Cora-Ann Pestaina

F-1 Cap Gap Students In Limbo From October 1, 2018 Onward If Their H-1B Cases Have Not Been Approved

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It is October 1, 2018 and this morning, in what is an extremely unfortunate yet totally preventable situation, businesses across the U.S. were forced to temporarily terminate the employment of F-1 students who were previously employed pursuant to their cap-gap extension period.

Briefly, the cap-gap extension regulation temporarily extends the OPT (Optional Practical Training) period for F-1 students with pending H-1B petitions and requests for change of status. The cap-gap period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30th, the end of fiscal year. The ongoing suspension of USCIS’ premium processing service, previously discussed in one of our earlier blogs, has critically impacted H-1B cap subject petitions for F-1 students in the cap-gap extension period. USCIS has found a way to basically suffocate the H-1B visa program.

USCIS extended the suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions which was originally slated to last until September 10, 2018, through to an estimated date of February, 19, 2019. USCIS’ premium processing service has always been a heavily utilized option for U.S. businesses providing them with a significantly faster adjudication timeline of a few weeks instead of the regular processing time of 6-9 months! The premium processing option also allowed businesses to ensure that their professional staff would be available to meet critical project timelines and thus allowed them to plan accordingly. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery.  Under the H-1B regulations, an H-1B petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary’s services or training. Therefore, U.S. employers are unable to file an H-1B petition on behalf of a prospective employee more than six months from the intended start date but the processing of that H-1B petition may take well beyond six months.  Without premium processing, many employers are left unable to hire the H-1B worker on October 1, 2018 even though the job offer was made more than six months ago and the petition is potentially approvable. In addition, premium processing was also a great tool for the F-1 student. Imagine having a petition filed on your behalf in the first week of April and for the next 6-9 months, or likely longer, being unable to make any concrete plans for your future, including not knowing whether you would be allowed to remain in the US or have to immediately pack your bags and leave.

USCIS stated that the suspension of premium processing is necessary in order to allow the agency to “[b]e responsive to petitions with time-sensitive start dates” but it is not clear why F-1 students who are in a cap-gap extension period failed to qualify as having time-sensitive start dates. U.S. employers forced to suspend the employment of these F-1 students have no recourse. USCIS has indicated that these petitioners may submit a request for expedited processing but the expedite process is grossly unreliable and it is not clear how these requests are being processed. It is by no means a viable alternative to premium processing.

As of October 1, F-1 students previously employed pursuant to a cap-gap extension are no longer authorized to work and will start accruing unlawful presence in the U.S. if they continue to work under the new unlawful presence policy applicable to students. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. This student also cannot travel during the limbo period, unless he or she is prepared to return to the US after the H-1B petition is approved on a new H-1B visa. But one should not assume that the H-1B petition will get approved in a climate where the Trump administration is routinely challenging H-1B petitions for occupations that were previously easily approved.  Although the USCIS has at this time delayed its removal policy with respect to employment-based petitions that ultimately get denied, the delay will not be indefinite and these F-1 cap students will find themselves not just  accruing unlawful presence, but will also find themselves facing removal proceedings if the H-1B petition and the request for change of status is denied.

Of course, if an F-1 student with a pending change of status H-1B petition has work authorization (such as a valid Employment Authorization Document (EAD)) that extends past September 30th they may continue to work as authorized.

The American Immigration Lawyers Association (AILA) has called on USCIS to immediately lift the premium processing suspension on FY 2019 H-1B cap-subject petitions for beneficiaries who are in a cap-gap extension period, or alternatively, to publish a notice in the Federal Register extending the cap-gap work authorization period to at least 90 days beyond September 30, 2018, or until all FY 2019 H-1B cap cases can be adjudicated. To date USCIS has issued no response to this request.

In choosing to so suffocate the H-1B visa program, USCIS is restricting legal immigration and fulfilling the Trump administration’s objective under its “Buy American and Hire American” Executive Order No. 13788. But a negative chain reaction easily ensues with an immigration policy influenced by BAHA:  U.S. businesses cannot remain competitive if they are unable to hire the best students graduating from US universities, including foreign students in F-1 status.  U.S. universities will get hurt if they cannot attract the best students in the world who also pay full tuition fees. The U.S. loses out as a nation if it cannot compete with other countries for the best and brightest. The only way out of this downward spiral is for this administration to come to its senses and provide much needed oxygen to the H-1B program it has cruelly strangulated by restoring premium processing and adjudicating bona fide H-1B petitions more sensibly so that they get approved rather than denied.

 

 

 

 

Cyrus Mehta

Recipe for Confusion: USCIS Says Only the Final Action Date in Visa Bulletin Protects a Child’s Age Under the Child Status Protection Act

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The Child Status Protection Act is one of the most complex pieces of immigration legislation. Passed in 2002, the CSPA protects the age of children who would otherwise not qualify as children if they turned 21. The lack of any regulation has made the legislation even more confusing especially in light of more recent developments such as the introduction of the  dual chart State Department Visa Bulletin in October 2015.

On August 24, 2018, however, the USCIS Policy Manual consolidated the guidance on the CSPA that the USCIS has developed over the years, and definitively confirmed that the Final Action Date in the State Department Visa Bulletin  protects the age of the child rather than the Filing Date. There are other significant interpretative changes too, but this blog will focus on the change relating to the  interplay between the dual chart Visa Bulletin and the CSPA.

On October 1, 2015, DOS introduced two charts in the monthly visa bulletin – Chart A – Final Action Dates and Chart B – Filing Dates.  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 has historically issued a qualifying date prior to the visa becoming available so that applicants could begin processing their visas. This informal qualifying dates 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.

The Filing Date has become practically useless for employment-based I-485 applicants since USCIS only allowed I-485 applications to be filed pursuant to the Filing Date in October 2015 and November 2015. Since December 2015, USCIS has never allowed employment-based adjustment applicants to file their I-485s under the Filing Date. On the other hand, the USCIS allows family-based beneficiaries of I-130 petitions to file I-485 applications under the Filing Date, and has continued to so in the September 2018 and the forthcoming October 2018 Visa Bulletins.

Using the Filing Date to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the Filing Date becomes available sooner than the Final Action Date. As of August 24, 2018, the USCIS has made clear through the Policy Manual that only the Final Action Date can be used to determine and freeze the age of a child. Thus, if an I-485 application is filed pursuant to a Filing Date and the child ages out before the Final Action Date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the Final Action Date becomes available while the child’s application gets denied.

In order to avoid such an absurd and cruel outcome, I have consistently advocated that there is a clear legal basis to use the Filing Date to protect the age of a child under the CSPA. While the USCIS has not agreed, I continue to advocate that affected children can challenge USCIS’ interpretation in federal court. There may also be a basis to challenge this interpretation before an Immigration Judge and the Board of Immigration Appeals, and further before a Court of Appeals, if the applicant is placed in removal proceedings upon the denial of the I-485 application. Immigration Judges are not bound by the USCIS Policy Manual.  The USCIS Policy Manual is not law, although applicants should follow the Final Action Date for making the CSPA age calculation unless they have no choice but to challenge this interpretation.

Here is how one can argue the case for CSPA protection under the Filing Date: INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications, at least family-based under the current Visa Bulletin, can be filed under the Filing Date rather than the Final Action Date. This suggests that the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Indeed, the Visa Bulletin describes the Filing Date as  “dates for filing visa applications within a timeframe justifying immediate action in the application process.” Under this permissible interpretation, I-485 applications can be filed pursuant to  INA 245(a)(3) under the  Filing Date. There is a difference, for example, in the F2A worldwide Final Action Date in the September 2018 Visa Bulletin, which is July 22, 2016, and the F2A worldwide Filing Date, which is December 1, 2017. Thus, under the Filing Date, those with later priority dates, December 1, 2017,  can file I-485 applications even though those with an earlier priority date, July 22, 2016,  are actually eligible to receive the green card. Still, applicants who file I-485s under both the Filing Date and the Final Action Date must satisfy INA 245(a)(3), which only permits the filing of an I-485 application when “an immigrant visa is immediately available.”

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).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the Filing Date, but only the Final Action Date can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the Filing Date, the age should also similarly freeze on the Filing Date and not the Final Action Date. Now, based  on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the Final Action Date became available. These children must not hesitate to challenge USCIS’s interpretation. Government policy manuals are not the law, and when there is an erroneous interpretation, they ought to be challenged so that USCIS is forced to make the appropriate correction.

