769, which banned nationals from seven Muslim countries  from entering the US- Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. After this executive order was blocked by courts, the Trump administration issued a repackaged March 6, 2017 executive order 13780, which banned nationals from six of the seven countries subject to the original executive order. Iraq was taken off the list.   After even the March 6, 2017 executive order was found unconstitutional by the fourth and ninth circuit courts of appeals, the March 2017 executive order was subsequently revised through a third proclamation 9645 dated  September 24, 2017, which was upheld by the Supreme Court in Trump v. Hawaii.  Chief Justice John Roberts, in writing the 5-4 majority opinion, found that Section 212(f) of the Immigration and Nationality (INA) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” There has already been much criticism of this decision. Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of Trump’s ban on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution.

Section 5 of the March 6, 2017 executive order provided the basis for the new social media screening policy:

Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.

Section 5 of the September 24, 2017 proclamation further provided:

Reports on Screening and Vetting Procedures. (a) The Secretary of Homeland Security, in coordination with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies shall submit periodic reports to the President, through appropriate Assistants to the President, that:

(i) describe the steps the United States Government has taken to improve vetting for nationals of all foreign countries, including through improved collection of biometric and biographic data;

(ii) describe the scope and magnitude of fraud, errors, false information, and unverifiable claims, as determined by the Secretary of Homeland Security on the basis of a validation study, made in applications for immigration benefits under the immigration laws; and

(iii) evaluate the procedures related to screening and vetting established by the Department of State’s Bureau of Consular Affairs in order to enhance the safety and security of the United States and to ensure sufficient review of applications for immigration benefits.

Subsequently, in March 2018,  the State Department provided  60 day notices in the federal register regarding its intent to include social media information in  the DS 160 and DS 260 visa applications. Although AILA provided  comprehensive comments in response to the notices expressing concern about  how these questions would discourage individuals from applying for a visa, rendering it impossible to respond accurately to questions relating to temporary telephone numbers as well as concerns about how it will be used, the State Department nevertheless went ahead and introduced these additional questions on  May 31, 2019.

The new questions on social media thus stem from the same executive order that caused worldwide consternation against the US when it banned millions of people from mainly Muslim countries in keeping with Trump’s earlier campaign pledge to ban Muslims. Although the September 24, 2017 executive order was upheld by the Supreme Court, the US has suffered worldwide reputational damage due to the indiscriminate banning of persons solely because because of their nationality. Countries like Iran and Yemen have been particularly affected as many thousands of their nationals have legitimate ties with the US.  Thousands of families remain separated as a result of what is widely come to be known as Trump’s Muslim ban.

Justifying the new questions on social media, a State Department official stated, “As we’ve seen around the world in recent years, social media can be a major forum for terrorist sentiment and activity. This will be a vital tool to screen out terrorists, public safety threats, and other dangerous individuals from gaining immigration benefits and setting foot on U.S. soil.”  But social media has never been a reliable indicator in determining whether someone is a threat to US or not. A post that was written many years ago could also be taken out of context and be easily misunderstood or misinterpreted, resulting in a denial of the visa. This would also create a chilling effect on people and some may feel that participating in a political online discussion could hinder their visa approval hopes.

There is also no ground of inadmissibility in the INA that should apply if one legitimately opposes the United States, its polices or even President Trump. Even if one wishes to come to the US as a visitor for pleasure to participate in a peaceful protest that in itself should not be the sole basis for denying a visa. Under 22 CFR 41.31(b)(2) pleasure is defined as “[l]egitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” Clearly, being part of a peaceful protest with like-minded people could constitute activities of a “fraternal” or “social” nature. 9 FAM 402.2-4(A)(3) also contemplates as visitors for pleasure “[p]articipants in conventions of social organizations.”  Still INA 214(b) provides unbridled discretion to a consular officer to refuse most nonimmigrant visas as such an applicant “shall be presumed to be an immigrant” until it is established that he or she is entitled to the nonimmigrant status under INA 101(a)(15).  The consular officer need not provide a reason for the refusal. Even if the visa applicant can demonstrate his or her ties with the home country, the visa can still be refused if all the activities in the US are not consistent with the visa. See 9 FAM 302.1-2 (B)(6). Furthermore, if the social media profile is not consistent with an applicant’s employment history that is required for the eligibility of a visa, such as an L-1 intracompany visa that requires one year of prior employment with a qualifying entity abroad, it could be used as a basis for denial, and even a recommendation to the USCIS to revoke the underlying visa petition.

