Cyrus Mehta

H-1B Cap Filing Aftermath: Evaluating the Fate of the Computer Programmer and the H-1B Dependent Employer

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On  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references the relevant part reference computer programmers in the  DOL’s Occupational Outlook Handbook that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questions whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.

The fact that the guidance was issued just as employers had filed H-1B petitions to reach on the first day of the filing period, April 3, 2017, caused panic in many quarters. The media also suggested that the new guidance was aimed against India based IT firms who utilize most of the H-1B numbers each year. Such speculation was backed up by another announcement on the USCIS website entitled Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse. The announcement specifically indicated that USCIS would focus its resources on conducting site visits on employers who are dependent on H-1B workers and who place H-1B workers at client sites. It also set up an e mail where US workers could report alleged H-1B fraud and abuse. The DOJ also followed with an announcement cautioning employers who hire H-1B workers to not discriminate against American workers and that its Immigrants and Employee Rights division would vigorously enforce the anti-discrimination provision of the INA.  INA 274B prohibits citizenship, immigration status and national origin discrimination in hiring, firing or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.  Not to be outdone by sister agencies, the DOL also put out a news release on April 4 stating that it would rigorously use its existing authority to initiate investigations of H-1B violators.

None of these announcements suggest anything new. The USCIS has for many years been critical of viewing computer programmers as a specialty occupation, especially if the H-1B worker receives level 1 wages. A search of non-precedent decisions on the Appeals Administrative Office website reveals a number of affirmations of denials of H-1B petitions for computer programmers over the years. This is not to suggest that a computer programmer will never be able to qualify for an H-1B visa, but the employer should not rely on the OOH and should be prepared to rebut the OOH findings that an associate’s degree would be adequate preparation for a computer programmer with respect to its niche position. In Fred 26 Importers Inc. v. DHS, a federal district court overturned a finding of the AAO that a Human Resource Manager did not qualify for an H-1B occupation as the OOH indicated that a broad range of disciplines, as opposed to a specialized discipline, could qualify a person for the occupation. The employer used expert witnesses to demonstrate that the position was complex, even in a small organization, to require a bachelor’s degree in a specialized field. If the employer’s business model requires assigning the H-1B worker at a third party client site, it is further important to demonstrate that both the petitioning employer and the client require a bachelor’s degree in a specialized field. See Defensor v. Meissner, 201 F.3d 384 (5th Cir 2000). At the same time, under the Neufeld Memo, the petitioning employer must additionally demonstrate that it and not the client exercises control over the H-1B worker’s employment. Moreover, not all computer occupations have received the same treatment by the OOH as computer programmers. For instance, according the OOH, a bachelor’s degree in computer science is a requirement to qualify as a computer systems analyst, although some employers may require bachelor’s degrees in business or liberal arts. With respect to software developers, the OOH categorically states that a bachelor’s degree in computer science or related fields is a minimum requirement. Hence, a software developer or computer systems analyst will fare better than a computer programmer, even at an entry level wage. It can also be argued that in every profession there is an entry level position, and that factor in itself should not undermine the ability of the employer to qualify the position for H-1B visa classification. If the position qualifies as a specialty occupation, then paying an entry level wage should not undermine it. If the position does not qualify as a specialty occupation for H-1B classification, then paying even at the highest wage level would not be able to salvage it.

Site visits of the FDNS are nothing new, and firms that heavily rely on H-1B workers who are placed at third party sites have been the focus in recent years. However, with respect to the USCIS’s intention to conduct site visits, the announcement states, “Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” While it is true that H-1B dependent employers are obligated to recruit for US workers before filing H-1B petitions for foreign national workers, this obligation does not apply when a dependent employer files an H-1B petition for an exempt employee – one who is either paid $60,000 or higher or who has a master’s degree or higher in the specialty that is relevant to the position. The USCIS announcement, unfortunately,  is somewhat misleading, and a dependent employer who is not obligated to recruit because it has filed an H-1B petition for an exempt employee may be subject to a warrantless complaint or investigation. It is urged that the USCIS clarify this point in its announcement so that it can focus its resources on legitimate rather than frivolous complaints.

There is also no question that a US employer is prohibited from discriminating against an American worker in favor of an H-1B worker. However, in order to be found liable, it must be demonstrated that there was an intention to discriminate based on citizenship or national origin. If there was a lawful business objective to hire H-1B workers, or even contract with an IT consulting firm that uses H-1B workers, that would not be a legal basis to hold an employer liable under the anti-discrimination provisions of INA 274B. Only time will tell whether the DOJ intends to push the envelope further.

The USCIS on April 7, 2017 announced that the FY2018 H-1B cap had been reached. It is likely that more H-1B petitions will get rejected than accepted. Those petitions that get accepted, in the event that they face more scrutiny by virtue of being filed for computer programmer positions, will not outright get denied. The USCIS will issue a Request for Evidence, which allows the employer to demonstrate that the position qualifies for a specialty occupation. If there is a denial after that, the employer may file an appeal to the AAO, and if the appeal is dismissed, the employer can seek review in federal court. Under Darby v. Cisneros, an employer may directly pursue review in federal court and bypass the AAO.  A dependent employer who is the subject of a complaint for not recruiting US workers first has a rock solid defense if the employer filed an H-1B petition for exempt employees. Finally, employers must always hire objectively based on legitimate business criteria in order to stave off any allegations regarding discrimination. Although there are many challenges for employers filing H-1B petitions under the FY 2018 H-1B cap, they are not insurmountable.

 

 

Cyrus Mehta

Immigrants Are Not Undesirable Criminals

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During his campaign and after he became president, Trump has unfortunately changed the narrative by linking immigrants, especially undocumented immigrants, to rapists, murderers, terrorists and job stealers. Trump has exploited the crimes committed by a few immigrants to link all of them to criminal activity. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. While we undoubtedly sympathize with the victims of such crimes, it is morally reprehensible to taint all immigrants with the conduct of a very few. The criminal justice system can effectively punish perpetrators of all crimes, whether they may be immigrants or US citizens.  Most immigrants are hardworking and honest, trying to make a better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans.

Some in the media have latched onto this false narrative to further sensationalize the issue. When I was invited to debate Tucker Carlson on Fox News on March 27, 2017 I accepted believing it is important for an immigration attorney to speak out loudly and boldly, no matter how ruthless the TV host may be.While Carlson may limit the conflation to crimes with undocumented immigrants, this has the tendency to extend to even legal immigrants as exemplified in Trump’s travel ban. Nationals of the countries affected in the ban are people entering the United States legally as students, temporary workers or as refugees,  but they are still considered suspect as the Trump’s travel ban directly links to nationals of Muslim majority countries suspected of terrorism.  This sort of stereotyping is not just false, but it is also extremely dangerous. A few weeks ago, a US citizen killed an Indian engineer who was legally in the United States on an H-1B visa under the false perception that he was a dangerous immigrant. By Carlson’s logic, the immigrant would not have committed a crime if he or she had not been let into the United States in the first place. But how do you determine this in advance as to who will commit a crime in the future? Does this  mean that our entire immigration system has to shut down?  Or do we no longer take in people fleeing persecution to prevent risking one of them or one of their descendants from committing a crime in the future, even though America is known as the beacon of hope for the persecuted? Is there a way to determine whether one born in the United States will be the next Timothy McVeigh or Adam Lanza?

We can only hope that this virulent fever in America breaks soon because it goes against the long cherished notion that America is nation of immigrants.

Watch the clip below:

Cyrus Mehta

Protesting Trump’s Muslim Ban Through Art: An Immigration Lawyer’s Perspective

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There are many ways to protest Trump’s travel ban, also known as the Muslim ban. Lawyers have successfully sued against the ban in the courts. People protested at airports in an unprecedented and spontaneous manner. Art can also be a powerful form of protest against the ban.  The Museum of Modern Art (MOMA) has also joined the protests by displayng works of artists from the banned countries among other iconic works of art in its permanent collection. One has to go through the galleries housing the permanent collection to serendipitously come across the work of an artist from a banned country, which in the age of Trump, have also attained iconic status. Art is able to inspire the lawyer in protesting the ban. Trump’s exclusion of an entire people from a banned country casts all of them as terrorists, including the artist. This is both legally wrong and morally shameful.