Cyrus Mehta

Suspension of Premium Processing: Another Attack On the H-1B Program

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The Trump administration has restricted the H-1B program by making it harder for employers to obtain an approval. It has done this without changing the law through Congress or amending any rule.  Routine H-1B visa petitions that were previously approvable are now subject to difficult to overcome Requests for Evidence. Even after valiantly submitting evidence to overcome an RFE, the H-B petition is more susceptible to being denied.  The USCIS has also announced that it will initiate removal proceedings in case an extension request is denied and the underlying H-1B status previously expired, further harassing H-1B workers who have remained lawfully in the United States until the point their H-1B request is denied under needless heightened scrutiny.  It is thus no surprise that businesses are loudly complaining on Labor Day that they are hurting because they are struggling to fill the jobs they need with foreign workers.

To rub further salt in the wound, USICS announced on August 28, 2018, that it was  extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. These suspensions are expected to last until Feb. 19, 2019. Premium processing service provides expedited processing for a specific list of employment-based immigrant and nonimmigrant petitions upon paying an additional fee. This list has always included the H-1B petition.

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (except for filings by certain cap exempt employers).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

The USCIS has specifically indicated that the suspension does not apply to:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
    1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
    2. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

The reasoning behind the extension and expansion of the suspension of premium processing, according to the USCIS, is to help it to reduce overall H-1B processing times by allowing it to:

  • Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
  • Be responsive to petitions with time-sensitive start dates; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

This may be the official position of USCIS, but it is no coincidence that  continuing the suspension as well as expanding it nicely fits into the administration’s objective to further restrict the H-1B visa program pursuant to “Buy American and Hire American” Executive Order No. 13788. BAHA has been deployed as a justification to restrict legal immigration for the purpose of protecting American workers. However, this rationale makes no sense in a full employment economy when businesses are hurting because they cannot hire foreign workers. Therefore, the only other possible rationale to restrict legal immigration is to advance white nationalism, which is what Trump promised and continues to promise to his base of supporters.

The extension of the previously suspended premium processing for H-1B cap cases means that employers who were expecting foreign nationals to start their jobs on October 1, 2018 may no longer be able to do so if the H-1B petition is not approved. This renders the H-1B visa program virtually useless. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery. Since USCIS received 190,098 H-1B cases earlier this year, which exceeded the maximum 85,000 H-1B visas that can be issued, more applications got rejected rather than accepted under the H-1B lottery this year. Those H-1B petitions that got selected are susceptible to receiving an RFE and a possible denial under the new heightened scrutiny policy.  Moreover,  there are many cases that have not been adjudicated since they were filed in early April 2018, and without premium processing, employers will likely not be able to hire the H-1B worker on October 1, 2018 even though the job offer was made more than six months ago and the petition is potentially approvable. Students who are working for the employer under F-1 Cap Gap Optional Practical Training will have to stop on October 1, 2018 unless the change of status request from F-1 to H-1B is approved on or before that date.

The expansion of the suspension of premium processing means that those H-1B visa holders who are changing employers will not be able to get the assurance of an approval when they make the switch. Although an H-1B worker can port to a new job without waiting for the approval, so long as the employment starts after the new employer has filed the H-1B petition and request for extension of status, both employers and H-1B workers would like the security of an approval before they start their new jobs. The expansion of the suspension of premium processing will hinder mobility of H-1B workers. This in turn will hinder competitiveness and will also inhibit skilled H-1B workers from improving career prospects and getting better compensation, resulting in an adverse impact on US competitiveness in the long run. The suspension of premium processing further feeds into the USCIS’s new removal policy. If an H-1B worker takes a chance to port to a new employer, and if that petition, along with the extension of status request, is subsequently denied after several months of delay due to lack of premium processing, this person could be at risk of receiving a Notice to Appear and will be placed in removal proceedings.

Furthermore, an employer is required to request an amendment of the H-1B petition if the worker is being sent to a new worksite that was not contemplated in the original H-1B petition. The suspension of premium processing for amending an H-1B petition also creates further uncertainty as to the fate of the amendment request that may be challenged and denied under the heightened scrutiny being given to such petitions under the Trump administration.

The only saving grace is that premium processing has not been suspended for extension requests with the same employer. Still, caution is advised since premium processing is only allowed if  box 2.b in Part 2 relating to “Continuation of previously approved employment without change with the same employer ” is checked. If box 2.c is checked – “Change in previously approved employment” – then premium processing will not be allowed. The instructions to Form I-129 state that box 2.c should be checked when there is a non-material change in the employment such as a change in job title but without a material change in duties. There are bound to be non-material changes to the job duties, including salary increases, at the time of filing any H-1B extension request.  Till now, USCIS has not paid close attention to whether box 2.b or 2.c is checked, since a non-material change in the job could still be considered  a “[c]ontinuation of previously approved employment.” Otherwise, if the change was material, then an amendment must have been filed prior to the expiration of the H-1B validity period.  However, as a commentator to this blog has astutely suggested,  one can now expect the Nebraska Service Center to pay closer attention to these meaningless distinctions in order to play “gotcha” and deny premium processing if 2.b rather than 2.c was checked. It is hoped that the NSC will consider non-material changes as a continuation of previously approved employment, but one should not bank on reason these days when the mindset of the Trump administration is to restrict immigration!    Cap exempt employers can also avail of premium processing, but they are few in comparison to the overall population of employers who file H-1B petitions. Premium processing for other visa categories has not been suspended. While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. However, USCIS very grudgingly accepts expedited requests.

The USCIS has been suspending premium processing with greater frequency in recent times. It did so last on April 3, 2017 and resumed it again on September 18, 2017. USCIS again suspended premium processing for H-1B cap cases on April 2, 2018, and has now extended the suspension to February 11,  2019, in addition to expanding the suspension to other types of H-1B filings. Premium processing generates fees, which can result in more transformation through efficiency, and so by suspending premium processing USCIS is killing the goose that lays the golden egg. The USCIS wants to process other cases more quickly, but it would make more sense to accept premium processing so that it can add more staff to process all cases as efficiently as possible. Ironically, USICS has also announced an increase in the premium processing fee from $1225 to $1410. The justification for this increase is that it “represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.” Thus, this increase is to keep up with inflation rather than generate revenues, and USCIS will still lose revenues as a result of the suspension of premium processing for many types of H-1B filings.

If the USCIS excessively delays the adjudication of H-1B visa petitions due to lack of premium processing, one possible solution is to file mandamus actions to compel the USCIS to make a decision. If the administration is faced with thousands of such actions, it will realize that it is less costly to process cases quickly, and even restore premium processing completely, rather than get bogged down in a deluge of mandamus actions against it.

 

David Isaacson

Jaen v. Sessions: The Second Circuit Reminds Us That Government Manuals Aren’t Always Right

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For many years, the policy guidance of the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) has required that a child show a biological relationship with a U.S. citizen parent in order to acquire U.S. citizenship from that parent.  Initially, this meant a genetic relationship; recently, an exception was made for gestational mothers who were recognized as the legal mothers of the children to whom they gave birth even if they had used a donor egg to do so, but the government continued to insist that some biological relationship was required in order for a child to acquire citizenship at birth from a parent recognized as such by applicable local law.  The Court of Appeals for the Second Circuit, in its decision issued last week in Jaen v. Sessions, has now become the second Court of Appeals to point out that this policy has no basis in the Immigration and Nationality Act.  Rather, under the law, a U.S. citizen who is a parent of a child as a result of marriage can also pass along U.S. citizenship to that child.

Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland.  According to Levy Jaen’s Panamanian birth certificate, however, his father was another man named Liberato Jaen.  Levy Jaen was initially raised by his grandparents in Panama, but then came to the United States on a nonimmigrant visa at age 15, in 1988, and lived here with the Boreland family.

After Levy Jaen was convicted of controlled substance violations in 2008 and 2014, Immigration and Customs Enforcement (ICE) sought to remove him from the United States.  He moved to terminate the proceedings in 2016 on the basis that he was a U.S. citizen, but the Immigration Judge (IJ) in his case denied the motion and the Board of Immigration Appeals (BIA) affirmed.  He remained detained as a purported non-citizen until April 13, 2018, when the Second Circuit granted his petition, ordered his release, and indicated that an opinion would follow.