Unfortunately, there exist grounds of inadmissibility that may trigger upon a review of one’s social media. One  ground is under INA 212(a)(3)(A)(i), which allows a consular  to find inadmissible one, if there are reasonable grounds to believe that he or she seeks to enter the US to engage principally or incidentally in “any other unlawful activity.” Still, one’s legitimate expression of free speech on social media should not lead to the inference that this person will engage in unlawful activity in the US. Then, there is also the extremely broad ground of inadmissibility for terrorist activity under INA 212(a)(3)(B)(II) that allows a consular officer to render the applicant inadmissible if there is a reasonable ground to believe that he or she is engaged or is likely to engage in terrorist activity. Even with respect to this ground, one’s expression of free speech that is generally protected under the First Amendment, however objectionable it may be to the consular officer, ought not to lead to an inference that the applicant will engage in terrorist activity.

Then, there is the possibility that if the information on social media use is not submitted accurately on the visa application due to a misunderstanding, the issuance of the visa can be held up, or worse, the applicant can be rendered inadmissible for fraud or willfully misrepresenting a material fact pursuant to INA 212(a)(6)(C)(i). Someone who inadvertently forgets to reveal a social media handle from over 4 years ago can argue that the misrepresentation was neither willful nor material. According to 9 FAM 302.9-4(B)(4), the “term ‘willfully’ as used in INA 212(a)(6)(C)(i) is interpreted to mean knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise.” Even if an applicant willfully misrepresents, it must be a material misrepresentation. A misrepresentation is material if “[t]he misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible.” See 9 FAM 302.9-4 (citing Matter of S- and B-C, 9 I. & N. Dec. 436, at 447).   Unfortunately, even when one can overcome a finding of inadmissibility, it is a very difficult and protracted process to convince a consular officer to reverse an unfavorable determination. Moreover, deleting social media handles prior to completing a visa form will serve no benefit whatsoever, as the question asks for use of social media in the past 5 years without regard to whether one is using them presently or not. It will also lead to further suspicion and thus delays and denials.

The additional questions on visa forms relating to social media are a logical extension of Trump’s Muslim ban – rather it is more like going down the proverbial slippery slope. The countries affected by the ban were few but the added instruction on the forms to profile and suspect people based on their social media use will impact millions more. It remains to be seen whether other countries will also impose similar questions on their visa forms. Such copycat actions can be used to retaliate against American visa applicants or by other countries who want to screen out nationals of countries they find undesirable.  The questions will dissuade applicants from visiting the US temporarily for legitimate purposes.  These questions will also unfortunately result in unfounded and arbitrary denials of visa applications of those who are coming to the US both temporarily and permanently, thus depriving US educational institutions of foreign students and US businesses from increased business through tourism. Those legitimately sponsored for permanent residency by family members, employers or through investment will also be adversely impacted. The policy is also going to create a chilling effect on people as  some may feel participating in a political online discussion could hinder their visa approval hopes. It would hope that people are not denied a visa based on a tweet that’s deemed to be against American policies that is consistent with free speech protected under the First Amendment. Otherwise, the only loser will be America, whose standing has already been diminished after the implementation of the Muslim ban.

 

Cyrus Mehta

Making the Case for Expanding a Foreign National’s Interest in an I-140 Petition

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By Cyrus D. Mehta & Patrick Matutina

Current regulations generally preclude beneficiaries from participating in employment-based immigrant visa proceedings, including post-adjudication motions and appeals. The employment-based immigrant visa petition is Form I-140 that is filed by an employer on behalf of a foreign national beneficiary who is being sponsored for permanent residency under the employment-based first, second and third preferences.

An interesting case arises, however, when a beneficiary exercises her right to job portability pursuant to §204(j) of the Immigration and Nationality Act (INA) and 8 CFR § 245.25(a)(2)(ii)(B). If a Request for Evidence (RFE) is subsequently issued on the underlying I-140, what rights does a Beneficiary have in regards to her ability to respond?

By way of background, INA §204(j) allows foreign workers who are being petitioned for a “green card” by their employer to change jobs once their I-485 adjustment of status application has been pending for 180 days or more. Furthermore, 8 CFR § 245.25(a)(2)(ii)(B) allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing.  8 CFR § 245.25(a)(2)(ii)(B) provides in relevant part:

(2) Under section 204(j) of the Act, the applicant has a new offer of employment from the petitioning employer or a different U.S. employer, or a new offer based on self-employment, in the same or a similar occupational classification as the employment offered under the qualifying petition, provided that:

  1. The alien’s application to adjust status based on a qualifying petition has been pending for     180 days or more; and
  2. The qualifying immigrant visa petition:
    1. Has already been approved; or
    2. Is pending when the beneficiary notifies USCIS of a new job offer 180 days or more after the date the alien’s adjustment of status application was filed, and the petition is subsequently approved:
      1. Adjudication of the pending petition shall be without regard to the requirement in 8 CFR 204.5(g)(2) to continuously establish the ability to pay the proffered wage after filing and until the beneficiary obtains lawful permanent residence; and
      2. The pending petition will be approved if it was eligible for approval at the time of filing and until the alien’s adjustment of status application has been pending for 180 days, unless approval of the qualifying immigrant visa petition at the time of adjudication is inconsistent with a requirement of the Act or another applicable statute; and
  3. The approval of the qualifying petition has not been revoked.