These are three of my favorites among the works of the artists from the banned countries at the MOMA. I have also included at the end the works of two artists from my own very modest art collection. I am happy to possess these works, which have always been beautiful, but resonate more powerfully today. They inspire me as I protest Trump’s ban.

Charles Hossein Zenderoudi – born in Iran

Ibrahim el- Salahi - born in Sudan

Ibrahim el- Salahi – born in Sudan

Parviz Tanavoli – born in Iran

 

These are two works from my own collection, the first which I acquired in 1993 and the second in 2010.

 

Reza Derakshani – born in Iran

Mary Yahya – born in Iraq

Cyrus Mehta

No Matter How Many New Travel Bans Trump Issues, Maximum Power Does Not Mean Absolute Power

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By Cyrus D. Mehta and Sophia Genovese-Halvorson

We have numerous justifiable concerns with the immigration policies of the Trump Administration on behalf of our clients and all Americans who feel that our values are being undermined, especially the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Fortunately, courts across the country seem to agree except for one. Most notable were United States District Judge Robart’s nation-wide temporary restraining order (TRO) of the EO in the Western District of Washington and United States District Judge Brinkema’s Virginia-wide injunction against the EO in the Eastern District of Virginia. Due to these and many other orders, as well as heavy backlash, the Trump Administration has now stepped back and have stated that they will replace the January 27 EO with a new Executive Order sometime next week that will survive judicial scrutiny. It is our view, however, that even this new EO in whatever way repackaged will be unconstitutional under the Establishment Clause of the First Amendment to the U.S. Constitution.

As a reminder, the January 27 EO suspended for 90 days the entry of persons from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, suspended the U.S. Refugee Admissions Program for 120 days, and banned Syrian refugees indefinitely, unless they received an exemption from DHS for being a “religious-minority.” The EO immediately disrupted the lives of thousands of people, from non-immigrants, immigrants, LPRs, and even dual-citizen holders. The first suit against the EO came only a day after its enactment in the Eastern District of New York, which issued an emergency stay that temporarily blocked the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. There were several other injunctions that followed. Then the States of Washington and Minnesota filed suit in the Western District of Washington, requesting, among other things, a restraining order on the ban. Judge Robart issued a nationwide temporary restraining order against the ban, which was affirmed by the Ninth Circuit. Judge Robart’s ruling on the merits is still pending. Meanwhile, Judge Brinkema in the Eastern District of Virginia granted a Virginia-wide injunction against the EO, citing specifically to the Establishment Clause.

President Trump continues to argue that the President has extensive powers granted to him under the Immigration and Nationality Act (INA) § 212(f), 8 U.S.C. § 1182(f), and proffers that the judiciary cannot exercise jurisdiction over an EO due to the plenary powers doctrine. In relevant part, INA § 212(f) states that,

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

However, as Judge Brinkema rightfully pointed out in her decision, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). In her analysis, Judge Brinkema reaffirms that the U.S. Constitution is the supreme law of the land, and that no one, not even the President, can violate its terms. Citing to landmark cases such as Zadvdas v. Davis, 533 U.S. 678 (2001) (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), among others, she proves this point.

The Ninth Circuit that affirmed Judge Robart’s TRO also provided precedent on the reviewability of the Executive, citing to Boumediene v. Bush, 553 U.S. 723, 765 (2008) (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha, 462 U.S. 919 (1983) (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”). The Ninth Circuit goes so far to say that even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

In short, there is no doubt that Trump’s Executive Orders are subject to review when there is an alleged violation of the Constitution. But what specifically is unconstitutional about Trump’s ban? Or a rewrite of the ban even if it does not apply to lawful permanent residents or non-immigrants who have already been in the United States? One indication of the new EO by DHS Secretary Kelly is that it would give time for people to come back in , and would presumably include the same 7 nations whose nationals would be barred from future entries.

The Establishment Clause

The Establishment Clause argument has great merit, and it is the opinion of these authors that this argument will likely prevent Trump from prevailing on even his latest Executive Order, where it is likely he will include even non-Muslim countries, so as to appear non-discriminatory. The Virginia Court, in relevant part, explains that,

“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” The Supreme Court has articulated various tests for determining whether that command has been violated. The first such test is that the law “must have a secular…purpose.” “In the past, [this] test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing” one religion over the other. The secular purpose requirement “‘nevertheless serves an important function,’” because “[b]y showing a purpose to favor religion, the government sends the…message to…nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members.” This message of exclusion from the political community is all the more conspicuous when the government acts with a specific purpose to disfavor a particular religion. (internal citations omitted).

(Aziz, at *13-14).

In order to assess whether there was discriminatory intent in the January 27 EO, Judge Brinkema cites heavily to statements made by Trump during his campaign, especially noting that a “Muslim Ban” was a central feature of his platform. She also pointed to post-election and post-inaugural interviews where he speaks about the need to prioritize Christian refugees. She also cites to a particularly intriguing quote by Rudy Giuliani, who stated after the EO’s enactment, that “when [Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’…And what we did was, we focused on, instead of religion, danger—the areas of the word that create danger for us…Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.” Additionally, Judge Brinkema noted that post-hoc statements by DHS Secretary Kelly and White House Chief Counsel proclaiming that this is not a Muslim ban will be given little weight because we are looking to past intent in our analysis.

These statements taken together go to show that the ultimate aim of the Trump Administration is to ban Muslims. Even in light of the new EO, which may or may not include non-Muslim majority countries, these statements cannot be washed away. The intent to ban Muslims is there. The intent to violate the Establishment Clause, without outright saying it, is there. “‘The world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office.” Aziz, at *15. Trump’s new EO is only being reissued because he and his Administration know it is likely that his January 27 EO is unconstitutional. Essentially, the new EO will be a repackaging of the old. The intent, therefore, remains to ban Muslims. This is the case even if the new EO proposes to ban future entrants. While people with no ties to the US may not have the same constitutional rights as lawful permanent residents, such a person who wishes to visit a US citizen relative or attend a US educational institution could still likely be able to challenge an unconstitutional EO pursuant to Boumediene v. Bush and Hamdi v. Rumsfeld.

Balancing the Government and State’s Interests

Given that plaintiffs can likely prevail on the Establishment Clause argument, the government must prove that its national security concerns are bona fide. This means that the government must present evidence to support its assertions that these EOs are vital for the preservation of national security. Judge Brinkema again notes that in the Virginia case, the government failed to provide any evidence to support their claim. The Ninth Circuit also noted that no evidence had been proffered to point to terrorist threats of nationals from the original seven banned countries. In fact, Judge Brinkema states that the only evidence offered in this regard is the declaration of 10 national security experts who declared that the January 27 EO only serves to make the country less safe. It is possible, though, that a court may follow what the Massachusetts district court in Louhghalam v. Trump did, and grant the President this authority and not find discriminatory intent (although the court rendered this decision to justify not extending the injunction indefinitely, which it did initially, and did not analyze the discriminatory intent).

It is clear to us, and hopefully to a court that hears the new challenge,  that the discriminatory intent will still exist in this new EO, thereby remaining in violation of the Establishment Clause. While it remains unclear if courts will find that this new EO puts forth facially legitimate national security concerns, it will still possess discriminatory intent, specifically banning Muslims, and will fail under the “bona fide” prong put forth in Kleindienst. See also American Academy of Religions v. Napolitano, 573 F.3d 115 (2009).  If the EO is found to possess facially legitimate national security concerns, but also formed in bad faith, it will be up to the courts to decide if these national security concerns have enough muster to overcome constitutional constraints. But history has repeatedly shown that national security concerns have been conveniently and falsely invoked even to deprive US citizens of their rights as with the shameful internment of Japanese Americans.