In its opinion, the Second Circuit held that Jaen had acquired U.S. citizenship at birth from Jorge Boreland, his U.S. citizen parent, under former INA § 301(a)(7), 8 U.S.C. § 1401(a)(7).  That provision is similar to current INA § 301(g), except that it required a different period of physical presence in the United States prior to the birth by the U.S. citizen parent (then ten years, at least five of which had to be after the age of fourteen, as opposed to the current requirement of five years, at least two of which have to be after the age of fourteen).  Like current INA § 301(g), former 301(a)(7) referred to one “born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States”.

The government had sought to interpret this language as referring only to biological “parents”.  As the Second Circuit pointed out, however, the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth.  As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father.  Jaen, slip op. at 13 & n. 5.  This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes even if it were not also the case, as it was, that he would have been recognized as Levy Jaen’s father under New York law.

The government urged the Court of Appeals to follow the guidance in the DOS Foreign Affairs Manual (FAM) and USCIS Policy Manual, which required biological parenthood to qualify as a “parent”.  But as the Second Circuit noted in a footnote, those internal guidance manuals are not entitled to Chevron deference.  Jaen, slip op. at 11-12 n.4.  Nor did the Second Circuit evidently find them persuasive.

As the Second Circuit observed, it was not the first Court of Appeals to hold that the father by marriage of a child need not have a biological link to that child in order to transmit U.S. citizenship to that child.  The Ninth Circuit had held to the same effect in Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000).  Indeed, the Ninth Circuit in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), extended this holding to cover a man whose U.S. citizen mother was not his biological mother but had been married to his biological father at the time of his birth.  (It remains to be seen whether the Second Circuit’s holding in Jaen will be extended in the same way, as the Second Circuit did not have occasion to address this fact pattern.)

Although the Second Circuit’s decision did not “break . . . new ground” in finding Jaen to be a citizen through his U.S. citizen parent Jorge Boreland, Jaen, slip op. at 19, the government had nonetheless detained Jaen for nearly two years while the proceedings were ongoing.  Judge Pooler filed a separate concurring opinion in which she noted that she was troubled by this, as well as by the government’s decision to seek summary affirmance of the IJ’s erroneous decision that Jaen was not a U.S. citizen.  It appears that the government may have been blind to the possibility that its internal manuals were legally incorrect.

In a world where USCIS and DOS decisions often cite to the USCIS Policy Manual, the USCIS Adjudicator’s Field Manual (now gradually being replaced by the Policy Manual), or the  DOS Foreign Affairs Manual, it can be easy to forget that those guidance manuals are not the law.  While it can be appropriate to hold the agencies to the terms of their published manuals when those terms are advantageous, it is not appropriate to assume that an adverse statement of the law in an agency manual is necessarily accurate.  When USCIS or DOS get the law wrong in their manuals, federal courts can and will step in to correct them.  But this will only happen if attorneys, and their clients, ask the federal courts to do so.

 

Cyrus Mehta

USCIS Finalizes Unlawful Presence Policy Putting F, J And M Nonimmigrants In Great Jeopardy

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The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1).

Prior to August 9, 2018,  foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the policy memo, the USCIS officer should consider information relating to the alien’s immigration history, including but not limited to:

  • Information contained in the systems available to USCIS;
  • Information contained in the alien’s record; and
  • Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny, if any.

The final policy purports to make one concession from the draft policy, which is that if a nonimmigrant in F, J or M nonimmigrant classification makes a timely filing for reinstatement of status, then unlawful presence will not accrue during the pendency of this request. In the case of students in F-1 status, a reinstatement application will be considered timely filed if the applicant has not been out of status for more than 5 months at the time of filing for a request for reinstatement under 8 CFR § 214.2(f)(16).  If the reinstatement request is approved, then the period of time an F-1 nonimmigrant was out of status prior to filing the application, along with the period of time during the pendency of the request, will not be counted as unlawful presence. If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Unfortunately, most students may never know that they fell out of status until it is too late and they may never have an opportunity to file for reinstatement. Students will also likely be found to have violated status if they pursued practical training that is perceived as not being consistent with the regulations.

Esteemed colleague and immigration law expert Stephen Yale-Loehr has compiled a list of 50 examples how an international student might inadvertently or unknowingly fall out of status and start to accrue unlawful presence under the new guidance. Many of these examples arise from mistakes by the school.  For instance, a designated school officer (DSO) may mistakenly complete a record, which will indicate to a USCIS officer that the student has remained in the United States beyond the end date of the program, and may have also worked on campus in violation of F-1 status. Status violations can also result from inadvertent miscommunications between school officials. An undergraduate student receives permission from an academic advisor (but not the DSO) to drop a course. The student is now registered for 11 rather than 12 semester credit hours. Later, the USCIS deems her to be in violation of status and accruing unlawful presence.

The USCIS has already begun to lay traps in order to nab students who may have unwittingly violated status. Recent RFEs issued after the filing of a change of status request from F-1 to H-1B require a student to meticulously demonstrate that he or she maintained status during post-completion practical training, including proving that the student was not unemployed for more than the requisite amount of time. The student must also prove that the employment, including an unpaid internship, was related to the major field of study.  Here is one example inquiring whether a student maintained status during a routine period of optional practical training:

F-1 OPT: Students engaging in initial F-1 post-completion Optional Practical Training (OPT) may not accrue an aggregate of more than 90 days off unemployment during the initial post-completion OPT period. Students granted the 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total OPT period including any initial OPT and the 17-month OPT extension. Students granted the 24-month OPT extension may not accrue an aggregate of more than 150 days of unemployment during the total OPT period including any initial OPT and the 24-month OPT extension. Further, students engaging in F-1 post-completion must engage in at least 20 hours or more per week of employment that is directly related to the student’s U.S. major of study. Lastly, unpaid internships may meet the OPT employment requirements if the internship is directly related to the student’s U.S. major of study and the internship complies with all labor laws. Please provide evidence that the beneficiary maintained the beneficiary’s F-1 status during post-completion OPT. Evidence may include but is not limited to the following:

-A list of all employers the beneficiary has worked for under post-completion OPT and the periods the beneficiary worked for those employers;

-Copies of all pay records/stubs for the beneficiary from the starting date of post-completion OPT to the present time; and

-Evidence that the beneficiary worked at least 20 hours or more per week in a position is directly related to the beneficiary’s U.S. major of study.

Similarly, maintaining status through Curricular Practical Training (CPT) is frequently challenged in RFEs by asking for evidence that the CPT was an integral part of the beneficiary’s degree program. The regulation at 8 CFR § 214.2(f)(1)(i) leaves undefined “curricular practical training program that is an integral part of an established curriculum” thus leaving it open for a subjective interpretation.  Also, where the CPT commenced immediately upon the student’s enrolment in the program, the USCIS questions whether immediate participation in CPT was required for the beneficiary’s studies.

A student can also be found to have violated status due to an ambiguity in the rules providing for the maximum amount of time in practical training. 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. 8 CFR § 214.2(f)(10)(i) further provides that “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” This could be interpreted to mean that a student can receive more than one year of CPT, and such CPT is routinely granted by DSOs through the SEVIS system that is administered by ICE. But USCIS is now interpreting this to mean that the total time that a student is entitled in any sort of practical training is 12 months even though ICE, its sister agency, authorized more than 12 months of CPT. USCIS is disregarding the suggestion in 8 CFR § 214.2(f)(10)(i) that a student may be entitled to more than 12 months of CPT.

Upon receiving such an RFE, it is important to submit evidence to overcome USCIS’s doubts. Still, it may be difficult to challenge USCIS’s interpretation that the regulation at 8 CFR § 214.2(f)(10) only authorizes a total of 12 months of practical training, even though 8 CFR § 214.2(f)(10)(i) appears to suggest that CPT can be granted in excess of 1 year. It may also be difficult to demonstrate to the USCIS’s satisfaction that the CPT was an integral part of an established curriculum. If the request for a change of status is not granted, the F-1 nonimmigrant would have started accruing unlawful presence as of August 9, 2018. In the event of the student departing later than February 5, 2020, he or she will be barred from entering the US for 3 years. After February 5, 2020, there will be no such grace period, and prior status violations that were in excess of 180 days will result in 3 year or 10 year bars to reentry upon the student departing the United States. The student may not be able to change or adjust status in the United States, and thus will be caught in a federally imposed Catch-22 situation.