In a best case scenario, the lack of intention to employ a beneficiary after the filing of an I-140 and I-485 does not preclude a petitioner from responding to an RFE issued on the underlying I-140 for a beneficiary who has already ported or who may port in the near future. This is because this intention – which is to no longer employ the beneficiary – was formed after the filing of the I-140 and I-485. Therefore, a petitioner may still seek to establish that the I-140 was approvable when filed pursuant to 8 CFR § 245.25(a)(2)(ii)(B), and indicate that it has no intention to permanently employ the beneficiary,  so that a beneficiary may exercise job portability based on her pending I-485. Our firm recently had success in such a situation wherein a beneficiary of a previously filed I-140 and I-485 was able to work with a petitioner to respond to an RFE even though the beneficiary would not be employed permanently and had expressed an intention to port to a new job in the same occupational classification.  After the I-140 had been erroneously denied on grounds not related to the lack of permanent employment, our firm assisted the beneficiary to successfully reopen the I-140 with the cooperation of the petitioner, and ultimately win approval of the I-140 and approval of the I-485 for the beneficiary.

The question remains, however, what recourse does a beneficiary have if the petitioner refuses to respond to an RFE, or otherwise cooperate with the beneficiary? May a beneficiary, for example, file an I-290B notice of appeal or motion to reopen a subsequent denial of the I-140?

The answer may be found under existing USCIS policy. Under the Policy Memo promulgated on November 11, 2017, a Beneficiary becomes an “affected party” upon USCIS’ favorable determination that the beneficiary is eligible to port. See USCIS, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc., PM-602-0152, Nov. 11, 2017 at page 5.  Thus, under the policy adopted by USCIS in Matter of V-S-G- Inc., Beneficiaries, who are affected parties as defined in the Matter of V-S-G- Inc. decision, are entitled to a copy of any decision made by USCIS and may file an appeal or motion on Form I-290B with respect to a revoked Form I-140, even though existing form instructions generally preclude beneficiary filings.

As we had previously blogged, in Matter of V-S-G- Inc. the beneficiary had changed employers and taken a new position after the adjustment of status application had been pending for more than 180 days.  Meanwhile, the president of their original petitioning organization was convicted of mail fraud in connection with another USCIS petition.  USCIS sent a notice of intent to revoke (“NOIR”).  When the petitioner failed to respond to the NOIR, USCIS revoked the petitioner’s approval due to the petitioner’s failure to respond. Although Matter of V-S-G-, Inc. dealt with the issue of an NOIR of an approved I-140 petition, one could argue that the AAO should extend the holding in Matter of V-S-G- to a Beneficiary who successfully ports to a new employer while the underlying I-140 remains unadjudicated.  This is because upon the filing of an I-485 Supplement J – required when the beneficiary ports or intends to port to a job in a same or similar occupational classification – the beneficiary becomes an “affected party,” and should be given a copy of any RFE, as well as a copy of any subsequent denial of her I-140. Our argument for extending Matter of V-S-G is further supported by the promulgation of  8 CFR § 245.25(a)(2)(ii)(B), which enables the I-140 to be approved even if a job offer no longer exists so long as the I-140 was eligible for approval at the time of filing. See 8 CFR § 245.25(a)(2)(ii)(B)(2). 

A review of the preamble to 8 CFR 245.25 published in the Federal Register, while not dispositive, also supports our position. The preamble notes that several commentators had expressed concern that individual Beneficiaries of Form I-140 are not provided notice when USCIS seeks to revoke the approval of those petitions. In response, DHS noted that it was considering administrative action to address these concerns. See Federal Register /Vol. 81, No. 223 /Friday, November 18, 2016 /Rules and Regulations at page 82418 (hereinafter the “preamble”). Similar concerns were also raised in the preamble in the section entitled “Portability Under INA 204(j)” wherein the DHS states:

As a practical matter, petitioners have diminished incentives to address inquiries regarding qualifying Form I-140 petitions once beneficiaries have a new job offer that may qualify for INA 104(j) portability […] Accordingly, denying a qualifying Form I-140 petition for either ability to pay issues that occur after the time of filing, or for other petition eligibility issues that transpire after the associated application for adjustment of status has been pending for 180 days or more, would be contrary to the primary goal of AC21. Such a policy would in significant part defeat the aim to allow individuals the ability to change jobs and benefit from INA 204(j) so long as their associated application for adjustment of status has been pending for 180 days or more.