These national security concerns, in our opinion,  are invalid and cannot even pass the facially legitimate prong. Immigrants and refugees face numerous screenings before being granted admission into the United States. In addition, the immigration process can take years. The government in the January 27 EO proceedings failed to offer evidence that these processes were defective in their ability to screen out security threats. Further, it is unlikely that a terrorist would go through the trouble of filing an nonimmigrant/immigrant petition, only to be vetted several times over, then be subjected to a consular interview, and then still have to make it through Customs and Border Protection. It is an inefficient means to their end. Even attempting to ban prospective entrants who have not had ties with the United States cannot be justified if the ban violates the Establishment Clause. Since Marbury v. Madison, 5 U.S. 137 (1803),  the Supreme Court has recognized that when a government action is in conflict with the Constitution, it is for the judiciary to say what the law is. This is the wonderful balance that preserves American democracy. White House advisor Stephen Miller was wrong to assert that an unelected judge cannot check the President’s power in the area of immigration. The will of the majority, even in a democracy, cannot trample upon the rights of others. If that happens, the judiciary applies the breaks on such abuse of power so as to protect those who are trampled upon by the majority.

But most importantly, the majority of people seeking to temporarily visit or immigrate to the United States are peaceful people. Just because they share a different religion, worldview, or skin tone than some Americans does not mean that they are somehow violent or a threat. In fact, the opposite is true. Immigrants have been critical in the continued advancement of our country. From science and technology, to social ingenuity and progress, immigrants have helped to continue moving our country forward. To equate immigrants or non-immigrants, especially those from Muslim-majority countries with terrorists is not only bigoted, but it is simply untrue. Profiling all people from a specific country cannot serve as a proxy for individualized suspicion and guilt. It is also a sloppy law enforcement technique as an individual who desires to harm the country can evade being part of the profile. There are other smart law enforcement techniques that have been successfully deployed to track and apprehend people who intend to do us harm than profiling all people of a country.

President Trump derives his authority to assert maximum power through the plenary power doctrine, which arose from a Supreme Court case in the late 1800s, Ping v. United States, 130 U.S. 581, that upheld the racist Chinese Exclusion Act. In the 21st century, after the United States has made such strides in civil rights, women’s rights, and marriage equality, there is no longer place for plenary power as a justification to violate the Constitution. Allowing President Trump to assert such maximum power, based on the plenary power doctrine, only takes America back more than a hundred years after all the progress that has been achieved. The plenary power, as asserted in the travel ban EO, also sends a wrong message to the world that America is no longer a welcoming place for people to travel, do business, temporarily work, or to make a permanent home. Being unwelcoming, arbitrary and intolerant is inconsistent with the notion of America as a great nation. On this President’s Day, it is important to reflect whether now is the opportune moment to reassess the plenary power doctrine that was grounded in a racist law whose purpose was to exclude Chinese nationals just as the current or future EO is aimed against banning Muslims. It is high time for the courts to once and for all recognize the supremacy of the Constitution over the president’s absolute power.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]

David Isaacson

More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration

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Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.”  This claim has, deservedly, been the subject of much ridicule.  As host Chuck Todd stated during that same interview in response to what one article rightly termed an “Orwellian turn of phrase”: “Alternative facts are not facts.  They’re falsehoods.”  Such disregard for the truth has been a common feature of the early days of the Trump Administration.

The same Orwellian approach to language has been evident in the Trump Administration’s recently issued executive orders regarding immigration.  Both the January 25, 2017, Executive Order entitled “Enhancing Public Safety in the Interior of the United States” and the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” involve in different ways a very troubling relationship with the notion of truth.  (The orders also have a number of other deeply objectionable aspects, too many to fully address in one blog post, although many other blog posts, editorials, and op-eds by other authors on the subject are well worth reading.)

The January 25 executive order, among other changes to enforcement policy, creates a list of priorities for removal which, at first glance, is intended to focus in large part on criminals.  As the New York Times explained in an article published the day the order was issued, however, the executive order in effect defines the notion of a criminal for these purposes to include people charged with a criminal offense but never convicted of anything, as well as anyone who has “committed acts that constitute a chargeable criminal offense” (or, more precisely, anyone believed by the immigration authorities to have done so).

These priorities thus include people quite far afield from any traditional notion of what it means to be a “criminal”.  It is, or used to be, a tradition of long standing in this country that one charged with a crime is presumed innocent until proven guilty.  The mere fact that someone has “been charged with any criminal offense, where such charge has not been resolved,” to quote from Section 5(b) of the January 25 executive order, does not make them a criminal.  They might be innocent of any wrongdoing, and might be acquitted as the criminal case moved forward.  The idea that any technically removable person will become a high priority by virtue of an unresolved charge, of which they may be completely innocent, is therefore very troubling.  While merely being a priority is not itself a basis for removal, the executive order implies that the Administration could pursue removal of someone facing unresolved criminal charges who had overstayed a nonimmigrant admission for a short period of time, or failed to file a change of address and could not sufficiently establish that the failure was non-willful or excusable.

The notion that anyone who has “committed acts that constitute a chargeable criminal offense” will be a priority for removal even if not convicted of any charge is also troubling, and has broader implications than may be apparent at first glance.  Entry without inspection is a misdemeanor under 8 U.S.C. 1325, for example, so this priority could be read to apply to anyone who crossed the border without authorization, at least as an adult—even if that entry took place many years ago.

The January 27 executive order, which bars entry by nationals of Syria, Iraq, Iran, Somalia, Yemen, and Libya for 90 days subject to possible future extensions, and suspends all refugee admissions for 120 days, rests even more fully on a disconnect from the truth. It purports to be focused on protecting the U.S. from “Terrorist” entry, and yet it applies to many people who are extremely unlikely to be terrorists.  Besides a distaste for refugee admissions generally, it seems to be based on antagonism towards predominantly Muslim countries, and has thus been referred to as a “Muslim ban”—although it ironically does not apply to the few predominantly Muslim countries whose citizens were responsible for the attacks against the United States on September 11, 2001 that it invokes, such as Saudi Arabia, the country of citizenship of 15 of the 19 September 11th hijackers.  (It has been pointed out that the ban appears to leave out countries where Donald Trump has done business.)  Instead, the entry ban focuses on countries which either Congress or DHS previously deemed worthy of being a basis for exclusion from the Visa Waiver Program in the event that an otherwise VWP-eligible person had dual nationality in them or had visited them—an exclusion which, while it had some perverse effects, simply meant that such people had to apply for visas and thus be subjected to additional scrutiny.  This new order, however, applies to people who already have been granted visas (or documents to travel to the United States as refugees, which are not technically quite the same thing), following intense scrutiny and under circumstances that make it quite unlikely they would actually be terrorists.

Perhaps the first and most obvious example of those who can be deemed potential “terrorists” only by Orwellian abuse of the word are those who were granted permission to immigrate specifically due to their service to the United States, such as the special immigrants issued visas based on their work for the U.S. military in Iraq.  The lead plaintiff in the ACLU lawsuit that resulted in the first temporary injunction blocking deportation of those affected by the executive order, Hameed Khalid Darweesh, was a former U.S. Army translator in Iraq who had received his special immigrant visa based on that service and had been twice targeted by terrorists in Iraq because of that service.  The Pentagon has now indicated that it will submit to the White House a list of Iraqis who have worked alongside the United States so that they may possibly be exempted from the entry ban.  That there was no exemption of such people from the January 27th executive order, and no promise even now that such people will be exempted, is even more outrageous than the executive order itself. The notion that blocking Mr. Darweesh’s entry would protect the U.S. from “terrorists” is a falsehood much graver than Mr. Spicer’s original alternative facts regarding crowd size.

While perhaps the most obvious example, however, those who served the U.S. military in Iraq are far from the only people affected by the January 27 executive order who cannot reasonably be associated with terrorism.  The executive order at least temporarily bars refugees from all countries of the world, including countries with no connection whatsoever to any past terrorist attack against the United States.  It also bars refugees persecuted by the very same extremist groups which might seek to do us harm, and whose cases have undergone extensive vetting before they reach the stage of applying for admission.  The January 27 executive order seemingly ignores the extensive screening that already exists for all refugees and visa applicants.

