Cyrus Mehta

Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the US Even If Rejected in the H-1B Lottery

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By Cyrus D. Mehta and Kaitlyn Box*

On January 21, 2021, the Biden administration announced a series of actions aimed at attracting and retaining STEM students and workers to the United States. Among the most significant provisions, the U.S. Department of Homeland Security (DHS) has added 22 new fields to the STEM optional practical training (OPT) program to “enhance the contributions of nonimmigrant students studying” in STEM fields and to “support the growth of the U.S. economy and innovation.” The additions include a number of new and emerging fields, including bioenergy, cloud computing, climate science, business analytics, and financial analytics, to name only a few. Nursing, among other significant science-related fields, was not included in the list. Additionally, DHS has updated its guidance to clarify how individuals with advanced degrees in STEM fields, as well as STEM entrepreneurs, can self-sponsor for green cards through the national interest waiver (NIW).

Furthermore, DHS also updated its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability in the fields of science, arts, education, business, or athletics. For the first time, the update provides examples of evidence that might satisfy the criteria, focusing on the complex nature of the supporting evidence in STEM-related petitions. For instance, under the published material criterion,  USCIS will accept a transcript of professional or major audio or video coverage of the beneficiary and the beneficiary’s work.  Regarding the critical  role criterion, the contribution by a founder of a startup might also qualify. Certain doctoral dissertation awards and Ph.D. scholarships  will also be accepted under the receipt of national or international award criterion. The update “also emphasizes that, if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, they may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition”, and provides examples of comparable evidence that could be submitted by individuals in STEM fields.

The Department of State (DOS) guidance will also provide for an extension of J-1 status for undergraduate and graduate students in STEM fields to facilitate additional academic training for periods of up to 36 months. The extension applies to the 2021-22 and 2022-23 academic years.

Taken together, these updates will alleviate some of the uncertainty employers and STEM workers face in contending with the H-1B cap. Research has shown that the OPT program benefits the U.S. economy and is important in the creation of job opportunities, so the Biden administration should take all possible measures to encourage foreign students to utilize the program. Expanding STEM OPT fields, as well as allowing students to work in the U.S. for three years pursuant to STEM OPT, are good first steps.

In the time afforded them by the STEM OPT program, students can potentially be entered in the H-1B lottery three to four times. Each year as more petitioners register under the lottery, the chances of being selected become correspondingly less.  Even if individuals are unlucky enough to never be selected, they could potentially utilize the new O-1A guidance to obtain O classification. As discussed above, USCIS has broadened the evidentiary standards for O visas, including allowing online publications or videos to qualify as “published material”, which provides enhanced flexibility that may allow more STEM workers to qualify.

Potential for New Green Card Opportunities

For individuals from many countries, the PERM labor certification process can be completed for some during their time in STEM OPT, allowing them to obtain an employment-based green card.  Unfortunately, those born in India or China will not be able to benefit from this strategy due to enormous green card backlogs in the employment-based second and employment-based third preferences. However, certain individuals who were born in India or China with STEM degrees could try to obtain permanent residence through the employment-based first preference if they demonstrate extraordinary ability under EB-1A classification. Although the DHS has updated its guidance to make it easier for STEM graduates to obtain permanent residence through the national interest waiver, this category is of limited use to talented students who were born in India due to the decade plus long crushing backlogs in the employment-based second preference.  The employment-based first preference is current for India unlike the employment-based second and third preferences for India. Since the evidentiary standards for O-1 visas have been broadened in the USCIS Policy Manual, the same should hold true for the EB-1A category as the legal standards for O-1A and EB-1 are the same. In addition, while we applaud the Biden administration for broadening the O-1A evidentiary standards, we urge the administration to do away with the final merits analysis  under EB-1A in addition to broadening the EB-1A evidentiary standards. The final merits analysis rightfully does not exist for evaluating an O-1A petition, so it should not exist  under the EB-1A either, or for that matter any employment based green card category. Under the final merits determination (see our Curse of Kazarian  blog), the USCIS arbitrarily  denies meritorious EB-1A petitions on a purely subjective and arbitrary basis even when the petitioner has readily met 3 or more out of the 10 criteria.

Consistent with this Administration’s goal of removing barriers to legal immigration under President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, the policy makers at the White House and DHS who fashioned these initiatives should be commended for removing obstacles for talented noncitizens to remain and contribute to the US in the face of inaction by the US Congress. This is a good first step but a lot more can be done.

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

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

Cyrus Mehta

The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged

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Cyrus D. Mehta

The USCIS has been processing employment authorization requests for H-4 and L-2  spouses so slowly that they have been rendered virtually useless. By the time the applicant receives the employment authorization document (EAD) after 10 months, the job offer no longer exists. The experience is even more harrowing when the spouse begins working under the first EAD and has to apply for a renewal. By the time the renewal EAD comes through, the spouse would have been forced to stop working after the prior EAD expired and often loses her job. Most H-4  spouses who have availed of the EAD are mainly women and  spouses of Indian born H-1B visa holders who are caught in the crushing India employment-based backlogs under the second and third preferences.

Following a recent settlement in Shergill v. Mayorkas,  USCIS announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met.

The new policy provides that certain H-4, E or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly file application to renew their H-4, E or L-based EAD expires, and they have an unexpired I-94 showing their status as an H-4, E or L nonimmigrant. The policy further provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to file Form I-765 for an EAD but may still do so if they choose to request an EAD. Still, the E and L dependent spouse may only qualify for an automatic extension if they have an unexpired valid E-2 or L-2 status.

Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes.

Although this new policy is a positive step, as a practical matter, many H-4 spouses may not be able to avail of the automatic extension if they are unable to demonstrate an H-4 status beyond the expiration of their existing EAD. Most H-4 statuses and EAD end on the same date.

Even if an H-1B extension is filed on behalf of the principal spouse under premium processing six months before the existing H-1B status expires, the USCIS no longer processes the extension of the H-4 status in an expeditious manner. Thus, even if the H-1B status is renewed under premium processing within 15 days for an additional 3 years,  the H-4 status continues to remain pending and may or may not get approved before the expiration of the current H-4 status. If the H-4 status is not renewed prior to the expiration of the current H-4 status, the spouse will not be able to avail of the auto extension under the new policy.

It would thus behoove the USCIS to courtesy premium  process the H-4 status extension request along with the H-1B premium request. This used to be done prior to the imposition by the Trump administration of a mandatory biometrics appointment for an extension request filed by the spouse.  As a result of the new biometric requirement, the H-4 spouse’s extension request was  no longer processed along with the H-1B premium request.  Although the biometric requirement has been eliminated for H-4 spouse extension requests, the USCIS continues to process these cases at a snail’s pace. It is difficult to understand why the USCIS is unable to process the H-4 request along with the H-1B premium request at the same time as was done before the imposition of the biometric requirement.

Another way to get around the limitation of having H-4 status beyond the EAD is for the H-4 spouse to travel overseas and return with an I-94 that would have the same validity as the principal spouse’s H-1B status. However, if the H-4  spouse needs to obtain a new visa stamp, it is difficult to obtain consular appointments timely as a result of Covid-19.

Another work around would be for the H-4 spouse to go to Canada for less than 30 days and be readmitted under  automatic visa revalidation provided for trips to Canada or Mexico that are less than 30 days. The difficulty with this strategy, though, is that the CBP often admits the H-4 spouse under the same period of the existing status instead of admitting the spouse for an extended period that  would be coterminous with the H-1B spouse’s new status.

L-2 and E-2 spouses are in a better situation that H-4 spouses. INA 214(c)(2)(E) provides  statutory authority for dependent spouses of L nonimmigrants to be granted work authorization. INA 214(c)(2) provides similar work authorization for dependent spouses. Notwithstanding this statutory authorization that took effect on January 16, 2002 providing for work authorization incident to status,  USCIS was still insisting that L-2 and EAD spouses obtain an EAD through a policy memo authored by William Yates dated February 22, 2002, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Authorization for E and L Nonimmigrant Souses, and for Determinations on the Requisite Employment Abroad for L Blanket Petitions.” (Yates Memo).  The November 12, 2021 guidance has now rescinded the Yates Memo.