 

In a perfect world, a beneficiary ought to be able to work with a petitioner for the purpose of responding to any RFE or NOIR issued on a previously filed I-140 and I-485 despite the petitioner’s lack of intention to continue to employ the beneficiary. However, as a practical matter, a petitioning employer is likely to refuse to cooperate with a beneficiary who has already been terminated. Nonetheless, there exists a compelling argument that the beneficiary be allowed to respond due to the growing legal recognition of a beneficiary’s interest in an I-140 approval where there is also a pending I-485.  Although Matter of V-S-G-, Inc. dealt with the issue of an NOIR of an approved I-140 petition, it would be consistent with the holding to argue that if a beneficiary is able to successfully port to a new employer prior to the issuance of an RFE, that Beneficiary is also an “affected party” due to her interest in demonstrating that the I-140 was approvable as filed.  USCIS ought to extend the holding in Matter of V-S-G- to any beneficiary who successfully ports while the underlying I-140 remains unadjudicated and was filed concurrently with an I-485 application. Such an extension would go a long way towards fulfilling one of the primary goals of AC21 by allowing individuals the ability to change jobs and benefit from INA 204(j). Even if the employer does not participate, a beneficiary should be allowed to respond to the RFE in order to establish that the I-140 was approvable when it was filed concurrently with an I-485 application.  Such an extension of the holding of Matter of V-S-G- would also be in line with the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue under the Administrative Procedure Act when his or her claim is within the zone of interests a statute or regulation protects. Other courts have agreed that the original employer should not be the exclusive party receiving notice relating to an I-140 petition when the foreign national employee has ported to a new employer. Beneficiaries who have ported to new employers fall within INA 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson and Kurupati v. USCIS. This logic should now extend to the ability of a foreign national beneficiary of an I-140 petition to be able to respond to an RFE even before it gets denied, especially since 8 CFR § 245.25(a)(2)(ii)(B)(2) permits the beneficiary to port based on a concurrently filed unadjudicated I-140 petition and I-485 application. This regulation, which was promulgated consistent with Lexmark, will carry little force if the beneficiary is not considered an affected party in order to challenge both an RFE and a denial.

 

 

 

Cyrus Mehta

Questions Arising from Foreign Entity Changes after an L-1 Petition is Approved

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By Cyrus D. Mehta & Rebekah Kim

An L-1 visa may be issued to a foreign national employee who has worked abroad for at least one continuous year within the last three years for a qualifying, related business entity (e.g., parent, subsidiary, or affiliate) in an executive, managerial, or specialized knowledge capacity, and who is being transferred to the U.S. to work for the same employer or a parent, subsidiary, or affiliate of the employer. See INA § 101(a)(15)(L).

An interesting question arises when, during the course of the employee’s valid L-1 employment in the United States, the foreign entity goes through a corporate reorganization, and thereby ceases operations, merges with another company, or undergoes some other change in its corporate structure or ownership.

Is a foreign national employee who earned his/her one year of qualifying work experience at a foreign entity that undergoes corporate reorganization eligible to maintain L-1 status? 

According to 8 CFR §214.2(l)(1)(ii)(G)(2), the employer must be doing business in the U.S. and at least one other country for the duration of the employee’s stay in the U.S. as an L-1 nonimmigrant. A foreign qualifying entity (i.e., affiliate, subsidiary, etc.), also, must be doing business the entire time the beneficiary is in L-1 status. However, it is less clear whether the foreign qualifying entity needs to be the same one that employed the L-1 while s/he was abroad.

Is an amended L-1 petition required when the foreign entity undergoes corporate reorganization?

There is scant guidance regarding the need to file an amendment when there is a change in the foreign entity, such as when the foreign entity goes out of existence but the U.S. employer has subsidiaries in other countries, or when the U.S. employer acquires another entity in the foreign country while it sells the former foreign entity where the beneficiary had previously worked. In the absence of clear authority, and in an abundance of caution, some employers may choose to file an amendment.

However, we may draw clues from at least two sources that strongly suggest that an amendment is not necessary.

In Matter of Chartier, 16 I&N Dec. 284 (BIA 1977), the L-1 employee was employed by a company in Canada, then transferred to work for the same employer in the U.S. The Service granted, then later revoked, the foreign national employee’s L-1 status because it found that the employer did not have a subsidiary or affiliate in Canada. The Service contended that without an established foreign branch, there was no place for the alien to return to, and his L-1 employment could not be deemed temporary. The Board rejected this argument, concluding in its Interim Decision that the L-1 employee could be sent back to Canada, or to the company’s affiliate in Belgium. The Board’s decision indicates that the L-1 remained valid so long as the company had a qualifying entity abroad, even if it was not the foreign entity where the L-1 employee gained his qualifying experience.

