Tag Archive for: Deferred Action

The Uncertain Path of the D-3 Waiver for DACA Recipients under Biden’s New Immigration Initiative  

By Cyrus D. Mehta and Kaitlyn Box*

On June 18, 2024, the Biden administration announced two new immigration initiatives aimed at keeping families together. The first is a “parole in place” program which will provide a pathway for undocumented spouses of U.S. citizens to become lawful permanent residents (LPRs). In order to be eligible, the noncitizen spouse must have entered the U.S. without admission or parole and hold no immigrant or nonimmigrant status, and “must – as of June 17, 2024 – have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements.” DHS will evaluate these applications on a case-by-case basis, and will afford approved applicants a three-year period in which to apply for permanent residence.

The other process will enable Deferred Action for Childhood Arrivals (DACA) recipients to more easily obtain employment-based visas. The measure will allow “DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.” Although many details about this measure are still forthcoming, it appears to involve the expedited issuance of an INA § 212(d)(3) waiver (D-3), which waives many grounds of inadmissibility, including the 3 and 10 year bars that arise from unlawful presence. In a news release corresponding with the Biden administration’s announcement, the U.S. Department of State – Bureau of Consular Affairs stated: “As part of this initiative, the Department will clarify existing guidance to consular officers related to when they should consider recommending that DHS grant a waiver of ineligibility, where applicable… These clarifications will describe when consular officers should consider recommending that the Department of Homeland Security waive ineligibility for these applicants on an expedited basis, in conjunction with visa applications overseas.  However, the processing steps will remain the same.” The Foreign Affairs Manual (FAM) will also be updated to “encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance…This will result in certain individuals to potentially more quickly receive work visas if DHS approves a waiver of ineligibility.”

Although DACA recipients can at present apply for a D-3 waiver in order to obtain an employment-based nonimmigrant visa, this process is rarely used in practice. When a DACA recipient who has been unlawfully present in the United States for a lengthy period of time leaves the United States to apply for an employment-based visa at a U.S. consulate abroad, they are likely to trigger the 3- or 10-year bars pursuant to INA § 212(a)(9)(B).Under INA § 212(a)(9)(B)(i)(I) a person who is unlawfully present for more than 180 days but less than 1 year, and who voluntarily departs the US prior to the commencement of proceeding is inadmissible if they seek admission within 3 years from the date of departure. Under INA § 212(a)(9)(B)(i)(II) a person who has been unlawfully present for more than one year, and who again seeks admission within 10 years from the date of the departure is inadmissible.

Minors do not accrue unlawful presence under INA§ 212(a)(9)(B)(iii)(I), so a DACA recipient who applied for and received DACA before the age of 18.5 years would not trigger the 3- or 10- year bars. Since the grant of DACA stops the accrual of unlawful presence, they would have accrued less than 180 days of unlawful presence. An individual who obtained DACA after the age of 18.5 years and before 19 would trigger only the 3- year bar, having accrued more than 180 days but less than one year of unlawful presence. DACA recipients who obtained the benefit after the age of 19 would have been unlawfully present in the U.S. for a year or more, and would face the 10-year bar. Individuals could enroll in the DACA program up until they reach age 31, and participation in the program was  highest among those who were well over 18, so many DACA recipients will unfortunately face the full 10-year bar.

The question of whether or not the waiver will be granted is also a purely discretionary determination made by a consular officer, and the waiver application can take months to be adjudicated. The Foreign Affairs Manual directs consular officers to “consider the following factors, among others, when deciding whether to recommend a waiver: The recency and seriousness of the activity or condition causing the applicant’s ineligibility; The reasons for the proposed travel to the United States; and The positive or negative effect, if any, of the planned travel on U.S. public interests. Whether there is a single, isolated incident or a pattern of misconduct; and Evidence of reformation or rehabilitation.”  Thus, DACA recipients, and their prospective employers, currently have little assurance that a D-3 waiver will be granted when they leave the country for consular processing. If the waiver is not granted, the DACA recipient could be stranded outside the U.S. for up to 10 years.

Importantly, an individual can typically only spend a limited amount of time in an employment-based nonimmigrant status – for an H-1B nonimmigrant the maximum is 6 years – so DACA recipients who obtain an employment-based visa such as an H-1B will also need to find a path to remain in the U.S. on a long-term basis, including being sponsored for permanent residence by their employer. Even if the DACA recipient has received the D-3 waiver, this waiver only waives the ground of inadmissibility for the temporary nonimmigrant admission. If the DACA recipient is sponsored for permanent residence, the bars at INA § 212(a)(9)(B) will continue to trigger if the applicant applies for adjustment of status or applies for an immigrant visa overseas. Hence, they will need to wait for 3 or 10 years before they can get admitted as lawful permanent residents. Under USCIS policy, the 3 and 10 year bars can be spent in the US, which we have extensively discussed in a prior blog. The question is how can one wait for 10 years in lawful nonimmigrant status in the US before they can apply for adjustment of status?

Many DACA recipients are natives and citizens of Mexico or South American countries such as Guatemala, Honduras, or El Salvador, so they are likely to be eligible to file an employment-based adjustment of status application much more quickly than a beneficiary from a backlogged country such as India or China. In the June 2024 Visa Bulletin, for example, the Final Action Date for the employment-based third preference category (EB-3) is November 22, 2022 for India and the “rest of world”, but for India it is August 22, 2012. However, §104(c)  the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)  allows a beneficiary’s H-1B status to be extended for three years at a time if they are the beneficiary of an employment-based I-140 immigrant visa petition, and are eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. The H-1B status can be extended every three years until the backlogs caused by the per country limitation clears.  Because the priority date is likely to become current far more quickly for former DACA recipient not born in India who are the beneficiaries of I-140 petitions, they will be at a disadvantage when it comes to obtaining H-1B extensions beyond the sixth year, as they need to spend 10 years in the US before they can overcome the 212(a)(9)(B) ground of inadmissibility, which could complicate the process of remaining in a valid nonimmigrant status while they wait to apply for adjustment of status. An H-1B worker can also obtain a one year H-1B extension under AC21 §106(a) if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. See 8 CFR § 214.2(h)(13)(iii)(D). However, noncitizens are precluded from availing of this extension if they do not file for adjustment of status within one year of visa availability. 8 CFR § 214.2(h)(13)(iii)(D)(10). DACA recipients waiting to overcome 212(a)(9)(B) inadmissibility are thus unlikely to benefit from this provision.

Some DACA recipients may opt for the L-1 nonimmigrant path if they spend one year abroad for a subsidiary, parent, or branch of their US employer in a qualifying executive, managerial or specialized knowledge capacity. However, beware, that unlike one in H-1B status who may be able to keep on applying for extensions under AC 21, the shelf life of the L-1A status is 7 years, and 5 years for the L-1B status, as AC21 does not apply to L-1s. One way to get around spending 10 years in the US to overcome 212(a)(9)(B) inadmissibility is if the applicant is eligible for a waiver under INA §212(a)(b)(b)(v), which is based on a showing of extreme hardship to a qualifying relative such as a spouse or parent is a US citizen or lawful permanent resident. If an applicant has such a qualifying relative, they need not wait out the entire 10 years and can waive the ground of inadmissibility.