As a result of being recognized to be work authorized incident to status, L-2 and E-2 spouses will be able to work when their L-2 or E-2 status is extended. CBP will notate the I-94 to distinguish the L-2 or E-2 spouse from E and L children. Unlike the H-4 spouse who will need to apply for an EAD based on status that already extends beyond the EAD extension request, the L-2 spouse will be able to work as soon as the E-2 or L-2 status is granted. Similarly, the spouse who is admitted after travelling to the US in L-2 or E-2 spouse will also be issued an I-94 with a similar notation from the CBP and be work authorized after admission in that status. However, like with the H-4 spouse, when the L-2 spouse applies for an extension of that status, there will be no basis for an automatic extension of  work authorization until the L-2 status is approved.

On November 18, 2016, DHS promulgated the automatic extension of EAD regulation at 8 CFR 274a.13(d), which took effect on January 17, 2017. 8 CFR 274a.13(d) provides the legal underpinning for November 12, 2021 policy.  An applicant is eligible for automatic extension if the EAD renewal is timely filed and based on the same employment authorization category as shown on the face of the expiring EAD. See 8 CFR 274a.13(d)(1)(i) and (ii). Under 8 CFR 274a.13(d)(1)(iii) automatic extension may also apply where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application, …. As may be announced on the USICS Web site.”

The page on the USCIS Website listed 15 categories for automatic extension of their employment authorization or EAD. However, the November 12, 2021 USCIS Policy Memo acknowledges that E and L as well as H-4 spouses were missing from this list, as follows:

These broad categories were not included because at the time the automatic extension authority was established in 2016, USCIS determined that these applicants are in a category that first requires adjudication of an underlying application before their EAD renewal application can be adjudicated.[citation omitted]. While that is a permissible interpretation of the regulation, upon further review and consideration, USCIS recognizes that this interpretation does not contemplate the situation where the E, L, and H4 dependent spouse has already been granted a new period of authorized stay and such individual is eligible for employment authorization past the expiration of his or her EAD while the renewal Form I-765 application is pending. Under this scenario, the possible risk the provision at 8 CFR 274a.13(d)(1)(iii) sought to avoid—the risk that a Form I-765 renewal applicant’s eligibility for employment authorization will lapse during the automatic extension period—is not present. As such, it is reasonable for USCIS to expand the list of categories eligible to receive automatic EAD extensions to include this narrowly defined category of E, L, and H-4 dependent spouses to mitigate the risk of experiencing gaps in employment authorization and documentation while their renewal Form I-765 is pending, in light of their continued employment eligibility past the expiration date of their EAD.

The USCIS believes that this change in interpretation is permissible under 8 CFR 274a.13(d)(1)(iii) that speaks broadly of “class” and “category.” As these terms are undefined and thus ambiguous, under the broad deference courts have granted to a government agency to interpret its own ambiguous regulation, see Auer v. Robbins, 519 US 452 (1997) as modified by Kisor v. Wilke, 588 US ___ (2019), USCIS believes it has the discretion to interpret these terms and tailor designated categories to emerging circumstances and to fulfill the primary purpose of the EAD auto-extension.

While one agrees that USCIS does have discretion to reinterpret 8 CFR 274a.13(d)(1(iii) to include auto extensions for H-4, L-2 and E-2 spouses, this is not the most satisfactory outcome and should be challenging the USCIS to do more.

For starters, if the USCIS processes extension requests of H-4, L-2 and E-2 statuses more rapidly, this problem will be resolved. It should not be taking upwards of 6 months to process such status extension requests when the biometric requirement has been done away with. The Edakunni v. Mayorkas lawsuit seeks to force USCIS to speed up processing times.   USCIS can include courtesy premium processing of H-4, L-2 and E-2 status request  applications that  are part of a request for premium processing of the principal spouse’s H-1B, L-1 or E petition. Also do not forget that Congress in HR 8837 has authorized premium processing of many more petitions and applications, including applications to change or extend status as well as applications for employment authorization.

More important, the USCIS need not be cabined by the restrictive language in 8 CFR 274a.13(d)(1)(iii) which provides for automatic extension where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application.” While the USCIS has threaded the difficult needle in its November 12, 2021 policy by justifying that 8 CFR 274a.13(d)(1)(iii) is nevertheless applicable if there is already an underlying status, the USCIS has authority under the INA to craft a whole new regulation that does not depend on automatic extension only if there is an underlying L-2, H-4 or E-2 status.

Furthermore, 8 CFR 274a.13(d)(1)(iii) can potentially be challenged as being inconsistent with INA 214(c)(2)(E) and INA 214(e)(2) that provide work authorization incident to status to L-2 and E-2 spouses. Nowhere does it  state in these INA provisions that a spouse who has been admitted in L-2 or E-2 status  must remain in status in order to avail of an automatic extension of work authorization when applying for an extension of that status. Although there is not direct INA reference for H-4 authorization incident to status, the H-4 EAD rule is based on the general authority given to the DHS under INA 103(1) and 274A(h)(3)  that allows it to grant work authorization to any noncitizen. Even under these general provisions there is no requirement that there must be an underlying nonimmigrant status in order to avail of automatic work authorization extension. Even if INA 214(c)(2)(E) and INA 214(e)(2) can be read to mean that a spouse is precluded from availing of an auto extension once the status has expired, 8 CFR 274a.13(d)(1)(iii) might still be inconsistent with the general authority to provide work authorization under INA 274A(h)(3).

Under its authority under INA 274A(h)(3),  DHS may wish to promulgate a regulation similar to 8 CFR 274a.12(b)(20) that provides for an automatic extension of work authorization for 240 days when a petition to extend nonimmigrant status has been timely filed on behalf of a nonimmigrant through the same employer prior to the status expiring. The 240 day automatic extension will be denied if the petition requesting the extension is denied prior to the 240 days.  The spouse should also be able to avail of a similar period of 240 days of automatic work authorization even if the underlying H-4, L-2 or E-2 status has expired so long as the request was made before the status had expired.  If the underlying request for extension of status is denied prior to the 240 days, the automatic work authorization will be denied.

While the new H-4, L-2 and E-2 work authorization policy of November 12, 2021 is a step in the right direction, it should  not become the permanent policy of the USCIS as it is far from perfect. As long as the USCIS delays in the processing of routine requests for extension of status and work authorization continue to persist, the regulations need to be changed in order to allow spouses to continue working regardless of whether there is an underlying nonimmigrant status or not.

 

Cyrus Mehta

Reflections of Two Immigration Lawyers on the 20th Anniversary of the September 11 Attacks

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By Cyrus D. Mehta and Kaitlyn Box*

It is hard to believe that 20 years have gone by since planes hijacked by terrorists crashed into the Twin Towers in New York, the Pentagon in DC  and into a field in Pennsylvania instead of Capitol Hill killing just under 3000 people. These cataclysmic events on September 11, 2001 forever changed the role of immigration lawyers. For the past 20 years, our mission has been to advocate that immigration is completely separate from terrorism.  This was our mission on the 10th anniversary of the 9/11 when Cyrus Mehta was inspired to write a deeply personal blog and it remains our mission even on the 20th anniversary. Although Kaitlyn Box was too young on September 11, 2001 to be practicing law, it was this event that inspired her to join the ranks of immigration lawyers in 2021 to  repeat the mantra that immigration is  not a threat to America.

A week before 9/11, Presidents Vicente Fox of Mexico and Bush were in serious negotiations on an immigration deal that would have granted benefits to undocumented immigrants. But after the terrorist attacks, the deal that was made between Presidents Bush and Vicente to legalize the status of millions of productive undocumented immigrants was put into cold storage. The immigration system has continued to break, and crash, but Congress has never been interested in fixing it, perhaps based on a subconscious fear that immigration equated to terrorism. The immigrant visa preferences remain hopelessly oversubscribed resulting in waits lasting more than a decade. Skilled workers are also trapped in never ending backlogs under the employment-based second and third preferences only because of the measly fixed supply of visas and the per country limits.  The H-1B cap limit of 65,000 has never been expanded, save for an additional measly 20,000 under a special advance degree cap. Several efforts to achieve comprehensive immigration reform in Congress have failed.