This conclusion may also be drawn from USCIS L-1 training materials, which were uncovered in response to a FOIA request, and can be found on AILA InfoNet at AILA Doc. No. 13042663 (posted April 26, 2013). The materials contain the following example: “An L-1A was a manager for Company A in Italy. L-1A transfers to the U.S. to work for affiliated Company B. After L-1A transfers, Company A ceases to do business and becomes a dormant company. Company B still has foreign affiliate, Company C, that is doing business in Japan. Therefore, the petition remains valid.” Although training materials are not as authoritative as case law, they still reflect the government’s view that an L-1 petition remains valid even when the foreign entity where the foreign national employee gained his qualifying employment becomes dormant, as long as the employer has another qualifying entity abroad.

In some instances, the change to the foreign entity’s organizational structure may affect the terms and conditions of the L-1 beneficiary’s employment in the United States – for example, if some of the job duties were dependent on the continued existence of the entity abroad. However, in the absence of such a material change to the L-1 employee’s position in the United States, a change in the foreign entity’s organization should not warrant the filing of an amendment so long as the petitioner continues to do business in at least one other country through a qualifying branch, parent, affiliate or subsidiary. However, the petitioning entity in the US may still want to file an amendment out of an abundance of caution.

The analysis changes if the L-1 beneficiary is sponsored by the U.S. entity for lawful permanent residency under the employment-based first preference for multinational executives or managers pursuant to INA § 203(b)(C), and the foreign entity where the beneficiary worked no longer exists as a result of a reorganization. There is no parallel regulatory provision as 8 CFR § 214.2(l)(1)(ii)(G)(2), and the analogous provision at 8 CFR § 204.5(j)(3)(i)(C) provides the “prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas”. While an argument can still potentially be made that USCIS adopt the same reasoning as it does with L-1s, the Administrative Appeals Office (AAO) in a non-precedential decision has interpreted the section to mean that the foreign entity where the beneficiary worked at abroad has to continue to exist at the time of filing, because the language of regulation uses the word “is”, signifying present existence of the foreign entity. See Matter of ___, LIN 0800457652 (AAO Apr. 8, 2010). On the other hand, the door does not shut totally. If the employee worked in the foreign country for a branch of the petitioner as opposed to a distinct entity, which subsequently closes, the AAO in another non-precedential decision has reasoned that the beneficiary is working for the “same” employer and can thus be classified as a multinational executive or manager.  See Matter of ____, LIN 0618952335 (AAO Nov. 7, 2008). One can also potentially argue that if the distinct entity that hired the beneficiary closes, another foreign entity, either in the same or a different foreign country,  could serve as a successor in interest if it assumes substantially all assets and liabilities. In the immigration context, a  transfer of a particular business line and its employees to the new entity may suffice for purposes of establishing a successor in interest entity.

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

The authors thank Dagmar Butte, Bryan Funai, Hanah Little, Angelo Paparelli and Lynn Susser for their invaluable input. 

Cyrus Mehta

Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants?

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By Cyrus D. Mehta and Amani M. Abuhamra*

In a promising development for F, J, and M nonimmigrants battling unlawful presence policy, a federal district court in North Carolina has granted a preliminary injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The August 2018  Policy would render students in F, J and M status unlawfully present thus subjecting them to 3 and 10 year bars  from reentering the United States.

The May 3, 2019 Guilford College et al v. Mcaleenan et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction prohibiting USCIS and DHS from “enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit.”

As previously discussed on our blog, the August 2018 Policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 Policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

Plaintiffs in the Guilford College case sued DHS and USCIS alleging, among other things, that 1) USCIS had issued the August 2018 Policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 Policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court held that for the purposes of granting the Preliminary Injunction, the Plaintiffs had demonstrated a likelihood to succeed on their challenges to the policy, and found that the Plaintiffs were “likely to suffer irreparable harm absent entry of a preliminary injunction.”

Promising decision for future litigation challenging USCIS policy memos

For immigration lawyers fighting harsh USCIS policies and denials of petitions on behalf of their clients, the possible ramifications of Judge Biggs Opinion and Order are promising.

The Court found the Plaintiffs likely to succeed in showing that the language, purpose, context, and effect of the USCIS policy rendered it a legislative rule. This is significant because “[f]or a legislative rule to be valid … it must have been promulgated in compliance with the APA’s notice and comment procedures [under U.S.C. § 553].” So, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy.