In conclusion, obtaining the D-3 waiver only allows the DACA recipient who faces the 3 or10 year bar to be admitted into the US as a nonimmigrant. If the DACA recipient needs to obtain permanent residence, they must either wait it out for 3 or 10 years in a nonimmigrant status before they can get admitted as permanent residents, or they need to qualify for a second waiver under INA 212(a)(b)(b)(v). Most DACA recipients may be better off remaining in DACA status rather than exchanging it for H-1B nonimmigrant status. Once they are in H-1B nonimmigrant status, they will have to remain with the employer who sponsored them and will not be able to seek employment in the open market so readily. Of course, the calculus of giving up DACA in exchange for the H-1B nonimmigrant status may change if the Fifth Circuit or Supreme Court deem DACA unlawful, or if President Trump is reelected and yanks DACA. It remains to be seen whether DACA could survive rescission efforts by a future Trump administration. When upholding DACA in 2020 in Department of Homeland Security v. Regents of the University of California, the Supreme Court found that the “reliance interests” of DACA recipients, who have enrolled in college, embarked on careers, started businesses, purchased homes, and married and had children in reliance on the DACA program, must be taken into consideration when deciding the future of the program. This case was discussed at length in a prior blog.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Granting Deferred Action to Aging Out Children in Lawful Status Is Preferable to Having Them Start All Over Again

By Cyrus D. Mehta

Children of beneficiaries of approved I-140 petitions that are caught in the employment-based backlogs are in danger of aging out if they turn 21 and are unable to obtain permanent resident status with their parents. Although the Child Status Protection Act (CSPA) is able to protect the age of some children from aging out, not all children can benefit from the CSPA especially when neither the Date for Filing or the Final Action Date in the State Department Visa Bulletin is nowhere close to becoming current with respect to the I-140 petition filed on behalf of the parent. Indian born beneficiaries in the employment based first, second and third preferences are particularly impacted as the wait time before their priority dates become current can be an absurd  195 years. Over one million Indian born beneficiaries and their dependents will be waiting for the rest of their lives in the backlogs.

Although Congress can easily fix this problem by infusing more visa numbers in the employment-based categories along with reducing the per country limits, due to the intense polarization between the two parties and the obsessive focus on the border, those in Congress who desire to fix the problem are unable to get support to pass meaningful legislation.  On June 13, 2024, a bipartisan group of 43 members of Congress sent a letter  to Homeland Security Secretary Alejandro Mayorkas and U.S. Citizenship and Immigration Services Director Ur Jaddou requesting an administrative fix for children who will age out.

The letter requests three policy changes as follows:

First, “Clarify the applicability of potential grants of deferred action on a case-by-case basis, where discretion is warranted, for children of long-term visa holders who age out of status.”

Second, “Expand eligibility for Employment Authorization to child dependents of visa holders, and to individuals with approved I-140 petitions.” The letter also urges USCIS to expand eligibility for employment authorization (an EAD) under “compelling circumstances” to include “children who are aging out.”

Third,We urge USCIS to create a process to allow children of long-term visa holders who have aged out to seek parole on a case-by-case basis, if warranted for urgent humanitarian reasons or to advance a significant public benefit.”

My views on this bipartisan letter have been extensively reflected in an article in Forbes written by Stuart Anderson of the National Foundation for American Policy, which are extracted below:

“The administrative proposals are both interesting and intriguing as they may only give a temporary benefit to the child who has aged out with no pathway to permanent residence,” said immigration attorney Cyrus Mehta. “Still, until Congress provides a legislative solution, these proposals, especially the first and second, would be an interim solution.”

A child granted deferred action can remain in the United States and obtain employment authorization. “The big disadvantage under this proposal is that once the parent had been granted permanent residence, what happens to the child?” said Mehta. “The child will have to remain a recipient of deferred action for a very long time until they can obtain their own basis to immigrate to the U.S.” A new presidential administration could rescind the deferred action, leaving an aged-out child in a situation similar to DACA recipients.

On the letter’s second proposal, Mehta explains while it would be good for dependent children to obtain EADs under compelling circumstances, “Children who age out and cannot protect their age under the Child Status Protection Act will not be able to obtain immigrant visas along with their parents.” A rule on the regulatory agenda that has not been issued would clarify and likely expand compelling circumstances for children at risk of aging out.

The letter also recommends granting employment authorization documents to the principal green card applicants waiting for permanent residence. “While granting EADs to beneficiaries of approved I-140s is a good thing, advocates should realize it will not lead to permanent residence if an individual changes jobs unless the new employer files the labor certification and I-140 again and the beneficiary is able to recapture the old priority date,” said Mehta. The child may not be protected from aging out depending on the circumstances.

The third proposal—being paroled into the United States—also does not offer a clear pathway to permanent residence. A future administration can choose not to extend parole. Depending on when a parent obtains permanent residence, sponsoring a son or daughter may be possible, although likely via consular processing.

While these proposals are less than ideal as they do not put aged out children on the path to permanent residence, an executive action that authorizes children to lawfully remain in the US long after they have aged out, and obtain work authorization and travel permission,  is preferable to the status quo.

Presently, a child who is turning 21 would most likely be in H-4 status while the parent who is caught in the backlog is in H-1B status. The child must seek to change status before turning 21 to another nonimmigrant status. Most children of skilled workers are studying in college, and so they can change to F-1 status. Requesting a change to F-1 status is fraught with peril. Changing to F-1 status is fraught with risk as  F-1  nonimmigrant classification requires one to have a temporary intent to remain in the US and ultimately return to a residence abroad, which has not been abandoned. It is difficult for a child in this situation who has been in the US for most of their life to demonstrate such a nonimmigrant intent. Furthermore, even if the child is successful in changing to F-1 status, travelling abroad is fraught with even greater risk as a US consul can deny the F-1 visa under INA 214(b), because the visa applicant has not overcome  the presumption of immigrant intent by sufficiently demonstrating that they  have strong ties to their home country that will compel them to leave the United States at the end of their temporary stay. H-1B and L visa applicants, along with their spouse and any minor children, are excluded from this requirement, but when the child has switched to F-1 status, they have to meet this requirement.

If this child was not born to an Indian born backlogged beneficiary, they would have obtained permanent residence along with the parent. Unfortunately, this child who has aged out  needs to start all over again in the labyrinthine immigration system like their parent has miserably experienced by first obtaining F-1 nonimmigrant status, then take their chance in the H-1B lottery. It is likely that most of them will not get selected in this lottery. If they are fortuitously selected, they can  seek an employer to sponsor them for permanent residency while not getting any credit for their parent’s priority date. They will need to establish a new priority date upon their employer sponsoring them for labor certification, and  filing an I-140 petition, and then they too will have to wait for more than a lifetime to obtain permanent residence unless they happen to marry a US citizen,  and get rescued from quotas  and file for adjustment of status.

Instead of stating all over again in F-1 status, if a child is granted deferred action, they are authorized to remain in the US and even work by applying for employment authorization. If the child wishes to travel, they can request advance parole. This is probably better than remaining in nonimmigrant F-1 status, and then trying to switch to H-1B status under the H-1B lottery. They will need to be a recipient of deferred action for a very long time until they get sponsored for permanent residence through an employer or as an immediate relative of a US citizen spouse or through a family member under one of the family preferences.

Although a new president can yank the deferred action, they will be more stable so long as they have deferred action rather than being thrown into vagaries of the US immigration system. They can also hope that at some point Congress will bless this executive action and provide a pathway for these children to apply for permanent residence and citizenship just as DACA recipients have been hoping and advocating for a long time.