Although the tragic events of 9/11 are now twenty years in the past, the scars of racism and xenophobia that they left behind continue to bleed today. President Trump and his administration’s four- year assault on immigration made devastatingly clear that some in the United States still view immigrants, particularly non-white immigrants and those from Muslim-majority countries, as a threat. Trump repeatedly equated immigrants, especially undocumented immigrants, to criminals, terrorists, and job stealers. These views were plainly reflected in the administration’s policies as well. Trump’s rationale for constructing a wall along the U.S. border with Mexico, among his earliest campaign promises, was to stop the flow of rapists and drug dealers into the United States from Mexico, despite abundant evidence that immigrants commit fewer crimes than native-born U.S. citizens. The various iterations of the travel ban, beginning with Executive Order 13769, “Protecting the Nation From Terrorist Attacks by Foreign Nationals” in 2017, blocked nationals from a number of primarily Muslim-majority countries from entering the United States under the guise of preventing terrorist attacks. A more watered down version of this policy motivated by a combustible mix of Islamophobia and xenophobia, which came to be known as the Muslim ban,  was upheld by the Supreme Court in Trump v Hawaii. After the Supreme Court upheld the Muslim ban, Trump got emboldened and used the immense power given under INA 212(f) to find other ways to restrict immigration and asylum.  The administration’s inhumane attitude towards immigrants was further illustrating by the policy of separating children from their parents at the border, as well as the Migrant Protection Protocols (MPP), which trapped asylum seekers in Mexico while their cases were adjudicated. Through a variety of Presidential Proclamations that limited green card applications and the issuance of employment based visas, the administration propagated the idea that even highly-skilled immigrants are a menace to the U.S. economy and push American employees out of the workforce.

Trump’s xenophobia as president of the United States was made possible by the hysteria caused by the  9/11 attacks. Less than ten days after September 11, President Bush’s Attorney General John Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation authorized immigration enforcement agents to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000 plus immigrants who were detained and deported in secret were not charged or convicted of terrorism. As if this were not enough, the Bush Administration implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. No one was convicted of terrorism under the now discredited Special Registration program.

Just as race and religion were being used as proxies for individualized suspicion and guilt post September 11, Trump also used race and religion to brand immigrants as dangerous and thus justifying travel bans, enhanced enforcement and the stripping away of the power of Immigration Judges to control their courtrooms and dockets.

Though Trump has now been replaced, his malignant policies live on in the courts and continue to perpetuate harmful and untrue narratives about immigrants. While President Biden had rescinded MPP, a federal judge in Texas ordered the administration to reinstate the program, finding that the administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious”. Even if the Biden administration is ultimately able to overcome this order, asylum seekers will be left vulnerable in Mexican border cities while it crafts a stronger justification for rescission of the program. The U.S. District Court for the Southern District of Texas recently found Biden’s immigration enforcement priorities to be a violation of the Administrative Procedure Act, at least as applied to detention cases. Biden’s priorities would have focused removal efforts on only those noncitizens who were a national security risk, entered the United States on or after November 1, 2020, or posed a threat to public safety. In July, the same federal court held that the DACA program, too, violated the APA and barred any new applications. It is the fear caused by 9/11 that precluded the full evacuation of Afghans after the messy withdrawal of the US twenty years after it invaded Afghanistan.

On the twentieth anniversary of the September 11th terrorist attacks, the United States finds itself weathering another crisis, that of the COVID-19 pandemic. Unfortunately, the pandemic has proved to another reason for exclusionary immigration policies. In the early stages of the pandemic, the Trump administration enacted numerous COVID-related travel bans under the authority of INA 212(f), which have since been extended by the Biden administration. Another Covid related ban under Title 42 Public Health Law overrides asylum laws and restricts people fleeing persecution from applying for asylum. This was imposed by the Trump administration but continues to be used by the Biden administration.

Downtown Manhattan revived and became a vibrant business district and residential neighborhood in the years after the September 11 attacks. As the area completely reinvented itself epitomized by One World Trade Center, the tallest tower in the western hemisphere,  the COVID-19 pandemic again caused havoc and people no longer come to the new office towers or shop and dine there. It is  too soon to write the obituary of Downtown Manhattan just as it was after the September 11 attacks, and  we are confident that it will again revive. Our offices continue to remain in Downtown Manhattan as we endeavor to help immigrants and advocate for more fair immigration laws and policies, whether it was in the aftermath of 9/11, during the Trump years or now while  the Covid-19 pandemic still rages. The fate of immigrants have been intertwined with the tragic events of September 11 and other events since who have withstood attacks against them and have instead helped build and heal America. The people who died on 9/11 also represented the immigrant fabric of the country. We stand in solidarity with them, and continue to broadcast today on the 20th anniversary of 9/11 and for all times that immigrants are not a threat to America.

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

Cyrus Mehta

Matter of Castro-Tum is Dead Everywhere Except in the Sixth Circuit: It Must be Buried There Too

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By Cyrus D. Mehta and Kaitlyn Box*

In a previous blog, we argued that Matter of Castro- Tum, a Trump era decision by then Attorney General Jeff Sessions should be withdrawn. Matter of Castro -Tum held that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases, unless expressly authorized by a previous regulation or a previous judicially approved settlement.

Numerous Circuit Court decisions overturned Castro-Tum. In 2019, the Fourth Circuit in Romero v. Barr held that the language “may take any action…..appropriate and necessary for the disposition” of the case” at 8 CFR §§ 1003.1(d)(1)(ii) & 1003.10(b) unambiguously confers upon IJs and the BIA the general authority to administratively close cases. Meza-Morales v. Barr, decided by the Seventh Circuit in 2020, also concluded that the “immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Most recently, the Third Circuit in Sanchez v. Attorney General, held that 8 CFR §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. The Court in Sanchez relied on the Supreme Court’s 2018 decision in Kisor v. Wilkie, which held that an agency’s interpretation of its own regulations will only be entitled to deference if the following criteria are met: i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

We have advocated for Attorney General Garland to overturn Castro- Tum and reinstate its predecessor, Matter of Avetisyan, which held that the IJs and the BIA may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances, and that IJs or the BIA should weigh all relevant factors in deciding whether administrative closure is appropriate. In prior blogs, see here and here, we have argued that Avetisyan sets a more common sense standard for administrative closure that and would go a long way towards clearing the Immigration Court’s backlogged dockets.

On July 15, 2021, the Attorney General issued a decision in Matter of Cruz-Valdez that takes exactly this position, overruling Castro-Tum in its entirety and holding that “[i]mmigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan…” The Respondent in the case was a Mexican national who had moved for administrative closure of his case while he filed a Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS. Pursuant to 8 CFR § 212.7(e)(4)(iii), a noncitizen is not eligible for an I-601A waiver “unless the[ir] removal proceedings are administratively closed and have not been recalendared at the time of filing the application”. Respondent’s motion was denied by the IJ and the BIA on appeal on the grounds that Castro-Tum prevented administrative closure of the case.

AG Garland’s decision noted that three courts of appeals have rejected Castro – Tum, “holding that administrative closure is ‘plainly within an immigration judge’s authority’ under Department of Justice regulations”, while only the 6th Circuit upheld it in Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020). Even the 6th Circuit eventually ruled that IJs and the BIA do have the authority to administratively close cases for the purpose of allowing noncitizens to apply for provisional unlawful presence waivers, however. See Garcia-DeLeon v. Garland, No. 20-3957 (6th Cir. 2021). The decision also pointed to the 2020 DOJ final rule codifying Castro-Tum, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81588, 81598 (Dec. 16, 2020), which is currently the subject of a nationwide preliminary injunction and undergoing reconsideration by the DOJ, as further justification for overruling Castro-Tum. Because Castro-Tum departed from longstanding practice regarding administrative closure, AG Garland held that IJs and the BIA should revert to the standards for administrative closure laid out in cases like Avetisyan.

Though largely a victory for administrative closure, AG Garland’s decision will not apply in the 6th Circuit, which has upheld Castro – Tum. The Sixth Circuit in Hernandez-Serrano v. Barr viewed 8 CFR §§ 1003.10(b) and 1003.1(d)(1)(ii) as unambiguously precluding a general administrative closure authority. The Supreme Court held in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) that an agency need not acquiesce to a circuit court’s interpretation of an ambiguous statute.  However, even if Brand X applies to an ambiguous regulation rather than a statute, it probably cannot be harnessed here by the Attorney General to reinterpret the relevant regulatory provisions as conferring on IJs and the BIA the authority to administratively close cases because the Sixth Circuit appears to have found that those provisions were not, in fact, ambiguous. Therefore, the AG Garland in Matter of Cruz-Valdez appears to have correctly ascertained that this decision to overturn Castro Tum would not apply in the Sixth Circuit.  One solution to this dilemma is the promulgation of a new regulation that would supersede the Sixth Circuit’s unfavorable interpretation. Indeed, rulemaking in this area is already under consideration, and formed one of the principal bases for the AG’s decision in Matter of Cruz-Valdez.