This may open the door for future litigation challenging other USCIS policy memos issued without proper APA notice and comment procedure. Attorneys can now look to challenge other USCIS changes to policy that have legislative rule characteristics, and similarly subject them to challenge for failing to follow proper APA rulemaking procedure. These could include, for example, USCIS’s  October 23, 2017“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” and USCIS’s February 23, 2018 “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. Both these policies, see blogs here and here, contradict existing regulations.  In fact, the February 23, 2018 policy requiring petitioners who place H-1B workers at third party sites to impossibly rigid itinerary and documentary requirements is being challenged in federal court. At a recent hearing on plaintiff’s motion for summary judgement, the judge sharply questioned the high rate of denials under this USCIS policy that plaintiffs allege was designed to kill the IT consulting industry business model.

Perhaps even more promising is the effect Judge Biggs decision will have on curtailing USCIS power to alter statutory construction by way of policy changes and promulgating regulations. The decision noted that based on the statutory text of the INA, the Court found it likely that unlawful presence does not begin when one becomes out of status. Therefore, the August 2018 Policy, in altering unlawful presence accrual to commence when one becomes out of status, most likely conflicts with the existing law and is invalid.

The Court’s decision on invalidating policy which conflicts with existing statute may be even more crucial for future challenges to USCIS policies. This is because without the ruling on statutory construction, the USCIS could essentially overcome a future policy challenge by simply engaging in notice and comment procedures beforehand. Attorney H. Ronald Klasko, who serves as co-counsel and immigration subject matter expert in the Guilford College litigation, thinks the Court’s decision instead makes it harder for USCIS to get around policy challenges, because “if the interpretation of unlawful presence embodied in [a] Memorandum conflicts with the INA as a matter of law, that defect could not be addressed even by properly promulgated regulations. Rather, it would require a statutory change from Congress.”

So what does the preliminary injunction mean for current F, J and M nonimmigrants and the immigration lawyers who advise them?

Though certainly a victory, there now exists some doubt and uncertainty regarding how much reliance can be placed on the Guilford College preliminary injunction. The nationwide injunction, which will prohibit enforcement of the unlawful presence policy by USCIS until the Court issues its final order, has left many unsure as to what the preliminary injunction means for currently at-risk nonimmigrants. Should the Court rule in favor of USCIS and the August 2018 Policy is reinstated, what would that mean for the nonimmigrants who were at risk of triggering bars to admission prior to the preliminary injunction? The following scenarios highlight this uncertainty:

Scenario 1: A PhD student on an F-1 visa travels out of the country after the May 3rd preliminary injunction is issued. Prior to the preliminary injunction, the student was at risk of triggering a 3-year-bar of admission for having accrued over 180 days of unlawful presence without his knowledge. This was due to a reporting mistake the school made in regards to his course load which caused him to inadvertently fall out of status. If the student returns to the country on an O-1 visa while the preliminary injunction is still in effect, and the Court then issues a final ruling upholding the August 2018 Policy shortly afterwards, will the student be found to be inadmissible under 212(a)(9)(B)(i)(I)or(II)?

Scenario 2: A research scholar on a J-1 visa discovers she inadvertently violated her status months prior causing her to unknowingly accrue unlawful presence under the August 2018 Policy. Though she had not yet accrued 180 of unlawful presence when the preliminary injunction was ordered on May 3rd, she was close. Today the research scholar visits her attorney and informs him that tomorrow marks 180 days since she has fallen out of status. The Court has yet to issue its final ruling and the preliminary injunction is still in place. She is unsure whether she should leave the country tomorrow out of precaution of triggering a 3-year-bar of inadmissibility. She has a lot to lose if she were to travel today, and would like to remain in the country. She wants to know, should the Court lift the injunction in the near future, whether the days in which the government was enjoined from enforcing the policy are considered void from unlawful presence calculation, or whether the upheld 2018 August Policy is effective retroactively?

In scenarios like these, it is unclear how the government would rule. It may be difficult for attorneys to best advise their at-risk nonimmigrant clients due to this ambiguity. Leaving or not leaving the country during the period where the preliminary injunction is in effect should be carefully considered and discussed with clients, all options carefully weighed. It may be best to exercise abundant caution and leave not leave the US in Scenario 1 and leave the US in Scenario 2  Even if the Court lifts the preliminary injunction, it will at least order that the August 2018 Policy not be applicable while the preliminary injunction was in effect and takes effect prospectively. On the other hand, one can also be cautiously optimistic that the plaintiffs will prevail in their motion for summary judgment (expected in June 2019) and that the August 2018 Policy will effectively be rescinded by the Court. After all, a motion for preliminary injunction is only granted when there is a likelihood of success on the merits. There is also a risk that the Court of Appeals will overturn the lower court’s decision even if the plaintiffs prevail on the merits. Nevertheless, despite the risks, the Guilford College preliminary injunction is cause for celebration, and as Facebook’s founder Mark Zuckerberg once famously said, “The biggest risk is not taking any risk…”

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

* Amani Abuhamra is pursuing her JD degree at Brooklyn Law School and is  currently an Extern at Cyrus D. Mehta & Partners PLLC.

