Tag Archive for: Executive Actions

Cyrus Mehta

DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State

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By Cyrus D. Mehta and Kaitlyn Box*

On July 7, 2023, DHS announced a new family reunification parole initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades.

Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, in his discretion, to parole noncitizens into the United States temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The parole authority has long been used to establish family reunification parole (FRP) processes administered by U.S. Citizenship and Immigration Services, including the Cuban Family Reunification Parole Program, which was established in 2007, and the Haitian Family Reunification Parole Program, which was established in 2014.

The processes begin, according to the DHS announcement, with the Department of State issuing an invitation to the petitioning U.S. citizen or lawful permanent resident family member whose Form I-130 on behalf of a Colombian, Salvadoran, Guatemalan, or Honduran beneficiary has been approved. Beneficiaries awaiting an immigrant visa could include certain children and siblings of U.S. citizens and certain spouses and children of permanent residents. The invited petitioner can then initiate the process by filing a request on behalf of the beneficiary and eligible family members to be considered for advance travel authorization and parole.

The new processes allow for parole only on a discretionary, case-by-case, and temporary basis upon a demonstration of urgent humanitarian reasons or significant public benefit, as well as a demonstration that the beneficiary warrants a favorable exercise of discretion. Individuals paroled into the United States under these processes will generally be considered for parole for up to three years and will be eligible to request employment authorization while they wait for their immigrant visa to become available. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

The Federal Register Notices for Colombia, El Salvador, Guatemala, and Honduras provide more information on the FRP process and eligibility criteria.

According to the federal register notices, the justification for the new FRP initiative is part of a broader, multi-pronged, and regional strategy to address the challenges posed by irregular migration through the Southwest border. Consideration of noncitizens for parole on a case-by-case basis will meaningfully contribute to the broader strategy of the United States government (USG) to expand access to lawful pathways for individuals who may otherwise undertake an irregular migration journey to the United States. The case-by-case parole of noncitizens with approved family-based immigrant visa petitions under this process will, in general, provide a significant public benefit by furthering the USG’s holistic migration management strategy, specifically by: (1) promoting family unity; (2) furthering important foreign policy objectives; (3) providing a lawful and timely alternative to irregular migration; (4) reducing strain on limited U.S. resources; and (5) addressing root causes of migration through economic stability and development supported by increased remittances.

It remains to be seen whether states like Texas will attack this program in federal court. A similar humanitarian parole program has been the subject of a lawsuit by Texas and nineteen other states, and  allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. The new FRP initiative is more narrowly tailored as it applies only to spouse, children and sibling beneficiaries of  approved I-130 petitions. Also, in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Although that case dealt with whether a state could challenge the federal government’s ability to exercise prosecutorial discretion, it can also potentially deter a state’s ability to demonstrate standing when it challenges other federal immigration policies.

In Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Still, Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. Note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would.

Florida has already challenged the Biden administration’s “Parole Plus Alternatives to Detention” (Parole+ATD) and “Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document” (PWC) policies in Florida v. Mayorkas  that is currently pending before the Eleventh Circuit Court of Appeals. In a brief filed on July 5, 2023, the government argued that the “special solicitude” doctrine proffered by states in United States v. Texas. should not apply in the humanitarian parole context. Florida asserted that it was entitled to special solicitude for the same reasons articulated by Texas in United States v. Texas – “a challenge to its sovereignty and indirect fiscal costs flowing from the presence of more noncitizens in its state.” Because the Supreme Court rejected an almost identical argument for the application of special solicitude in United States v. Texas, the government argued that Florida is similarly not entitled to avail of the doctrine.

The Supreme Court’s decision in United States v. Texas could have interesting implications for challenges to DACA, as well, and DACA recipients as intervenors have filed additional briefing to the US District Court for the Southern District of Texas in US v. Texas, Case No. 1:18-CV-68. In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. Although an injunction would prevent the implementation of the Biden administration’s enforcement guidelines, Justice Gorsuch argued that this remedy was unavailable to the states because of 8 U. S. C. § 1252(f )(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” certain immigration laws, including the provisions that the states want to see enforced. The district court attempted to avoid offending this provision by “vacating” the Biden administrations guidelines instead of issuing an injunction, but Judge Gorsuch argued in part that a vacatur order nullifying the guidelines does nothing to redress the states’ supposed injuries because the “federal officials possess the same underlying prosecutorial discretion”, even in the absence of the guidelines. DACA recipients argued that this program also represents an exercise of inherent prosecutorial discretion, and states’ challenge of the program therefore suffers from the same redressability problem identified by Judge Gorsuch. Similarly, the states challenging the DACA program have alleged indistinct injuries similar to those articulated by Texas in United States v. Texas. Because the Supreme Court found that Texas lacked standing to challenge the Biden administration’s guidelines, DACA recipients have argued that states do not have stating to challenge the DACA program based on similar theories.