Though not without some limitations, AG Garland’s decision to withdraw Castro-Tum and reinstate Avetisyan should be celebrated. This decision will help to relieve the immigration court backlog, and will aid in the adjudication of removal cases that require the resolution of questions not within the jurisdiction of IJs or the BIA. As such, Matter of Cruz-Valdez is an important step towards President Biden’s goal of returning to a fair and humane immigration system.

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

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

 

Cyrus Mehta

What Happens to a Lawful Permanent Resident Who Has Been Stranded For Over One Year Abroad and the Green Card Validity Has Expired?  

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By Cyrus D. Mehta and Kaitlyn Box*

COVID-related restrictions have caused difficulties for many noncitizens traveling abroad during the pandemic, but lawful permanent residents (LPRs) who traveled overseas in recent months face a unique set of issues. Many LPRs who traveled overseas in the early days of the COVID-19 pandemic quickly became trapped there for the foreseeable future, either by travel restrictions that prohibited them from reentering the United States or because they or a family member contracted COVID-19. Recent news articles have discussed the plight of these LPRs who have not been able to return to the US within 180 days to the US from their last departure from the US

Our blog FAQ for Green Card Holders During the Covid-19 Period generated tremendous interest. This blog is addressed towards LPRs who have been overseas for more than one year and the ten year validity period on their green cards have expired.

As a background, an LPRs who have been absent from the United States for less than 180 days are not considered to be applicants for admission.  An LPR who returns to the United States after more than six months abroad will again be considered an applicant seeking admission under INA 101(a)(13)(C)(ii) and may face additional scrutiny, but is unlikely to be accused of abandonment, especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether the LPR is returning within or in excess of 180 days, there may be other grounds under which the LPR will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

Essentially, an LPR can be found to have abandoned that status regardless of the time spent abroad. The trip could have been under 180 or over 180 days. The key issue is to determine whether it was a temporary visit abroad. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) of what constitutes a temporary visit abroad is generally followed:

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

The Second Circuit in Ahmed v .Ashcroft, 286 F.3d 611(2d Cir. 2002) with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales, 414 F.3d 746 (7th Cir. 2005) held that LPR status was not abandoned where an LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

After LPRs have spent more than a year outside the United States, their green card document (Form I-551) is technically no longer valid. There is a common misperception that this situation results in an automatic loss of permanent resident status, but an individual is still an LPR until they are found to have abandoned their permanent residence in the United States. Therefore, the test set forth in Singh v. Reno and other cases still needs to be followed to determine whether the LPR’s visit abroad was temporary or not.  The burden is still on the government to prove through clear and convincing evidence that the LPR has abandoned permanent resident status. See, e.g Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008) and  Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

LPRs who have been abroad for more than a year may be able to apply for a apply for a Returning Resident (SB-1) Visa at a U.S. Consulate. In order to apply for an SB-1 visa, LPRs will still be required to demonstrate that they have not abandoned residence in the United States, and should explain that they were trapped outside the country due to the pandemic. However, U.S. consulates have been hesitant to issue SB-1 visas, even before the pandemic. It appears that since the pandemic, US consulates have not been entertaining SB-1. LPRs who wish to try for an SB-1 visa should check the website of the relevant U.S. embassy or consulate for guidance. The U.S. Embassy and Consulates in India website, for example, provides some instruction on how to apply for an SB-1 visa.  Alternatively, an LPR whose green card date is still valid could attempt to return to the U.S. anyway and assert at the port of entry that she has not abandoned permanent residence in the United States. Under INA § 211(b), CBP has the statutory authority to provide a waiver to a returning LPR who no longer has a valid green card document. It may be helpful for an LPR who is returning to the U.S. after more than a year abroad to have in hand documentary evidence that they have not abandoned permanent resident status. Documents such as: U.S. income tax returns, evidence of owning or leasing a residence in the U.S., bank statements or other proof of assets in the U.S., a letter or pay stubs from a U.S. employer, evidence of family ties in the U.S., proof of past medical treatments or doctor visits in the U.S., or evidence of membership in religious, professional, or community organizations in the U.S., to provide a few examples, can help stave off any allegation of abandonment of permanent resident status at the port of entry.

If the 10-year expiration date on the green card document has passed, the situation becomes more complicated. However, LPRs whose green card has expired or is about to expire may be able to file Form I-90 to renew their green card. The paper version of Form I-90 contains does not prohibit applicants who are outside the United States from submitting the form, so LPRs may be able to try renewing their green card even if they are stranded in India. USCIS announced in January 2021 that an I-90 receipt notice can be used in conjunction with an expired green card as proof of lawful permanent resident status, so filing an I-90 and obtaining a receipt notice may provide LPRs with a basis to reenter the United States.

Several things can happen when an LPR whose green card document has passed attempts to reenter the United States. For one, the LPR can complete Form I-193, and may be waived into the United States by CBP pursuant to INA § 211(b), if it is determined that they have not abandoned LPR status. Otherwise, the LPR will be placed into removal proceedings pursuant to INA § 212(a)(7)(A) as an arriving alien. LPRs who are placed into removal proceedings will need to make the case again that they have not abandoned permanent resident status, this time before an immigration judge. The burden of proof in this case is still on the government, and the LPR remains an LPR until a final removal order is issued. Final removal orders may be appealed to the BIA, and then to a circuit court.

An LPR who has an immediate relative who is a U.S. citizen, such as a spouse or a child over the age of 21, may be able to apply for adjustment of status all over again as adjustment can generally serve as a form of relief from removal. See Matter of Rainford, 20 I.&N. Dec. 598 (BIA 1992).  Note, however, that while there is no statutory bar on LPR re-adjustments, the USCIS may refuse to process such adjustments as a discretionary matter. LPRs who wish to take the lowest risk path can  be sponsored again while they are overseas if they have a basis for permanent resident status, such as a family member who can file an I-130 petition, particularly a U.S. citizen or LPR spouse or a U.S. citizen child over the age of 21.  Alternatively, one could be sponsored again through an employment-based category such as a multinational executive or manager under the employment-based first preference. Prior to processing for an immigrant visa, they must file Form I-407 to abandon their green card.

It is of course advisable that an LPR do everything to avoid being in the situation of remaining outside the US for more than one year and after the green card validity has expired. The LPR should apply for a reentry permit that would allow them to remain outside for the US for two years, although Form I-131 must be filed while the LPR is in the US. If the LPR has not filed for the reentry permit while in the US, then the next best approach is to try to reenter the US within 1 year from the last departure. If the LPR has remained outside the US for more than one year, LPR status has not been automatically lost and this blog provides a roadmap to still assert LPR status, although one trying this strategy should also be aware of the risks and pitfalls.

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

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

 

 

Cyrus Mehta

CSPA Triumphs in Cuthill v. Blinken: Child of Parent who Naturalizes Should not be Penalized

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By Cyrus D. Mehta

One of the unresolved conundrums in our immigration law is the inability of children of lawful permanent residents to be protected under the Child Status Protection Act (CSPA) when their parents naturalize to US citizenship. The CSPA was enacted to ensure that a child remained under the age of 21 in order to obtain permanent residency with the parent or to stay in a more advantageous family visa category. Sure enough, the CSPA protects the age of a minor child of a who has been sponsored for permanent residency by the parent who is a green card holder even when the child turns 21. Unfortunately, based on erroneous government policy, the goal of the CSPA gets thwarted when the parent of this child naturalizes especially after the child’s biological age is over 21 years.

The Second Circuit in Cuthill v. Blinken recently clarified by holding that a child of a permanent resident whose age is protected under the CSPA ought to be able to continue to claim age protection under the CSPA even when the parent naturalizes to US citizenship.