The unlawful presence policy compounds the plight of the nonimmigrant who may also receive a Notice to Appear and be placed in removal proceedings under yet another USCIS policy designed to make life more difficult for law abiding nonimmigrants. Some are deciding to withdraw the request for change of status, upon receiving difficult to overcome RFEs, and leave the United States, prior to February 5, 2020, so that they can process their H-1B visas at a US consulate abroad. While such a strategy may allow the applicant to escape being issued a Notice to Appear, it could cause issues at the US consulate where a consul may still want the applicant to justify whether the CPT program was bona fide. On the other hand, if the applicant is placed in removal proceedings, and if voluntary departure is issued by an Immigration Judge prior to the accrual of unlawful presence of one year or more, then there is an escape hatch pursuant to INA § 212(a)(9)(B)(i)(I). The 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence (as there is explicit language to this effect in the provision). If the voluntary departure order is issued after 1 year of unlawful presence,  then the ten-year bar would trigger under INA § 212(a)(9)(B)(i)(II) would apply. There is no escape hatch to the 10 year bar as there is to the 3 year bar whilst in removal proceedings. Further ethical and strategic considerations regarding representing beneficiaries of denied requests in removal proceedings can be found in my blog here.

The final policy will not just cause havoc to nonimmigrants snared with technical or perceived violations of status, but schools will also face liability for errors by DSOs. Challenging the policy in federal court is indeed the need of the hour, and there is an urgent need for universities, hospitals and research institutions to come forward as plaintiffs! The 3 and 10 year bars, or the permanent bar under INA § 212(a)(9)C), are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under INA § 212(a)(9)(B)(ii), which provides:

“…an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The new policy blurs the difference between being out of status and unlawfully present, and thus violates INA § 212(a)(9)(B)(ii). If the USCIS wanted to so radically change its prior interpretation of unlawful presence for F, J and M nonimmigrants, it ought to have promulgated a rule through a more formal notice and comment under the Administrative Procedure Act. Finally, the policy violates the due process rights of these nonimmigrants as it imposes draconian penalties, 3 and 10 year bars, for status violations for which they never received formal warning and notice. All these are ripe grounds, among many others, for a successful challenge to this flawed policy in federal court!

 

Cyrus Mehta & Sophia Genovese

Administrative Review Versus Judicial Review When an Employment-Based Petition Is Denied

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Under the Trump administration, there have been an increasing number of denials of employment-based petitions, especially of H-1B visas. To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program, and indeed, all legal immigration. It does not matter that employment-based visas help facilitate American competitiveness globally by attracting worldwide talent, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. Rather, the administration continues to attack all pathways to legal immigration under its misguided America First philosophy.

The stakes for an approval have become even higher, as USCIS recently announced that it will “issue an NTA [Notice to Appear] where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” In yet another recent policy, USCIS instructs adjudicating officials to deny applications based on the lack of “sufficient initial evidence” without the issuance of an RFE or notice of intent to deny. This could be subjectively viewed as resulting in more denials followed by NTAs.

Upon the USCIS Service Center denying an employment-based petition, the petitioner may file Form I-290B, Notice of Appeal or Motion in order to appeal to the Administrative Appeals Office (AAO) within 30 days (plus 3 days if received in the mail) of the decision. Alternatively, the petitioner may request a motion to reopen or a motion to reconsider or both with 33 days of the decision. The petitioner may also opt to seek judicial review in federal court without going to the AAO. In addition, a petitioner may also wish to re-file the petition, which may at times be the best strategy. However, the re-filing option may not always be available, such as when the H-1B cap for the fiscal year has already been reached or the beneficiary’s nonimmigrant status has ended and consular processing would be problematic for whatever reason.

This blog will discuss the advantages and disadvantages of administrative review over judicial review.

Advantages of Seeking Administrative Review

Filing Form I-290B is more administratively convenient, efficient and less costly for the client. If the USCIS has made an obvious error, requesting that the USCIS either reopen or reconsider or do both may be an effective and simple strategy. For example, if an H-1B is erroneously denied without an RFE or NOID, and it was clearly an error, the filing a motion to reopen may make more sense over judicial review.

In the event that the petition has been denied on substantive grounds, filing an appeal to the AAO allows one to supplement the record by providing additional evidence such as a more detailed expert evaluation. The process is less formal than going to federal court. Writing the brief in support of the appeal or motion is an extension of what was already said in the response to the Request for Evidence prior to denial, although the new brief must make new and creative arguments to overcome the denial.

Even when the intention is to file an appeal on Form I-1290B, the official who made the initial decision, according to agency regulation, will first review the appeal and determine whether to take favorable action and grant the benefit request. This process is called “initial field review.” Thus, every appeal is first treated as a motion to reopen or reconsider. There are many occasions where a case based on an egregious denial can be reopened and reversed without going through the AAO.

There is nothing to lose and a chance of a favorable result – the AAO could either outright reverse a denial or remand back to the USCIS Service Center, which in turn, could issue another RFE. If the AAO dismisses the appeal, one can still seek review in federal court.

Disadvantages of Seeking Administrative Review

The success rate at the AAO is very low. In FY2017, with respect to H-1B petitions, the AAO dismissed 598 appeals, sustained only 22 and remanded 44. With respect to L-1 petitions, the AAO dismissed 181 appeals, sustained only 15 and remanded 6.

The process is also not expeditious. If the beneficiary is already in the US and does not have another underlying nonimmigrant status, he/she will start accruing unlawful presence for purposes of triggering the 3/10 year bar upon the denial of the request for change or extension of status. If the individual’s appeal is not successful after 180 days of unlawful presence have accrued, the beneficiary will be subject to the bars upon departing the US.  (If the individual’s appeal is successful, any related application for change of status or extension of stay is likely to be reopened on Service motion following the granting of the petition, but one cannot know for sure in advance whether this will happen.)

The AAO may not just affirm the USCIS denial, but may also improve upon it by providing better reasoning or even affirming for different or additional reasons. This would render it more difficult to seek judicial review.

Advantages of Seeking Judicial Review

The case is reviewed by a judge who is not part of the USCIS and is not influenced by its prevailing policy as an adjudicator within the AAO is.

There may also be an opportunity to have the case resolved with an Assistant US Attorney who may advise his/her client, the USCIS, to reverse the decision rather than fight it out in court.

If the plaintiff prevails, the attorney may seek fees under the Equal Access to Justice Act.

One can ask for extraordinary remedies through a preliminary injunction (or temporary restraining order followed by a preliminary injunction) to maintain the nonimmigrant status of the beneficiary during the pendency of the matter, or at least prevent the beneficiary from accruing unlawful presence during the pendency of the matter.

Moreover, if an NTA is issued upon the denial of petition, then one potential advantage in federal court litigation is to ask the court in the preliminary injunction to restore the status of the beneficiary, which could then be grounds for termination of the removal proceedings. It should be noted that business immigration attorneys will also need to either hone in or develop their litigation skills for beneficiaries who are placed in removal proceedings, which was discussed in our previous blog, “Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy.” Attorneys will need to simultaneously navigate the removal process while challenging the denial of the underlying petition.

In a few cases, the beneficiary has been able to establish standing as a plaintiff in litigation involving nonimmigrant visas. See e.g., Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016). In the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

Disadvantages of Seeking Judicial Review

Seeking judicial review can be far more expensive and time consuming. In addition, a federal court may exercise a more deferential standard, where under the Administrative Appeal Act (APA) a denial may be set aside only if  it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002). Factual findings may be set aside by a federal court only if “unsupported by substantial evidence”—which is not quite the same thing as review for “clear error” as in appellate review of a lower court’s fact-finding, but is still far from de novo review. See 5 U.S.C. § 706(2)(E); Dickinson v. Zurko, 527 U.S. 150 (1999).  The AAO, on the other hand, can undertake a de novo review of all issues of fact, law, policy, and discretion, and can also address new issues that were not addressed in the prior decision. See AAO Practice Manual, Chapter 3 Appeals.

New evidence cannot be introduced into the record.

Some employers also fear government retaliation, although this may be anecdotal and not necessarily official policy. Employers also are shy about unwanted publicity when they become plaintiffs.

The stakes have never been higher for employment-based immigration. With the very real threat of deportation looming, practitioners and employers alike must weigh the benefits and risks with any of these options when seeking review of a denial. For some, a motion to reopen and reconsider may be sufficient for a more obvious error. Others may wish to resolve a recurring, systemic issue by seeking judicial review in a district court. Regardless, it is clear that the role of the immigration practitioner, especially those practicing business immigration, must be prepared to increasingly litigate these petitions in order to prevent further carnage of the existing immigration system.