Despite all this, the Administration has sought to remove people covered by the January 27 executive order from the United States as soon as they arrive, without taking any time to investigate whether they might conceivably be reasonably suspected of any connection with terrorism.  Fortunately, the courts have stepped in, with both the aforementioned injunction in Mr. Darweesh’s class action and several others.  These injunctions did not come soon enough for all of the innocent victims of the executive order, however.  At least one habeas plaintiff was removed from the United States while an application for a temporary restraining order was pending, although Judge Dolly Gee of the U.S. District Court for the Central District of California has now ordered that Ali Vayeghan be returned to the United States.  Others, however, were removed or coerced to withdraw their applications for admission under circumstances that make their return less likely.

The Administration even initially sought to apply the entry ban to Lawful Permanent Residents (LPRs) of the United States with citizenship in one of the 7 affected countries—that is, people with “green cards”, who have already been cleared to live here permanently.  That was extremely legally questionable in the view of this author, given that the power relied upon by the January 27 executive order, section 212(f) of the Immigration and Nationality Act, authorizes the President to suspend the “entry” of certain aliens, and many LPRs returning from brief trips are under section 101(a)(13)(C) of the INA not to “be regarded as seeking an admission into the United States”.  Since section 101(a)(13)(A) of the INA defines “admission” as  “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” it would appear to follow that one who is inspected, and should not be regarded as seeking admission, also should not be regarded as seeking entry.  That would also be consistent with the purpose of section 101(a)(13)(C) to codify a modified version of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held under prior law that an LPR did not make an “entry” following an innocent, casual, and brief departure from the United States.   The issue may not need to be resolved in litigation in the near future, however, because the DHS Secretary, General John Kelly, determined Sunday that “the entry of lawful permanent residents is in the national interest”, and so “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS’s] case-by-case determinations.”  That is, LPRs from the affected countries will be allowed to return to the United States in most instances.  It is consistent with the theme of this blog, though, that the Administration initially sought to redefine “entry” as something other than what it ought to mean under immigration law, and still evidently reserves the right to do so if it feels it is in possession of “significant derogatory information.”

Nor are the redefinition of “entry” and the basic disconnect regarding the relevance of this entry ban to “terrorism” the only alternative facts underpinning the January 27 executive order.  The order indicates that when refugee admissions resume, preference is to be given to religious minorities, which has been understood as intended to mean Christians in predominantly Muslim countries (although there are countries where Muslims are in the minority as well).  Mr. Trump’s suggestion that Christian refugees had previously had “no chance” of coming to the United States is, however, also untrue.  As the New York Times has explained, “In 2016, the United States admitted almost as many Christian refugees (37,521) as Muslim refugees (38,901), according to the Pew Research Center.”  Many Christian leaders have denounced the entry ban.

There is also Mr. Trump’s false claim that “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.”  In fact, the narrowly focused increase in screening of refugees and applicants for Special Immigrant Visas from one country, during which some Iraqis nonetheless continued to be admitted to the United States each month of the six months in question, is in no way “similar” to a months-long outright ban on entry of nearly all citizens from seven countries.  Moreover, the heightened screening created in 2011 is still in place, so the fact that scrutiny of Iraqi refugees and visa applicants was increased six years ago cannot reasonably be offered as a reason for suspending their entry now.

The fictional Superman was known for defending “truth, justice, and the American way.”  Based on his disregard for the truth, Donald Trump has perpetrated a great injustice, one inconsistent with the American way of hospitality towards immigrants and refugees.  Several Democratic leaders have indicated that they will propose bills in Congress to overturn the January 27 executive order, and Democratic Senate leader Chuck Schumer unsuccessfully attempted Monday to get consent for a vote on such a bill.  Such bills face highly uncertain prospects in the Republican Congress, given that House Speaker Paul Ryan seemed to express support for the executive orders in his statement on the subject, but we can hope—and, for those of us whose representatives are not already on record in favor, can contact them to urge their support.  Donations to the ACLU in connection with its pending lawsuit against the January 27 executive order are another way to show opposition to the entry ban.

Alternative facts are bad enough when they concern something as trivial as crowd size.  That they would be relied upon to harm innocent immigrants is unacceptable.

Cyrus Mehta

Is Being Anti-Trump A New Ground Of Inadmissibility?

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Over the weekend, a Canadian student of McGill University, Joseph Decunah, who was seeking to be admitted to protest at the Women’s March the day after President Trump’s inauguration was refused admission. He was in the company of two US citizens who were allowed to cross. Decunah was point blank asked “Are you anti or pro-Trump?”

After Decunah indicated he was anti-Trump as he had nothing to hide, the CBP officer engaged in further questioning about why he opposed Trump, and the Canadian entrant spoke about the Affordable Care Act and some of the outrageous statements that Trump has made towards minorities. Then from there, the questioning moved on, according to Decunah, to determine if he and the two others in his group were extremists or not. He was asked about where he had been, and if he has ever been to the Middle East. The CBP officer then asked him about his political engagements, to which Dacunah responded that he had been a member of the NDP (New Democratic Party) in the past.

The CBP officer then alleged that Decunah would engage in “silent disruption” as a protestor in the march. He said, according to Decunah, “Would you agree that by standing in these crowds, that even though you may be a pacifist, that you would be disrupting events?”  Decunah’s partner Ruth mentioned that the Women’s March had permits from the Metropolitan Police Department and the National Park Service. “It’s not like we’re participating in anything illegal. [The guard] dropped the term “silent disruption” a few more times and then tried to explain that there were a series of bins Canadians have to fall into when they’re entering the United States,” according to Decunah.” One of those things can be tourism, one of those things can be for work or whatever it may be in that attending a march of any sort wouldn’t fall into one of those bins.”

We hope that this was an isolated incident, and not part of a growing disturbing trend under a Trump presidency. However, there have been other similar reported incidents of Canadians being blocked entry into the United States on the day of the protest.  While there is no specific mention in the Foreign Affairs Manual about whether coming to the United States to be part of a peaceful protest is a legitimate activity as a visitor for pleasure, it clearly ought to be. Under 22 CFR 41.31(b)(2) pleasure is defined as “Legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” Clearly, being part of a peaceful protest with like-minded people could constitute activities of a “fraternal” or “social” nature. 9 FAMe 402.2-4(A)(3) also contemplates as visitors for pleasure “[p]articipants in conventions of social organizations.”

Of course, the CBP officer can rely on other grounds of inadmissibility under the INA. One potential ground is under INA 212(a)(3)(A)(i), which allows a consular or border officer to find inadmissible one, if there are reasonable grounds to believe that he or she seeks to enter the United States to engage principally or incidentally in “any other unlawful activity.” It is purely speculative and a stretch for a CBP officer to assume that an anti- Trump protestor, as opposed to a pro-Trump supporter, may more likely engage in a form of civil disobedience, resulting in unlawful activities such as blocking traffic. It is even more absurd to refuse entry to one who will engage in “silent disruption.” The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peaceably assemble is likely to involve the violation of law.

Trump, who is likely to continue being a controversial President, will generate more protests in the future. It would undermine America’s image as a free country if visitors from abroad are barred if they are specifically coming to participate in a peaceful anti-Trump protest. Immigration policy does not operate in a vacuum. There have already been troubling signs of Trump repeatedly attacking the press as being dishonest, thus undermining the First Amendment. Consuls and border officers should not feel emboldened as a result by allowing their personal prejudices to cloud their objectivity in determining who is a bona fide visitor. Otherwise, and most unfortunately, being anti-Trump might de facto become a new ground of inadmissibility. This is because there are very limited grounds to challenge the decision of a border officer. Similarly, under the recent Supreme Court decision in Kerry v. Din, a consular officer’s decision is virtually unreviewable if the applicant was simply informed about the section number in the INA as the basis for the denial. These officers are bestowed with great power and must use their power wisely. While they are obligated to ensure that those who potentially threaten to harm the United States do not come in, they should allow peaceful protestors who wish to exercise and celebrate the rights that are enshrined in the First Amendment.