Section 2 of the CSPA, codified in the Immigration and Nationality Act, protects the age of minor children of US citizens under the age of 21. These minor children are termed Immediate Relatives (IR) under INA 201(b)(2)(A)(i). When a US citizen parent files an I-130 petition for an IR minor child, the child’s age will be frozen under 21 even if there is a delay in the grant of permanent residency and the biological age of the child crosses 21. See INA 202(f)(1).

What happens when a minor child of a permanent resident naturalizes? The child automatically converts from the Family Second (2A) to the IR category. If the biological age of the child is under 21 at the time of the parent’s naturalization, the child’s age pursuant to INA 201(f)(2) freezes. Even if there is a delay in the grant of permanent residency and the child’s biological age is over 21, the child’s statutory age remains frozen under 21.

So far so good. What happens if the child’s biological age under the F2A was over 21 but was protected under the CSPA?  Section 3 of the CSPA protects the age of a child who is the beneficiary of a F2A petition under a special formula. This is how it works:

When the Family 2A petition becomes current under the State Department Visa Bulletin, one has to look at the age of the child on the first day of the month when the F2A becomes current.  If the biological age of the child is over 21 at that time, the age can be subtracted by the amount of time the I-130 petition took to get approved from the date of filing. If this subtraction reduces the age of the child under 21, the child can remain under F2A rather than slide into the less favorable Family 2B preference (F2B), which applies to unmarried sons and daughters of permanent residents. There is clearly a big advantage of remaining under F2A rather than F2B. The F2A is current under the March 2021 Visa Bulletin while the F2B cutoff date in the worldwide category is July 22, 2015.

Although the age of the child is protected under F2A, when the parent naturalizes, the USCIS has taken the position that the age could no longer be protected. Thus, the child gets penalized when the parent became a US citizen. It also leads to the absurd result of inhibiting the parent from naturalizing as the child is better off remaining the child of a lawful permanent resident than a citizen.

These were precisely the facts in Cuthill v. Blinken. On September 29, 2016, when Veronica Cuthill was a permanent resident, she filed an I-130 petition for her daughter, Tatiana Maria Diaz de Junguitu Ullah, who was exactly 19 years 9 months and 6 days old. U.S. Citizenship and Immigration Services (USCIS) took 363 days to process the I-130 petition and approve it.  Although the daughter’s biological age exceeded 21 while she was waiting for the F2A visa, under the CSPA formula the daughter remained in the F2A preference.

On June 25, 2018, while Diaz was waiting for an F2A visa, Cuthill naturalized as a US citizen. At that time Diaz was still statutorily eligible under the F2A visa based on the 363 days of subtraction of processing time from her biological age. Cuthill sought to convert Diaz’s F2A petition for an IR visa, but the State Department instead notified her that Diaz would be placed in the Family First Preference (F1) queue rather than be considered an IR.

The key issue is whether Cuthill’s daughter Diaz could remain in F2A or whether she would convert into F1. If the daughter converted from F2A to F1, it would cause a great setback. Under the March 2021 Visa Bulletin, the cutoff final action date for F1 beneficiaries is August 8, 2015.  The F2A, on the other hand, is current.

INA 201(f)(2) allows a conversion from F2A to IR when the parent naturalizes. This provision is reproduced below:

Age of parent’s naturalization date – In the case of a petition under section 204 initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted to permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under section (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age on the date of the parent’s naturalization (emphasis added).

The question before the Second Circuit was whether “the age on the date of the parent’s naturalization” is the biological age of the child or the CSPA age of the child? Judge Katzmann writing the decision for the three judge panel, acknowledged that “although no one will ever accuse the CSPA of being reader-friendly” ingeniously found a textual path to hold that it is the CSPA age and not the biological age that counts. Although INA 203(h)(1)(A) (which protects the age of F2A beneficiaries) and INA 201(f)(2) (which protects the age of IRs) are separate sections within the INA, there is a connection between the two as they both reference the definition of a child under INA 101(b)(1).

Under INA 101(b)(1), a child is “an unmarried person under twenty-one years of age.” However, the definition of the child is modified under INA 203(h)(1)(A) for F2A children. As noted, under this provision, a child’s CSPA age under F2A can be reduced to under 21 even if the biological age has exceeded 21 by subtracting the age based on the amount of time the I-130 petition took to get approved. Since INA 201(f)(2) also references INA 203(a)(2)(A), there is a connection between the two sections, and the child’s  age can be interpreted as the CSPA age rather than the biological age when the parent naturalizes, and thus Diaz should convert from F2A to the uncapped IR rather than remain in the backlogged F1.

Judge Katzmann did not end the analysis here, but examined the broader purpose of the CSPA.  “We examine Congress’s purpose in enacting the CSPA, and it is there that we find our clincher: The legislative history shows a clear desire by Congress to fix the age-out problem for all minor beneficiaries, and there is nothing to suggest that Congress intended to exclude beneficiaries like Diaz,” Judge Katzmann wrote.

The government’s argument of insisting that Diaz move from F2A to F1 after her mother Cuthill naturalized ran counter to CSPA’s purpose of to protect child beneficiaries from aging out of their age-dependent visas. While reliance on legislative purpose is often criticized since Congress is a divided body, with respect to the CSPA, Judge Katzmann emphasized that it passed the House by a unanimous 416-0 vote, then passed the Senate by a unanimous vote and again passed the House again by a unanimous vote.  “Penalizing people for becoming citizens runs counter to the entire family-based visa scheme,” Judge Katzmann said.  Finally, Judge Katzmann also did not give Chevron deference to a prior decision of the Board of Immigration Appeals, Matter of Zamora-Molina, 25 I&N Dec. 606, 611 (BIA 2011),  in which the BIA adopted the same flawed interpretation as the government tried  to unsuccessfully advance in Cuthill. When the intent of Congress is clear, a court need not give deference to an agency’s interpretation of the statute.

The Second Circuit in Cuthill v. Blinken follows the  Ninth Circuit’s decision in Tovar v. Sessions that also  held that the naturalization of a parent ought not to adversely impact the protected age of the child under the CSPA. Both these courts of appeals have ruled correctly and consistently with the purpose of the CSPA. Rather than appealing to the Supreme Court, it is about time that the  DHS and the State Department under President Biden issue a policy to ensure that the holdings of the Second and Ninth Circuits be uniformly implemented  – at the USCIS and State Department – for all children whose age is protected under F2A and whose parents subsequently naturalize.

If these decisions are not implemented uniformly, parents of children whose age is protected under the F2A will be inhibited from naturalizing to US citizenship. If they go ahead and naturalize, children will be involuntarily converted into the F1 category, which is hopelessly backlogged. Such a result could not have been the intent of Congress when it spoke with one voice to pass the CSPA,  and two courts of appeals, the Second Circuit and the Ninth Circuit, have correctly held that  INA 203(h)(1) and INA 201(f)(2), when read together,  unambiguously  provide a pathway for children to gain permanent residency as immediate relatives even when their parents become US citizens.

 

 

David Isaacson

Elephants, Mouseholes, and Sickness: My Comment on the Latest Anti-Asylum Proposed Rule. Do You Have One Too?

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On the heels of the prior proposed rule restricting asylum and withholding of removal that I commented on and blogged about, the Department of Homeland Security and Executive Office for Immigration Review have put out yet another proposed rule to drastically restrict asylum and withholding of removal. This one would allow the expedited removal of asylum claimants who have come from countries where a “contagious or infectious disease” is “prevalent or epidemic” (which is to say, virtually everywhere), on the basis that they are a “danger to the security of the United States” and thus barred from asylum and withholding of removal. Those claimants who can establish that they would be tortured in their home countries may instead be removed to a different country.

Comments for this rule must be submitted by the end of the day (11:59 pm) on Monday, August 10. The preferred way to submit comments is through the “Federal eRulemaking Portal: http://www.regulations.gov.”, and “identified by Docket Number USCIS 2020-0013.” In particular, you can comment at https://www.regulations.gov/comment?D=USCIS-2020-0013-0001 .

As with the previous rule, whether or not you have more than 5,000 characters (the limit for the fillable form box, though you can exceed it by attaching a document) to say about this outrageous attack on asylum, I would strongly recommend that you say something. The more substantively different comments that are received (duplicates will be given little weight), the more objections DHS and EOIR will need to consider and address before promulgating a final rule.