David Isaacson

Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal

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In 2011, I wrote an article on our firm’s website about how then-recent case law could provide an opportunity for some returning nonimmigrants to challenge, in federal court, the government’s efforts to subject them to expedited removal.  At the time, it seemed as though such a challenge might require a habeas corpus petition to be filed in federal court while the returning nonimmigrant was still detained at the airport by Customs and Border Protection (CBP).  A recent Second Circuit decision in a different context, however, suggests that this is not so.  Rather, even returning nonimmigrants who are only able to contact a lawyer after they have already been removed from the United States may have recourse in federal court.

As I explained in my 2011 post, Congress has sought to make expedited removal orders, which can be issued by CBP officers at the airport and carry with them a five-year bar on returning to the United States without advance permission, essentially unreviewable in court for most people who are not U.S. citizens, Lawful Permanent Residents, or refugees or asylees. This creates a significant risk of arbitrary and potentially unreviewable enforcement of immigration law.  Problems can arise, for example, when such enforcement is based on an arguably erroneous position taken by a CBP officer regarding the permissible scope of H-1B employment, as in the case of some expedited removal orders issued at Newark Airport that were discussed by Cyrus D. Mehta in January and February 2010.  Absent judicial review, CBP officers and supervisors may have the last word on such questions, whether legally correct or not.

However, the Supreme Court’s 2008 decision in Boumediene v. Bush, 553 U.S. 723 (2008), made clear that under the Suspension Clause of the U.S. Constitution, Congress cannot (unless exercising its authority to suspend the writ of habeas corpus in cases of rebellion or invasion) simply prevent people detained by the United States, even alleged enemy combatants at Guantanamo Bay, from seeking judicial review of their detention through a petition for a writ of habeas corpus.  Thus, even those subjected to expedited removal may be able to turn to habeas corpus to vindicate whatever other rights they have under statute or the Constitution.  The Court of Appeals for the Ninth Circuit recently recognized in its March 2019 decision in Thuraisiggiam v. Department of Homeland Security, for example, that habeas is an available mechanism for asylum-seekers to assert their rights to proper proceedings to determine whether they have a credible fear of persecution.  (The Court of Appeals for the Third Circuit has, in a decision I criticized in a prior blog post, limited the ability to use habeas as a vehicle to assert rights under immigration law in the context of recent entrants with no prior ties to the United States, but even the Third Circuit, in Osorio-Martinez v. Attorney General, recognized the habeas rights of those with somewhat greater ties to the United States, in that case juveniles with approved petitions for Special Immigrant Juvenile status.)

As I also explained in my 2011 post, previously admitted U.S. residents who are returning from a brief trip abroad would retain rights to due process of law under Landon v. Plasencia, 459 U.S. 21 (1982), and so could argue that they were entitled to greater procedural protection than expedited removal provides.  Moreover, residents in this sense need not be restricted to Lawful Permanent Residents, that is, people with “green cards”. The Second Circuit, in its January 2011 decision in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), recognized the due process rights of one who had been admitted as a visitor and overstayed the permitted period of admission, so returning resident nonimmigrants who did not overstay should be even more clearly entitled to due process rights.  While it would be difficult for certain categories of nonimmigrants, such as B-1 or B-2 visitors, who need to maintain a foreign residence, to claim returning-resident due process rights without fatally undercutting their own case for readmission, there are many types of nonimmigrants such as H-1B, L-1, E-1, E-2, and O-1 who are not required to maintain a residence abroad which they lack intention to abandon.  If returning to a U.S. residence from a brief trip abroad, such nonimmigrants would appear to have a strong argument that the abbreviated and potentially error-prone procedures of expedited removal did not afford them sufficient due process.

The problem, as a practical matter, was that the legally ideal time to file such a habeas petition seemed to be while one was detained at the airport, and that presents obvious practical difficulties.  As I explained in 2011:

The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order.  Whether such a challenge might be possible following execution of an expedited removal order is a subject for further analysis, but it would at least be substantially more difficult.  Classically, a constitutionally protected habeas petition would as a general matter require the petitioner to be in custody at the time the petition was filed, and a petitioner who has already been removed is not in custody, at least in the simplest and most straightforward sense of that term.