David Isaacson

Extreme Absurdity: A Response to the “Extreme Vetting” Questions Proposed By Potential DHS Secretary Kris Kobach

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Kansas Secretary of State Kris Kobach, rumored to be a potential Secretary of Homeland Security in a Donald Trump Administration, met with Mr. Trump last Sunday, apparently to discuss some of his plans for the Department.  During a media photo opportunity, Mr. Kobach held a binder and stack of papers in such a way that a page was left partially visible and allowed an Associated Press photographer to capture some of the “Department of Homeland Security Kobach Strategic Plan for First 365 Days.”  Although there are many horrifying things about that plan, some of which this author may address further in future blogs, one aspect of Kobach’s plan that particularly caught my attention was the proposal to “Add extreme vetting questions for high-risk aliens: question them regarding support for Sharia law, jihad, equality of men and women, the United States Constitution.”  This blog provides an initial reaction to that proposal.

It appears that by “high-risk aliens”, Kobach was likely referring predominantly to aliens from countries with a large Muslim population, or perhaps just Muslims themselves.  In the immediately prior item of his outline, Kobach describes the NSEERS (National Security Entry-Exit Registration System) program he wants to “update and reintroduce” as “track[ing]” “all aliens from high-risk areas.”  In its original form, NSEERS applied to men over the age of 25 from 25 countries, all but one of which was a Muslim-majority country.  (Specifically, NSEERS included nonimmigrants from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen, and the one exception, North Korea.)  Thus, Kobach evidently associates “high-risk areas” predominantly with Muslim countries.  It is not entirely clear whether by “high-risk aliens” he means to describe only those from the so-called “high-risk areas”, or whether he would cast a broader net.

Of the four questions that Kobach proposes to ask the “high-risk aliens”, the question about “support for  . . . the United States Constitution” is comparatively unobjectionable, other than with respect to the discriminatory context in which he apparently proposes to ask it.  Applicants for naturalization as U.S. citizens are already required by law to be “attached to the principles of the Constitution of the United States,” INA 316(a).  The Form N-400 Application for Naturalization already asks applicants, “Do you support the Constitution and form of government of the United States?”  One might perhaps take issue with Kobach’s apparent proposal to expand use of this question outside the naturalization context in which it was statutorily authorized, but it is the other three proposed questions that are truly problematic.

To ask Muslim immigrants about their “support for Sharia law” is rather like asking Jewish immigrants about their “support for Halacha”, or Catholic immigrants about their “support for canon law”, or other Christian immigrants about their “support for Biblical principles”.  While the Code of Canon Law of the Catholic Church has the advantage from an American perspective of having an English common name, many Americans may not realize that Sharia is merely an Arabic word for traditional Muslim religious law, just as Halacha – another word with which many Americans may not be familiar – is merely a Hebrew word for traditional Jewish religious law.  Different Muslims will have different interpretations of what “Sharia law” has to say about a particular subject, just as different Jews will have different interpretations of what “Halacha” has to say about a particular subject.  (Some subgroups of Muslims may entirely dispute the applicability of Sharia as historically understood, just as Reform Judaism differentiates between its approach to one’s relationship with God and the approach suggested by Halacha.)  Some may cite Sharia to justify horrific actions, but then again Yigal Amir claimed that his assassination of Israeli Prime Minister Yitzhak Rabin was justified by Jewish religious law; in neither case is it appropriate to charge all followers of the religion or some version of its laws with support for the horrific actions in question.   To ask about “support for Sharia law” sheds only very limited light on what the person being asked actually believes, even if we indulge the questionable assumption that anyone’s religious beliefs are the proper concern of the U.S. government.  Perhaps it would be a different story if Kobach proposed to ask a more nuanced question about whether those seeking to come to the United States believed that any and all religious law should be subordinate to democratically enacted civil law, but it does not appear that this is what he has in mind.

Kobach’s proposed question about “jihad” suffers from a somewhat similar defect.  The word “jihad” literally means “struggle” or “effort”, and the BBC has said that “Many modern writers claim that the main meaning of Jihad is the internal spiritual struggle”, although there is also support for interpreting the word to mean a military struggle.  The Merriam-Webster dictionary recognizes multiple meanings of the word, ranging from “a holy war waged on behalf of Islam” to “a personal struggle in devotion to Islam especially involving spiritual discipline” to “a crusade for a principle or belief”.  We do not assume that supporters of Campus Crusade for Christ will use violence in their struggle to spread Christianity, nor do we ask Christian prospective immigrants their opinion of the medieval Crusades.  If Kobach had proposed to ask a more general question about support for the use of violence, or even the use of violence motivated by perceived religious conflict, that would be a different story, but his proposed inquiry only covers this single word.  Norwegian far-right terrorist Anders Behring Brevik believed that he was at war with Muslims.  Had we known this, does Kobach believe we should not have excluded Brevik if he had applied to come to the United States, but should have excluded any Muslim victims of his who supported internal spiritual struggle?

Even Kobach’s proposed question about “equality of men and women”, innocuous though it may seem and tied to an important American civic value though it may be, has a problematic dimension in the context of questioning that would apparently be directed towards religious beliefs.  A number of religions that Kobach presumably does not wish to target do not provide for strict equality of men and women, in the sense of the rights of men and women in a specifically religious context.  Less than a month ago, Pope Francis ruled out the possibility of a woman ever serving as a Catholic priest.  Female rabbis are extremely rare in Orthodox Judaism, with one first taking the title just this year, and with one main U.S. Orthodox rabbinical group having purported to ban the practice roughly a year ago, although female rabbis have been common in the Reform, Reconstructionist, and Conservative movements of American Judaism over the past several decades.  In many Orthodox Jewish interpretations of Halacha, ten men, not women, are required to make up a “minyan”, or quorum to say certain prayers, although the Committee on Jewish Law and Standards of the Rabbinical Assembly in the Conservative Movement has ruled that women can count towards a minyan.  Some Christians believe that wives should submit to their husbands.  Could followers of those beliefs truthfully say, under penalty of perjury, that they supported full equality of men and women?  While I vehemently disagree with those who would deny women full religious equality, and I personally favor a more gender-egalitarian approach, it seems to me that it would represent a major break with our own civic traditions for the U.S. government to exclude immigrants who hold the less egalitarian Christian or Orthodox Jewish beliefs discussed above—or the Muslim analogue of those beliefs.

Kris Kobach’s proposed “extreme vetting” questions would not be the first time the U.S. government has utilized a problematically worded question against a minority group.  In the Japanese-American internment camps of the Second World War era, even U.S. citizens of Japanese descent were asked whether they would “forswear any form of allegiance or obedience to the Japanese emperor, or any other foreign government, power, or organization?”  Many of these citizens “resented being asked to renounce loyalty to the Emperor of Japan when they had never held a loyalty to the Emperor.”  (The question might be compared in this respect to the old example of an unfair yes-or-no question, “have you stopped beating your wife?”)

The internment of Japanese-Americans during World War II has been widely recognized as a horrible mistake, and survivors of the camps were awarded restitution in 1988 as well as given a formal apology by the U.S. government.  However, one prominent supporter of Donald Trump recently made news by suggesting that the internment of Japanese-Americans was a “precedent” for a registry of Muslims.  That supporter had, in fact, raised the analogy in support of Mr. Kobach’s proposal to reinstate NSEERS, which is related to his proposed “extreme vetting” questions as discussed above.  The parallels are extremely troubling.  While it may seem that “extreme vetting” questions regarding aspects of religious belief are some distance away from actual internment of a minority group, it is important, as the Supreme Court said in West Virginia State Board of Education v. Barnette of a different attempt to enforce government-sponsored doctrine (regarding a mandatory flag salute), that we “avoid those ends by avoiding those beginnings.”  This is not a road down which the United States should travel.

David Isaacson

Expansion of the Provisional Waiver: Good News, But Could Be Better

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On July 29, 2016, USCIS published in the Federal Register the final version of a previously-proposed rule expanding the provisional waiver program.  The new rule, Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50,244, was effective August 29, 2016, so the newly expanded program is now available.