Below is the current draft of my comment, a final version of which I will be submitting on Monday. This version does not comply with the fillable-field 5,000-character limit, so I intend to submit my comment as an attachment, which I ended up doing with a longer version of my comment last time, although while perhaps including a shorter summary in the character-restricted box.
__________________________

As a lawyer whose practice has included asylum work for more than 14 years, I write to comment on Docket Number USCIS 2020-0013, a proposed rule of both USCIS/DHS and EOIR/DOJ.

This proposed rule follows on DHS/EOIR RIN 1125-AA94 (which I will refer to as the “previous proposed rule”) as yet another effort to dramatically limit asylum in the United States, inconsistently with the structure and spirit of the Immigration and Nationality Act. It simply takes a different approach. If the previous proposed rule to limit asylum was baroque in its complexity, a sort of “kitchen-sink” approach, this proposed rule is a more precisely targeted dagger to the heart of the asylum system. The rule essentially proposes to equip the asylum system with an on/off switch—and there is little mystery about how this Administration believes the switch should be flipped. But such a major alteration of the statutory scheme requires Congressional authorization, and Congress has not authorized the installation of this particular switch.

The effect of proposed 8 CFR 208.13(c)(10)(ii) and proposed 8 CFR 208.16(d)(2)(ii) is to give the Secretary of Homeland Security, Attorney General, and Secretary of Health and Human Services the power to effectively end asylum from any country or region they wish, simply by designating one or more countries or regions as countries or regions where a dangerous disease is “prevalent or epidemic”, and asserting that the entry of asylum claimants from those countries or regions would pose a “danger to the security of the United States”. Most applicants from that country or region can then be summarily denied any protection at all. The few applicants who satisfy the impossibly high burden of affirmatively claiming a fear of torture, and then meeting the entire standard for deferral of removal during the course of an abbreviated credible fear interview, can simply be faced with removal to a third country (or, if they establish a likelihood of torture in that third country, presumably a fourth country). Some may then withdraw their claims, rather than be sent to a country about which they may know nothing and where they might die of starvation even if they were not tortured. Others, who do not withdraw their claims, can then be sent to the third country.

The bottom line will be that, as long as the relevant cabinet officials concur, no one fleeing persecution, no matter how badly persecuted they may have been and how strong their claim for asylum may be under the law enacted by Congress, need ever be allowed into the United States. Until dangerous diseases disappear from the countries of the world – which will probably never happen – asylum and withholding of removal will be a thing of the past.

This sort of leveraging of one ancillary, vaguely-worded provision within the law to defeat the operation of the entire asylum process is not consistent with the statute as properly interpreted. As the Supreme Court has told us: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). The “danger to the security of the United States” bars are ancillary in the sense that they were clearly never intended to screen out vast quantities of people.

In essence, the position of DHS and EOIR as reflected by the proposed rule is that, at least in a world where dangerous diseases are “prevalent” in many countries, the asylum process itself is a “danger to the security of the United States”. This is the proverbial tail wagging the dog, but worse—one might better describe it as the tail strangling the dog. DHS and EOIR may not in this way abolish the asylum process created by Congress.

The proposed rule cites the Attorney General’s opinion in Matter of A-H-, 23 I&N Dec. 774, 788 (AG 2005), for the broad proposition that “phrase “danger to the security of the United States” is best understood to mean a risk to the Nation’s defense, foreign relations, or economic interests.” Proposed Rule at 41209. But Matter of A-H- concerned a very different kind of danger than the danger purportedly at issue here. The applicant there was “a leader-in-exile of the Islamic Salvation Front of Algeria who was associated with armed groups that committed widespread acts of persecution and terrorism in Algeria,” Matter of A-H-, 23 I&N Dec. at 774 hn.1. It is quite a leap from a leader associated with terroristic armed groups, to ordinary citizens of countries where a dangerous disease is “prevalent”. That the proposed rule is forced to make such a leap, in order to find support for its position, is evidence of the weakness of the position.

The proposed rule also contains another major logical flaw. The premise of the proposed rule is that COVID-19 and other dangerous diseases would pose a threat to the United States if asylum applicants from countries suffering from those diseases were not expeditiously removed. However, the proposed rule takes no account of whether a disease is more prevalent in the United States or in the country from which the asylum seeker is coming. Given current statistics regarding COVID-19, in particular, many countries of the world would have a more logical basis to exclude travelers from the United States as a danger to public health than the other way around. Statistics from the World Health Organization (see (see https://covid19.who.int/table) indicate that the United States has more COVID-19 cases than any other country in the world, and more than double as many as any country other than Brazil. Another analysis of the data (at https://www.statista.com/chart/21170/coronavirus-death-rate-worldwide/) found that of the 10 worst-affected countries in the world, the United States has suffered more deaths per 100,000 inhabitants than any nation other than the United Kingdom and Chile. It is fundamentally arbitrary and capricious to exclude from the protection of asylum in the United States an applicant who comes from a country where a dangerous disease is prevalent, but less prevalent than in the United States, on the basis that this asylum-seeker is a danger to the United States. The logic seems to be that the asylum-seeker can be presumed to carry the dangerous disease, but how can that be so if they are less likely to have the disease than people already in the United States? Indeed, the arbitrariness is so great as to indicate that the (lesser) prevalence of infectious disease in other countries is simply being used as a pretext to shut down the asylum process

Admittedly, at least at the nation’s land borders, the impact of the proposed rule would be limited in the short run by the fact that CBP is already summarily expelling most asylum applicants under a legally dubious use of what it describes as “Title 42” authority, that is, pursuant to 42 U.S.C. § 265 (as enforced by “customs officers” under 42 U.S.C. § 268(b)). Presumably, however, one reason why DHS is attempting to create similar summary-expulsion authority by way of enhanced expedited removal under Title 8 of the U.S. Code is that it is aware the Title 42 expulsions are legally dubious, and may ultimately be halted by the federal courts—as one particular Title 42 expulsion indeed was halted following a lawsuit, spearheaded by the ACLU, in the case of J-B-B-C- v. Wolf. That the immediate impact of the proposed rule may be lessened by an existing legally dubious measure does not make the proposed rule itself any less legally problematic.

There is yet another major problem with the proposed rule, and that is who has proposed it. The proposed rule states at page 41214:

“The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register.”

The power to sign the document, that is, ultimately comes from Chad F. Wolf, even if it may not be his electronic signature on the document itself.

Others have pointed out why Chad F. Wolf was never properly delegated the powers of the Secretary of Homeland Security in the first place, and I will not rehash those arguments in their entirety, but will instead incorporate by reference, in my comment, paragraphs 157-210 of the complaint in Casa de Maryland v. Wolf, 8:20-cv-02118-PX (D.Md. filed 7/21/20), available at https://asylumadvocacy.org/wp-content/uploads/2020/07/Casa-de-Maryland-v.-Wolf-Complaint.pdf and provided as an attachment hereto for ease of reference. I also provide, as an attachment to this comment, an informative blog post from Lawfare along similar lines, see https://www.lawfareblog.com/senate-should-ask-chad-wolf-about-his-illegal-appointment. My point is a simpler one. Even assuming for the sake of argument that he had come to his position entirely appropriately (a point I do not concede), Chad F. Wolf has been purporting to occupy his position on an acting basis for longer than permitted by statute.

The Federal Vacancies Reform Act (FVRA), codified in relevant part at 5 § U.S.C. 3346, provides:

(a)Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—
(1)
for no longer than 210 days beginning on the date the vacancy occurs; or
(2)
subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.
(b)
(1)
If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve—
(A)
until the second nomination is confirmed; or
(B)
for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
(c)
If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

Chad F. Wolf has purportedly been serving as Acting Secretary of Homeland Security since November 13, 2019 (which was not during an adjournment of the Congress sine die). See Chad F. Wolf, https://www.dhs.gov/person/chad-f-wolf. The proposed rule was filed on July 8, 2020, 239 days later. The better view is that the 210-day FVRA clock began to run substantially before Mr. Wolf’s appointment, upon the resignation of Kirstjen Nielsen as the last Senate-confirmed Secretary of Homeland Security; the purpose of the FVRA would not be served by allowing the President to install an endless line of different acting Secretaries for as long as desired so long as a new one came in every 209 days. But even on the most generous conceivable calculation, beginning only with the acting service of Mr. Wolf himself, the 210 days for Mr. Wolf would have run before the proposed rule was filed. No nomination has been filed with the Senate for the position of Secretary of Homeland Security, so there is no second 210-day clock.