Sophia Genovese

“Vague Laws Invite Arbitrary Power”: Making the Case for Crimes Involving Moral Turpitude Being Void for Vagueness

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The Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) dramatically held that one aspect of the crime of violence definition contained within the aggravated felony provision of the Immigration and Nationality Act (INA) was unconstitutionally vague. An aggravated felony conviction can result in a non-citizen’s swift removal from the United States, and thus the Supreme Court’s decision in Dimaya provided much needed respite to non-citizens who have been charged with removability under the vague clause of the residual clause in the crime of violence provision. This led one to question whether a crime involving moral turpitude (CIMT) could similarly be challenged for being impermissibly vague under the Supreme Court’s reasoning in Dimaya.

Unfortunately, on July 17, 2018, the Ninth Circuit in Martinez-de Ryan v. Sessions denied a petition for review of a foreign national’s denied application for cancellation of removal based on a finding that she had committed a CIMT. No. 15-70759 (9th Cir. 2018). The Ninth Circuit rejected the Petitioner’s arguments that the phrase ‘crime involving moral turpitude’ is unconstitutionally vague, and distinguished the Supreme Court’s decisions in Dimaya and its predecessor, Johnson v. United States, 135 S. Ct. 2551 (2015). The relevant aggravated felony provision in Dimaya was the residual clause of the crime of violence definition at 18 U.S.C. § 16(b), which provides that “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”. The relevant provision in Johnson was the residual clause of “violent felony,” as defined by 18 U.S.C. § 924(e)(2)(B), in the Armed Career Criminal Act, which similarly provides that a violent felony is one that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court found in each respective case that the residual clauses created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Dimaya at 1213; Johnson at 2557. The residual clauses had resulted in reliance upon judge’s “guesswork and intuition,” and “fail[ed] to give ordinary people fair notice of the conduct it punishes,” which invited “arbitrary enforcement” by judges. Johnson at 2557. Such arbitrary enforcement, the Court held, was determinative of impermissible vagueness.

Instead of following Dimaya and Johnson, the Ninth Circuit in Martinez-de Ryan found that it should follow precedent in Jordan v. DeGeorge, 71 S. Ct. 703 (1951) (finding that “whatever else the phrase … may mean,” crimes involving fraud “have always been regarded as involving moral turpitude”) and its Ninth Circuit corollary decision, Tseung Chu v. Cornell, 247 F.2d 929 (1957), which came after the enactment of the 1952 Act (which slightly changed the wording of the CIMT provision from the 1917 Act which controlled in DeGeorge). Though acknowledging that Johnson and Dimaya “cast some doubt on [DeGeorge’s] general reasoning,” the Ninth Circuit nevertheless reasoned that Johnson and Dimaya dealt with residual clauses, whereas the definition of CIMTs are “tethered to common law principles.” Martinez-de Ryan, at *2.

It is unclear what the Ninth Circuit means when it states that CIMTs are tethered to common law principles. The impermissible vagueness of CIMTs are evident in courts’ ongoing failure to establish a consistent framework to evaluate whether a crime involves ‘moral turpitude,’ and inconsistent outcomes when dealing with the same crimes. In Johnson, the court acknowledged that the failure of persistent efforts to establish a legal standard can provide evidence of vagueness. 135 S. Ct. at 2558 (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 91 (1921)). As applied to CIMTs, the persistent failure to delineate a clear analytical framework that apprises people of common intelligence, and indeed learned judges, of its meaning is a clear indication of unconstitutional vagueness.

Courts have attempted to define moral turpitude in varying degrees, typically with reliance on Black’s Law Dictionary, which currently defines the phrase as:

…shameful wickedness — so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people.

MORAL TURPITUDE, Black’s Law Dictionary (10th ed. 2014); see also, e.g., United States v. Smith, 420 F.2d 428, 431 (5th Cir. 1970). The Board of Immigration Appeals (BIA) has added that a CIMT is “per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). The varying definitions of moral turpitude in case law are as vague as the phrase itself.

These open-ended definitions have led to inconsistent application by judges, where they must rely upon their own biases, or on precedent decisions where other judges have relied upon their own biases, to determine what is morally reprehensible. In his powerful dissent in DeGeorge, Justice Jackson declared that “uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds,” not on the whims of judges. DeGeorge, at 242.  He similarly rejected the malum in se versus malum prohibitum distinction, stating that “this classification comes to us from common law, which in its early history freely blended religious conceptions of sin with legal conceptions of crimes.” Id. at 237. Even accepting the government’s contention in DeGeorge that these crimes ought to be “measured against the moral standards in contemporary society,” we would see uneven application throughout the country and overtime. Id. Justice Jackson concluded that “irrationality is inherent” when creating case law based on fluid morality, as opposed to finite statutory meaning. Id. at 239.

In future challenges to the CIMT provision, practitioners can point to various inconsistencies as evidence of arbitrary enforcement, and hence, vagueness. For example, some courts have treated 18 U.S.C. § 1001 (false statements) as a CIMT (see, e.g., Ghani v. Holder, 557 F.3d 836 (7th Cir. 2009)), and others have not (see, e.g., Hirsch v. Immigration & Naturalization Serv., 308 F.2d 562 (9th Cir. 1962)). Similarly, some courts have treated certain money laundering crimes as a CIMT (Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007), holding that the intentional use of monetary instruments to conceal or disguise proceeds of any crime was a CIMT), and others have not (Goldeshtein v. I.N.S., 8 F.3d 645 (9th Cir. 1993), holding that structuring financial transactions to avoid currency reporting was not a CIMT). Admittedly, the arbitrary and inconsistent enforcement argument is difficult to make when it comes to crimes involving fraud (see, e.g., Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007), holding that trafficking of counterfeit good, even absence of an intent to defraud, is a CIMT; see also, Planes v. Holder, 652 F.3d 991, 997-98 (9th Cir. 2011), stating “the longstanding rule that crimes that have fraud as an element” are CIMTs), and in the case of Ms. Martinez-de Ryan, bribery of an official under 18 U.S.C. § 666(a)(2) (see also, Matter of V-, 4 I&N Dec. 100 (BIA 1950), holding that attempted bribery was a CIMT).

Practitioners can also point out that the INA includes specific criminal grounds for deportability and inadmissibility, including the failure to register as a sex offender, domestic violence, stalking, and child abuse, and defines what each of those crimes mean. Congress has failed to similarly define what is meant by moral turpitude, allowing courts to unevenly apply CIMT analyses, rendering some folks removable/inadmissible and others not, despite being found guilty of committing the same crimes. In Dimaya, Justice Gorsuch in his concurring opinion wrote that “[v]ague laws invite arbitrary power.… Today’s vague laws… can invite the exercise of arbitrary power… by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” 138 S. Ct. at 1223 (2018) (concurring in judgment). Without a precise definition of a CIMT, one can argue that such vagueness invites judges to make the law up according to their own biases, resulting in the erroneous removal of non-citizens.

The Ninth Circuit’s decision in Martinez-de Ryan v. Sessions is not the end of the road for finding a CIMT unconstitutionally vague. Although the Ninth Circuit followed a Supreme Court precedent in DeGeorge, Dimaya and Johnson have cast some doubt on its general reasoning. Specifically, in light of Dimaya and Johnson, one can argue that the vagueness of the CIMT definition has resulted in reliance upon judge’s “guesswork and intuition,” and has failed “to give ordinary people fair notice of the conduct it punishes,” resulting in arbitrary enforcement by judges. Dimaya at 1223 (citing to Johnson at 2557). Those who are unable to apply for relief because they have been found to have either been convicted of or have admitted to a CIMT must continue to litigate in other circuits until a CIMT is also rightfully found to be unconstitutionally vague.

 

(The author thanks Cyrus Mehta for his considerable assistance in writing this blog)

Cyrus Mehta

Heightened Ethical and Strategic Considerations for Business Immigration Attorneys Under USCIS’s New Removal Policy

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U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, PM-602-0050.1,  that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS notes  that its officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Although it has always been possible for the USCIS to issue an NTA when an applicant is denied a benefit, it has generally not done so in the past for a number of sensible and practical reasons. Many applicants choose to leave the United States on their own upon the denial of the benefit, or delay their departure, if they legitimately seek to appeal the denial or seek reconsideration. It therefore makes no sense to further burden the already overburdened immigration courts with new cases, especially involving people who may already be departing on their own volition.