DOJ attorneys and intervenor defendants filed a joint motion on July 7, 2023, asking Judge Tipton of the United States District Court for the Southern District of Texas to delay a bench trial in the earlier lawsuit filed by Texas to challenge the Biden administration’s parole program for Cubans, Haitians, Nicaraguans, and Venezuelans. Although the motion argued that the outcome of United States v.  Texas would determine whether Texas had standing in the federal suit, Judge Tipton predictably declined to push back the trial date. Texas had previously argued that the parole program is distinguishable from the Biden administration’s enforcement guidelines because “[w]hatever discretion [the administration] might have in choosing which aliens to arrest or otherwise take into custody, [it has] no discretion to parole into the country aliens who do not meet the statutory criteria for parole.” At this point, states like Texas are arguing that their legal challenges to Biden’s earlier humanitarian parole or DACA program can be distinguished from United States v. Texas, which involved enforcement priorities, while the Biden administration and intervenors such as DACA recipients are arguing that Texas should not have standing to challenge even other immigration programs.

Returning to the idea of how this initiative can be broadened, parole can potentially be expanded to all beneficiaries of approved I-130, I-140, and I-526 petitions who are waiting overseas in the green card backlogs. Even if parole is expanded, the administration can still remain faithful to INA § 212(d)(5) by approving parole on a discretionary and case-by-case basis for urgent humanitarian reasons or a significant public benefit. For instance, it may be possible to justify the parole of certain beneficiaries of I-526 petitions who have made a minimum investment of  $500,000 in a US business prior to May 15, 2022 or $800,000 after this date,  and created 10 jobs as that could be considered a significant public benefit. The same justification can be made for certain beneficiaries of approved I-140 petitions in the EB-1, EB-2, and EB-3 preference categories whose presence in the US can benefit US employers who have sponsored them through the labor certification process or who have demonstrated that they are either persons of extraordinary ability or are well situated to advance the national interest of the United States. Beneficiaries of approved I-130 petitions who are caught in backlogs can make a justification for parole for urgent humanitarian reasons to unite with family members in the US.

Out of the four proposals Cyrus Mehta made to the Biden administration in May 2021 for reforming the legal immigration system without waiting for Congress to act, we are happy to see that two have come to fruition- parole for beneficiaries of I-130 petitions and using the Dates for Filing (DFF) for protecting the age of the child under the Child Status Protection Act. Cyrus Mehta has also proposed that the administration has the authority to advance the DFF in the State Department Visa Bulletin to current to maximize the number of people who can file for adjustment of status in the US. Cyrus Mehta has also proposed that there is nothing in INA § 203(d) that requires the counting of derivatives in  the family and employment green card preferences, although since the submission of this proposal, the DC Circuit Court of Appeals in Wang v. Blinken ruled that INA § 203(d) requires the counting of derivative. Hence, any hope of administrative reform with regards to the unitary counting of family members has been shelved for the time being unless Congress is able to provide clarification on §203(d). Even if the administration issues a new interpretation to INA § 203(d) and abandons the position it took in Wang v. Blinken, the DC Circuit Court of Appeal’s interpretation will still prevail within the jurisdiction.

As Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through executive actions without fear of being sued by these states. It may be no coincidence that the latest family reunification parole initiative was unveiled within two weeks of the favorable ruling for the Biden administration in Texas v. United States!

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

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

Cyrus Mehta

Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps

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By Cyrus D. Mehta and Kaitlyn Box*

On July 9, 2021, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap. The Plaintiffs in the case are a group of EB-5 investors who would have been able to adjust status long ago if not for the lengthy backlogs in the EB-5 China, and subsequently Vietnam, categories caused by counting derivative family members against the EB-5 cap.