Chad F. Wolf was, purportedly, appointed as Acting Secretary of Homeland Security after the resignations of Kristjen Nielsen and then Kevin McAleenan. This is not, in the sense of the statute, a “vacancy caused by sickness”, 5 U.S.C. 3346(a). Thus, he was no longer capable of serving in an acting capacity, in accordance with the law, as of the time this proposed rule was promulgated, more than 210 days after not only the vacancy but also the beginning of his purported appointment.

Presumably, DHS does not intend to defend the prolonged service of Mr. Wolf on the basis that the failure to submit a nomination for his position was “caused by sickness,” 5 U.S.C. 3346(a), in the form of a sickness on the part of the current President. Nor is a more general form of metaphorical sickness on the part of the Executive Branch likely to be the sort of thing contemplated by § 3346(a), even if reasonable people might believe it to exist. In some colloquial sense, one could perhaps describe this proposed rule itself as “caused by sickness”, but the FVRA addresses whether sickness was a cause of a vacancy in an office, not whether it was the cause of a vacancy in a putative acting official’s conscience. There is no circumstance here that would excuse a violation of the 210-day limit.

Because Mr. Wolf was purporting to serve as Acting Secretary of Homeland Security in violation of the FVRA at the time he authorized Chad Mizelle to sign the proposed rule in the Federal Register, his action in doing so “shall have no force or effect.” 5 U.S.C. § 3348(d)(1). The proposed rule was never validly promulgated, and for that reason alone no final rule should be issued, even leaving aside the substantive defects discussed above.

This is not a mere technicality. The FVRA is intended to protect the Constitutional principle that appointed officers must be confirmed by the Senate, by preventing the President from ignoring the Senate indefinitely and leaving “acting” officers in place indefinitely. That is precisely what has happened with Mr. Wolf, and it is precisely what the statute forbids. The Constitution demands that this rule not move forward from such a fundamentally illegitimate beginning.

But for the reasons discussed above, it is not merely the identity of the putative acting official promulgating this rule that is illegitimate. It is the entire cynical attempt to destroy the asylum system in the United States using purported infectious disease concerns as a pretext. This is simply not something that the Executive Branch has the legal authority to do.

David Isaacson

My Comment on Proposed Draconian Changes to Asylum Regulations – Do You Have One Too?

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The Department of Homeland Security and the Executive Office of Immigration Review (the agency within the Department of Justice that runs the immigration courts) have jointly proposed a new rule entitled “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” that would drastically change the law in the United States governing applications for asylum and other protection from persecution and torture. The proposed rule is very lengthy, but its common theme is the creation of many different reasons to deny protection to asylum-seekers, sometimes even without a hearing.

If the new rule were finalized as proposed and were to take effect, applications for asylum could be denied for reasons such as being based on gender or domestic violence, being based on a political opinion that doesn’t match the new narrow definition of what a political opinion should be, or because the applicant had traveled through too many countries on the way to the United States, or had not been able, as an undocumented immigrant, to pay all of their taxes exactly correctly. People could be deported without a full hearing because the court of appeals for the area where they happened to be detained had issued a decision disfavoring their kind of claim, even if other courts of appeals had ruled differently and the Supreme Court might resolve the conflict in their favor. People could also be deported without a hearing because the immigration judge reading their paper application thought they had no claim for asylum without hearing from them directly at all.

These changes have been strongly criticized by the American Immigration Lawyers Association and the National Immigrant Justice Center, among other groups. They can be criticized in a meaningful way by anyone with an interest in this area, as well, because the government has, as required under the Administrative Procedure Act (APA), invited public comment regarding the proposed rule.

Public comments on the proposed rulemaking “must be submitted on or before July 15, 2020”, and can be submitted online “prior to midnight eastern time at the end of that day.” The link to submit a comment online is https://www.regulations.gov/comment?D=EOIR-2020-0003-0001 . Comments can also be submitted by mail, if postmarked by July 15, for those who may prefer that method of communication, in which case they should be directed to Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. Comments must be “identified by the agency name and reference RIN 1125-AA94 or EOIR Docket No. 18-0002”.

The main online comment field is restricted to 5,000 characters. I have drafted a comment that currently uses 4,996 of those characters. There is much to criticize about the rule beyond what I could fit under that limit, and I am considering whether to attach a longer criticism to my final online comment as a PDF document. There may be no guarantee that DHS and EOIR would read my attachment, but then again there is no guarantee, other than the prospect of litigation under the APA, that they will truly consider any of the comments, and I do not think there would be any legal merit to a refusal to consider a comment just because part of it was submitted as an attached PDF. Anyone else who has more to say than the 5,000 character limit may want to consider providing an attachment as well.

But whether or not you have more than 5,000 characters to say about this outrageous attack on asylum, I would strongly recommend that you say something. The more substantively different comments that are received (duplicates will be given little weight), the more objections DHS and EOIR will need to consider and address before promulgating a final rule.

The current version of my comment, which I may revise before the Wednesday deadline but am posting now in the hope that it may inspire other comments, is as follows:

As a lawyer whose practice has included asylum work for nearly 15 years, I write to comment on DHS/EOIR RIN 1125-AA94. The common thread of this proposal is disregard for the law in an effort to limit access to asylum and related relief however possible.

It is inappropriate for credible fear reviews, per proposed 8 CFR 1003.42(f), to consider only “decisions of the federal courts of appeals binding in the jurisdiction where the immigration judge conducting the review sits” and not those of other courts of appeals. The credible fear process is meant to ascertain if “there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”. INA §235(b)(1)(B)(v). There may be a “significant possibility” that venue will be changed to the jurisdiction of a different court of appeals before a decision on the asylum application: credible fear reviews will often be conducted near the border or an international airport, while aliens released on bond or parole may not remain nearby. Or, if there is a conflict between courts of appeals, there may be a “significant possibility” that the Supreme Court could resolve the conflict, see Supreme Court R. 10(a), in favor of a different circuit. As formerly set out in guidance for asylum officers, aliens should be given the benefit of favorable case law from a different circuit than the one where a determination is made. When a claim has a significant chance of success under the law of any circuit, there is a significant possibility that the alien could ultimately establish eligibility for asylum.

Requiring applicants in credible fear proceedings to establish “a reasonable possibility” of persecution or torture is inappropriate. Credible fear review is meant as a brief screening process. High standards increase the risk that people may be sent to their deaths or torture. It is bad enough to run this risk in INA §238 proceedings for people with aggravated felony convictions, who might themselves pose risk, or in reinstatement of removal, for people who have theoretically had a prior opportunity to seek protection. It is worse to do so for non-criminals who face a policy-based bar to asylum during their first opportunity to request U.S. protection.

The regulation should not exclude, from the definition of particular social group, claims involving “interpersonal disputes” or “private criminal acts” “of which governmental authorities were unaware or uninvolved.” Private harm based on membership in an otherwise qualified particular social group, which the government is unable or unwilling to prevent, is persecution, see, e.g., Rosales-Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018); Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015), even if governmental authorities were unaware or uninvolved.

Nor is it appropriate to preclude claims based on domestic violence or gender. This is inconsistent with, for example, Canadian refugee law. See, e.g., Kauhonina v. Canada (Minister of Citizenship and Immigration), 2018 FC 1300; Jeanty v. Canada (Minister of Citizenship and Immigration), 2019 FC 453.

Proposing to “define political opinion as one . . . in which the applicant possesses an ideal or conviction in support of the furtherance of a discrete cause related to political control of a state or a unit thereof” is also indefensible. An opinion about what policy should be, as opposed to who should control the state, is still political. As a matter of English usage, we would not say that everyone who supports the same candidates for President, governor, Congress, state legislature, etc., must have all the same political opinions. People may differ on such matters as whether abortion should be legal, but vote for the same party—there are pro-choice Republicans like Senator Lisa Murkowski, or pro-life Democrats like Senator Bob Casey. If Senator Murkowski would vote for the same Republican candidates as someone who believes abortion should be illegal, this does not mean the two have no differing political opinions. Persecution of Senator Murkowski for her view on abortion would be based on political opinion even if the persecutor agreed with her votes for Republican candidates.