Finally, I also favor advancing the “Dates of Filing” in the State Department Visa Bulletin as much as possible to allow those waiting in employment-based green card categories to file I-485 applications for adjustment of status. This action would enable individuals to obtain employment authorization documents, advance parole for travel purposes and protect the age of the child for an immigration filing.

 

 

 

 

 

Emerging Immigration Issues Arising from Violence in the Middle East

The violence and loss of life in the Middle East this week are unspeakably tragic, and it is innocent Israeli and Palestinian citizens who stand to suffer the most in the escalating conflict. Hamas’ condemnable attack of Israeli civilians, as well as Israel’s subsequent preparations to invade Gaza to destroy Hamas, are likely to result in many Israeli and Palestinian civilians becoming displaced. Noncitizens from affected areas who are currently in the United States may be unable or unwilling to return as the violence intensifies and the region becomes increasingly unsafe. The conflict poses a number of immigration challenges for those impacted by the conflict. The Biden administration can take measures to ensure that noncitizens from the region who are already in the United States are not obliged to return to unsafe areas, and to facilitate the process for those who are applying for an immigration benefit to come to the United States.

As recommended by the American Immigration Lawyers Association in a statement titled “AILA Calls on Biden Administration to Help Those Displaced By Recent Violence in Middle East”, the Biden administration can extend deferred action, humanitarian parole, or Temporary Protected Status (TPS) to individuals from regions impacted by the conflict who are in the United States to ensure that they may remain safely in the country. Further, the administration can suspend removals to areas impacted by violence to ensure that Israeli and Palestinian nationals in the United States will not be returned to unsafe locations. Additionally, deadlines and other requirements can be relaxed for individuals from the region who are currently applying for an immigrant benefit before the Department of Homeland Security, Justice Department, or Department of State to ensure that their cases will not be impacted by delays or difficulties resulting from the conflict. See AILA Doc. No. 23101002 (Oct. 10, 2023).

The conflict may could also result in immigration-related consequences for those would support the actions of Hamas. Senator Marco Rubio has called on the Biden administration to “cancel and rescind visas for foreign nationals who endorse or espouse terrorist activity, including those who defend or support Hamas”. Senator Rubio went on to state that the administration “has the authority and an obligation under existing law to immediately identify, cancel the visas of, and remove foreign nationals already here in America who have demonstrated support terrorist groups”, and expressed an intention to introduce legislation to force the Biden administration to take action accordingly.

A coalition of student organizations at Harvard University published a letter stating that they “hold the Israeli regime entirely responsible for all unfolding violence”, and swiftly faced backlash from Harvard faculty and alumni, as well as the public at large. A Columbia Law School student similarly had their job offer from a prominent firm rescinded after emailing a letter to students which stated in part “Israel bears full responsibility for this tremendous loss of life”. These incidents raise the question of whether student leaders who are in the United States on an F-1 visa could be found inadmissible under INA § 212(a)(3)(B)(i)(IV)(bb) as representatives of “a political, social, or other group that endorses or espouses terrorist activity”. INA 212(a)(3)(B)(v) defines “representative” as “an officer, official, or spokesman of an organization, and any person who directs, counsels, or induces an organization or its members to engage in terrorist activity”. Although it may be unlikely that the provision would be enforced against a university student, there is a potential for troubling consequences for a noncitizen leader of a student organization who speaks out about the conflict in a way that seems to endorse terrorist activity. INA 237(a)(4)(B) also renders a noncitizen who is described in INA 212(a)(3)(B) and INA 212(a)(3)(D) removable. Similarly, INA § 212(a)(3)(B)(i)(I) renders inadmissible noncitizens who “have engaged in terrorist activity”, which can include commission of “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” to a terrorist organization. INA § 212(a)(3)(B)(iv)(VI). The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peacefully express an opinion or assemble is likely to involve the violation of immigration law. However, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court held that First Amendment protections do not apply to “political speech or expressive conduct that materially supports foreign terrorist organizations”. The Supreme Court’s holding in this case seems to apply only to those who have had contact with a terrorist organization, not individuals who speak independently, so a student who writes a letter or protests on campus would likely be able to avail of the protections of the First Amendment, and should not face repercussions for providing material support to a terrorist organization.

In the wake of the 9/11 terrorist attacks, noncitizens from predominantly Muslim countries were covertly detained and removed from the United States due to purported ties to terrorism, as detailed in our prior blog. This week, a Chicago landlord shockingly and senselessly attacked his tenant and murdered her six-year-old son because they were Muslim. A well-known Palestinian restaurant in Brooklyn has been inundated by fictitious negative reviews, though it has persevered in serving Palestinian and Israeli customers in the community alike. These incidents indicate that the type of xenophobic backlash that arose after September 11, 2001 may be materializing again.

Although the conflict in the Middle East poses a number of immigration-related challenges, the Biden administration is uniquely positioned to assist both Israeli and Palestinian civilians impacted by the violence. The administration should adopt protections that allow noncitizens from impacted regions who are currently in the United States to remain here until the conflict abates, and institute flexibilities for those currently navigating an immigration process. The Biden administration should also make every effort to tamp down xenophobic backlash here in the US, and should never impose a travel ban against regions or countries like the way Trump did.

Historically, when people immigrate from countries or regions that have been enemies seem to get along in the United States. They bury their historic differences and find commonalities in their cultures in the new country. A case in point are people who have immigrated to the US from India and Pakistan that the authors have anecdotal experience. In the US they seem to co-exist peacefully and even patronize each other’s businesses and share culture. The communities have a tendency to come together in the new country to provide a unified front to oppose racial hostility, stereotyping and xenophobia. It is hoped that the displaced people from the Middle East who come to the US or remain will co-exist in harmony upon the Biden administration providing benefits such as TPS, deferred action and humanitarian parole.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

The Legal Basis for DACA as Expressed in the Final Rule

By Cyrus D. Mehta and Kaitlyn Box*

On August 24, 2022, the Department of Homeland Security (DHS) issued a final rule aimed at “preserving and fortifying” the Deferred Action for Childhood Arrivals (DACA) program. The DACA program was initiated by a 2012 memo from then-DHS secretary Janet Napolitano (“Napolitano Memo”) and has been subjected to numerous legal challenges since. Many of our previous blogs discuss the DACA program. The Napolitano Memo stated that DHS would consider deferred action for individuals who met the following criteria pursuant to the DACA program: 1) came to the United States under the age of 16; 2) continuously resided in the United States for at least 5 years preceding June 15, 2012, and were present in the United States on that date; 3) are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 4) have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and 5) were not above the age of 30 on June 15, 2012.

The new final rule takes effect on October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It retains the same criteria for DACA eligibility that were laid out in the Napolitano Memo and preserves the existing process for DACA recipients to request work authorization. The final rule also affirms USCIS’ longstanding policy that DACA recipient are considered “lawfully present”.

It is plain that the new final rule is aimed at insulating the DACA program from being invalidated by future litigation. In a July 16, 2021 decision, Judge Hanen of the U.S. District Court for the Southern District of Texas held that the DHS violated the Administrative Procedure Act (APA) as it was not established through notice and comment rulemaking.. Judge Hanen further reasoned that DHS did not have the inherent authority to enact the program, and held that DACA conflicts with sections of the INA that describe which individuals are removable and lay out a statutory scheme for work authorization. Because Congress had already clearly articulated rules surrounding removal, lawful presence, and work authorization, Judge Hanen held that DACA failed the first step of the Chevron test and violates the APA.  Prosecutorial discretion, of which DACA is a variant, is an established doctrine that does not need to be codified. Promulgating a regulation may protect DACA from some legal challenges, but not all. If litigation asserts that the program is not authorized under the INA, the fact that it was established through notice and comment rulemaking will not provide a defense.