The provisional waiver program, which first began in 2013 as discussed in a previous post by this author, pertains to certain applicants for an immigrant visa who will be inadmissible under INA §212(a)(9)(B) for three or ten years following their departure from the United States due to their previous unlawful presence in the United States of more than 180 days or at least one year—who face the so-called three-year bar or ten-year bar.  These applicants, under the provisional waiver program, can use Form I-601A to apply for and (provisionally) receive a waiver of inadmissibility under INA §212(a)(9)(B)(v), based on a showing of extreme hardship to a qualifying relative, before departing the United States to apply for an immigrant visa.  This is in contrast to the usual system of applying for a waiver on Form I-601, which in the immigrant-visa context is only possible after already leaving the United States and having one’s immigrant visa interview.

The most notable change effected by the new provisional waiver rule is a significant expansion of the set of those eligible to use the provisional waiver process.  Previously, the provisional waiver was only available to beneficiaries of a visa petition filed by an immediate relative, that is, a petition filed by a U.S. citizen spouse, son or daughter over age 21, or parent in the case of a beneficiary under 21.  It was also only available if the qualifying relative for the §212(a)(9)(B)(v) waiver was a U.S. citizen, even though the statute allows a §212(a)(9)(B)(v) waiver to be granted based on a showing of extreme hardship to a spouse or parent who is either a U.S. citizen or a Lawful Permanent Resident.

Under the new rule, on the other hand, the provisional waiver can be sought be anyone with a U.S. citizen or Lawful Permanent Resident spouse or parent to whom extreme hardship is sought to be shown, and this is so independent of the basis that qualifies the applicant to apply for an immigrant visa in the first place.  For applicants who meet the other requirements for a provisional waiver, the new rule only requires that the applicant

Has a case pending with the Department of State, based on:

(A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or

(B) Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered.

8 C.F.R. §212.7(e)(3)(iv) (2016).  It no longer matters whether the petition is an immediate-relative petition, a family-based preference petition, or an employment-based preference petition, and even winners of the diversity-visa lottery can make use of the provisional waiver program if they have a qualifying relative.

While the main text of the new rule arguably does not make clear whether this expansion includes derivative beneficiaries of preference petitions (who have a case based on accompanying or following-to-join a petition beneficiary rather than based on their own petition), several clues in the preamble to the rule strongly imply that it does.  The preamble to the new rule describes the proposed rule as having “proposed to expand the class of individuals who may be eligible for provisional waivers beyond certain immediate relatives of U.S. citizens to all statutorily eligible individuals regardless of their immigrant visa classification.”  81 Fed. Reg. at 50,245.  The preamble also describes “inclusion of derivative spouses and children” as a topic on which DHS received no comments.  Id. at 50,248.  Finally, and most clearly, the preamble says of a redesign of the Form I-601A that “DHS agrees with the need to collect additional information, as suggested by the commenters, in light of this final rule’s extension of eligibility for the provisional waiver to spouses and children who accompany or follow to join principal immigrants.”  Id. at 50,272.  Thus, it strongly appears that the rule’s reference to having a “case pending with the Department of State, based on . . . An approved immigrant visa petition,” 8 C.F.R. §212.7(e)(3)(iv)(A), is not restricted to instances in which the case pending with the Department of State is based on an approved immigrant visa petition for the applicant him- or herself.  The pending case may, rather, be based on an approved immigrant visa petition for the applicant’s spouse or parent, as well.  (Children will relatively rarely need to make use of a provisional waiver, since they are exempt from accruing unlawful presence for §212(a)(9)(B) purposes until age 18 pursuant to INA §212(a)(9)(B)(iii)(I), but there will be some cases of unmarried derivative beneficiaries over the age of 18-and-a-half whose actual age or adjusted age under the Child Status Protection Act is under 21 and who therefore still qualify as children for purposes of accompanying or following-to-join their parent.)

Another expansion of the program relates to applicants who might conceivably face some other ground of inadmissibility.  The “reason to believe” standard regarding other potential grounds of inadmissibility, which had caused much confusion in the past, has been eliminated. 81 Fed. Reg. at 50,253-50,254, 50,262.  DHS will no longer deny a provisional waiver based on mere “reason to believe” that some other ground of inadmissibility besides INA §212(a)(9)(B) might apply.  However, 8 C.F.R. §212.7(e)(14)(i) will continue to provide that if some other ground of inadmissibility is found by DOS to exist at the time of the visa interview, the provisional waiver will automatically be revoked, and the applicant will need to seek a regular waiver of the unlawful-presence inadmissibility along a waiver of the other ground of inadmissibility (if a waiver of the other ground of inadmissibility is even available).  Thus, it will be crucial for applicants and their attorneys to ensure as best they can, before a provisional waiver applicant departs the United States for a visa interview, that no other grounds of inadmissibility will be found to exist.

Another expansion of the program relates to removal orders.  The bar on applications for provisional waiver by individuals in active removal proceedings that have not been administratively closed remains, but the bar on applications for those facing final removal, deportation, or exclusion orders has been modified.  81 Fed Reg. at 50,262.  Pursuant to new 8 C.F.R. §212.7(e)(4)(iv), such individuals with a final order can seek a provisional waiver if they have previously obtained permission to reapply for admission through an approved Form I-212 under 8 C.F.R. §212.2(j).  They cannot file the I-601A and I-212 concurrently, as DHS believes this would introduce procedural complications, related principally to the appealability of a denied I-212, that would undermine the efficiency gains sought from the provisional waiver.  Rather, individuals subject to a final order can only proceed with the I-601A application for provisional waiver after the Form I-212 has already been approved.  81 Fed. Reg. at 50,256, 50,259, 50,262.

Individuals subject to a voluntary departure period, however, still cannot apply for a provisional waiver while that voluntary departure period is in effect.  81 Fed Reg. at 50,256-50,257.  These individuals are considered by DHS as analogous to those still in removal proceedings, and then become ineligible at the conclusion of their voluntary departure period based on the alternative removal order which has taken effect.  However, it appears that one who overstays a voluntary departure period (and thus activates the alternative removal order) could theoretically apply for advance permission to reapply for admission under 8 C.F.R. §212.2(j), and then seek a provisional waiver if advance permission to reapply were granted—although there would be a significant risk that either or both of these applications would be denied in the exercise of discretion.  Strictly speaking, neither permission to reapply under INA §212(a)(9)(A)(iii) nor a waiver of inadmissibility under INA §212(a)(9)(B)(v) are covered by the ten-year bar on many discretionary benefits that results pursuant to INA §240B(d)(1)(B) when one fails to timely depart in compliance with a voluntary departure order, but it is unlikely that DHS would look favorably upon an overstay of voluntary departure followed soon thereafter by such applications.

The new rule also clarifies the circumstances under which reinstatement of a removal order will prevent application for a provisional waiver.  Mere eligibility for reinstatement is not sufficient.  Rather, a provisional waiver will be barred only if “CBP or ICE, after service of notice under 8 CFR 241.8, has reinstated a prior order of removal under section 241(a)(5) of the [INA], either before the filing of the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending.”  8 C.F.R. §212.7(e)(4)(v) (2016).  Of course, the fact that the bar extends to reinstatement while a provisional waiver application is pending does make it quite risky for one subject to reinstatement to file such an application.

Another way in which the new rule expands the pool of those eligible for a provisional waiver is by eliminating the previous prohibition on grants of provisional waivers to anyone for whom DOS had acted before January 2013 to schedule a visa interview.  81 Fed. Reg. at 50,254.  A pending immigrant visa case can qualify for a provisional waiver application regardless of when it commenced, so long as registration under the approved petition has not been terminated under INA 203(g).

DHS has not, however, expanded the provisional-waiver program in all of the ways that one might have hoped.  One notable omission is the refusal to expand the program to encompass other grounds of inadmissibility for which a waiver can be sought on Form I-601, such as inadmissibility due to past fraud under INA §212(a)(6)(C)(i) that can be waived under INA §212(i), or inadmissibility due to past smuggling under INA §212(a)(6)(E) that can be waived under INA §212(d)(11) when only one’s spouse, parent, son or daughter was smuggled.  No matter how sympathetic the case, a visa applicant who smuggled his or her own child across the border, or came to the United States years ago on a false passport, will not be eligible for a provisional waiver.  The provisional waiver remains available only to one who “Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview.”  8 C.F.R. §212.7(e)(3)(iii) (2016).