In a previous blog, we discussed the case at the District Court Level, where Plaintiffs’ primary argument was that nothing in the language of INA § 203(d), which states that “[v]isas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers, requires derivative family members to be counted against the cap. Instead, spouses and children, under INA 203(d) are “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Plaintiffs also argued that Congress intended to exempt derivative family members from the numerical caps when it changed the relevant regulatory language in the Immigration Act of 1990. Prior to 1990, the “same status, and the same order of consideration” language as it pertains to derivative family members appeared in a section describing which immigrants “are subject to the numerical limitations”, but in 1990 this provision was shifted to a new section entitled “Treatment of Family Members”. Plaintiffs argued that this change indicated an intent on the part of Congress to subject only EB-5 investors, and not their spouses and children, to the numerical cap.

The Court, however, disagreed with this reasoning. Judge Walker, who authored the opinion, interpreted the key phrase “same status” to mean that because an EB-5 investor’s family members get the same type of visa as the principal, they must also be counted against the cap, and reasoned that “same order of consideration provided in the respective subsection,” which refers to the worldwide cap on employment-based visas, further indicates that spouses and children of EB-5 investors are subject to the cap.

The Court’s decision in Wang v. Blinken comes as a deep disappointment to the many immigration attorneys who had hoped that the Biden administration could reinterpret INA § 203(d) to support either not count derivatives at all or counting family units as one. We have long taken the position that not counting derivatives under the preference quotas would be consistent with INA § 203(d). See, for example, our blogs on The Tyranny of Priority Dates in 2010, How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, and The Way We Count in 2013. The Biden administration solicited recommendations on how to remove barriers and obstacles to legal immigration, and unitary counting of derivatives, an idea which our firm proposed,  would have done much to serve this goal by relieving the decade-long backlogs. If the Biden administration wanted to reform the immigration system through executive actions, reinterpreting the law to not count derivatives in the green card categories would have been a good first step, along with not opposing the plaintiffs in Wang v. Blinken. Sadly, though, the administration did not choose to go in this direction, and the Court’s decision in Wang v. Blinken is likely a death knell for other, future lawsuits that would make similar arguments under other employment or family-based visa categories.

While the Court’s decision in Wang v. Blinken can still be appealed to the Supreme Court, a positive outcome is not likely given the conservative majority on the Supreme Court, which has adopted a pseudo textualist approach to interpreting immigration statutes. For instance, the Supreme Court in Sanchez v. Mayorkas also recently strictly interpreted INA § 244(f)(4) to hold that the grant of Temporary Protected Status did not constitute an admission thus allowing recipients to adjust status in the US.   Even if different plaintiffs could get a favorable decision in another circuit, the Supreme Court would likely rule on the circuit split anyway. Particularly as it has Chevron deference on its side, the government is likely to prevail in any litigation scenario. And even if the Biden administration later changes its mind and decides to adopt a nationwide policy to not count derivatives, it would be precluded from implementing this policy for people living within the jurisdiction of the D.C Circuit.  Perhaps a better way forward would be convincing Congress to explicitly state that derivative family members will not be counted against the cap under INA § 203(d). Passing such an amendment would be extremely difficult in a divided Senate, but one idea is to pass a measure through the reconciliation procedure that requires only a simple majority, rather than a filibuster-proof majority in the Senate.

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

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

 

 

 

Cyrus Mehta

President Biden Ushers in New Hope on Immigration after Trump’s Destructive and Xenophobic Four Years

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By Cyrus D. Mehta & Kaitlyn Box*

There is much for all of us to be excited about after President Biden’s inauguration on January 20, 2021 when he aggressively rescinded many of Trump’s most damaging immigration actions. We were also relieved to wake up on Saturday morning to find that there was no Friday midnight Trump regulation night aimed to hurt immigrants or put a further roadblock on legal immigration. What a nice feeling after four nightmare years.

On his first day, President Biden proposed bold new legislation and changes to our immigration system and reversed some of the most devastating policies of the last four years.  The Muslim and Africa bans were rescinded with great aplomb. We have written many blogs, here, here and here, for example,  arguing  and despairing how Trump abused his authority under INA 212(f) to ban whole countries, visa categories and millions of immigrants. While it took so much litigation challenging the Muslim ban, which the Supreme Court unfortunately upheld in Trump v. Hawaii,  it was so heartening to see President Biden rescind the ban with the stroke of a pen. The following words from the proclamation brought vindication to all our efforts to confirming how immoral the ban was:

The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.