The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for EADs, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status could potentially nudge a court to uphold DACA rather than find it unlawful.

It remains to be seen how DACA fares in the ongoing litigation, particularly in light of the current composition of the Supreme Court. While the U.S. Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California in 2020, the majority’s opinion was based on the improper procedure used by the Trump administration in its attempt to rescind DACA in 2017 in violation of the APA.  The Court in Regents did not reach the question of whether DACA itself was legal. The Supreme Court in Regents also faulted the then Trump administration for not factoring in reliance interests under Encino Motorcars, LLC v. Navarro, 579 U. S. ___ (2016) when rescinding DACA. Justice Roberts writing for the majority observed that 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. Unfortunately, notwithstanding the benefits of the DACA program to the US, the reliance interest doctrine may not be relevant if the Court rules that DACA was not authorized under the INA.

In any case, the new final rule is a good step forward and will give the program firmer legal footing. Unless the Supreme Court rules that DACA is not authorized under the INA, the final rule would render it very difficult, if not impossible, for a future administration not friendly towards immigrants to rescind DACA. It is hoped that the judges in the Fifth Circuit, and if not the Fifth Circuit, the Supreme Court removes any ideological lens and is able to see DACA as being lawful and authorized under the INA. If prior rulings have indicated that the government can exercise prosecutorial discretion  on a case by case basis, there is not much difference if the government exercises prosecutorial discretion in an orderly way through the DACA rule. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. A prior 2012 blog by Gary Endelman and Cyrus Mehta, Yes He Can: A Reply to Professors Delahunty and Yoo,  provided an impassioned defense of  DACA. The arguments we made then are still relevant notwithstanding Judge Hanen’s decision that found DACA to be unlawful.  The court reviewing Judge Hanen’s decision need look no further than the newly promulgated provision at 8 CFR §236.21(c)(1) which sums up why DACA is lawful:

Deferred action is an exercise of the Secretary’s broad authority to establish national immigration and enforcement priorities under 6 U.S.C. 205(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on high priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.

While it is hoped that the court will uphold DACA, DACA recipients deserve better than the uncertainty of renewing  DACA  along with work authorizations every two years, and urgently need Congress to regularize their status and place them on a  pathway to citizenship.

 

(This blog is for informational purposes 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.

 

 

How USCIS Can Remain True to its Mission by Exercising Compassion During the COVID-19 Period

Although the United States Citizenship and Immigration Services is mandated by Congress to grant benefits, it has become an enforcement oriented agency under the Trump administration that has displayed remarkable hostility towards immigrants.    During the period when people are mandated to stay confined and practice social distancing in order to prevent the spread of the coronavirus, and many will unfortunately also fall sick, the USCIS ought to become compassionate and true to its mission of  being a benefits granting agency.

The USCIS has admittedly made some changes in a niggardly fashion. Although the public charge rule got rolled out last month, which is intended to deny immigration benefits under a more expansive interpretation of who is likely to become a public charge, it made one small exception on March 13, 2020 by encouraging noncitizens with symptoms resembling COVID-19 to seek medical treatment or preventive services. “Such treatment or preventive services will not negatively affect any alien as part of a future public charge analysis,” the agency said in a statement.  The exception goes beyond treatment and preventive services, and the USCIS goes onto state: “[I]f the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation.” The USCIS has also allowed applicants to reschedule appointments if they have travelled internationally to any country within the past 14 days of their appointment, believe they have been exposed to the COVID 19 virus or are experiencing flu like symptoms. Separately, DHS has notified that foreign students  should be able to maintain status even if the program goes online so long as the school makes the notification within 10 days.

While these fixes are steps in the right direction, USCIS ought to make more bold changes to provide ameliorative relief to noncitizens that would be in the best interests of the nation. Below are some suggestions:

  1. As employers and law firms have allowed their staff to work remotely, USICS should immediately allow all filings with USCIS to be made online, and also allow scanned or electronic signatures. The electronic H-1B Registration is a good example of how this can be implemented for all USCIS filings.
  2. While an H-1B workers who works from home in the same area of intended employment or within commuting distance does not need a new LCA, eliminate the need to file a new LCA and H-1B amendment even if the home is located outside the MSA or beyond the area of commuting distance. The DOL rules governing LCAs never contemplated telecommuting, and it makes no sense for affected workers to post the LCA on their refrigerator.  The telecommuting is tied to the location where the work is actually performed and for which the LCA was originally obtained and where the posting already occurred.
  3. While the USCIS should give a blanket 90 day extension for filing extension and change of status requests (and this is beyond the 60 day grace period that is given to certain nonimmigrants upon cessation of employment); any delay beyond the 90 days can still be deemed an extraordinary circumstance, and thus excused, under 8 CFR 214.1(c)(4) or 248.1(c) if it is based on a corona virus circumstance.
  4. Coronavirus issues should be deemed technical reasons for INA 245(c)(2) purposes to allow delayed adjustment filings when necessary.
  5. Similar extensions ought to be given with respect to filing responses to RFEs and I-290B appeals or motions as well as filing an I-140 beyond 180 days of the grant of labor certification.
  6. Auto-extend EADs, Advance Paroles and I-551s to eliminate the need to file I-765, I-131 and I-90 extensions.
  7. Automatically reschedule all missed USCIS appointments (biometrics, adjustment and naturalization interviews and oath ceremonies) rather than deem that the application has been deemed abandoned. Also, if possible, develop technology for noncitizens to securely process their biometrics through their own phone devices.
  8. The filing of a meritorious and nonfrivolous I-290B should no longer trigger unlawful presence for purposes of the 3 and 10 year bars.
  9. Have a policy of granting parole in place to one otherwise eligible to adjust status if it can be demonstrated that it would be impossible or harmful for a person to return to the home country.
  10. Advance the Chart B filing dates to Current or close to Current as the notion of an “immigrant visa is immediately available” under INA 245(a)(3) has always been viewed with elasticity, especially in the case of the July 2007 visa bulletin and more recently in the implementation of Chart B filing dates. In the same vein, rescind the USCIS policy that requires the CSPA age to be triggered only if the final action date becomes current rather than the filing date becoming current.
  11. Allow for video interviews for adjustment of status and naturalization applications, as well as with respect to an oath swearing ceremony. If that is not feasible in the short run, at least minimize the interviews. For example, employment-based adjustment cases do not need interviews, which was the case before.
  12. Relax the standard for competent representation at 8 CFR 1003.102(o) and diligent representation at 8 CFR 1003.102(q), as well as the duty to communicate at 8 CFR 1003.102(r), if an attorney is affected by the coronavirus and is forced to be quarantined for several weeks and has no other attorneys who can act on his or her behalf.

These are a few suggestions for USCIS to revert to its historic role of viewing its mission as providing benefits rather than being a junior partner to Immigration and Customs Enforcement. Other agencies also need to step up to also take appropriate actions, and this blog only focuses on USCIS fixes. If God forbid the situation goes out of hand,  bolder action would need to be taken. There is statutory authority to grant mass Temporary Protected Status under INA 244(b). There is also authority to grant deferred action to large groups of noncitizens who may be at grave risk to themselves and others if they are asked to leave the US. The President has broad powers in times of a national emergency. Now is not the time for restrictionists to oppose such measures that benefit noncitizens, and it would also be perverse for them to advocate that the President use these powers to hurt noncitizens. The health and safety of everyone is paramount, and all people living in this nation, whether citizen or non-citizen, are intractably connected and the administration must take all measures to protect everyone.