The preamble to the final rule explains DHS’s reasons for refusing this sort of expansion with the following cryptic language:

Expanding the provisional waiver process to other grounds of inadmissibility would introduce additional complexity and inefficiencies into the immigrant visa process, create potential backlogs, and likely delay and adversely affect the processing of immigrant visas by DOS. Furthermore, USCIS generally assesses waiver applications for inadmissibility due to fraud, misrepresentation, or criminal history through an in-person interview at a USCIS field office. Because DOS already conducts a thorough in-person interview as part of the immigrant visa process, DHS believes that this type of review would be unnecessarily duplicative of DOS’s efforts.

81 Fed Reg. at 50,253.  At least in cases where inadmissibility is conceded and is straightforwardly subject to waiver – say, where a past entry had been with a photo-substituted foreign passport, or where one’s own child had been smuggled into the United States – it is not clear why waiving such inadmissibility would necessarily be more complex or duplicative than waiving inadmissibility due to past unlawful presence.

The genius of the provisional waiver, in its original form and its expanded form, is that it helps ensure family unity and avoid the perverse scenario in which U.S. citizens and LPRs must be separated from their relatives for an extended period of time and suffer the precise extreme hardship that an ultimately-granted waiver is designed to prevent.  This scenario is just as perverse when the inadmissibility being waived results from having smuggled one’s own spouse or child into the United States, or previously entered by fraud (but not in a provable way enabling adjustment of status as an immediate relative), as when it results from prior unlawful presence.

Unnecessary separation leading to extreme hardship could be reduced even further if consular officials of the Department of State, in connection with an approved provisional waiver, were willing to provide an indication of their views on any other potential grounds of inadmissibility before an applicant departed from the United States.  This is not consistent with current Department of State practice, but there seems no statutory bar to it if the governing regulations were amended appropriately.  Under the “pre-examination” procedure that was in place prior to the creation of adjustment of status, pursuant for example to 8 C.F.R. §142.9(b) (1943), consuls did provide written assurances regarding the sufficiency of an applicant’s documents, though a personal interview was still ultimately required.  The same sort of procedure could be put into place for provisional waivers: an applicant could submit a written record of conviction for a crime or written account of past actions thought to potentially constitute fraud or smuggling, and be advised in advance whether, if found to be credible, he or she would be denied a visa due to inadmissibility based on such a ground.  Any legal argument regarding the applicant’s potential inadmissibility on these bases could thus take place while the applicant was still in the United States, again avoiding the necessity of prolonged separation from qualifying relatives.

While the recent expansion of the provisional waiver is to be commended, including other waiveable grounds of inadmissibility, and allowing for definitive determinations regarding other grounds of inadmissibility before an applicant’s departure from the United States, would have made the program still better.  Perhaps these issues can be revisited in a future round of rulemaking.

Cyrus Mehta

Deconstructing the Myth of the Criminal Immigrant

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Donald Trump began his presidential campaign last year by accusing Mexican immigrants who cross the border as being criminals and rapists, and ended with the same sentiment in his acceptance speech of the Republican nomination by thundering that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population.

Still, even if immigrants commit crimes in lesser proportion to native born Americans, as long as they have not become citizens, they pay a greater penalty than US citizens when they commit the same crime. While both may be punished under the criminal justice system, the immigrant after serving his or her sentence is likely to face deportation.  It would seem fair that once a person has been punished and reformed, there should be no further penalty. Unfortunately, that is not the case with the non-citizen. Even a long term legal immigrant with a green card can get deported from the United States after serving a sentence.  The sentence may be relatively minor or inconsequential under the criminal justice system, but can be consequential for the immigrant. For instance, an immigrant who is convicted of a misdemeanor theft but received a one year sentence that was suspended would still be considered to have been convicted of an aggravated felony. When an immigrant is convicted of an aggravated felony, there are fewer opportunities for defending oneself against removal proceedings,  and often times one is also not eligible for waivers.

So when Trump spoke about immigrants roaming free with criminal backgrounds, he sought to stereotype and dehumanizes all immigrants. Some of these immigrants may have committed minor crimes from years ago, such as driving without a license, and may be the subject of prosecutorial discretion because they have family members who are US citizens. A significant percentage of their so called crimes involve civil immigration violations and nonviolent offenses, and thus it was patently false to suggest that they “threaten peaceful citizens.” Even the U.S.  Supreme Court has recognized that a non-citizen with a removal order cannot be indefinitely detained. In Zadvydas v. Davis, for example, the U.S. Supreme Court held that it was unconstitutional to indefinitely detain a non-citizen who has been ordered removed beyond a six month period.  Some persons in the group that Trump demonized may have orders of removal that are under judicial review, and ICE has decided  that it doesn’t make sense for them to be locked up indefinitely while the petition for review is pending. Another possibility is that in some cases the “criminal record” is a single nonviolent misdemeanor which does not render the person a removal priority. Trump might also have been counting people whom an IJ has ordered removed, but who have an appeal pending with the Board of Immigration Appeals, and who are out on bond.

When we as a nation accept immigrants, and America’s greatness is because it is a nation of immigrants, it is inevitable that a small group within the immigration population will commit crimes, both major and innocuous. A college student who is an immigrant may be convicted of possession of marijuana joint (outside Colorado of course), and when she travels and returns, she may be found inadmissible and put into removal proceedings. It would be unfair to demonize her by branding her as a “criminal alien” and being a threat to “peaceful citizens.” Immigrants should face the same penalty as a U.S. citizen when they are convicted of crimes. If the purpose of punishment is deterrence or reformation, and that is sufficient for the citizen, there is no need to subject the non-citizen immigrant to the additional draconian penalty of deportation, which can potentially result in the permanent banishment of that individual from America.

Finally, Trump in true demagogic fashion only focused on the anxieties and fears caused by immigrants. There was scant mention of their achievements and how they have benefited America in every sphere. Where was the sunny optimism about America being a welcoming country to people who can only benefit it?  Or America even being kind and forgiving – especially to the immigrant who may have committed a crime, but has long ties and family here, and has completely rehabilitated after serving his sentence?  If Trump may have been successfully in stoking fears in a few people, he also succeeded in galvanizing many more people to vote to throw him out so that America can continue to be this sunny, optimistic and welcoming country.

 

 

 

David Isaacson

Some Preliminary Reactions to the Oral Argument in United States v. Texas

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As most readers of this blog will likely be aware, the Supreme Court heard oral argument today in the case now captioned United States v. Texas, regarding the lawsuit brought by Texas and a number of other states to stop implementation of DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for Childhood Arrivals).  The transcript of the argument is now available online, although the audiotape will not be available until later in the week.  There has been much media coverage of the argument, including by the always-insightful SCOTUSBlog, and a number of media organizations and commentators have suggested that the Court may divide 4 to 4, thus leaving the Fifth Circuit’s decision intact and preventing DAPA and expanded DACA from going into effect at this time.  While that is a possibility, however, there are also some reasons to be optimistic that it may not come to pass.

I do not wish to recap all of the voluminous coverage of the argument by the media and commentators, but will focus in this blog post primarily on one or two things that I have not seen highlighted by other commentators. However, there is one observation about the argument, not original to me, which does seem worth passing along, and which falls under the heading of reasons for optimism.  As Chris Geidner has pointed out in his review of the oral argument on Buzzfeed, Justice Anthony Kennedy, who is often seen as a swing vote in cases where the Court is closely divided, raised the possibility that the more appropriate way for Texas to have proceeded would have been to challenge the application of the regulation granting employment authorization to deferred action beneficiaries, 8 C.F.R. §274a.12(c)(14), under the Administrative Procedure Act.  Justice Sotomayor discussed with Solicitor General Verrilli on page 31 of the transcript the possibility that, if Texas had wanted to attack the 1986 regulation that allows employment authorization under many circumstances including deferred action, they could have petitioned the agency for rulemaking under section 553(c) of the Administrative Procedure Act.  If that failed, they could then have gone to court.  Instead, Texas went directly into court without first raising its concerns with the agency—a procedural shortcut which a majority of the Court may not be willing to tolerate.  This is separate from the constitutional concern, also discussed at length during the argument, that Texas may not have standing to attack DAPA where its asserted injury relates to its own decision to subsidize the issuance of driver’s licenses to certain classes of individuals.