While David Isaacson’s  excellent blog “Another Brick in the (Virtual) Wall: Implications of USCIS’s Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present” gets into the implications behind the new policy, including its malicious intent, as “the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision,”  I highlight some of the ethical considerations for attorneys arising under the new NTA policy.

As denials of H-1B extension requests have been happening more frequently under the Trump administration, I will use the H-1B to illustrate some of the ethical conundrums that may arise. Routine requests that were previously approved for H-1B occupations such as systems analyst or financial analyst are now frequently being denied. The new policy exacerbates this problem by now requiring that an NTA be issued upon the denial of such a request and the prior H-1B status has expired.  Sure enough, the USCIS policy does not change any law. Prior to the issuance of the policy, attorneys representing an employer and an employee in a request for an extension of H-1B status were mindful of the consequences when an H-1B extension request was denied. The issuance of an NTA has always been factored in as a worst case scenario in the event of a denial.  But now this will become a new reality and no longer a theoretical possibility. Petitioners should consider filing extension requests on behalf of the beneficiary well in advance of the expiration date of the underlying status – the law allows one to so up to six months prior- and should also consider doing so via premium processing.  In the event that the extension request is denied, it will happen while the beneficiary is still in status thus obviating the NTA.

The H-1B worker is considered unlawfully present when the request for an H-1B extension is denied, and the prior H-1B status has already expired. The issuance of an NTA does not stop the accrual of unlawful presence, and it is now important to deal with unlawful presence in the context of a removal proceeding.  Any accrual of unlawful presence that exceeds 180 days will trigger a 3 year inadmissibility bar under INA 212(a)(9)(B)(i)(I) once the individual departs the United States prior to the commencement of removal proceedings. If this individual accrues one or more than one year of unlawful presence and then departs the United States, she or she will be inadmissible for 10 years. Attorneys have been mindful of this eventuality especially when the employer chooses to appeal the decision or file a motion to reopen or reconsider. In the event that the decision is not rendered prior to the accrual of 180 days of unlawful presence, and the foreign national still remains in the United States beyond 180 days and then departs, in the event of an unfavorable decision, he or she will be precluded from reentering the United States for a 3 year period.

A business immigration attorney who may understandably not be knowledgeable about the ins and outs of a removal proceeding will need to come up to speed. After all, one of the cardinal ethical obligations of an attorney is to competently represent the client. Under ABA Model Rule 1.1 “a lawyer shall provide competent representation to a client.” The model rule goes on to state, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [While this blog will refer to ABA Model Rules,  attorneys must refer to their own state bar rules of ethical conduct that are analogous to the ABA Model Rules].  One way for an attorney to become competent is to associate with a lawyer who is competent in the removal matters. Alternatively, the lawyer who chooses to restrict her expertise to business immigration, thus limiting the scope of representation under ABA Model Rule 1.2(c), may refer the matter out to another competent lawyer who knows removal proceedings when the NTA is issued.

Once removal proceedings have been instituted, the foreign national may no longer leave even if he wants to. Moreover, the first master calendar hearing is scheduled after several weeks or months.  Indeed, it is becoming more obvious that the goal of this Trump Administration is to harass non-citizens in light of yet another more recent policy that gives authority to USCIS officials to deny applications based on lack of “sufficient initial evidence” without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials followed by NTAs. If the foreign national leaves in the middle of the proceeding, it would trigger a new ground of inadmissibility under INA 212(a)(6)(B), which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”

If the foreign national remains in the US and receives a removal order, it would trigger a ten year bar to inadmissibility under INA 212(a)(9)(A) after the individual leaves pursuant to this order. It may be worthwhile for the attorney to stave off a removal order, and instead try to get the Immigration Judge (IJ) to issue a voluntary departure order. If voluntary departure is issued prior to the accrual of unlawful presence of one year or more, then under INA 212(a)(9)(B)(i)(I), the 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence. If the voluntary departure order is not issued prior to the 1 year period then the ten-year bar for one year of unlawful presence under INA 212(a)(9)(B)(i)(II) would apply. Due to immense backlogs in the immigration courts, there is a good likelihood that an IJ may not be able to get to the matter timely and could end up issuing a voluntary departure order after the accrual of one year of unlawful presence. Thus, an attorney representing such an individual in removal must creatively strategize to ensure that a voluntary departure order is rendered before the 1 year mark.

While the lawyer has been used to contesting the denial of an H-1B, it now has to also be done in the context of a removal proceeding. An IJ has no jurisdiction to hear an H-1B petition denial in a removal proceeding, and the denial must still be appealed to the AAO or through a motion to reopen or reconsider or potentially even challenged in federal court. While the denial is being appealed, it is important to try to seek a continuances in the event of another meritorious pending benefits application under Matter of Hashmi and Matter of Rajah.  In the event that the denial is overturned, and the foreign national is still in removal proceedings, one can seek to terminate removal proceedings. Under Matter of Castro-Tum recently decided by AG Sessions, an IJ can no longer administratively close a case thus overruling Matter of Avetisyan. However, it may still be possible to terminate based on a joint motion with the government’s attorney, but the ability to for the government attorney to exercise such discretion has also been limited.  Note that Attorney General Sessions is also seeking to overturn Hashmi and Rajah, but until that happens one can seek a continuance for good cause based on a pending meritorious application at the USCIS.    If the foreign national has already left, presumably under a voluntary departure order and has not triggered any ground of inadmissibility, he or she may be able to return if the denial is overturned, or if the appeal is not pursued or is unsuccessful, it may be prudent to re-file the H-1B petition, and have the individual return on a visa pursuant to the approval of the new petition.

All this raises another important ethical consideration – conflicts of interest. Most immigration attorneys represent both the employer and the employee as there is always a common goal, which is to obtain the visa benefit.  Still, there is always potential for a conflict of interest in the event that the employer wishes to terminate the employment or the employee wishes to quit and seek greener pastures elsewhere.  Under ABA Model Rule 1.7(b), notwithstanding the possibility of a conflict of interest, a lawyer may represent both clients if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the clients have provided informed consent, confirmed in writing. The possibility of the foreign national being placed in removal proceedings heightens the potential for a conflict of interest. Will the employer client still be willing to hold out the job offer for the employee during a long drawn out removal hearing? In the event that the employer pulls out, then will the attorney be able to continue to represent the employee who is in removal proceedings or would this matter need to be referred out to another attorney and thus limit the scope of the representation under ABA Model Rule 1.2(c)? All these considerations need to be discussed preferably in advance between the employer and the employee. It may be possible to craft conflict waivers and get informed consent that would allow the attorney to deal with all these contingencies, including representation in removal proceedings.

The very issuance of the NTA will cause other problems. At the denial of the H-1B request, the USCIS could potentially serve the NTA on the attorney who is the attorney of record on the notice of entry of appearance that was submitted with the H-1B request. If the attorney represents both the employer and the foreign national employee in the H-1B matter, the attorney must at least notify the employee, although the attorney has no obligation to appear at the master calendar hearing. The attorney may need to explain what the master calendar hearing is, though.  This is akin to being counsel in a lower court and receiving an appealable unfavorable decision: the existing counsel may not have to do the appeal, but would have to advise the client of the possibility so they can retain someone else to do the appeal if they want. In a case where the attorney only represents the employer, but receives the NTA on behalf of the foreign national employee, it would still be prudent to inform the employee.  Of course, if the NTA is served on an attorney who has not yet made an appearance on behalf of the respondent in immigration court and not the respondent, that would be a basis to terminate a removal proceeding or to vacate an in absentia order. However, the attorney handling the H-1B matter must still advise the beneficiary upon receipt of an NTA and forward the NTA to the beneficiary and advise her to seek independent counsel if the H-1B attorney will not represent the beneficiary in the removal proceeding or may be conflicted from doing so.

In the event that the H-1B worker has already departed the United States prior to the issuance of the NTA, it can be clearly argued that jurisdiction does not vest when an NTA is issued when the foreign national is not present in the United States. INA 240(c)(3)(a) provides that “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA  237(a) refers to “[a]ny alien (including an alien crewman) in and admitted to the United States may be removed.” Since the former H-1B worker is not in, and admitted to, the United States, she cannot fall under the literal text of the‎ statute and, thus, is not deportable.