Beyond contravening our values, these Executive Orders and Proclamations have undermined our national security.  They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over.  And they have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.

On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). Proclamation 10014, signed in April 2020, suspends certain green card applications, and restricts some nonimmigrant visa categories. Proclamation 10052 of June 22, 2020, itself an expansion of Proclamation 10014, curtailed the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the proclamation and were seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. Our previous blog discusses Proclamation 10052 in detail, and another blog discussed the fate of these bans even after the Biden administration takes over. A group of individuals who have been barred from obtaining a visa due to Proclamation 10052 have brought a lawsuit in federal court urging the Biden administration to rescind the ban and resume visa processing. It is sincerely hoped that President Biden rescinds these bans rather than waits till March 31 to allow them to lapse.

Below, is a summary of some of the salutary executive actions that have taken place thus far.

Below is a summary of the legislative proposals:

President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:

  • Provide worker protections and improvements to the employment verification process.
  • Clear employment-based visa backlogs by not counting family members, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
  • Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
  • Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
  • Reform family-based immigration.
  • Increase diversity visas from 55,000 to 80,000.
  • Promote immigrant and refugee integration and citizenship.
  • Prioritize border controls that include technology and infrastructure improvements.
  • Manage the border and provide various resources to protect border communities.
  • Crack down on criminal organizations.
  • Address underlying regional causes of migration.
  • Reform immigration courts.
  • Support asylum seekers and other vulnerable populations.
  • Change the word “alien” to “noncitizen” in U.S. immigration laws.

While it is easier for President Biden to rescind Trump’s executive actions, it will be harder to pass sweeping comprehensive immigration reform through Congress when the Senate is controlled 50-50 by Democrats and Republicans unless the filibuster is eliminated. To pass a reform bill, the administration would need to win the support of at least 10 Republican Senators, a formidable task since many Senate Republicans supported the supported Trump’s draconian immigration policies. See, e.g., Seung Min Kim, Biden to propose overhaul of immigration laws on first day in office, The Wash. Post (Jan. 18, 2021), https://www.washingtonpost.com/politics/biden-immigration-plan/2021/01/18/f0526824-59a8-11eb-a976-bad6431e03e2_story.html. However, there may be a chance for more narrow legislation to pass. Democrats have called for an agreement on the DACA program, for example, or the creation of a pathway to citizenship for essential workers. Biden must also boldly press forward with executive actions if Congress does not pass meaningful reform such as not counting family members under a reinterpretation of INA 203(d) or advancing filing dates so that many more can file adjustment of status applications.

Some of Biden’s executive actions will also be challenged in court, such as the Texas lawsuit objecting to  the 100 day pause on deportations. The suit alleged that the pause violated the president’s constitutional duty to execute the law, and agreement DHS had made to consult with the state of Texas and provide six months’ notice before softening any immigration enforcement policies. It further alleges that the state will face irreparable harm and suffer security challenges at the border because it did not receive advance notice of the pause. This challenge should fail as a prior president cannot bind a new president to an agreement with a state to notify it on any changes in its deportation policy and a state’s objections to federal immigration policy ought to also fail under the preemption doctrine.

As a result of the 60 day pause on pending regulations, the proposed Trump midnight rule that would require secondary employers to also file H-1B petitions has been tossed, which our previous blog had discussed.  The H-1B lottery rule that would select applicants based on wages will likely not take effect until March 21, 2021, which would most probably result in not taking effect this year. The DOL wage rule will still take effect on July 1, 2021 notwithstanding the 60 day pause, and we hope that there will be successful court challenges to this as well as the H-1B lottery rule  as these rules are inconsistent with the Immigration and Nationality Act. See Stuart Anderson, The Biden Administration and What Happens to Trump’s H-1B Visa Rules, https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=1932b7af726b.

All these challenges and obstacles come as no surprise and are inevitable. Still, the fact that we have a new president who has already brought about a sea change in the first few days on how the US views immigrants after Trump’s four nasty years comes as welcome relief.  We look forward to changes that not just reverse Trump’s destructive and xenophobic policies but also usher in transformative changes, both legislative and executive, that can help millions of immigrants and also benefit America.

 

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