 

 

 

 

 

 

 

 

 

 

 

Will the Disruption of the H-1B Lottery Force Change for the Better?

A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery recently overcame a motion to dismiss, and will move forward. There is a decent chance that the plaintiffs may prevail and employers will no longer be subject to the H-1B lottery. The annual H-1B visa cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely prospect of being rejected by an opaque randomized lottery.

The lawsuit asserts that the H-1B lottery contravenes the law, and points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” This suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. The parallel provision, INA § 203(e)(1), for immigrant visas reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B nonimmigrant visa petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

The government in Tenrec, Inc. v. USCIS filed a motion to dismiss for lack of subject matter jurisdiction. In its motion, the government argued that the individual plaintiffs did not have standing because only employers have standing to challenge the H-1B program. The employers too, according to the government, did not show sufficient injury and thus did not have standing.  In a September 22, 2016 decision, Judge Michael Simon rejected the government’s lack of standing claims on both counts. Judge Simon referenced other recent federal court decisions that have ruled that foreign workers who are beneficiaries of immigrant visa petitions have been allowed to challenge their denials, and be given notice of them. This trend has been discussed in my recent blog, Who Should Get Notice When the I-140 Petition Is Revoked? It’s The Worker, Stupid! What is interesting in Judge Simon’s decision is the notion that standing can also extend to nonimmigrant workers. As the recipient of an H-1B visa can become a permanent resident through subsequently filed applications following the grant of H-1B status, there is no distinction between the beneficiary of a nonimmigrant visa petition with an immigrant visa petition. Even if the individual H-1B visa plaintiffs cannot become permanent residents, Judge Simon noted that they are still “more than just a mere onlooker” because their status would be in jeopardy and would lose an opportunity to live and work in the United States, as well as enjoy life here. Judge Simon also held that the employers had standing notwithstanding that the H-1B lottery already occurred since it was likely that the employer could lose in next year’s lottery. This holding in itself is invaluable for providing standing to nonimmigrant visa holders in future challenges even if the plaintiffs are not victorious here.

Even if the plaintiffs succeeding in knocking out the H-1B lottery, they will not be able to readily access the H-1B program. The annual H-1B cap will still be limited to 65,000 per year for applicants with bachelor’s degree, and an additional 20,000 for those with master’s degrees. It will be somewhat similar to the priority date system for immigrant visas that face years of backlogs, and the EB-2 and EB-3 India backlogs is currently several decades long. Although the underlying labor condition application of an H-1B petition is valid for only three years, under a redesigned filing system devoid of the lottery, an LCA could potentially be submitted and activated once the priority date for that H-1B petition becomes current.

While the H-1B lottery benefits employers who file many petitions each year (as they can then at least hope to win some in the lottery), there is already a wait list for most, especially smaller employers who file for one employee.  If the employer loses two or three lotteries before getting a number for that prospective employee, this in any event becomes a de facto waiting list.   The fact that some lucky ones get in the first time does not mean that most will not be subject to a wait list. While a wait list system for all will be fairer than a randomized lottery for a lucky few, it will create pressure for the administration to tweak the system or for Congress to create more access to H-1B visas. Regarding tweaking the system, I have previously argued that beneficiaries of approved H-1B petitions on the wait list should on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

While U visa recipients already in the United States on a wait list can seek deferred action, the USCIS has also recently agreed to grant parole to U visa petitioners and family members based overseas when the 10,000 annual limitation has been reached.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on certain narrow criteria.    Critics of the H-1B program, and there are many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued by anti-H-1B interest groups, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as students who have received Optional Practical Training, be granted deferred action as wait listed H-1B beneficiaries. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf. One could also throw in a requirement that the employer register under E-Verify in order to qualify, and this would expand E-Verify to many more employers, which is one of the government’s  goals as part of broader immigration reform.

Of course, people have gotten comfortable with the status quo, but the H-1B lottery is problematic and thus not worthy of preservation. By turning the lottery on its head, it is hoped that there will be real change for the better. Ideally, Congress should bring about change by creating more H-1B visa numbers, although given that the H-1B visa program has already been poisoned due to the misconception that H-1B workers take away US jobs, other restrictions in exchange for more H-1B numbers will become inevitable, such as forcing employers to recruit before filing for an H-1B visa or by creating more restrictions on dependent H-1B employers. Still, disruption is the order of the day, and if we have witnessed seismic disruption in the taxi industry through Uber or the hotel industry through Airbnb, why not also disrupt the H-1B lottery through a lawsuit in hope for positive change? As Victor Hugo famously said – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be contributing to the United States today through their careers and tax dollars? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule?  Moreover, the new proposed parole entrepreneur parole rule is also worthy of emulation in place of  a disrupted H-1B lottery program. If deserving entrepreneurs can receive parole, so can deserving H-1B beneficiaries who are waiting in a queue that may be more fair than the lottery.  Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press this administration and the next with good ideas. The lawsuit to end the H-1B lottery is one such good idea. It should be embraced rather than feared in the hope that it will first dismantle and then resurrect a broken H-1B visa program.

Were the DOJ Lawyers Really Unethical in Texas v. USA?

Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.

Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand  recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomsky does not even think the DOJ lawyers did anything wrong.

I completely agree. Let’s look at Rule 3.3 of the American Bar Association Model rules of Professional Conduct and the corresponding Texas Disciplinary Rules of Professional conduct, which Judge Hanen used, along with a fair sprinkling of dialogs from popular films, for finding that the DOJ lawyers were not truthful to the court. One of the cardinal ethical cannons is that a lawyer has a duty of candor to a tribunal.  ABA Model Rule 3.3 provides in relevant part:

a)  A lawyer shall not knowingly:

1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

The relevant potions of the Texas version of Rule 3.3 are similar:

a)  A lawyer shall not knowingly:

1) Make a false statement of material fact or law to a tribunal

2) Fail to disclose a fact to as tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

  ………………..

    5)  offer or use evidence that the lawyer knows to be false.

In order for a lawyer to violate Rule 3.3, he or she must have knowingly made a false statement to the tribunal. Was there such a knowing violation of Rule 3.3 here?

On June 15, 2012, the Obama administration announced DACA that allowed young people who came to the United States prior to the age of 16 and had lived continuously since June 15, 2007, and were not in a lawful status, to be granted deferred action.  On November 20, 2014, DHS Secretary Jeh Johnson issued a memo expanding DACA by changing the eligibility criteria to cover those who had come to the United States prior to January 1, 2010 instead of June 15, 2007 and by removing the maximum age limit of 31 (“Johnson Memo”). The Johnson Memo also lengthened the deferred action time from two to three years. The Johnson Memo further granted deferred action to parents of US citizens or resident children, known as the Deferred Action for Parent Accountability (DAPA), if they had arrived into the United States on or before January 1, 2010.