It remains to be seen whether the USCIS will be able to fully implement the NTA policy or whether this is just a wish list of the Trump administration. If the new policy is implemented as intended, an already overburdened immigration court system will face even further backlogs. Attorneys must be aware of the various heightened ethical and strategic considerations in representing a client who has received an NTA after a denial and this blog is an attempt to provide a preliminary overview.

 

 

 

 

 

 

Cyrus Mehta & Sophia Genovese

Threading the Needle: Challenging Trump’s Travel Ban Despite Trump v. Hawaii

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On June 26, 2018, the US Supreme Court in a 5-4 decision in Trump v. Hawaii upheld President Trump’s travel ban against seven countries, the majority of which are predominantly Muslim. Chief Justice John Roberts, in writing the 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 the Executive Order to be neutral on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution. Still, ironically, the majority made reference to Korematsu v. United States, 323 U.S. 214 (1944) as a result of Justice Sonia Sotomayor referencing this decision in her powerful dissent. She found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy.

The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel ban, it is not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

The irony here is that although the majority found that the motivation behind the executive order that resulted in the internment of Japanese-Americans was gravely wrong and has no place in law under our Constitution while Trump’s travel ban is facially neutral, the ban has resulted in the tragic and forced separation of families from the banned countries. It has also prevented the future entry of skilled people from these countries. For instance, if a US citizen sponsors a parent of Iranian nationality, that parent can never immigrate to the United States under the travel ban. The same prohibition would be applicable to a spouse who is an Iranian national who is the beneficiary of an approved I-130 petition filed by her US citizen spouse. While there are supposedly waivers for entry, as Justice Breyer in his separate dissent observed, the Government “is not applying the Proclamation as written,” where the Secretaries of State and Homeland Security have failed to issue guidance to consular officials on the issuance of waivers, and where only 430 waivers have been issued in total, representing “a miniscule percentage of those likely eligible for visas.” Justice Breyer points to a particularly egregious example of a travel ban waiver denial of a child with cerebral palsy from Yemen to demonstrate his point. Due to the war in Yemen, he explained, the young child could no longer access her medication for her disease, and was thus no longer able to move or speak and was going to die if she did not receive treatment soon. Despite this predicament and the young child’s clear eligibility for a waiver according to Presidential Proclamation 9645 (explaining that case-by-case waivers may be granted in circumstances involving, for example, “the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”), the consular official denied her waiver. After this story had been highlighted in an amicus brief before the Supreme Court, the family received an update from the consulate that they were eligible for waivers; however, instead of receiving visas, the case was put into administrative processing. It took several more months and international attention to get this child a waiver, indicating that these waivers are not being granted despite an individual’s clear eligibility for them, as outlined in the EO.

If waivers of those who are clearly eligible do not get approved, and one can find a pattern of wholesale denials that are consistent with Trump’s animus and hostility towards people from these banned nations, then it may be possible to assert that the motivations behind the denial of the waivers are based on improper stereotyping of certain nationalities that have no place under our Constitution, like the majority in Trump v. Hawaii found in Korematsu. Finding parallels behind the motivations that resulted in the forced internment of Japanese Americans to the wholesale denial of entry to people eligible for visas just because they happen to be nationals of predominantly Muslim countries could potentially result in further litigation that can overrule the ban, or at least force the Administration to actually implement its waiver process as outlined in the Proclamation. This will no longer be the facially neutral policy that the majority gave a pass to, rather the application of that policy through a sham waiver process will put more focus on the animus displayed by Trump towards Muslims. In other words, the failure to issue waivers, if shown to be a result of Trump’s animus towards Muslims, could be used as evidence to show that not only is the waiver process a sham, but could invalidate the entire EO in a future challenge.

It is at this juncture that Justice Kennedy’s tepid concurrence can provide the ammunition for future plaintiffs who challenge the waivers, and thus Trump’s travel ban. The following extract from Justice Kennedy’s concurrence is worth quoting in verbatim:

There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive…

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, dis­cretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their ac­tions, even in the sphere of foreign affairs. An anxious world must know that our Government remains commit­ted always to the liberties the Constitution seeks to pre­serve and protect, so that freedom extends outward, and lasts.

Thus, all hope is not lost for future plaintiffs adversely impacted by the travel ban. There might be a way to thread the needle by demonstrating that the actual application of the Executive Order, which the majority found facially neutral, is no longer so neutral if waivers are denied wholesale by government officials that are motivated by Trump’s original animus towards Muslims. It was this animus that resulted in the first two versions of the travel ban that were struck down by the lower courts of appeals, and which resulted in the third ban that was the subject of the Supreme Court’s decision in Trump v. Hawaii. It was also the same majority in Trump v. Hawaii that found Korematsu abhorrent but distinguished it from the supposedly facially neutral Executive Order of Trump. But plaintiffs can show that this very same EO is no longer neutral because the waivers are not accessible as misrepresented by the Government in Trump v. Hawaii. As explained above, there have been no official guidelines issued by the Secretaries of State and Homeland Security regarding how consular officials will adjudicate waivers, and whether those denied can seek further redress or review within the administrative system.  Such a failing to issue waivers or at least issue guidance to obtain these waivers again calls into question the ‘neutrality’ of the ban. Once the improper motivation can be shown, especially through the application of the waivers, litigants can again potentially challenge the ban.

As we’ve previously explained, while INA § 212(f) grants wide discretion to the President, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). Once plaintiffs find an opening by challenging the ban through the sham waiver process, other authorities that limit the power of the President can spring to life. For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court found that the power of the Executive is “subject to important constitutional limitations.” In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court stated that the President’s Article II powers are subject to review, and ruled that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention. In Boumediene v. Bush, 553 U.S. 723, 765 (2008), the Supreme Court declared that the political branches cannot “switch the Constitution on or off at will” and extended the right of habeas review to a non-citizen outside the US. Moreover, in INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court reaffirmed that Courts were empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.” And as was argued in the Ninth Circuit, even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

Finally, until Trump became President, no one realized that INA § 212(f) could be applied so broadly so as to eviscerate visa classifications created by Congress. Trump v. Hawaii will embolden Trump even further to restrict legal immigration without going through Congress. For instance, he may apply 212(f) to certain family preference categories and restrict the entry of foreign nationals who are the beneficiaries of approved I-130 petitions, by declaring that their entry will be detrimental to the interest of the United States. The same would be true if Trump hypothetically decided to restrict H-1B beneficiaries, say from India, because he believed that their entry into the US would be inconsistent with his Buy American Hire American Executive Order, and thus detrimental to the interest of the United States. It is at this point that a less pliant Congress may have to step up and limit the broad language under 212(f) so that a president like Trump with authoritarian impulses will not be able to trample upon the separation of powers doctrine.

As Trump v. Hawaii passes through the ages, the dissents of Justice Sotomayor and Justice Breyer will have more force than the majority opinion. A powerful dissent signals to another court that the majority got it wrong, similar to Justice Murphy’s dissent in Korematsu. A dissent also sends a signal to Congress that it can overrule a Supreme Court decision by changing the law. This is how Justice Ginsburg’s powerful dissent in Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618 (2007), resulted in Congress enacting the Ledbetter Equal Pay Act. There is thus hope for the nation to redeem itself if a future Congress modifies INA § 212(f) thus effectively overruling Trump v. Hawaii.

 

 

Cyrus Mehta & Sophia Genovese

How Trump Administration Officials Can Be Found Criminally Culpable For Separating Children From Parents

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The Trump Administration has continued to perpetuate the falsehood that immigrants are criminals, despite overwhelming evidence that communities are safer when immigrants arrive. Trump’s recent spectacle to honor victims of crimes perpetrated by people who happened to be immigrants was designed to not just to spread hatred and fear of immigrants, but to counter criticism of his policies that have resulted in the cruel separation of children from parents. Trump cynically tried to show that Americans, whom he called “angel families,” have been permanently separated from their parents, thus attempting to deflect from the worldwide negative reaction he has received from the separation of immigrant families seeking asylum in the United States. While it is unfortunate that parents lost their children in crimes committed by immigrants, Trump has manipulated and exploited their unfortunate situation as justification for his inhumane policies.