The list of 9 adverse factors supporting denial of asylum as a matter of discretion is inappropriate. The better, well-established rule is that “the danger of future persecution can overcome all but the strongest adverse factors.” Huang v. INS, 436 F.3d 89, 100 (2d Cir. 2006). Basing denial on how many countries an alien traveled through (perhaps to change planes) is absurdly arbitrary; the other 8 are little better.

The reduction in confidentiality, besides being inappropriate, should not apply retroactively. Those subject to the prior regulatory promise of secrecy should retain its benefits.

5,000 characters is not enough to rebut this 43-page monstrosity.

Cyrus Mehta

Trump’s Work Visa Ban Causing Havoc to Families including Children

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By Cyrus D. Mehta and Kaitlyn Box*

On June 29th, 2020, issued a Proclamation to amend Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak).

The amended Proclamation modifies Section 3(a)(ii) of the June 22 Proclamation to read as follows:

“(ii)   does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and”

In the June 22 Proclamation, Section 3(a)(ii) had read as:

“(ii)   does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and”

Under the language of the original provision (see The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans), having a valid visa of any category was sufficient to exempt an individual from the Proclamation. The amendment renders the Proclamation even more restrictive, specifying that the visa must be a valid H-1B, H-2B, L, or certain J visas, and that the individual must be entering the United States pursuant to that visa to qualify for an exemption.

This amendment will cause irreparable harm to countless individuals who relied on the language of the original Proclamation to their detriment. Interpreting the original provision, an individual with a valid B-2 visa, for example, may have assumed that they were exempt from the Proclamation, and chosen not to return to the United States by June 24th. Now, trapped by the administration’s sudden narrowing of the exemption, that individual is stuck outside the United States. Further, individuals who had a valid H-1B, H-2B, L or J visa on the effective date of the original Proclamation (June 24, 2020), may not, based on a literal reading of the amended section, be able to get a new visa when their old one expires if they were outside the United States on June 24th, 2020.

Already, the Proclamation is resulting in irreparable harm and separated families. The Washington Post told the poignant story of Vihaan, a young boy who traveled to India with his mother in February to visit a seriously ill relative. First unable to return to the United States due to the pandemic, and now ensnared by the amended Proclamation, Vihaan and his mother are separated from Vihaan’s father and their home in Dallas, Texas, for the foreseeable future. Many other families, some of whom have lived in the United States for years, find themselves in the same situation.

The Proclamation has been the source of other points of confusion, as well. Some immigration lawyers have questioned whether individuals who were in the United States on the effective date of the Proclamation and, thus, exempt, could be impacted by the Proclamation if they travel internationally. On Twitter, the State Department seemed to confirm that an individual in this situation could become subject to the ban, stating: “If you depart the US, you need a valid visa to return and we will not be issuing H-1B, H-2B, L, or certain J visas, and derivatives through Dec 31 unless there’s an exception”. Aside from the devastating impact that the amended Proclamation will have on individuals who are stranded overseas or unable to travel, it will also cause irreparable harm to U.S. businesses who have employees stuck outside the United States and unable to perform the jobs they were hired to do, or are unable to travel for business.

This Proclamation, along with the harsher amendment, do very little to achieve their stated goal of protecting jobs for American workers. As our colleague Jeffrey Gorsky noted, the Proclamations ban some individuals who are not even able to work in the United States and pose no threat to the labor market, including spouses of H-1B workers, many of whom are not eligible for employment authorization, and spouses of H-2B workers and children, who are never eligible for employment authorization. They have the perverse effect of banning a new born child too. Gorsky notes that a mother could have a valid L-1 visa  on June 24 and is thus not banned, but if she gives birth to a child after June 24, 2020, this hapless child  will be banned for not having a valid visa on June 24, 2020. We argued in our prior blog that family members, such as this child, who are accompanying or following to join a nonimmigrant whose entry has not been suspended should be permitted to obtain a dependent visa. Unfortunately, those in charge of implementing the Proclamations in the Trump administration, such as arch xenophobe Stephen Miller, are more concerned about keeping out nonimmigrants (including babies) to the maximum extent possible under the guise of protecting American jobs.  Unless a court intervenes, the Proclamations will cause irreparable harm to individuals who may have been living and working in the United States for years,  the U.S. businesses that employ them as well as cause further damage America’s reputation in the eyes of the world.

 

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

Cyrus Mehta

Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans

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On June 18, 2020, the Supreme Court in Department of Homeland Security v. Regents of the University of California ruled that Elaine C. Duke, then-Acting Secretary of the Department of Homeland Security (DHS), violated the Administrative Procedure Act (APA) in 2017 when she rescinded the Deferred Action for Childhood Arrivals (DACA) program, in place since 2012, at the direction of the Attorney General. DACA granted certain people who entered the United States as children the ability to apply for a two-year “forbearance of removal” and to be eligible for work authorization and various benefits. There are approximately 700,000 DACA recipients.

The Court noted in its decision that the Department of Homeland Security may rescind DACA and that the dispute instead was primarily about the procedure the agency followed in doing so. The government had argued that its decision was unreviewable, but the Court disagreed. Duke’s brief explanation  -“Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated”- was so inadequate as to make the decision “arbitrary and capricious,” Chief Justice Roberts said. While DHS Secretary Nielsen came up with a more elaborate explanation nine months later in response to an unfavorable Federal District Court ruling, Roberts said that it was a “foundational principle of administrative law” that an agency, once challenged, has to defend its action on the grounds it initially invoked, not on an after-the-fact rationalization, unless it wants to restart from scratch the process of arriving at a decision.

For several reasons, the Court found the rescission of DACA to be “arbitrary and capricious,” noting that “[w]e do not decide whether DACA or its rescission are sound policies,” but only “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” The appropriate recourse, the Court found, was “to remand to DHS so that it may consider the problem anew.”

USCIS subsequently issued a statement calling DACA recipients “illegal aliens” and asserting that the Court’s decision “has no basis in law and merely delays the President’s lawful ability to end the illegal [DACA] amnesty program.”

While the Trump administration may think it is easy to rescind DACA again if it provides a better rationale, there is more to Chief Justice Roberts’ opinion than meets the eye from page 24 onward as he faults the administration for not factoring reliance interests. DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae,  which estimated that  hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Trump will be smacked down again as justifying the rescission with such heavy duty reliance interests will be a tall order for a xenophobe like him.

It is not hypocritical to support President Obama’s executive action, DACA, while objecting to President Trump’s executive actions. Indeed, a Presidential Proclamation is expected imminently to suspend the entry of many nonimmigrant workers, possibly until the end of the year. This comes closely following the heels of Trump’s  Presidential Proclamation that took effect April 23, 2020 suspending the entry of many immigrants outside the United States for 60 days, with some exceptions. I have  fiercely criticized Trump’s use of INA 212(f) to rewrite the INA. Trump’s proclamations restrict immigration and cause great hardship to both immigrants and American families and businesses.  The impending ban on suspending H-1B visas entries and scrapping H-4 work authorization, have long  been cherished by xenophobes in the Trump administration, under the big lie of speeding economic recovery during the pandemic crisis. Deferred action, or forbearance,   under DACA is qualitatively different from Trump using INA 212(f) to preclude entire preference categories of immigrants, or entire countries’ worth of immigrants, as Trump has done.  Deferred action is not unprecedented in the way that barring whole countries or whole preference categories under 212(f) is.  Trump’s abuse of INA 212(f) to rewrite the INA is based on his hostility towards immigration and immigrants. It must be opposed, and notwithstanding Trump v. Hawaii, which upheld the Muslim ban, his subsequent bans are distinguishable as they conflict with provisions of the INA that have been crafted and enacted by Congress, in addition to being outright hostile and cruel.

Perhaps, the Supreme Court’s emphasis on reliance interests would be a strong ground to challenge Trump’s next suspension on nonimmigrant visa entrants. When an agency changes course, as DHS did with the DACA rescission, the Supreme Court stated that it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016) (quoting Fox Television, 556 U. S., at 515). “It would be arbitrary and capricious to ignore such matters.” Id., at 515. The Duke memorandum did exactly that, and Trump’s next ban will also do that.