A group of states challenged the Johnson Memo in Texas v. USA by filing in a court in Brownsville, TX,  where Judge Hanen sat who had already expressed strong views against the Obama administration on immigration.  Judge Hanen granted a preliminary injunction on February 16, 2015 blocking DAPA and expanded DACA. Much has already been written to rebut the conclusions in this flawed decision, and the further flaw in the Fifth Circuit’s affirmation of Judge Hanen’s preliminary injunction.  The preliminary injunction order did not expressly block the original DACA 2012 program. Qualified applicants thus continued to apply for DACA 2012 benefits. Under the terms of the Johnson Memo, qualified applicants under DACA 2012 started receiving grants of deferred action for 3 years instead of 2 years as of November 24, 2014.

Prior to the preliminary injunction of February 16, 2015, in conversations between Judge Hanen and DOJ attorneys, the DOJ attorneys indicated to the court that USCIS had not taken any actions pursuant to the Johnson Memo. Although actions had been taken since November 24, 2014 to grant three year deferred action periods rather than two years, those stemmed from the DACA 2012 program. They were also well publicized.  The expanded DACA, which brought forward the entry date from June 15, 2007 to January 1, 2010, was to take effect on February 18, 2015. Thus, when DOJ attorneys denied that the government had not taken any actions regarding expanded DACA, it was well conceivable that issuing three year deferred action periods instead of two years were actions stemming from the DACA 2012 program and had nothing to do with the expanded DACA program, which had not gone into effect.

After the preliminary injunction was issued, which applied to “expansions (including any and all changes)” to DACA 2012, the DOJ filed an Advisory indicating that out of an abundance of caution it was informing the court that it had granted three year periods of deferred action under the original DACA 2012 guidelines in the event of any misunderstanding.

Given this lack of clarity, as well as the fact that DACA 2012 was never the subject of the lawsuit, could the DOJ attorneys have knowingly made a false statement to be sanctioned under Rule 3.3? This Ethics Committee of the American Immigration Lawyers Association first questioned whether this was so in 2015, but it has become even more important to assert whether there was a Rule 3.3 violation Judge Hanen’s order.ABA Rule 1.0(f) defines the terms “knowingly,” “known” or “knows” as “actual knowledge of the fact in question.” Rule 1.0(f) goes on to state that a “person’s knowledge may be inferred from circumstances.” When the DOJ attorneys were giving an assurance to the court about no action being taken, it could have well been understood to be in relation to recipients who would have become eligible under the expanded DACA, which had not gone into effect., Even the expansion of the deferred action term from two years to three years, if referred to by Judge Hanen,  could have meant to relate to those recipients who would become eligible under the expanded DACA and not relating to the granting of a three year term to qualified recipients under the DACA 2012 program, which had nothing to do with the proposed preliminary injunction. It should be noted that since DACA 2012 was not part of the preliminary injunction, the administration could have fashioned any new benefits for them, and could have theoretically issued a separate guidance memorandum articulating three year renewals rather than two years, separate from the guidance in the Johnson Memo.

Rule 3.3 also allows a lawyer to correct false statements that may have previously been made to the tribunal, which the DOJ did through the Advisory seeking clarification. Unfortunately, Judge Hanen did not view this as clarification but as a further admission that the government lawyers had deceived the court. It is hard to imagine that DOJ lawyers would have knowingly and intentionally deceived the court when three year work permits were being publically announced and given out to those eligible under DACA 2012, and it was a well publicized fact.   There was nothing to hide, and it is inappropriate for a judge to use Rule 3.3 to club not one lawyer but thousands when it was not so clear that knowing false statements had been made to the court.

Although government lawyers oppose private immigration lawyers, and often take unreasonable positions against our clients we defend, Judge Hanen’s reprimand should not be cause for celebration as such a fate could well befall a private lawyer. When there are issues of differing interpretation, involving complex immigration law and policy in hotly contested litigation, it is extremely problematic to use Rule 3.3 to accuse a lawyer for knowingly making false statements to a court or tribunal. While it is one thing for a lawyer to lose a case, it is quite another for a judge to also sanction a lawyer for ethical violations when there was no clear dividing line between an immigration program such as DACA 2012 that was not being enjoined and an expanded version of it that was being enjoined. This is especially so and rather precipitous when the case is still pending at the Supreme Court in United States v. Texas and the issues are yet to be resolved.  And when a lawyer seeks to clarify the ambiguity, as required under Rule 3.3, a judge should not use that as a basis to accuse the lawyer for deliberate deception.  Handing out sanctions for ethical violations in such a ham handed manner not only unfairly undermine a lawyer’s reputation, but create a chilling effect, and in this case demonstrates Judge Hanen’s bias and hostility towards only one of the parties in Texas v. USA.

On June 3, 2016, the government filed a mandamus action against the lower district court for exceeding its scope, with an accompanying request for a stay, essentially asserting that its lawyers did not intentionally intend to deceive the court, and any perception by Judge Hanen that there was a Rule 3.3 violation was due to miscommunications regarding the scope of the preliminary injunction. The government further complains that there was no hearing prior to the issuance of these unusual sanctions. This is a new front in the government’s battle against a district court judge that has blocked President Obama’s deferred action program, and has also imposed an unusual reprimand for alleged ethical violations. In this instance, it is hoped that the government wins the day on both fronts. A dual victory will allow deserving undocumented immigrants to remain in the United States and it will also nullify the bizarre ethics sanctions of a hostile judge, thus sending a message that ethics rules should not be arbitrarily used to club well intentioned lawyers in hotly contested litigation.

(The views in this blog are the personal views of the author, and do not necessarily reflect the views of any organization that he is part of)

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

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.

Can The H-1B Visa Be Saved Through Executive Action?

The annual H-1B VISA cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely project of being rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in legal and filing fees, along with all the steps they need to take in being in compliance. The whole concept of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style of lottery into the process, makes the process even more unfair. Under the lottery, unsuccessful H-1B petitions may be every year with no guarantee of being selected. In fact, notwithstanding recent criticisms, the H-1B visa program has a positive impact on jobs, wages and the economy. Unfortunately, this time too, it is predicted that there will be far more H-1B visa petitions received when compared to the 65,000 H-1B visa cap plus the additional 20,000 H-1B cap for those who have graduated with advanced degrees from US universities. To have only less than a 30% chance to secure an H-1B visa number under the 65,000 cap renders the program totally unviable for employers and H-1B visa applicants.

I was thus heartened to read a blog by esteemed colleague Brent Renison for suggesting that the H-1B lottery may be illegal. He points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” According to Renison, this suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. Renison also points to a parallel provision, INA § 203(e)(1),  which reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

Renison is contemplating filing a class action to challenge the H-1B visa lottery under 8 CFR 214.2(h)(8). I commend him for this initiative, and now take the liberty to propose an even more audacious idea, building upon his brilliant idea. If he is successful in getting USCIS to cease the H-1B lottery process, and accepting all H-1B petitions and placing them in a queue, then the USCIS should approve such petitions prior to placing them in a queue, but only allowing either the grant of an H-1B visa or a change of status to H-1B when a visa number becomes available. However, beneficiaries of approved H-1B petitions on the wait list should also on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on the basis that the employer would comply with the terms and conditions of the H-1B petition and the attestations made in the underlying Labor Condition application.   Critics of the H-1B petition, and there are obviously many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as STEM (Science, Technology, Engineering and Math) students who have received Optional Practical Training, and are making significant contributions, be granted deferred action as wait listed H-1B beneficiaries. Such deferred action should only be granted if they are well within the three year term of the approved H-1B petition. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf.