The purpose of this blog is to continue to focus on the gross abuses that were perpetrated on children by the Trump Administration. These abuses were intentional and targeted against children from Central America that ought to make the architects criminally culpable. The separations did not arise from a policy that could not be avoided under law. Indeed, it was a deliberate policy to deter people from Central America from applying for asylum under US law by cruelly separating children, knowing that it would cause them trauma and permanent psychological harm.  Accordingly, the real criminals are not the immigrants. The real criminals are those in the administration who have separated families, subjected detained immigrants to inhumane and violent conditions, and who now seek to detain immigrant families indefinitely.  These officials may never be prosecuted under US law, but it is important to show how they can be held criminally culpable under international law so that they can be amenable to prosecution at some point of time in the future.

Article 7 of the Rome Statute of the International Criminal Court defines “crimes against humanity” as

[A]ny of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  1. Murder;
  2. Extermination;
  3. Enslavement;
  4. Deportation or forcible transfer of population;
  5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  6. Torture;
  7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
  9. Enforced disappearance of persons;
  10. The crime of apartheid;
  11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(emphasis added).

The widespread and systematic separation of over 2,000 immigrant children from their families, the inhumane and torturous acts committed by the United States against them, and the ongoing incarceration of children potentially constitute crimes against humanity. The United States, especially Trump administration officials who established these children and toddler internment camps, ought to be prosecuted to the fullest to redress these egregious criminal acts.

The policy of family separation has been condemned by the Office of the United Nations High Commissioner for Human Rights, stating that the practice “amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child […] The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles.” High Commissioner Zeid bin Ra’ad al-Hussein further stated that such separation and incarceration of children constituted “government sanctioned child abuse.” The OHCHR statement also reminded that the United States is the only country in the world that has refused to ratify the Convention on the Rights of the Child (CRC), which specifies the civil, political, economic, social, health, and cultural rights of children, including Article 37, which provides, inter alia, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily.”

Amnesty International has taken the criticism one step further and has argued that the “policy of separating children from parents is nothing short of torture…The severe mental suffering that officials have intentionally inflicted on these families for coercive purposes means that these acts meet the definitions of torture under both US and international law.” Indeed, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, defines torture as

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The US has adopted this definition of torture in 18 U.S. Code § 2340. The severe psychological and physiological effects of the separation of immigrant families rises to the level of torture under international and US law, as well as constitutes a crime against humanity given its widespread application against immigrant families, where such separation is used as a punishment for, and as a deterrence to, seeking asylum in the United States. This separation of asylum-seeking families constitutes impermissible, severe deprivation of liberty. Moreover, if reports regarding the forced drugging of detained immigrant children prove to be true, in addition to well-documented historical abuses of detained immigrant children including the denial of medical care and physical and sexual abuse, they too would rise to the level of crimes against humanity as “other inhumane acts.” Moreover, this separation, mistreatment, and incarceration violates the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which the United States has also ratified. Under the Genocide Convention, “causing serious bodily or mental harm to members of the group” and “forcibly transferring children of the group to another group,” with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” constitutes genocide.

On June 20, 2018, Trump issued an Executive Order misleadingly entitled “Affording Congress an Opportunity to Address Family Separation,” purportedly ending family separation. The EO maintains support for Sessions’ zero-tolerance policy at the border and mandates family detention during the pendency of proceedings for unlawful entry, as well as for the duration of the family’s immigration proceedings. This EO thus remains in contravention of international norms and standards in regards to the prolonged detention of refugees and children. The EO is also in violation of the Flores settlement, which requires that the government not detain children for more than 20 days, and which now the government seeks to amend. Moreover, despite a recent announcement by the Department of Homeland Security and the Department of Health and Human Services of a policy to reunite these families (indicating that no such reunification policy existed prior to the taking children from families), this reunification may only occur at the end of the parents’ removal proceedings, which can take several months. The reversal of family separation does not erase the fact that the children were abused  by the Trump administration’s separation policies in the first place.

The solution to family separation is not family incarceration. Indeed, the punitive incarceration of children and their asylum-seeking families not only violates the CRC and the Torture Convention as described above, but also violates the 1951 Refugee Convention and its 1967 Protocol. Under Article 31(1) of the Refugee Convention, contracting States “shall not impose penalties” on asylum-seekers, even if they entered without inspection. As Human Rights First explains, “refugees and asylum-seekers should also not be subjected to punitive or penal detention conditions […] While administrative detention is permitted in limited circumstances, the term ‘penalty’ certainly includes imprisonment […] UNHCR’s Detention Guidelines emphasize that, consistent with Article 31, ‘[t]he use of prisons should be avoided.’” The Trump administration under this EO now seeks to indefinitely detain asylum-seeking families, which is undoubtedly being implemented to deter future families from seeking refuge in the United States, which is in direct violation of international law.

Prosecution against the United States is unlikely to occur at the International Criminal Court, as it has yet to ratify the Rome Statute. Even an investigation at the ICC is unlikely because under Article 17 of the Rome Statute, the ICC can only open up an investigation in States that are unwilling and unable to genuinely carry out an investigation or prosecution. Moreover, even if the ICC opened up an investigation into the United States’ alleged crimes, the US would not cooperate, making prosecution unlikely. Advocates in the United States have been successful in suing the government over these egregious practices in domestic courts, and it thus appears that we have not exhausted all local remedies yet. Advocates ought to begin to raise these international law violations in their suits, and US judges ought to meaningfully adjudicate these violations.

Another option for the United States to be held accountable would be for another country to prosecute officials of the Trump administration in their domestic courts. Although he died before ever being convicted for his crimes, Pinochet was arrested by police in London for charges brought in Spain to punish him for crimes against humanity in Chile under the principle of universal jurisdiction. A similar action could occur here, where another country, such as Canada or Mexico, could lodge an investigation into and ultimately indict Trump or one of his cabinet members, and another country could subsequently arrest those members upon travel. While it may be impossible to do so if Trump travels to these countries as head of state, the indictment could be executed after Trump or other officials leave office and travel to other countries.

International human rights organizations and the ICC are correctly criticized for explicitly targeting and prosecuting African leaders for their human rights abuses, who rightfully deserve such prosecution but who are not alone in committing these atrocities. Recently, however, the Stanford International Human Rights Clinic and the Global Legal Action Network sought to reverse this discriminatory trend at the ICC. In February 2017, the two groups filed a Communiqué to the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute, arguing that Australia’s offshore migrant and refugee detention practices constitute crimes against humanity. As documented in the Communiqué, the Australian government has systemically blocked boat refugees from accessing its shores and have instead diverted them to detention facilities on the Nauru and Manus Islands, where they are denied access to Australia’s asylum procedures. Stanford and the GLAN provided evidence to the ICC of widespread human rights abuses committed against these asylum-seekers at these offshore detention facilities, and showed that such abuses were committed for the sole purpose of deterring others from seeking asylum in Australia.

To no one’s surprise, the ICC has yet to take up the investigation into Australia’s crimes against humanity. Despite this, the Stanford Communiqué acts as guidance for a future filing against the United States, especially with regards to inhumane treatment of asylum-seekers for the sole purpose of deterring future asylum-seekers. The key difference between the Australian case and a future action against the US is that the US is committing widespread human rights abuses against asylum-seekers on US territory (in addition to preventing asylum-seekers who have lawfully presented themselves at Ports of Entry from entering the US and thus preventing them from claiming asylum, which is yet another international human rights violation). The significance of this is that it explicitly implicates the US’s international responsibilities for the fair treatment of refugees under the Refugee Convention and its Protocol, which Australia has arguably skirted by preventing asylum-seekers from entering its waters.

Advocates are far more likely to be successful in adjudicating these human rights claims in domestic courts. Indeed, our robust courts have proved effective at preventing some of Trump’s most egregious policies. While violations of international law can be raised in a lawsuit to block an egregious policy, it would not result in criminal liability for the perpetrators. Advocates should begin to look into criminal prosecution avenues to hold these officials accountable. Advocates should be cautioned, however, that they can only raise those claims that arise under treaties to which the United States has ratified. As explained above, the ability to raise these human rights claims in domestic courts prevents suit at the ICC under Article 17 of the Rome Statute. However, should advocates exhaust all domestic remedies, an ICC investigation (which is unlikely to ever result in a prosecution) remains an option. Another option is to pursue action in the Inter-American Court for Human Rights, which has the authority to make recommendations to, but not punish, the violating State. And finally, other countries may also bring suit against the Trump administration in one of their courts under the principles of universal jurisdiction.

The United States is not immune from liability for its wrongdoings. No one, not even the president or his cabinet, are above the law. Advocates should continue to consider these global litigation strategies should domestic litigation fail to find Trump administration officials culpable.