CBP often allows those subject to expedited removal proceedings to contact a friend while they are detained, but discourages or prevents them from contacting attorneys, presumably on the basis that an applicant for admission lacks the right to legal representation during initial inspection.  (The chain of logic between the lack of right to representation and a prohibition on speaking to an attorney strikes this author as a bit strained, but that is an issue for another day.)  Therefore, it may be wise for any nonimmigrant who anticipates potential difficulties upon arrival to ensure that the friend or friends whom they would likely attempt to call if detained is in possession of the contact information for an appropriate immigration attorney.  If concerned that CBP might not allow any communication, or that a single attempt to call while detained by CBP might not reach anyone, a more cautious alternative would be to make a plan to check in with such a friend by phone immediately after one’s flight lands, before proceeding into the immigration inspection area and the perhaps broader area in which cellphone use is prohibited, and advise that an appropriate immigration attorney should be contacted if the arriving nonimmigrant is not heard from again within a preset amount of time.

Given how logistically complicated it would be, particularly for someone who had not expected problems, to arrange the filing of a habeas petition in the brief interval before being detained and put on a return flight, it is perhaps not surprising that no such habeas challenge to an expedited removal order by a returning resident nonimmigrant seems to have made it into court, at least so far as this author is aware.  (There have been a few unsuccessful challenges by other types of nonimmigrants not able to claim returning-resident status.)

A recent decision of the Court of Appeals for the Second Circuit, however, has shed some light on what I referred to in 2011 as a subject for further analysis, namely, whether a habeas petition could be filed after an expedited removal order had already been executed.  The issue arose indirectly in the recent appeal of Ravidath (Ravi) Ragbir, an immigrant-rights activist who brought a habeas petition to prevent his removal on the basis that ICE, in refusing to extend his previously-granted stay of removal, was retaliating against his Constitutionally protected speech critical of ICE activities. In its April 25, 2019 decision in Ragbir v. Homan, the Second Circuit allowed this claim to go forward pursuant to the Suspension Clause of the Constitution.

Because Ragbir’s First Amendment claim regarding the execution of an order of removal would otherwise have been statutorily barred under 8 U.S.C. 1252(g), the Second Circuit needed to address whether it was protected by the Suspension Clause, as in Boumediene.  The government asserted that this was not so because, among other things, Ragbir was purportedly not in custody, having been released from detention after being granted judicial stays of removal.  The Second Circuit disagreed:

If Ragbir were currently in the Government’s physical confinement or had already been deported, that Ragbir would be in custody is obvious.[29] But that he has not been deported is not for a lack of effort on the part of the Government, which detained Ragbir without notice in January 2018 and sent him to Florida, where he was detained for weeks in anticipation of deporting him. Much like in Hensley [v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)], that process was stopped only because Ragbir was released by a writ of habeas corpus issued by the district court in January 2018 (after which the Government told Ragbir to report again on February 10, 2018). Also like in Hensley, Ragbir must continue to report for ICE check-ins, and he remains in this country primarily due to judicial stays of removal, including the one entered by this Court. Moreover, the Government opposed a stay of removal in the district court pending this appeal, and at oral argument, the Government could not represent to this Court that—absent a stay entered by this Court and the stay previously entered in the District of New Jersey—ICE would not deport Ragbir pending resolution of this appeal.

Thus, that Ragbir faces imminent deportation, which necessarily involves a period of detention—and that he must comply, absent judicial intervention, with the Government’s orders “at any time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not in question. That effects a present, substantial curtailment of Ragbir’s liberty. See id.

The Second Circuit expanded on the first sentence of the above in footnote 29 to its decision:

As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239-40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted).

This discussion of the availability of habeas to a deported individual was a key portion of the Second Circuit’s reasoning, not merely dicta.  It was necessary to show that Ragbir would have access to habeas at what one might call both ends of the process, if he were in physical custody prior to deportation or if he had been already deported, in order to conclude that as a logical matter he ought not lose such access to habeas simply because the process had been, by court order, suspended in the middle.

Under the Second Circuit’s decision in Ragbir, then, individuals subjected to expedited-removal orders may pursue habeas petitions even following their removal.  Those returning nonimmigrants who arguably have due process rights, under Plasencia and Galluzzo, to a less summary process than expedited removal, should thus be able to vindicate those rights even if they are unable to contact an attorney until after they have already been removed.  As a practical matter, it may make sense to first reach out to CBP in an effort to get the expedited removal order set aside administratively, but the availability of litigation even after removal is an important development.  If CBP declines to administratively set aside an erroneous expedited removal order, that need not be the end of the story.  Rather, a long-term United States resident nonimmigrant who was refused permission to return to his or her home can seek redress in court.