While this proposal will likely not get a standing ovation on first brush, and the best solution is for Congress to either expand the H-1B cap or get rid of it altogether,  it is important to take comfort in Victor Hugo’s famous words – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be flaming successes today? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule? Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press the administration with good ideas, and to build upon brilliant ideas proposed by others. Good ideas never disappear, and have the uncanny knack of resurfacing again and again, until they come into fruition to benefit deserving immigrants who contribute to America.

A PRELIMINARY ANALYSIS OF THE FIFTH CIRCUIT ORAL ARGUMENT ON THE APPLICATION FOR STAY IN TEXAS V. UNITED STATES

On Friday, April 17, 2015, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments on the motion by the United States for a stay pending appeal of the preliminary injunction issued by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in Texas v. U.S., which currently prevents implementation of the DAPA and expanded DACA programs set out in a November 20, 2014 Memorandum of Secretary of Homeland Security Jeh Johnson.  The decision on the motion for stay will not be the last word with respect to the preliminary injunction, which is the subject of a pending expedited appeal with briefing scheduled to be completed by mid-May and oral argument possible over the summer.  However, the decision on the motion for stay will determine whether implementation of DAPA and expanded DACA can resume immediately.

In a previous blog post, I provided some initial reaction to the Memorandum and Order in which Judge Hanen issued his injunction.  Having listened to the recording of the oral argument that is available online, it seemed appropriate to provide some initial reactions to the oral argument as well.  Nicholas Espiritu of the National Immigration Law Center, who was actually present at the argument, provided his own recap in a blog post that I would urge readers to review, but I think it is possible that reviewing the recording may make it possible to pick up some things that were less obvious in person—although since a recording still has some disadvantages relative to a transcript, it is also possible that the below may contain errors, for which I apologize in advance.

As background, the three Fifth Circuit judges on the panel hearing the motion for stay were Judge Jerry E. Smith, appointed to the Fifth Circuit by Ronald Reagan in 1987; Judge Jennifer W. Elrod, appointed to the Fifth Circuit by George W. Bush in 2007; and Judge Stephen A. Higginson, appointed to the Fifth Circuit by President Obama in 2011.  Texas was represented by state solicitor general Scott A. Keller, and the United States by Acting Assistant Attorney General Scott A. Mizer.

Near the beginning of the argument, Judge Elrod offered an extensive hypothetical regarding the question of reviewability: would the states be able to sue, she asked, if the administration gave something like DAPA to all of the aliens present without authorization?  What about if the administration gave that same population voting rights?  The goverment’s attorney, AAG Mizer, responded that the states wouldn’t have standing in the hypothetical case of DAPA being greatly expanded, although there might be competitor standing by other workers.  In the voting hypothetical, however, he indicated that the states would probably have standing because the Voting Rights Act has provisions giving special rights and thus standing to states.

On the topic of reviewability, Judge Higginson asked whether expanding deferred action and thereby vastly expanding the class of people eligible for employment authorization might be reviewable, despite the existence of the longstanding regulations regarding employment authorization for deferred action recipients, if employment authorization through deferred action had previously been available to a smaller class of people.

Judge Elrod raised the issue of the district court’s factual finding that there is not an actual exercise of discretion by USCIS, and whether it is necessary to overcome a clear-error standard of review in order for the government to prevail with regard to that finding—a point that she revisited later in the argument.  The argument was based on the agency’s alleged practices in adjudicating applications for the original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, which was not challenged by the plaintiff States and is not affected by the injunction; Judge Hanen effectively found that DHS had not exercised discretion in the 2012 DACA program and so would not exercise discretion with DAPA and expanded DACA.  Judge Higginson, in response, made an interesting point about how the fact the agency is removing more people than ever before may rebut the suggestion that DHS is being pretextual in claiming that they are exercising discretion.

Judge Elrod then raised the issue of whether the government has been disingenuous in the litigation, and whether that influences a credibility determination.  (On the question of whether the attorneys for the government indeed had breached any ethical obligations, I would refer the reader to an AILA Leadership Blog postby Cyrus D. Mehta in his capacity as Chair of the AILA Ethics Committee, and the related more comprehensive paper from the AILA Ethics Committee, “Judge Hanen’s Troubling Accusations of Unethical Conduct in Texas v. United States of America.)  The district court, AAG Mizner pointed out in response, considered “public safety” denials of the original 2012 DACA as not being discretionary, which is not really fair, since protecting public safety is a major discretionary factor.

Judge Higginson pointed out, with regard to the question of alleged disingenuousness and credibility, that the district court doesn’t actually seem to have made any credibility finding regarding the competing affidavits of USCIS union official Kenneth Palinkas and USCIS Associate Director for Service Center Operations Donald Neufeld, who had offered vastly different accounts of how applications are processed.  That goes to Judge Elrod’s earlier point regarding the finding of fact, since it would seem to be error to make such a finding while simply ignoring a contrary affidavit and without having held an evidentiary hearing to resolve any credibility issues.

Returning to the question of standing and reviewability, the government noted that “Texas has been here before” in terms of trying to sue the US government about immigration policy, in 1997, and lost.  AAG Mizner further pointed out that 8 U.S.C. 1252(g), and the Supreme Court’s decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), interpreting that section, argue against anybody being able to sue regarding prosecutorial discretion—if even disappointed aliens can’t sue regarding the exercise of such discretion, then why would states, who have no role in immigration, be able to do so?

Continuing with the standing discussion, Judge Smith directed AAG Mizer to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to be a key case on the standing issue.  Mizer responded, first, that there isn’t a territorial effect in this case as in Massachusetts, where the state’s territory was being affected (by rising sea levels resulting from global warming).  Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA, Mizer argued, “is not enacted to protect the states”.

Mizer moved on to an interesting hypothetical about the problem with Texas’s standing argument.  Take the case of thousands of paroled Cubans, for example, who then became eligible to adjust status (under the Cuban Adjustment Act).  On Texas’s theory, if the paroled aliens moved to Texas, then Texas would have a judicially cognizable harm.  But to find standing for Texas under such circumstances, Mizer said, would be inconsistent with the FAIR v. Reno decision of the D.C. Circuit, which rejected a challenge to an agreement between the US and Cuba that would have such an effect.  Indeed, if Texas is right, Mizer argued, then they would be able to challenge an individual decision to grant a single person asylum, because if that person then gets a Texas driver’s license, it’s a harm to Texas.

Judge Elrod asked about why the US didn’t address the constitutional arguments made by the plaintiffs below (and not passed upon by the District Court).  Given the burden is on the government, she suggested that this might mean the government would lose at the stay stage.  Between this, the earlier noted questions from Judge Elrod, and a question soon thereafter in which Judge Elrod relied on President Obama’s comments at a press conference, rather as Judge Hanen had below, it seemed that Judge Elrod might be leaning in favor of denying a stay, although reading the proverbial “tea leaves” from an oral argument is always tricky.

Judge Higginson next returned to a variant of his point about the potential significance of DHS’s high number of removals, noting that the “abdication” theory propounded by Judge Hanen doesn’t make sense given that high number.

Judge Higginson followed up with an interesting hypothetical question about what would happen if the next administration flipped the priorities and went after DAPA recipients. AAG Mizer responded that DHS hasn’t bound itself not to change its mind.  Secretary Johnson may have bound his subordinates, but he has not bound the agency.

Returning to the question of standing, Judge Smith asked about the “special solicitude” that Massachusetts v. EPA says is afforded to the states.  Mizer says the immigration context is different than that case, because the Supreme Court has said in Arizona v. United States that the states can’t enact laws to conflict with federal immigration policy; why should the states be able to file a lawsuit to the same end?