Another notable portion of the oral argument was the discussion of the outsized importance that the plaintiff States have attached to the brief mention in the DAPA memorandum of “lawful presence”. As Marty Lederman explained in a post on the Balkinization blog prior to the oral argument, the significance of “lawful presence” in this context relates primarily to eligibility for certain Social Security and Medicare benefits, as well as to the tolling of unlawful presence for purposes of potential future inadmissibility under 8 U.S.C. §1182(a)(9)(B).  Neither of these things, however, has anything to do with the injury that Texas alleges.  Nor are they of particularly great significance in the context of DAPA as a whole.  Professor Lederman had described the lawful-presence argument as “the smallest of tails wagging a very large dog”, a phrase that Solicitor General Verrilli expanded upon (or should I say contracted upon?) on page 32 of the oral argument transcript by noting that the lawful-presence issue was “the tail on the dog and the flea on the tail of the dog.”  (He also returned to the basic “tail of the dog” formulation on page 88, in his rebuttal.)  If necessary, he offered, the Court could simply take a “red pencil” and excise the offending phrase from the memo, and this would be “totally fine” with the government.

Just as the issue of “lawful presence” lacks a connection to the injury Texas alleges, it was also discussed at the oral argument how even the employment authorization that is a much more important component of DAPA as it would operate in practice, and which seems to be what Texas is in large part challenging, does not really relate to Texas’s alleged injury. As Solicitor General Verrilli and also Thomas Saenz, arguing for intervenor prospective DAPA beneficiaries, pointed out, Texas, under its current policy, gives driver’s licenses based on the granting of deferred action itself, rather than based upon employment authorization.  Even if the federal government restricted itself to deferring any removal action against the intended beneficiaries of DAPA – as Texas, in the person of its Solicitor General Scott Keller, seemed to concede on page 50 of the transcript that it would have the authority to do – and simply, as Justice Ginsburg suggested, gave out ID cards noting the low priority status of the beneficiaries, Texas would still, under its current policy, apparently have to give those beneficiaries subsidized driver’s licenses.  Thus, besides the other problems with Texas’s claim that it is harmed sufficiently by DAPA to have standing to challenge it, there is the problem of redressability.  A decision forbidding the federal government to give out employment authorization documents, or declare “lawful presence”, under DAPA, while still permitting it to defer removal actions against DAPA’s beneficiaries, would not actually solve the problem that Texas is claiming DAPA has caused.  It is, instead, merely a convenient hook for what is actually a political dispute.  Solicitor General Verrilli returned to this point in his rebuttal argument, noting that Texas had offered no response to it.

Another notable portion of the oral argument relating to employment authorization was the discussion of how, as Justice Alito asked on page 28 of the transcript, it is “possible to lawfully work in the United States without lawfully being in the United States?” As Solicitor General Donald B. Verrilli attempted to explain, while this may seem peculiar, employment authorization based on a mere pending application for lawful status, such as an application for adjustment of status or cancellation of removal, is quite common.  Many, many people receive such authorization pursuant to the administrative authority recognized by 8 U.S.C. §1324a(h)(3), as discussed in my prior blog post Ignoring the Elephant in the Room: An Initial Reaction to Judge Hanen’s Decision Enjoining DAPA and Expanded DACA.  The suggestion that such authorization cannot exist would wreak havoc on our immigration system as we now know it.  As Solicitor General Verrilli pointed out on page 31 of the transcript, reading the §1324a(h)(3) authority as narrowly as suggested by the plaintiffs would eliminate well over a dozen of the current regulatory categories of employment authorization.  It would, to quote from Solicitor General Verrilli’s rebuttal argument at page 89, “completely and totally upend the administration of the immigration laws, and, frankly, it’s a reckless suggestion.”

Indeed, as I pointed out in a blog post several years ago, there are many circumstances under which even someone subject to a removal order can be lawfully granted work authorization.  Those whose asylum applications were denied in removal proceedings but who are seeking judicial review of that denial, for example, may obtain employment authorization under 8 C.F.R. §274a.12(c)(8).  An applicant for adjustment of status under INA §245 or cancellation of removal for nonpermanent residents under INA §240A(b) who has his or her application denied by an immigration judge and the BIA, is ordered removed, and petitions for judicial review of the order of removal under 8 U.S.C. § 1252(a)(2)(D) on the ground that a legal or constitutional error has been made in adjudicating the application, may also renew employment authorization.  Even outside the context of judicial review, an applicant for adjustment who was ordered removed as an arriving alien, and who is nonetheless applying to USCIS for adjustment of status pursuant to Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), can be eligible for employment authorization.

The anomaly of concurrent authorization to work in the United States and lack of authorization to be here, paradoxical though it may have seemed to Justice Alito, can exist even with respect to some of the forms of employment authorization authorized by very specific statutory provisions, rather than under the general authority of 8 U.S.C. §1324a(h)(3)—the forms of employment authorization that even Justice Alito and Texas acknowledge should exist. In 8 U.S.C. §1158(d)(2), for example, Congress specifically indicated that while “an applicant for asylum is not entitled to employment authorization . . . such authorization may be provided under regulation by the Attorney General.”  The implementing regulations at 8 C.F.R. §208.7(b) and 8 C.F.R. § 274a.12(c) make clear that such employment authorization is renewable pending the completion of administrative and judicial review of a denial of the asylum application.  Thus, an asylum applicant whose application was denied, resulting in an order of removal, and who is seeking judicial review of that order, can obtain renewed employment authorization.

Admittedly, in some cases, a court of appeals can grant a stay of the order of removal for an asylum applicant in this situation, pending adjudication of the petition for review—which one might consider a form of authorization to be in the United States. But a stay of removal is not a precondition for a grant of employment under 8 U.S.C. §1158(d)(2) and 8 C.F.R. §274a.12(c)(8), either in theory or in practice.  It is fairly common for asylum applicants who are not detained to pursue judicial review without a stay of removal and to renew their employment authorization while doing so.  They are authorized to work in the United States, even though in theory they are not authorized to be here.  As long as they are here, because the government has not thought it worth removing them during the pendency of their court case, they can lawfully work.

Given Justice Alito’s follow-up question about whether the categories of persons who had employment authorization without lawful presence were “statutory categories”, however, it is also worth emphasizing that other kinds of employment authorization besides those specifically authorized by statute can persist even in the face of a removal order. Employment authorization based on a pending application for adjustment of status or cancellation of removal, under 8 C.F.R. §274a.12(c)(9) and 8 C.F.R. §274a.12(c)(10), does not stem from the sort of type-specific statutory authorization at 8 U.S.C. §1158(d)(2).  Nonetheless, these types of employment authorization, which have been granted for many years in significant volume with little controversy, can be obtained by someone with a final removal order who is seeking judicial review of that order, or who is seeking adjustment of status under Matter of Yauri.  To the extent Justice Alito meant to imply that the seeming paradox of authorized employment without authorized presence could only be justified by a specific statutory authorization, this too was an inaccurate description of the world of immigration law since long before DAPA.

While the discussion at oral argument of employment authorization separate from lawful status did not go so far as to address this issue of employment authorization for those subject to orders of removal, it did seem that the Solicitor General’s emphasis on the sheer scale of those grants of employment authorization may have made an impact on Chief Justice Roberts.  The Chief Justice, at the end of Solicitor General Verilli’s rebuttal, returned to the question of how many of these sorts of employment authorization documents are issued, and the answer on page 90 that there were 4.5 million in the context of adjustment of status since 2008 and 325,000 for cancellation of removal was the last substantive portion of the argument transcript.  This was potentially a strong closing argument, which may be a hopeful sign.

Attempting to predict the outcome of a case from oral argument is always a risky endeavor, and we will have to wait and see what the Court actually does. Nonetheless, it is my hope that the above observations may perhaps provide some additional insight.