Judge Elrod then asked AAG Mizer about whether “lawful status” is a benefit and about the difference between this and the Watt case, that is, Watt v. Energy Action Education Foundation, 454 U.S. 151 (1981).  Regarding Watt, Mizer’s response was to point out that California actually had a statutory interest in sharing the revenues from the program at issue in that case.  Regarding “legal status”, Mizer stated that deferred action is not a lawful status, just lawful presence. There followed a somewhat confused discussion of what exactly lawful presence is.  AAG Mizer ultimately pointed out that it doesn’t matter a great deal as a practical matter if one has lawful presence under DAPA, because DAPA beneficiaries already had more than a year of unlawful presence to begin with, and would thus already have sufficient unlawful presence to trigger the 10-year bar (that is, INA §212(a)(9)(B)(i)(II)).

The states’ lawyer, Texas Solicitor General Keller (TSG Keller for short), near the beginning of his argument, tried to pick up the thread regarding lawful presence versus lawful status and make the case that granting “lawful presence” is affirmative government action different than prosecutorial discretion. He couldn’t answer a question whether past deferred action grantees had lawful presence, but suggested that they might not have.  He also seemed near the beginning of is argument to concede that the scale of the program is not “pertinent to the legal doctrines”, though he then said that it “colors whether it is a substantive rule”.

Judge Higginson, picking up on the earlier discussion of lawful presence and lawful status, cited to Arizona v. United States and other case law to say that allowed presence from deferred action is different from lawful status.

TSG Keller moved on to talk about the double deference afforded in this stay posture.  He returned again later in the argument to a discussion of the “stay posture” and the record compiled on an expedited basis.  I found this interesting because to the extent the decision on the motion to stay relies on deference factors unique to the stay context, that suggests that any unfavorable decision on the motion to stay should not be given much deference by the panel that subsequently considers the appeal of the preliminary injunction.

One of the more notable aggressive moments of TSG Keller’s argument was when he claimed that 8 U.S.C. §1324a(h)(3)is only a “definitional” provision, and that the existing regulations regarding employment authorization may not be legal.  Judge Hanen, as I had pointed out in my prior post on this blog, had seemed to ignore that statute and the portion of the regulations, 8 C.F.R. §274a.12(c)(14), authorizing the grant of employment authorization to deferred action recipients.  Suggesting that the statutory provision is nearly meaningless and the regulations potentially invalid is, I suppose, an interesting alternative analytical route, but the argument strikes me as unconvincing, and would have far-reaching and problematic consequences if it did succeed.  This argument by TSG Keller would imply that the courts should read the statute to invalidate, for example, all employment authorization given to applicants for adjustment of status pursuant to 8 C.F.R. §274a.12(c)(9), just because the powers given to the Secretary of Homeland Security (formerly the Attorney General) by the statute to confer such employment authorization happen to be bestowed in the form of a definitional provision.

Another somewhat rocky moment in TSG Keller’s argument pertained to the “abdication” theory of Article III standing mentioned by Judge Hanen, regarding which even Judge Elrod appeared to be skeptical.  Judge Elrod was able to get TSG Keller to clarify that the states would still need to show Article III injury in order to proceed on such a theory of standing.  As examples of such injury, TSG Keller pointed to driver’s licenses, health care and education benefits.

On the question of whether discretion was actually exercised in adjudicating applications under the 2012 DACA program, Judge Higginson pointed out that because of “self-selection bias”, you’d expect a high approval rate.  That is, given that it is up to each applicant whether to seek the benefit, people who aren’t going to qualify for the benefit won’t tend to apply for it.  This seemed a compelling point to me, and Judge Higginson returned to it repeatedly.  This discussion of discretion led to a further discussion of the data, or lack thereof, regarding reasons for refusal and so on in DACA 2012, and why the government didn’t, or couldn’t, provide evidence of discretionary refusals—evidently DHS had not kept track of such discretionary denials separately from other denials.

Also with respect to discretion, Judge Higginson had what I thought was a very interesting point about the perverse incentive that would be created by adopting the states’ viewpoint on what evidences a proper exercise of discretion.  If a high approval rate for those applicants meeting the written policy criteria is evidence of a lack of discretion, does that mean that executive agencies need to be careful not to comply with their written policies too well?  He came back to this again later in the argument.  This too struck me as a compelling point, because the implication of the states’ argument is that executive-branch policies not meant to confer enforceable rights on the public may only be defensible if the administration is careful to be arbitrary and unpredictable, allowing lower-level officers to make decisions without any meaningful guidance from their superiors—which would be a very strange way to run the executive branch, and a very strange policy to mandate as a matter of administrative law.

Judge Higginson also pointed out that in one of the cases the states have cited, the remedy for an agency supposedly not exercising the discretion that it claimed to be exercising was remand to the agency.  But he seemed potentially convinced by TSG Keller’s response that this possibility would be more relevant to the merits than to the stay.

In an interesting exchange towards the end of TSG Keller’s argument, both he and Judge Elrod seemed to say that if it were “just deferred action” this would be a very different case.  It seems to me, however, that the difference is not so clear, because once you get “just deferred action” you are eligible for an EAD under the existing regulations, as I have explained previously.

In his rebuttal argument, AAG Mizer argued that deferred action has always conferred lawful presence, and that Congress has acknowledged that.

Judge Elrod pressed AAG Mizner during his rebuttal regarding what scheme Texas could use to decide whom to give driver’s licenses to, that would not necessarily result in the grant of licenses to DAPA recipients, as the U.S.’s argument had seemed to suggest was possible.  AAG Mizer indicated that Texas could come up with a classification scheme not relying on employment authorization, as long as there was a legitimate state reason for that classification scheme.

Judge Higginson followed up with an interesting question about whether Congressional appropriations sufficient to remove all 11 million unauthorized aliens would mandate that this be done.  AAG Mizer responded there would be an impoundment problem with the funds not being utilized for their intended purpose in that hypothetical, but that the government would still have some residual discretion to consider foreign policy and humanitarian concerns and so on.

Regarding the “status quo” standard for a stay, Mizer points them to Justice O’Connor’s stay opinion in INS v. Legalization Assistance Project, 510 U.S. 1301 (1993) (O’Connor, J., in chambers), regarding the injury that the federal government suffers when the judicial branch interferes in its internal processes.

At the end of the argument, Judge Elrod pushed AAG Mizer regarding whether there would be significant benefits granted during a period after any lifting of the stay that would be difficult to unwind if the preliminary injunction were ultimately affirmed.  She did not seem convinced by his response.

Based on this oral argument, the most difficult prediction appears to me to be what view Judge Smith will take on the merits.  Although it seemed from Judge Smith’s questions regarding Massachusetts v. EPA that he was inclined to find in favor of the plaintiff states with regard to standing, his questions did not reveal his view of the merits to the extent that Judge Elrod’s did.  Judge Higginson was also a bit harder to read than Judge Elrod, but on balance it seems from the oral argument that he is more likely to favor the federal government’s position.  Even if Judge Smith and Judge Elrod were both to agree that the plaintiff states had standing, however, a stay could still be granted if Judge Smith were to agree with Judge Higginson’s apparent view of the federal government’s likelihood of prevailing on the merits.  While I am not sure how likely such an outcome is, it is not a possibility that I would entirely rule out based solely on the oral argument.